Chapter 10 - § 10.13 SUBSEQUENT REMEDIAL MEASURES

• Jurisdiction: Colorado

§ 10.13 SUBSEQUENT REMEDIAL MEASURES

Colorado

➢ General. "When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." CRE 407.
➢ Products Liability. "In any product liability action, evidence of any scientific advancements in technical or other knowledge or techniques, or in design theory or philosophy, or in manufacturing or testing knowledge, techniques, or processes, or in labeling, warnings of risks or hazards, or instructions for the use of such product, where such advancements were discovered subsequent to the time the product in issue was sold by the manufacturer, shall not be admissible for any purpose other than to show a duty to warn." C.R.S. § 13-21-404.

➢ Subsequent Remedial Measures; Products Liability. The provision of the Rules of Evidence (CRE 407) governing admission of evidence of subsequent remedial measures that prohibits use of such evidence to prove negligence or culpable conduct does not apply to strict products liability claims based on the theory of design defect. However, such evidence must still pass muster under the general relevancy and balancing tests and must be probative of the claimed defect. Forma Scientific, Inc. v. BioSera, Inc., 960 P.2d 108 (Colo. 1998).

➢ Subsequent Remedial Measures; Admission for Other Purpose. "Evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct. However, this rule does not require exclusion when such evidence is 'offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.' The feasibility exception applies only if the defendant contests the feasibility of precautionary measures at the time of the incident." Duggan v. Board of Cty. Comm'rs of Weld, 747 P.2d 6, 8 (Colo. App. 1987); Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo. 1986).

➢ Knowledge or Notice; Products Liability.

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