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Editor: Colin Miller

The Forgotten “Existence of Duty” Exception to the Subsequent Remedial Measure Rule

By Colin Miller

Federal Rule of Evidence 407 provides that

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.

This rule can be explained pretty quickly with a series of hypotheticals:

1. Paul slips as he’s walking up the steps to Dan’s Diner and breaks his arm. The next day, Dan adds a handrail to the steps. Paul sues Dan for negligence. Dan’s subsequent remedial measure of adding the handrail is inadmissible to prove his negligence;

2. Victoria is injured when Dana of Dana’s Daycare takes her rock climbing. The next day, Dana creates a policy that she won’t take any of the kids at the daycare rock climbing. Victoria’s parents sue Dana for reckless endangerment. Dana’s subsequent remedial measure of changing the rock climbing policy is inadmissible to prove her culpable conduct;

3. Disney/Pixar creates a toy for its new movie “Boats” that will be included in Happy Meals. Victor chokes on the toy. Over the next month, Disney/Pixar “fixes” the toy so that it has fewer removable parts. Victor’s parents sue Disney/Pixar for wrongful death. Disney/Pixar’s change to the toy is inadmissible to prove that the toy was defective;

4. Dora runs a donut stand at the local farmer’s market. A patron drops a dozen jelly donuts in front of the stand. Thirty minutes later, Paula slips on the donuts and breaks her arm. Dora then puts a sign in front of her stand that says, “DANGER: SLIPPERY.” Paula sues Dora for negligence. Dora’s placement of her sign is inadmissible to prove the need for warning;

5. Vera is a bitten by a dog. She sues Denise for negligence. Denise claims the dog was the junkyard dog, but Vera has a photo of Denise putting up a chain link fence with the dog in her yard the day after the bite. The photo is admissible on the issue of whether Vera owned the dog.

6. In example #1, Larry owns the strip mall that houses Dan’s Diner. Larry helps Dan install the handrail. Paul also sues Larry for negligence. Larry claims he’s an out of possession landlord with no control over Dan’s Diner. Evidence that Larry helped Dan install the handrail is admissible on the issue of whether Larry had some degree of control over the diner.

7. Pete is injured when he hits a bump in the road while using Acme’s new automated rollerblades. Pete sues Acme, and its President testifies that the ground absorption technology in place at the time of Pete’s accident was the best technology possible at the time. It turns out, however, that there was a new ground absorption technology that had been approved at the time of Pete’s accident and that was added to the rollerblades six months after his accident. Evidence regarding the new technology is admissible to prove the feasibility of a safer technology.

8. In hypotheticals 5-7, evidence of the subsequent remedial measure would also be admissible to impeach the witness who disputed ownership, control, or feasibility.

The Advisory Committee’s Note to Rule 407 indicates that

The rule rests on two grounds. (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence….(2) The other, and more impressive, ground for exclusion rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety.

In other words, we generally deem evidence of subsequent remedial measures inadmissible because we don’t want to deter defendants from making instrumentalities and policies safer/better after accidents. That said, when a defendants has disputed something that a subsequent remedial measure can prove, evidence of that new measure might be admissible.

Before today, however, I hadn’t noticed the following sentence in the Advisory Committee’s Note: “Other purposes are, however, allowable, including ownership or control, existence of duty, and feasibility of precautionary measures, if controverted, and impeachment.” (emphasis added). Somehow, then, while the Advisory Committee’s Note mentions five possible permissible purposes for which evidence of subsequent remedial measures might be offered, the rule only states four. Now, it should be noted that the purposes listed by Rule 407 are not exhaustive, which is made clear by the use of the phrase “such as.”

I have to wonder, though, whether the lack of language in Rule 407 about “existence of duty” has limited the use of subsequent remedial measure evidence to prove that purpose. There are numerous cases where courts have found subsequent remedial measure evidence admissible on the issues of ownership, control, feasibility, and impeachment. Conversely, after a (limited) Westlaw search, I only found one case where subsequent remedial measure evidence was admitted to prove the “existence of duty.”

In Wereb v. Maui County, 727 F.Supp.2d 898 (D. Hawai’i 2010), Elmer Stephen Wereb and Betty Wereb filed a civil rights action pursuant to 42 U.S.C. § 1983 following the in-custody death of their son, Dennis Wereb. Part of the action claimed misconduct by Maui Police Department Public Safety Aids (“PSAs”), who were disciplined in connection with Wereb’s death.

Defendants contend that the disciplinary actions against Hankins, Burgess, and Lee are inadmissible subsequent remedial measures under Federal Rule of Evidence 407…Although Rule 407 itself is silent on the admission of subsequent remedial measures to show existence of a duty, the Advisory Committee Note to Rule 407 lists “existence of a duty” as one of the allowable purposes for which evidence of a subsequent remedial measure may be admitted….Before admitting evidence of a subsequent remedial measure in order to show the existence of a duty, “the trial judge should be satisfied that the need for such evidence is substantial, that the issue is actually in dispute, and that the plaintiff’s need outweighs the danger of its misuse by the jury.”…

Here, Plaintiffs submit evidence that Hankins, Burgess, and Lee were disciplined to show that the sergeants had a duty to train the PSAs. Plaintiffs’ need for such evidence is substantial because Plaintiffs must show that Hankins, Burgess, and Lee were responsible for training the PSAs in order to show that these officers’ inaction was culpable. Further, the issue of the sergeants’ duty to train is actually in dispute because Hankins, Burgess, and Lee contest Plaintiffs’ assertion that they had a duty to train. Finally, there is little danger of misuse of the evidence here where (1) the issue is not yet before the jury and (2) liability will not automatically follow if the court concludes Hankins, Burgess, and Lee did, in fact, have a duty to train the PSAs. Accordingly, the court DENIES without prejudice Defendants’ evidentiary objection regarding the disciplinary records and, for the purposes of these motions, considers the disciplinary actions to the extent they show that Hankins, Burgess, and Lee had a duty to train the PSAs.

But, as far as I can tell, that’s it. I’ve found a few other cases where parties tried to use subsequent remedial measure evidence admissible to prove “existence of duty,” but the parties in those cases were unsuccessful. See, e.g., Andres v. Roswell-Windsor Village Apartments, 777 F.2d 670, 674 (11th Cir.1985); In re Kemper Ins. CompaniesEyeglasses, 2003 WL 25672797 (N.D.Ga 2003). Meanwhile, in Wilson v. Morris, 563 A.2d 392 (Md.1989), the Court of Appeals of Maryland found that subsequent remedial measure evidence was admissible to prove the scope of a duty, but Maryland later reversed that decision with the Rules Commission noting the following

The Committee views the Wilson decision, with its suggestion that Rule 407 evidence is admissible to define the scope of a duty (‘standard of care’), as creating an ambiguity. The Committee believes that Rule 407 does not permit the admission of such evidence for that purpose, and that a ‘standard of care’ exception would swallow the Rule.

-CM