Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

Go to: Teacher's Manual Introduction Chapter 2 Contents Next Section

A. Subsequent Remedial Measures (132)

Problem - Locking the Barn Door (132)

The point:

The rule barring evidence of subsequent remedial measures covers the posting of safety notices as well as the making of physical repairs or alterations. In both situations, however, the rule excludes highly probative evidence and is of questionable value in promoting the policy of encouraging safety precautions.

Answer and Analysis:

In this case, there is no difference in the evidence that PI and P2 offer. The only fact that distinguishes the two cases is that P2 was injured the day after the safety sign was posted and PI was injured the day fore it was posted. In both cases, the sign is highly probative of the issue of the need for a lookout to be posted to watch for pedestrians and traffic. (The sign is probative in P2's case also on the issue of D's notice of a dangerous condition. If this is an issue in the case, the probative value of the evidence is greater in P2's case than in PI's.) However, FRE 407 would exclude the evidence in Pl's case but not in P2's, unless the sign were offered in Pl's case to prove ownership, control or feasibility of precautionary measures, if controverted, or impeachment.

The Advisory Committee's Note to Rule 407 concedes that under a liberal theory of relevancy, the fact that the posting of the safety sign is equally consistent with injury by mere accident or through contributory negligence would not support exclusion, as the inference of negligence is still a possible one from the posting of the sign. Rather than relying on non relevancy as a ground of exclusion, the Advisory Committee bases Rule 407 on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety." The Note specifically includes changes in company rules and discharge of employees (Problem III-4, page 137) as within the rule. See Falknor, Extrinsic Policies Affecting,Admissibilitv. 10 RUTGERS L. REV. 574 (1956).

Further discussion:

The rule against evidence of subsequent remedial measures has come under criticism lately. Rhode Island Rule of Evidence 407, drafted by Eric Green , is directly contrary to FRE 407 (and to pre-existing Rhode Island law!). The Rhode Island rule provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is admissible.

This currently existing Rhode Island version of Rule 407 is identical to a version of Rule 407 written by Richard Field and Peter Murray and adopted in 1975 by the Maine Supreme Judicial Court as Maine Rule 407.

The Advisers' Note to Maine Rule 407 stated:

The public policy behind the rule against admissibility was that it would deter repairs. This rationale is unpersuasive today. In some instances subsequent repairs may be evidence of culpability. In other instances quite the contrary is the fact. Despite this departure from prior authority, it is still open to the trial judge under Rule 403 to exclude such evidence if he believes its probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury. A situation where the change is effectuated for reasons unrelated to the hazard would be a clear case for such exclusion.

It should be emphasized that although evidence of subsequent remedial measures is admitted, it remains for the jury to decide whether the standard of reasonable care has been satisfied. Proof that such measures were taken clearly does not compel a finding that the previous condition reflected culpable conduct.

The Commentary to Maine Rule 407 indicates that one of the reasons for admitting evidence of subsequent remedial measures is that the policy the rule barring such evidence is designed to effectuate is largely defeated by admission of the evidence for other purposes. Limiting instructions to consider the evidence only for the limited purpose of showing ownership, control, or feasibility of precautionary measures is unlikely to be effective. More fundamentally, however, the Commentary contends that:

[T]he assumption that a defendant will not take corrective action because he knows that it might be used against him is not persuasive. A defendant as knowledgeable and as cold-blooded as the exclusionary rule suggests would probably be aware of the many exceptions, which would make it risky to refrain from making needed repairs. Enlightened selfinterest would often lead defendants to make repairs despite the possibility of evidence of such action being received on the issue of fault. This would surely seem true of a structural change by a national manufacturer.

Field and Murray, Maine Evidence (1976) 79.

Maine Rule of Evidence 407 existed along with its Rhode Island counterpart as the only two versions of Rule 407 expressly to grant admissibility to relevant evidence of subsequent measures until 1995, when the Maine Supreme Judicial Court, under pressure of contrary legislation, amended Rule 407 to bring it into conformity with the Federal Rule. Since then little Rhode Island has stood alone.

The federal Rule has also been criticized on both evidentiary and substantive grounds as constituting an unwarranted federal intrusion into an area traditionally reserved to state regulation. See Schwartz, The Exclusionary Rule on Subsequent Repairs - A Rule in Need of Repair, 7 Forum 1 (1971). This point seems well taken. Applying the principle of Erie Railroad v. Tomkins in a diversity action there does not appear to be much justification for applying FRE 407 when a contrary state rule exists. See generally Wellborn, The Federal Rules of Evidence and the Application of State Law in Federal Cases. 55 TEX. L. REV. 371 (1977). But see, Rioux v. Daniel International Corporation, 582 F. Supp. 620 (D. Me. 1984) (included at p. 140).

Problem - Farmer Brown's Wagon (135)

The point:

Sometimes it is not clear whether later steps taken by a defendant concerning the design or manufacture of something which fails causing loss are "subsequent".

Answer and Analysis:

This problem concerns measures which were taken subsequent to the manufacture of the product bought by the plaintiff but before the plaintiff was injured. Under the current formulation of F. R. 407, they would not be considered "subsequent" since they were not taken after the event causing the plaintiff's injury. However the same policy which supports non-admissibility of truly subsequent measures would seem also to apply here.

Even if the measures themselves were not admissible, can the plaintiff base a cause of action based on defendant's failure to advise him of the availability of the stronger brackets? Defendant's protest that it did not develop the stronger brackets because of deficiencies in the earlier model sounds a little hollow. If it did not think that they were an improvement over the prior model, why did it go to the trouble and expense of developing them. Shouldn't the probative effect of this evidence be simply left to the jury?

Problem - The Dismissed Employee (135)

The point:

The probativeness of actions taken after an event may depend on what else one knows about the actions sought to be introduced.

Answer and Analysis:

According to the Advisory Committee's Note, discharge of employees is encompassed by FRE 407. This is logical. The same policy reasons that would support application of the rule to subsequent remedial measures would apply to discharge of employees. The same criticisms of the policies advanced in support of the rule would also apply. The exclusion of such evidence may also rest on relevancy grounds, however, depending on what else we know about the discharge of the employee. Without knowing more about why the employee was fired, the evidence is not very probative. But if E were a model employee whose discharge could not be explained on any basis other than his participation in the accident, the discharge would be more probative.

Problem- The D-Craft 184 Crash (136)

The point:

Evidence otherwise excludable under the general provisions of Rule 407 is hard to keep out under the exceptions to the Rule.

Answer and Analysis:

Defendant is going to have a hard time keeping the door closed to evidence of the change in fuel systems. If the D Company's expert is asked on cross-examination whether the gravitational flow fuel system was the safest fuel system that could have been used for twin-engine planes of the 184 series, he will be in a bind. He will either have to admit that it was not, or state that it was, probably opening the door to introduction of evidence of the subsequent change shortly after the accident to the electronic pump system under the theory that it impeaches his testimony and/or goes to the feasibility of precautionary measures.

Problem - Third-Party Repairs (136)

The point:

The relevancy objection to evidence of subsequent repairs is usually phony.

Answer and Analysis:

The repair in this case was not made by the defendant, but by a thirdparty. Yet evidence of the repair is relevant to the dangerous nature of the crossing, which the railroad could have done something about. Once one sees how relevant evidence of subsequent remedial measures can be, the only justification for the rule is the policy one of encouraging potential defendants to make repairs. In the situation where the repairs are made by someone other than the defendant, the policy reason disappears.

Further discussion:

In the case on which this problem is based, Louisville and N. R.R. v. Williams, 370 F.2d 839 (5th Cir. 1966), the issues in the case were whether the crossing was such an unusually dangerous one that reasonable prudence would require the railroad to provide special warnings over and above the simple crossbuck sign that state law required and whether the absence of these special warnings excused plaintiffs contributory negligence in failing to stop, look and listen before crossing the intersection.

The court held that it was not error to admit evidence that the state highway department had caused an embankment on the northwest corner of the intersection to be shaved back and cleared, approach warnings to be painted on the highway, and automatic signal crossing lights to be installed. The court's reason for admitting the evidence of subsequent changes by the highway department was not to show any admission against interest on the part of the railroad, but to show that the crossing was dangerous enough to require special warnings. The court charged the jury that the reduction of the embankment and the special warning signs and lights did not establish that the crossing was unusually dangerous or hazardous, but were a circumstance for the jury to take into consideration in determining whether or not it was a dangerous, hazardous crossing. This, the court explained, was relevant to the issue of whether the signals at the intersection at the time of the accident were adequate to advise a reasonably prudent person that the railroad crossed there.

Relying on Steele v. Wiedemann Machine Co., 280 F.2d 380 (3d Cir. 1960), the Williams court held that evidence of third-party repairs does not prejudice the defendant nor prove him negligent because the defendant is not the one who makes the repairs. This obviates the policy purpose (encouraging potential defendants to make repairs) behind the rule. In reaching this conclusion, the court had trouble avoiding the second reason usually advanced in support of the rule of exclusion -- that the evidence is not relevant to negligence. The court must concede in this case that the evidence is relevant (as repair evidence generally is). Thus, the third-party repair situation highlights the infirmity of the relevance objection to subsequent remedial measures.

Repairs made by a party after an accident at the insistence of a third party raise similar considerations. Consider, for instance, a variant of the foregoing problem under which the post accident repairs to the crossing are made by the D. railroad pursuant to a remedial order issued by the State Department of Public Utilities. The railroad argues the relevance of the evidence - the subsequent compelled repairs are not evidence its consciousness of the defective condition of the crossing. The plaintiff argues that the policy behind Rule 407 does not apply to repairs undertaken as a result of a DPU order.

Rule 407 does not address the question of repairs of third parties. In common law, evidence of third-party repairs was admissible. An interesting question for students to consider is whether the common law rule should be read into FRE 407.

Problem- The Exploding Pinto (137)

The point:

The threat of exposure to future lawsuits for negligence and gross negligence probably will 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.

Answer and Analysis:

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. 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 of 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 is no data of which we are aware that tests 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 to us 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 we admit that we have no more data to back up our 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).

Evidence that Ford had carefully studied accidents in which the fuel tanks had ruptured and purposefully not changed the design of its cars is relevant to Ford's defense that the design was not dangerous and that it was not negligent or in breach of its warranty. No exclusionary rule would prevent Ford from offering this evidence. Evidence that Chrysler had placed the fuel tank in a similar position in its cars and that Chrysler had not changed its design might be admissible to prove the standards and practices of the industry. Under the applicable substantive law, however, this might not be conclusive on the issue of negligent design. This evidence might come in through an expert on auto safety design if the expert were qualified, the subject were deemed one on which expert opinion would be helpful to the jury, and the court were satisfied that there was sufficient similarity between Chryslers and Fords to make the evidence helpful to the jury. See FRE 702.

Problem - The Aluminum Gear Box (138)

The point:

Whether FRE 407 excludes evidence of subsequent remedial repairs in strict product liability cases is not clearly answered by the language of the rule as originally formulated. In 1997 Congress amended Rule 407 in an effort to make it clear that the exclusionary effect of the Rule would apply to cases of strict liability as well as cases framed in negligence.

Answer and Analysis:

The claim in this case is based on a theory of strict liability and breach of warranty. FRE 407 excludes evidence of subsequent measures "to prove negligence or culpable conduct in connection with the event." Courts struggled with the issue of whether the rule applies to strict liability cases until the rule was amended.

The problem can be used also to discuss the scope of the feasibility exception. Even if the new formulation of Rule 407 would make this evidence inadmissible on the issue of "defect", it would be evidence of feasibility of making the gearbox in a more durable material. In a case such as this, where the post accident change is one which intuitively would be an improvement over the design which failed, it can be relatively easy to create enough of an issue of feasibility to make the evidence admissible for the limited purpose of showing feasibility.

An interesting case raising the issue of feasibility of precautionary measures is Anderson v. Malloy, No. 81-1923, (8th Cir. January 18, 1983). Plaintiff was raped in her hotel room. She sued defendant motel owners for negligently failing to prove safe lodging. Plaintiff claimed on appeal-that the trial court erroneously excluded evidence that, after the rape, defendants installed safety chains and peepholes in the doors of the rooms.

The Eighth Circuit found that defendants had affirmatively controverted feasibility of the safety devices by testifying that such devices only provided a false sense of security. The court noted, "[w]hether something is feasible relates not only to actual possibility of operation and to its cost and convenience, but also to its ultimate utility and success." The court held that defendant's testimony that the safety chains and peepholes provided a false sense of security implied that not only would the devices fail to provide security, but also that they would create a lesser level of security if installed. Plaintiffs were entitled to rebut these inferences by showing that the devices were feasible. Further, plaintiffs could impeach defendants' credibility by introducing evidence that the safety measures taken after the rape were those that defendants testified could not be used successfully.

The issue of whether and when evidence of subsequent remedial measures will deter people from taking safety measures usually produces much heat and little light. Neither side in this debate can offer data on whether the exclusionary rule affects the primary conduct of the mass producer of goods or only serves as shield against potential liability. See the quote from Justice Mosk's opinion in the Ault case. Our feeling is that with the evidence supporting the policy in such weak state, general principles of relevancy should be applied. in most cases, this will result in admission of evidence of subsequent remedial measures.

Problem - Recall Letters (139)

The point:

Evidence of remedial measures may go to many inferences relevant to the decision of the case.

Answer and Analysis:

Is a recall letter a "subsequent remedial measure" of the kind referred to in Rule 407? Literally, the letter is a communication about such a measure. Or, it can be considered as the first part of the remedial measure. Where to the policies supporting Rule 407 point in this instance? If one treats the letter as a remedial measure, then is it barred? Is it "after an event". Which event? Any event causing injury? An event causing injury of the kind complained of by the plaintiff? The plaintiff's injury.

Although the rule language is ambiguous on this point, the legislative history seems to say that the drafters had the particular event causing the plaintiff's injury in mind when they referred to "an event" in the new Rule 407. But is this reading the best one from the standpoint of the policy implemented by this rule?

Even if the recall letter were barred by Rule 407 as evidence of the defect in the snow machine, it might be admissible to show the condition of defendant's state of mind before the accident, to show that the defendant was on notice of the dangerousness of the condition.

Finally, it is possible that the defendant could offer the recall letter as notice to the plaintiff on the latter's contributory negligence (in failing to have the machine fixed) or as proof of its own exercise of due care.

Rioux v. Daniel International Corp., 582 F. Supp. 620 (D. Me. 1984)(140)

This case answers a question posed at the beginning of this section. Must the federal court sitting in diversity apply the Rule 407 of the state whose substantive law governs the dispute? This U.S. District Court decision comes to the conclusion that Rule 407 is a rule of procedure and governs to require exclusion of the evidence of subsequent measures in a diversity case from Maine, which at the time had a state version of Rule 407 which would have admitted the evidence. Is the court's reasoning on this issue persuasive? It might be kept in mind that the effect of the Federal Rules on state-created substantive rights in diversity cases was one of the hot issues which led Congress to take the original Federal Rules of Evidence from the United States Supreme Court.


Go to: Teacher's Manual Introduction Chapter 2 Contents Next Section