Rule 409.1 Expressions of Sympathy or Benevolence

Advisory Commission Comment [2003].

Rule 409.1 renders inadmissible certain statements and actions reflecting sympathy for persons injured in accidents. This Rule, like Evidence Rules 408, 409, and 410, is designed to encourage the settlement of lawsuits. It complements Evidence Rule 409, which makes inadmissible payment of medical and related expenses on the issue of liability. The underlying theory of Rule 409.1 is that a settlement of a lawsuit is more likely if the defendant is free to express sympathy for the plaintiff’s injuries without making a statement that would be admissible as an admission of a party opponent. Without this rule, a defendant’s statement such is “I am sorry that you have suffered so much from the accident” might well be admissible as an admission of a party opponent. Accordingly, defense counsel may advise against making such statements in order to avoid the creation of harmful evidence. Yet a simple apology may go a long way toward making an injured party feel more comfortable with a nonjudicial settlement of the matter. This process is consistent with the modern focus on mediation and other methods of dispute resolution that seek to avoid a trial by facilitating a resolution acceptable to all parties.

The rule is similar to that enacted in Massachusetts (Mass Ann. Laws ch. 233, § 23D) and California (West’s Ann. Cal. Evid.Code § 1160). A Texas provision is also consistent with Rule 409.1. See Vernon’s Tex. Stat. & Code Ann., Civ. Prac. & Remedies Code §18.061.

Rule 409.1 embraces only civil cases involving an “accident.” It is inapplicable in criminal cases. It also extends only to “benevolent gestures”; it does not exclude statements of fault.