§407 Subsequent Remedial Measures

• Library: Evidence Restated Deskbook (2021 Ed.)

§407 Subsequent Remedial Measures

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 or culpable conduct in connection with the event. But the court may admit this evidence for another purpose, such as impeachment or—if disputed—proving ownership or control; to show the condition of the accident site; to show the location of the defective condition; when relevant to punitive damages; or to show the feasibility of precautionary measures, if controverted.

Notes

The admission of subsequent remedial measures to show negligence is prohibited for two reasons:

· "[I]f precautions taken could be used as evidence of previous improper conditions, no one, after an accident, would make improvements." Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 21 (Mo. App. E.D. 2005) (quoting Cupp v. Nat'l R.R. Passenger Corp., 138 S.W.3d 766, 776 (Mo. App. E.D. 2004) (citing Pollard v. Ashby, 793 S.W.2d 394, 402 (Mo. App. E.D. 1990); Stinson v. E.I. DuPont De Nemours & Co., 904 S.W.2d 428, 432 (Mo. App. W.D. 1995); and Brennan v. St. Louis Zoological Park, 882 S.W.2d 271, 272 (Mo. App. E.D. 1994))).

· "[S]ubsequent changes are irrelevant to establish what the previous condition was." Cupp, 138 S.W.3d at 776.

The public policy rationale for excluding subsequent remedial measures—that public policy favors remedial measures—does not apply, nor is a defendant entitled to the protection of the general rule, if the subsequent remedial measures were "planned, provided for, or undertaken prior to the accident" because the "purpose of the exclusionary rule is to protect a defendant who has been first alerted to the possibility of danger after an accident and has been induced by the accident to make the repair to prevent further injury." Boggs, 164 S.W.3d at 21 (citing Cupp, 138 S.W.3d at 776) (investigation reports prepared after the accident by the railroad were admissible in an Federal Employers' Liability Act, 45 U.S.C. §§ 51 et seq., action brought by an employee injured by wheels ejected from a wheel wash when "the problems identified and the remedial measures suggested" in the reports "had been known and planned prior to the injury"). Accordingly, a defendant "who is aware of the problem and has proposed measures for remediation prior to the accident is not entitled to the same protection." Cupp, 138 S.W.3d at 776.

The rationale applies equally to subsequent repairs or replacements, design alterations, precautionary measures or warnings, and changes in company policies or discharge of employees. SeeAtcheson v. Braniff Int'l Airways, 327 S.W.2d 112, 116 (Mo. 1959); White v. Mo. Motors Distrib. Co., 47 S.W.2d 245, 247–48 (Mo. App. W.D. 1932).

The issue of admissibility is only:

presented when a plaintiff offers evidence of some precaution or preventive measure...