§ 13.07 Strict Liability Cases

• Jurisdiction: United States

§ 13.07 Strict Liability Cases

The applicability of the repair rule to strict liability cases is controversial. A 1997 amendment to Rule 407 makes the rule applicable in federal cases, as discussed below.

In the leading case, Ault v. Intn'l Harvester Co.,¹⁷ the California Supreme Court, interpreting section 1151 of the California Evidence Code, held that the exclusion of subsequent remedial measures did not extend to cases of strict liability and that, consequently, evidence of such measures was admissible. The Court based its decision on the differences between strict liability and negligence cases, believing that a large corporation, concerned about its public image and the possibility of future lawsuits, would make the repair in any event.¹⁸ Thus, a rule encouraging remediation is not needed. Many states accept the Ault reasoning, holding their version of Rule 407 inapplicable in strict liability cases.¹⁹ In some jurisdictions, this issue is explicitly addressed in the rule.²⁰

Criticisms of Ault are varied. First, there is a problem of relevance. Manufacturers modify product design for reasons other than to fix a defect. Thus, the evidence may cause the jurors to unfairly equate a subsequent design modification with an admission of a prior defective design.²¹ Moreover, marginally relevant evidence may confuse the jurors by diverting their attention away from the relevant time frame (i.e., time of the injurious incident to the time of the repair).

Second, the underlying premises of Ault have been attacked. For instance, Ault's focus on large producers ignores the many small manufacturers whose "long-term prospects become highly suspect when faced with the losses of a single short-term products liability suit."²²

Third, the differences between negligence and strict liability in this context may not be significant. If a manufacturer has to pay damages under either theory, the deterrent effect to taking remedial action is the same, i.e., concern that the evidence may be used against the company.²³

Federal rule. Prior to 1997, a majority of the federal courts had rejected Ault, holding that Rule 407 applied in strict liability cases,²⁴ and, in 1997, the rule was amended to codify this position. The phrases "a defect in a product or its design" and "a need for a warning or instruction" cover strict liability cases.

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Notes:

^[17] 528 P.2d 1148 (Cal. 1974).

^[18] The Court explained:

When the context is transformed from a typical negligence setting to the

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