13 - Subsequent Remedial Measures 407 Flashcards
Intro “Repair Rule” 407
Ex. Suppose a sink hole develops overnight in front of a store, and the plaintiff falls into the hole and is injured. The store owners then fill in the hole. Plaintiff sues and wants to introduce evidence about the repair, arguing that it tends to show an implied admission of negligence on the part of the owners. Should the evidence be admissible?
407 governs the admissibility of evidence regarding subsequent remedial measures. As discussed below, the phrase “subsequent remedial measure” is broader than the word “repair.” Rule 407 applies only when evidence of subsequent remedial measures is offered to prove (1) negligence, (2) culpable conduct, (3) a defect in a product or its design, or (4) a need for a warning or instruction.
- `This includes strict liability cases. If the evidence is offered for some other purpose, such as proof of ownership, control, feasibility of precautionary measures, or impeachment, the rule does not apply.
Rationale
Rests on 2 grounds -
- Most important - “a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.”
- Relevance. Is the repair probative of negligence, or are there other motivations at work? In the above hypothetical, maybe the owners are humane do-gooders who do not want other people hurt. Or, perhaps they are greedy entrepreneurs who realize it is difficult to sell goods to injured patrons. Here, the federal drafters quote Baron Bramwell: The rule rejects the notion that “because the world gets wiser as it gets older, therefore it was foolish before.” However, given the lax definition of relevance in Rule 401, relevancy concerns alone would not typically result in the exclusion of this type of evidence.
- Criticism - Although the policy of encouraging remedial measures is salutary, one has to question whether an evidentiary rule effectuates that policy.
- it seems unlikely that most real people (i.e., non-lawyers) are even aware of the evidentiary rule. The rules of evidence are the stock and trade of lawyers, not lay persons. A person who is ignorant of the rule will not be influenced by it.
- even without an exclusionary rule, it is arguable that most people would repair a known defect, if for no other reason than, in the event of a second accident, evidence of the prior accident would be admissible to prove notice of the defect. If the owners consult an attorney, wouldn’t the attorney say: “Make the repair because you are now on notice of a dangerous condition.”
“Remedial Measures” Defined
Although known as the “repair rule” at common law, Rule 407 encompasses far more than subsequent repairs.3 It covers the installation of safety devices,4 changes in company rules,5 discharge of employees,6 as well as disciplinary action against the employee who caused the injury. Rule 407 also applies to subsequent changes in warnings7 and modifications in product design.8 In contrast, post-accident reviews or studies are generally not considered subsequent remedial measures.9
Timing of Remedial Measures
The remedial measure must be made after the injurious accident or incident that is the subject of the litigation.10 In 1997, Rule 407 was amended to clarify that it applies only to post-event changes, not post-sale, pre-event remedial measures. Although not excluded by Rule 407, the evidence of pre-event measures must still be relevant and is subject to exclusion under Rule 403.11
Third-Party Remedial Measures
Rule 407 does not apply when a non-party undertakes the subsequent remedial measure. “The admission of remedial measures by a non-party necessarily will not expose that non-party to liability, and therefore will not discourage the non-party from taking the remedial measures in the first place.”12 In these cases, however, the relevance of the subsequent measure as an “admission by conduct” becomes doubtful and may be excluded under Rule 403.13 How is the repair an implied admission if the defendant did not make it?14 “[I]t hardly makes sense to speak of a party’s fault being ‘admitted’ by someone other than the party.”15
Required Remedial Measures
Some courts have held that Rule 407 does not apply when a subsequent remedial measure is required by a governmental authority. Because the party’s conduct is mandatory, the policy of encouraging voluntary remedial action is not implicated.16 This does not mean, however, that admissibility is automatically permissible; remedial measures required by the government are of doubtful relevance as an implied admission and the evidence may be excluded under Rule 403.
Strict Liability Cases
- Applicability of the repair rule to strict liability cases is controversial. A 1997 amendment to Rule 407 makes the rule applicable in federal cases, as discussed below.
In the leading case, Ault v. Intn’l Harvester Co.,17 the California Supreme Court, interpreting section 1151 of the California Evidence Code, held that the exclusion of subsequent remedial measures did not extend to cases of strict liability and that, consequently, evidence of such measures was ADMISSIBLE. The Court based its decision on the differences between strict liability and negligence cases, believing that a large corporation, concerned about its public image and the possibility of future lawsuits, would make the repair in any event.18 Thus, a rule encouraging remediation is not needed. Many states accept the Ault reasoning, holding their version of Rule 407 inapplicable in strict liability cases.19 In some jurisdictions, this issue is explicitly addressed in the rule.20
Criticisms of Ault are varied -
- problem of relevance. Manufacturers modify product design for reasons other than to fix a defect. Thus, the evidence may cause the jurors to unfairly equate a subsequent design modification with an admission of a prior defective design.21 Moreover, marginally relevant evidence may confuse the jurors by diverting their attention away from the relevant time frame (i.e., time of the injurious incident to the time of the repair).
- underlying premises of Ault have been attacked. For instance, Ault’s focus on large producers ignores the many small manufacturers whose “long-term prospects become highly suspect when faced with the losses of a single short-term products liability suit.”22
- differences between negligence and strict liability in this context may not be significant. If a manufacturer has to pay damages under either theory, the deterrent effect to taking remedial action is the same, i.e., concern that the evidence may be used against the company.23
Federal rule. Prior to 1997, a majority of the federal courts had rejected Ault, holding that Rule 407 applied in strict liability cases,24 and, in 1997, the rule was amended to codify this position. The phrases “a defect in a product or its design” and “a need for a warning or instruction” cover strict liability cases.
Admissibility for Other Purposes
- 407 excludes evidence of subsequent remedial measures only if offered for specified purposes — i.e., to prove negligence, culpable conduct, etc. The rule explicitly recognizes that this evidence may be admissible if offered for some other purpose, such as proof of ownership, control, feasibility of precautionary measures, or impeachment. The “other purposes” listed in Rule 407 are not exclusive. So long as evidence of remedial measures is not offered for the prohibited purposes, exclusion is not required.
- However, evidence offered for some “other purpose” is NOT automatically admissible. Rule 403 must be satisfied. As an added safeguard, Rule 407 requires that if the evidence is offered for another purpose (except impeachment), that other purpose must involve a disputed issue. An offer to stipulate will often remove the issue from controversy.25 If the evidence is admitted for another purpose, the trial judge must give an instruction limiting the use of the evidence to its proper purpose if a party so requests.26
Admissibility for Other Purposes - Ownership and Control
Rule 407 does not apply when evidence of subsequent remedial measures is offered to prove ownership or control. A party’s liability often depends on its control over the premises where an accident occurred or the instrumentality (e.g., backhoe) that caused an injury. If control is disputed, that party’s subsequent corrective action tends to undercut the claim of non-responsibility. For example, in Powers v. J. B. Michael & Co.,27 a highway contractor was sued for negligently failing to erect warning signs at a construction site over which the contractor and a state highway department had joint control. Evidence of the contractor’s subsequent erection of warning signs was admitted to show control over the site by the contractor (but not for the purpose of showing negligence). Note that admissibility is not automatic; control must be a disputed issue,28 and Rule 403 applies.
Admissibility for Other Purposes - Feasibility of Precautionary Measures
Rule 407 is also inapplicable where evidence of subsequent remedial measures is offered to prove the feasibility of precautionary measures.29 The federal drafters cited Boeing Airplane Co. v. Brown30 as an example. In Boeing, the crash of a B-52 bomber lead to a wrongful death action. The plaintiff was permitted to introduce evidence of a subsequent design modification in the alternator drive to show that the formerly used part was defectively designed. Admissibility was upheld on the theory of the feasibility of alternative designs.
In many cases, however, the distinction between negligence and the feasibility of precautionary measures is almost nonexistent. Thus, care must be exercised to ensure that this “exception” does not swallow the rule. Also, recall that admissibility is not automatic; the issue must be disputed,31 and Rule 403 applies.
Admissibility for Other Purposes - Impeachment
- 407 is inapplicable where evidence of subsequent remedial measures is offered for impeachment.
Ex. in Dollar v. Long Mfg.,32 a defense witness testified that a backhoe was safe to operate while affixed to a rollbar-equipped tractor. He was impeached with a warning letter he had sent describing the “death dealing propensities” of the backhoe.
Some courts worry that an expansive impeachment exception may eviscerate the rule.33 Indeed, one court wrote that the “prevailing, and pragmatically necessary, view is that the impeachment exception cannot be read in so expansive a manner.”34 Another court observed that “[t]he mere fact that a defendant denies fault and alleges comparative negligence does not, alone, justify the admission of subsequent measure evidence for impeachment purposes.”35 Yet, other courts have permitted evidence of remedial measures to rebut a defendant’s denial of fault or allegations of a plaintiff’s contributory negligence.36
Here, again, evidence offered for some “other purpose” is not automatically admissible; Rule 403 applies.37 If the evidence is admitted, a limiting instruction must be given upon the request of a party.38 Note that there is no dispute requirement for impeachment.
Choice of Law
Because the rationale underpinning Rule 407 — encouraging voluntary remedial measures — may be considered a substantive policy, a potential Erie issue arises.39 However, many federal courts have ruled that Rule 407 applies in diversity cases.40
