(Alternative 2, Containing
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, orculpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction 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 __________________, to follow the 1997 federal amendment. The amendment clarifies: "Evidence of measures taken by the defendant prior to the 'event' causing 'injury or harm' do not fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product." Rule 407, Fed.R.Evid., 1997 Advisory Committee Notes. The amendment also extends the exclusionary principle of the rule to products liability actions.
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.