Rule 407 Subsequent Remedial Measures

• Jurisdiction: Arizona

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.

Comment

This rule excludes evidence of subsequent remedial measures for two reasons. First, such conduct is not necessarily an admission of fault, and is therefore not relevant to the issue of the defendant's negligence or culpable conduct. Second, social policy favors encouraging people to take steps to promote safety, or at least not discouraging such steps.[1] This rule is limited, however, to instances when the evidence is offered only to prove negligence or culpable conduct. When offered for any other relevant purposes, the evidence will be admissible even though it may also permit an inference of fault or defect.[2] This rule thus works in exactly the same way as Rule 404(b), where evidence of a person's other crimes, wrongs, or acts is not admissible to prove character to show action in conformity therewith, but it is admissible if offered for some other relevant purpose. It determining whether evidence is admissible under this rule, the trial court should determine (1) whether the evidence is offered for some relevant purpose other than to show negligence or culpable conduct, and (2) whether the party offering the evidence has sufficient proof that the remedial measures were taken and that the other party was the one who took them, and that they were done in such a way that they do show something relevant, such as ownership, control, or feasibility of precautionary measures.

As with Rule 404(b) evidence, if the opposing party objects under Rule 403, the trial court must do the weighing and balancing under that rule,[3] and if the opposing party asks for a limiting instruction, the trial court must give one.[4] The trial court must, however, determine that the evidence of the subsequent change is relevant to a disputed issue of substantial importance, and must satisfy itself that the party's need for this evidence outweighs the danger of its misuse, as provided under Rule 403.

Cases

407.010 The trial court may not admit evidence of a subsequent remedial measure to prove negligence or culpable conduct, but may do so for some relevant purpose, such as to show ownership, control, or feasibility of precautionary...