Rule 407  Subsequent remedial measures. 
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 dangerous defect in
products liability cases, ownership, control, or feasibility of precautionary
measures, if controverted, or impeachment. [L 1980, c 164, pt of §1]



 



RULE 407 COMMENTARY



 



  This rule is similar to Fed. R. Evid. 407, the
Advisory Committee's Note to which points out:  "The rule incorporates
conventional doctrine which excludes evidence of subsequent remedial measures
as proof of an admission of fault....  The...ground for exclusion rests on a
social policy of encouraging people to take, or at least not discouraging them
from taking, steps in furtherance of added safety.  The courts have applied
this principle to exclude evidence of subsequent repairs, installation of
safety devices, changes in company rules, and discharge of employees, and the
language of the present rule is broad enough to encompass all of them."



  This rule is limited strictly to exclusion of such evidence
when offered as proof of negligence or culpable conduct.  The second sentence
of the rule lists some of the other purposes for which this evidence may be
admitted.  The rule varies from Fed. R. Evid. 407 in the addition of
"dangerous defect in products liability cases" as one permissible
purpose for which remedial measures may be admitted.  This codifies the result
in Ault v. International Harvester Co., 117 Cal. Rptr. 812, 815-16, 528 P.2d
1148, 1151-52 (1975), where the court held that the rule barring evidence of
subsequent repairs should not apply in a products liability case.  The Ault
court reasoned as follows:



  While [the traditional rule] may
fulfill this anti-deterrent function [of encouraging, or at least not discouraging,
the making of repairs by defendants] in the typical negligence action, the
provision plays no comparable role in the products liability field....



  The contemporary corporate mass
producer of goods, the normal products liability defendant, manufactures tens
of thousands of units of goods; it is manifestly unrealistic to suggest that
such a producer will forego making improvements in its product, and risk
innumerable additional lawsuits and the attendant adverse effect upon its
public image simply because evidence of adoption of such improvement may be
admitted in an action founded on strict liability for recovery on an injury
that preceded the improvement....  In short, the purpose of [the traditional
rule] is not applicable to a strict liability case and hence its exclusionary
rule should not be gratuitously extended to that field.



  In Hawaii, under Stewart v. Budget Rent-a-Car Corp., 52 H.
71, 75, 470 P.2d 240, 243 (1970), a manufacturer, seller, or lessor is strictly
liable in products liability cases provided there is proof of "a defective
product which is dangerous to the user or consumer or to his property." 
Evidence of subsequent remedial measures is admissible under this rule to prove
such a defect.



 



Case Notes



 



  Measures that are taken after an event but that are
predetermined before the event are not "remedial" under this rule,
because they are not intended to address the event; thus, because such measures
are not "remedial", evidence of such measures are not inadmissible
under the plain language of this rule.  115 H. 462, 168 P.3d 592.