Rule 407 Subsequent Remedial Measures

This rule is modeled on Federal Rule 407, which incorporates conventional doctrine excluding evidence of subsequent remedial measures as proof of an admission of fault. The rule rests on three grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence. Or, as Baron Bramwell put it, the rule rejects the notion that “because the world gets wiser as it gets older, therefore it was foolish before.” Hart v. Lancashire & Yorkshire Ry. Co., 21 L.T.R. N.S. 261, 263 (1869). Under a liberal theory of relevancy this ground alone would not support exclusion as the inference is still a possible one. (2) The second ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety. This assumes, however, that many repairs would not be made but for the exclusionary rule, a proposition subject to serious empirical challenge. (3) The third and perhaps most important reason for the Rule is that people who err on the side of caution and take measures to protect fellow citizens from even the possibility of injury should not bear the risk that the jury, unlike Baron Bramwell, will read more into a repair than is warranted. The courts have applied this principle to exclude evidence of subsequent repairs, installation of safety devices, changes in company rules, and discharge of employees, and the language of the present rule is broad enough to encompass all of them. See Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L. Rev. 574, 590 (1956). The second sentence of the rule directs attention to the limitations of the rule. Rule 407 explicitly bars the use of subsequent remedial measures to prove negligence. It also inhibits the use of the evidence to prove “culpable conduct,” which may include fault other than negligence, e.g., recklessness (wantonness, willfulness). There is often no clear distinction between recklessness and gross negligence (see Prosser, Torts § 34 (4th ed. 1971)); consequently the policy arguments mentioned above apply equally to both. In effect Rule 407 rejects the suggested inference that fault is admitted. Other inferences are, however, allowable, including defective condition in a products liability action, ownership or control, existence of duty, and feasibility of precautionary measures, if controverted, and impeachment. 2 Wigmore § 283; Annot., 64 A.L.R.2d 1296. A recent Alaska case is illustrative. In Kaatz v. State, 540 P.2d 1037 (Alaska 1975), actions were brought against the State to recover for deaths of the driver of and passenger in a front-end loader which slipped off an icy highway and overturned. In reviewing the finding of negligence on the part of the State, the Supreme Court of Alaska noted that shortly after the accident, the road in question was sanded. Citing Federal Rule 407, the Court emphasized that the evidence was not used to show negligence directly, but to show feasibility of repair. Admission for this purpose was deemed proper. There are few cases and few scholarly discussions of the applicability of this exclusionary principle in products liability cases. Unlike most rules that have been promulgated, this Rule explicitly excepts from the reach of the exclusionary rule the use of subsequent remedial measures to show a defect in a product. The reasons mentioned above for the general rule do not apply in a products liability case because, [T]he focus of attention in strict liability cases is not on the conduct of the defendant, but rather on the existence of the defective product which causes injuries. Liability is attached, as a matter of policy, on the basis of the existence of a defect rather than on the basis of the defendant’s negligent conduct0.0.0.0. Bachner v. Pearson, 479 P.2d 319, 329 (Alaska 1970). Evidence of subsequent repairs or improvements may be highly probative as to the existence of a defect in a product at the time of an accident. In common law jurisdiction such evidence has been regarded as relevant to the issue of defectiveness in negligence-based cases and admissible, e.g., Steele v. Wiedemann Mach. Co., 280 F.2d 380 (3d Cir. 1960). Moreover, the rationale of not discouraging repairs or improvement does not justify excluding this evidence in the products liability case. The California Supreme Court appropriately observed in Ault v. International Harvester Co., 528 P.2d 1148, 1152 (Cal. 1975), a decision rejecting this exclusionary rule in products liability cases, that [t]he contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of units of goods; it is manifestly unrealistic to suggest that such a producer will forego making improvement in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of adoption of such im- provement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement. In the products liability area, the exclusionary rule of section 1151 [California equivalent of Rule 407] does not affect the primary conduct of this mass producer of goods, but serves merely as a shield against potential liabili- ty. Since the manufacturer of a product makes more of a business judgment than a humanitarian gesture in making repairs, the third rationale for the rule is not applicable either. Of course, when evidence is admitted for any of these “other purposes,” the court should instruct the jury to consider it only for the limited purpose for which it is offered, not on the issue of negligence or culpable conduct. It is important to note that the requirement that the other purpose be controverted calls for automatic exclusion unless a genuine issue is present and allows the opposing party to lay the groundwork for exclusion by making an admission. If, for example, control is not contro- verted, there is no reason to admit subsequent remedial measures to prove control, and there is a good reason to exclude it: evidence of subsequent remedial measures might be used by the jury as an admission of fault regardless of the limiting instruction given by the court. It is also important to keep in mind that even if the issue is a valid one, the factors of undue prejudice, confusion of issues, misleading the jury, and waste of time remain for consideration under Rule 403. For comparable rules, see Uniform Rule 51; California Evidence Code § 1151; Kansas Code of Civil Procedure § 60-451; Nebraska Rule 27-407; Nevada Rule 48.095; New Jersey Evidence Rule 51; and New Mexico Rule 20-4-407.