Rule 409 (Offers to Pay Medical Expenses)

Question 1

Mark slipped on an icy patch outside Jane’s candy store, breaking his arm. He is rushed to the hospital, where he undergoes a few hours of surgery. Jane visits him in the hospital later that night and tells him: “I’m sorry you slipped on the sidewalk! I should have put salt on that ice this morning but I didn’t get around to it. I put salt down right after you fell, and I told my employees to salt the ice every morning now before they open the store. Don’t worry about your medical bills—I’ll take care of them.”
Jane did pay all of Mark’s medical expenses, but Mark suffered ongoing pain in his arm. He sued Jane for negligence. At a settlement conference Jane said: “Maybe I should have put salt on the ice. I’m not sure if it’s my responsibility or the city’s. But I’ve already paid your medical expenses and I salt the sidewalk now whenever I see ice. So this will never happen again. Suppose I give you another $10,000. Isn’t that enough?”
Mark was not satisfied and brought the claim to trial.
At trial, can Mark introduce either of these pieces of evidence?
(A) Jane’s statement at the hospital.
(B) Jane’s statement at the settlement conference.

Answer 1

Answer:
Mark can introduce the first portion of (A), in which Jane said “I’m sorry you slipped on the sidewalk! I should have put salt on that ice this morning but I didn’t get around to it.” A claim hadn’t arisen at that time, so Rule 408 fails to shield Jane’s words. But Rule 407 prevents Mark from admitting the next sentence to prove liability: “I put salt down right after you fell, and I told my employees to salt the ice every morning now before they open the store.” Rule 409 protects Jane’s offer to pay medical bills—the final portion of (A)—but not any other words leading up to that promise.
Rule 408 protects all of Jane’s statements at the settlement conference; Mark cannot introduce any of those statements. However, Jane’s statement at the settlement conference hints at a possible ground for offering the subsequent remedial evidence that would otherwise be barred by Rule 407: If she maintains at trial that the city controls the sidewalk, Mark can offer evidence of Jane’s new policy of salting the ice to rebut that claim.