§ 13.08 Admissibility for Other Purposes

• Jurisdiction: United States

§ 13.08 Admissibility for Other Purposes

Rule 407 excludes evidence of subsequent remedial measures only if offered for specified purposes—i.e., to prove negligence, culpable conduct, etc. The rule explicitly recognizes that this evidence may be admissible if offered for some other purpose, such as proof of ownership, control, feasibility of precautionary measures, or impeachment. The "other purposes" listed in Rule 407 are not exclusive. So long as evidence of remedial measures is not offered for the prohibited purposes, exclusion is not required.

However, evidence offered for some "other purpose" is not automatically admissible. Rule 403 must be satisfied. As an added safeguard, Rule 407 requires that if the evidence is offered for another purpose (except impeachment), that other purpose must involve a disputed issue. An offer to stipulate will often remove the issue from controversy.²⁵ If the evidence is admitted for another purpose, the trial judge must give an instruction limiting the use of the evidence to its proper purpose if a party so requests.²⁶

[A] Ownership and Control

Rule 407 does not apply when evidence of subsequent remedial measures is offered to prove ownership or control. A party's liability often depends on its control over the premises where an accident occurred or the instrumentality (e.g., backhoe) that caused an injury. If control is disputed, that party's subsequent corrective action tends to undercut the claim of non-responsibility. For example, in Powers v. J. B. Michael & Co.,²⁷ a highway contractor was sued for negligently failing to erect warning signs at a construction site over which the contractor and a state highway department had joint control. Evidence of the contractor's subsequent erection of warning signs was admitted to show control over the site by the contractor (but not for the purpose of showing negligence). Note that admissibility is not automatic; control must be a disputed issue,²⁸and Rule 403 applies.

[B] Feasibility of Precautionary Measures

Rule 407 is also inapplicable where evidence of subsequent remedial measures is offered to prove the feasibility of precautionary measures.²⁹ The federal drafters cited Boeing Airplane Co. v. Brown³⁰ as an example. In Boeing, the crash of a B-52 bomber lead to a wrongful death action. The plaintiff was permitted to introduce evidence of a subsequent design modification in the alternator drive to show that the formerly used part was defectively designed. Admissibility was upheld on the theory of the feasibility of alternative designs.

In many cases, however, the distinction between negligence and the feasibility of precautionary measures is almost nonexistent. Thus, care must be exercised to ensure that this "exception" does not swallow the rule. Also, recall that admissibility is not automatic; the issue must be disputed,³¹ and Rule 403 applies.

[C] Impeachment

Rule 407 is inapplicable where evidence of subsequent remedial measures is offered for impeachment. For example, in Dollar v. Long Mfg.,³² a defense witness testified that a backhoe was safe to...