Public Policy Doctrines For The Exclusion of Relevant Evidence - Subsequent Remedial Measures

Subsequent Remedial Measures

A subsequent remedial measure is an improvement, repair, or safety measure made after an injury has occurred. FRE 407 prohibits the admission of evidence of subsequent remedial measures to show defendant's (1) negligence; (2) culpable conduct; (3) a defect in defendant's product; (4) defect in the design of defendant's product; or (5) the need for a warning or instruction.

Evidence of subsequent remedial measures are generally inadmissible for two reasons. First, courts do not want to discourage defendants from taking steps that further safety. Second, excluding subsequent remedial measures from evidence avoids having to give juries the difficult task of distinguishing between defendant's due care prior to plaintiff's injury, and defendant's due care subsequent to plaintiff's injury.

Subsequent remedial measures are, however, admissible into evidence for

1. witness impeachment purposes
2. proving defendant's ownership of the instrumentality that injured the plaintiff, if ownership is disputed
3. proving defendant's control of the instrumentality that injured the plaintiff, if control is disputed
4. proving the feasibility of undertaking precautionary measures, if feasibility is disputed

Example: In a slip and fall claim where plaintiff falls on the wooden steps leading into a building, defendant decides, as the ambulance is taking plaintiff to the hospital, to quickly sand down the stairs where plaintiff injured herself. FRE 407 prohibits plaintiff from introducing evidence of this subsequent remedial measure to prove that the steps were hazardous at the time of her injury.

If defendant says that he did not own the building where the plaintiff fell, and plaintiff disputes this claim, plaintiff may introduce evidence that the defendant sanded the stairs to show that defendant did, in fact, own the property on which the steps are located at the time her injury occurred.

If defendant claims that there was nothing he could have done to make the steps safer at the time of plaintiff's slip and fall, and plaintiff disputes this allegation, plaintiff may introduce evidence of the subsequent remedial measure to prove that undertaking precautionary measures was, in fact, feasible.

• Note that in California, California Evidence Code ("CEC") §1151 designates as inadmissible evidence of subsequent remedial measures only if it is being offered to prove (1) negligence or (2) culpable conduct; California state courts, therefore, have abandoned the exclusion of evidence of subsequent remedial measures when being used to prove defects in defendant's product or design of defendant's product, or to prove that there was a need for a warning or instruction.