(Alternative 3, Excluding
RULE 407. SUBSEQUENT REMEDIAL MEASURES
Whenever, after an injury or harm allegedly caused by an event, measures are taken
whichthat, if taken previously, would have made the eventinjury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligencefault, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
This rule, excluding the use of subsequent remedial measures as evidence of
negligencefault or culpable conduct, is based on two grounds:
(1) the conduct is not an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence; and
(2)the social policy of encouraging people to take steps in furtherance of added safety.
Rule 407 was amended, effective __________________. The amendment clarifies the "event" for determining whether a repair is a "prior" or "subsequent" remedial measure is the occurrence of the injury to the present plaintiff.
Rule 407 does not exclude evidence of a subsequent remedial measure in a cause of action based upon strict products liability as does Fed.R.Ev. 407.
For instances in which the North Dakota Supreme Court refused to allow remedial measures to be used as proof of negligence see, generally, Van Ornum v. Otter Tail Power Co., 210 N.W.2d 188 (N.D. 1973), and Huus v. Ringo, 76 N.D. 763, 39 N.W.2d 505 (1949).
SOURCES: Minutes of Procedure Committee: ________________________; April 8, 1976, pages 23, 25; October 1, 1975, page 3. Rule 407, Federal Rules of Evidence; Rule 407, SBAND proposal.