Locking the Barn Door

(1) Pedestrian P1 v. D Construction Company for personal injuries sustained when P1 was struck by D's crane while P1 was walking on the sidewalk past D's construction site. At trial, P1 offers evidence that the day after the accident D's superintendent posted a safety rule reading as follows:

EFFECTIVE IMMEDIATELY

When operating a crane or any other equipment on this job within 10 feet of a sidewalk or street, a lookout must be posted to watch for pedestrians and other traffic.

By Order of the Superintendent

Is this evidence admissible?

(2) Pedestrian P2 v. D Construction Company for personal injuries sustained when P2 was struck by D's crane while P2 was walking on the sidewalk past D's construction site, in the same place P1 had been struck. At trial, P2 offers evidence of the posted safety policy, which was posted the day before his accident. Admissible?

The Advisory Committee's Note to Rule 407 concedes that under a liberal theory of relevancy, the fact that the posting of the safety sign is equally consistent with injury by mere accident or through contributory negligence would not support exclusion, since the inference of negligence is still a possible one from the posting of the sign. Rather than relying on nonrelevancy as a ground of exclusion, the Advisory Committee bases Rule 407 "on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety."

The rule against evidence of subsequent remedial measures has come under criticism. During the more than two decades during which the Federal Rules of Evidence have been in effect, many states have come to enacted their own Rules of Evidence based on the Federal Rules. Two states, Maine and Rhode Island, departed from pre-existing state law and adopted counterparts to FRE 407 which are exactly to the contrary. The Maine and Rhode Island Rules 407 provided:

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 admissible.

The Advisors Note to Maine Rule 407 stated:

The public policy behind the rule against admissibility was that it would deter repairs. This rationale is unpersuasive today. In some instances subsequent repairs may be evidence of culpability. In other instances quite the contrary is the fact. Despite this departure from prior authority, it is still open to trial judge under Rule 403 to exclude such evidence if he believes its probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, or misleading the jury. A situation where the change is effectuated for reasons unrelated to the hazard would be a clear case for such exclusion....

It should be emphasized that although evidence of subsequent remedial measures is admitted, it remains for the jury to decide whether the standard of reasonable care has been satisfied. Proof that such measures were taken clearly does not compel a finding that the previous condition reflected culpable conduct.

The Commentary to Maine Rule 407 indicated that one of the reasons for admitting evidence of subsequent remedial measures is that the policy that the rule barring such evidence is designed to effectuate is largely defeated by admission of the evidence for other purposes. Limiting instructions to consider the evidence only for the limited purpose of showing ownership, control, or feasibility of precautionary measures is unlikely to be effective. More fundamentally, however, the Commentary contends that

the assumption that a defendant will not take corrective action because he knows that it might be used against him is not persuasive. A defendant as knowledgeable and as cold-blooded as the exclusionary rule suggests would probably be aware of the many exceptions, which would make it risky to refrain from making needed repairs. Enlightened self-interest would often lead defendants to make repairs despite the possibility of evidence of such action being received on the issue of fault. This would surely seem true of a structural change by a national manufacturer.

Field & Murray, Maine Evidence 79 (1976). The Rhode Island Commentary is similar.

The federal rule has also been criticized on both evidentiary and substantive grounds as constituting an unwarranted federal intrusion into an area traditionally reserved to state regulation. See Schwartz, The Exclusionary Rule on Subsequent Repairs--A Rule in Need of Repair, 7 Forum 1 (1971); Wellborn, The Federal Rules of Evidence and the Application of State Law in Federal Cases, 55 Tex. L. Rev. 371 (1977). As to this issue, see the Rioux case, page 154, below.

During the codification and ratification of the Rhode Island Rules of Evidence, no rule was more controversial than RIRE 407. The proposed rule, which reversed the federal rule and existing state law to make evidence of subsequent remedial measures expressly admissible, was strenuously opposed by the defense bar and insurers. In Maine in 1995 political opposition to the rule of admissibility ultimately resulted in legislation repealing Maine Rule 407 as originally adopted by the Maine Supreme Judicial Court and substituting language tracking the federal version. This leaves Rhode Island as the sole American jurisdiction with a Rule 407 expressly granting admissibility to evidence of subsequent remedial measures.