§ 13.02 Rationale

• Jurisdiction: North Carolina

§ 13.02 Rationale

Rule 407 rests on two grounds. The most important is "a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety."¹

The second ground is relevance: Is the repair probative of negligence, or are there other motivations at work? In the above hypothetical, maybe the owners are humane do-gooders who do not want other people hurt. Or, perhaps they are greedy entrepreneurs who realize it is difficult to sell goods to injured patrons. Here, the federal drafters quote Baron Bramwell: The rule rejects the notion that "because the world gets wiser as it gets older, therefore it was foolish before." However, given the lax definition of relevance in Rule 401, relevancy concerns alone would not typically result in the exclusion of this type of evidence.

Criticism. Although the policy of encouraging remedial measures is salutary, one has to question whether an evidentiary rule effectuates that policy. First, it seems unlikely that most real people (i.e., non-l awyers) are even aware of the evidentiary rule. The rules of evidence are the stock and trade of lawyers, not lay persons. A person who is ignorant of the rule will not be influenced by it.

Second, even without an exclusionary rule, it is arguable that most people would repair a known defect, if for no other reason than, in the event of a second accident, evidence of the prior accident would be admissible to prove notice of the defect. If the owners consult an attorney, wouldn't the attorney say: "Make the repair because you are now on notice of a dangerous condition."²

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Notes:

^[1] Fed. R. Evid. 407 advisory committee's note. Does the party have to know about the injurious incident or harm for the rule to apply? Some courts say knowledge is not required. See Johnson v. State, Dept. of Transp., 233 P.3d 1133...