The Exploding Pinto: A Reprise


(1) Suppose that in Problem III-2, above, P offered evidence that Ford knew of accidents in which the fuel tank had exploded under minimum impact but had not changed the design to protect against this. Admissible to prove negligence? Gross negligence?

(2) Suppose, instead, that Ford offers evidence in its defense that it had carefully studied accidents in which the fuel tank had ruptured and had purposefully not changed the design of its cars. Further, Ford offers evidence that Chrysler had placed the fuel tank in a similar position in its cars of the same model years as the Pintos that had exploded and that Chrysler had not changed its design either. Admissible?

Is the threat of exposure to future lawsuits for negligence and gross negligence enough to cause most defendants, especially large manufacturing companies, to take precautionary measures and make repairs after accidents without regard to the evidentiary effect of those repairs?

Ford's failure to change the design of the fuel tank to protect against rupture, after it had notice of a possible defect in the design, could be admissible against it to show gross negligence and establish a claim for punitive damages. Arguably, this threat should be sufficient to cause Ford to take corrective action, if indeed corrective action should be taken. Thus, in many situations the public policy reason behind Rule 407 may be invalid.

But what about the individual defendant? In the classic case in which a chunk of ice falls off a homeowner's roof striking a pedestrian below, will the future admissibility of evidence that the homeowner placed a barrier on his roof cause the homeowner not to erect the barrier? Answers to this question are speculative and subjective. There are no data that test the crucial assumption on which the rule is based--that the future admissibility of such evidence will deter individuals from taking corrective action. It seems equally plausible that most individuals are not even aware of the rule excluding evidence of subsequent remedial measures and that individual behavior is unlikely to be affected by this rule. But critics have no more data to back up this belief than do the supporters of the current rule (mostly insurance companies and large manufacturers). For a skeptical comment on the effect of such rules on behavior, see Epstein, The Social Consequences of Common Law Rules, 95 Harv. L. Rev. 1717 (1982).

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