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ARE Rule 407: Subsequent remedial measures

Alabama Rules of Evidence

Article IV. Relevancy and Its Limits

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 ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Advisory Committee’s Notes

This rule, in its adoption of the historic “subsequent remedial measures doctrine,” calls for the general exclusion of evidence of remedial measures when it is offered to prove antecedent negligence or other culpable conduct. Based upon both a policy of encouraging safety measures and a consideration of irrelevancy, this general exclusionary rule is deeply rooted in the law of Alabama and the United States. See, e.g., Columbia & Puget Sound R.R. v. Hawthorne, 144 U.S. 202 (1892); Frierson v. Frazier, 142 Ala. 232, 37 So. 825 (1904); Hyde v. Wages, 454 So.2d 926 (Ala.1984); Banner Welders, Inc. v. Knighton, 425 So.2d 441 (Ala.1982). See also C. Gamble & G. Windle, Remedial Measures Doctrine in Alabama: From Exclusion to Admissibility and the Death of Policy, 37 Ala.L.Rev. 547 (1986); C. Gamble, McElroy’s Alabama Evidence § 189.02 (4th ed. 1991).

As under the reasoning at work in such principles as those incorporated into Ala.R.Evid. 404(b) (excluding evidence of prior criminal misconduct by an accused), Ala.R.Evid. 408 (excluding evidence of offers of compromise), and Ala.R.Evid. 411 (excluding evidence of liability insurance), evidence of subsequent remedial measures is excluded only when it is offered for the impermissible purpose of proving either negligence or other culpable conduct. A party may circumvent the general rule of exclusion by offering the evidence for some permissible purpose, such as impeachment or to prove ownership, control, or feasibility of precautionary measures, if the thing to be proved is controverted. As indicated by the phrase “such as,” these purposes stated are not a complete listing. Several of the purposes mentioned in this rule have been recognized under preexisting Alabama law. See Holland v. First Nat’l Bank of Brewton, 519 So.2d 460 (Ala.1987) (control); Alabama Power Co. v. Marine Builders, Inc., 475 So.2d 168 (Ala.1985) (feasibility); Stauffer Chem. Co. v. Buckalew, 456 So.2d 778 (Ala.1984) (impeachment). Additionally, preexisting Alabama evidence law has acknowledged permissible purposes that are not expressly mentioned in Rule 407. See, e.g., City of Montgomery v. Quinn, 246 Ala. 154, 19 So.2d 529 (1944) (classic decision allowing evidence of remedial measures for the purpose of showing the condition of the place or object after an accident as a basis for inferring its condition at the time of the accident); Dixie Elec. Co. v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975) (admitting evidence of a post- accident safety measure as part of the res gestae).

Use of the word “controverted” is intended to continue the strong line of Alabama decisions precluding the use of a purpose, for admitting evidence of safety measures that otherwise would be excluded, when the asserted purpose does not relate to a genuine or material issue in the case. See, e.g., Standridge v. Alabama Power Co., 418 So.2d 84 (Ala.1982) (evidence of remedial measures, offered to prove control, excluded because control was not a disputed issue in the case; defendant admitted control but claimed it owed no duty to the plaintiff, even assuming control); Alabama Power Co. v. Marine Builders, Inc., 475 So.2d 168 (Ala.1985); Hyde v. Wages, 454 So.2d 926, 930 (Ala.1984) (evidence offered to prove ownership not admissible because there was no dispute over ownership or control); Leeth v. Roberts, 295 Ala. 27, 30, 322 So.2d 679, 681 (1975) (holding that the purpose of proving a condition at the time of an event can be relied upon only “when the existence of an object or condition at a given time is in issue or is the gravamen of the action or defense”). See also C. Gamble & F. James III, Perspectives on the Evidence Law of Alabama: A Decade of Evolution, 1977-1987, 40 Ala.L.Rev. 95, 105 (1988). Compare Anonymous v. State, 507 So.2d 972 (Ala.1987) (the purpose of proving intent, used as a basis for admitting evidence of an accused’s collateral criminal misconduct, is applicable only in cases requiring a specific criminal intent); Ex parte Cofer, 440 So.2d 1121, 1124 (Ala.1983) (applying the present concept as a basis for excluding the accused’s collateral crimes when offered to prove intent; held that the “intent” purpose is not applicable when the prosecution’s evidence itself, if believed, would indicate that there is “no real and open issue” about the accused’s intent).

Nothing in Rule 407 is intended to preclude the court’s application of Rule 403 to subsequent remedial measures evidence. Factors of undue prejudice, confusion of issues, misleading the jury, and waste of time remain for consideration.

Rule 407 is identical to Fed.R.Evid. 407.