by Wilton H. Strickland

For today’s installment of Adventures In Evidence, I want to discuss a rule that is often overlooked and that strikes many people as unfair, namely the rule prohibiting evidence of “subsequent remedial measures.” This is one of the rules that helps demonstrate why it is difficult to be a trial lawyer, since a trial lawyer must know these sorts of rules well enough to make a rapid objection and thereby avoid waiving it. It is easy enough to object to irrelevant evidence. The real challenge is recognizing when to object to evidence that, though relevant, remains inadmissible for other reasons.

For purposes of today’s lesson, let us imagine that I own a restaurant with a number of concrete stairsteps outside the front door. Let us further imagine that one of my patrons slips and falls on the steps while exiting the restaurant and sues me for damages. During the trial, the patron’s attorney argues that I negligently failed to maintain the steps in a reasonably safe condition, and to prove this theory he offers evidence of how I installed guardrails and traction strips on the day after the incident. Representing myself, I leap to my feet and object that the evidence is inadmissible. Should the judge sustain my objection?

The answer is “yes,” according to a longstanding rule that appears in Rule 407 of the Federal Rules of Evidence, as follows:

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.

My objection was valid because the plaintiff’s attorney sought to prove my negligence by showing that I took corrective (remedial) measures after the incident. This might sound crazy to an ordinary person whose brain hasn’t been pickled by years of law school and litigation. However, there is a sound basis in public policy for excluding this sort of evidence even though it is relevant, namely that the law should not discourage people from doing the right thing and making the world a safer place.

Note that Rule 407 is fairly broad and covers not only ordinary negligence, but any sort of “culpable conduct” (which can include criminal conduct) as well as product liability (which often is “strict” and does not even require proof of negligence). So, for example, a man who is injured when attempting to iron his shirt while still wearing it cannot offer evidence at trial that the manufacturer added a corresponding warning label to the iron after the fact.

Also note, however, that Rule 407 makes an exception where the evidence is offered for a purpose other than proving fault. Going back to my restaurant example, if I testified at trial that the stairs were perfectly safe before the incident, my later act of making them safer could be used to contradict me. If I testified that I had no ownership or other interest in the restaurant, once again my later act could be used to contradict me.

Another valuable lesson to be drawn here is the importance of filing a pretrial motion in limine to exclude this sort of evidence beforehand, rather than merely trust your instincts to assert a timely objection on a moment’s notice at trial.