## Facts

- Eric Clausen, a Massachusetts pile driver employed by Goudreau Construction Corp., worked at a fuel terminal docking facility on the Piscataqua River in Newington, New Hampshire.
- Storage Tank Development Corp. owned the facility and docking area; Sea-3, Inc. operated/occupied the facility under a docking agreement.
- On February 6, 1989, Clausen slipped and fell while descending a ramp connecting a walkway-pier to a structure called “Cell Three.”
- Clausen alleged the ramp was snow-covered, constructed of boards over a partially raised surface, lacked adequate railing, and had ice at the bottom.
- Clausen sued Storage Tank and Sea-3 for negligence in federal court under diversity jurisdiction.
- Storage Tank and Sea-3 filed third-party complaints against Goudreau, alleging Goudreau controlled the work site and shared responsibility for clearing the area.
- At trial on Clausen’s claims, Clausen introduced evidence that in 1992 Storage Tank, at Sea-3’s request, replaced the ramp with stairs, offered to show Storage Tank’s control over the ramp area.

## Issues

1. Whether an amended judgment resolving only the plaintiff’s claims, while leaving third-party claims unresolved, was appealable under 28 U.S.C. § 1291, and whether a later Fed. R. Civ. P. 54(b) certification could make a premature notice of appeal effective.
2. Whether evidence of a post-accident replacement of the ramp with stairs was admissible under Fed. R. Evid. 407 to prove “control,” and whether it should have been excluded under Fed. R. Evid. 403.

## Decision

- The First Circuit exercised appellate jurisdiction, treating the notice of appeal as becoming effective upon the district court’s later Rule 54(b) certification of final judgment on Clausen’s claims.
- The court affirmed the judgment for Clausen.
- The court held the district court did not abuse its discretion by admitting evidence of the ramp’s later replacement with stairs because it was admitted for the limited purpose of showing control, with a limiting instruction.
- The court concluded the evidence’s probative value on the disputed control question was not substantially outweighed by unfair prejudice.

## Legal Principles

- An appeal under 28 U.S.C. § 1291 generally requires a final decision resolving all claims as to all parties; when fewer than all claims are resolved, finality may be established through a proper Fed. R. Civ. P. 54(b) certification.
- A prematurely filed notice of appeal may “ripen” and become effective when the district court later enters a Rule 54(b) certification that renders the judgment final for appeal.
- Fed. R. Evid. 407 bars subsequent remedial measures to prove negligence or culpable conduct, but allows such evidence for another purpose, including proving ownership or control, if controverted.
- When subsequent-remedial-measure evidence is admitted for a permitted purpose, a limiting instruction and Fed. R. Evid. 403 balancing support admission absent an abuse of discretion.

## Conclusion

The First Circuit affirmed a negligence judgment for Clausen, holding that appellate jurisdiction existed after a later Rule 54(b) certification validated a premature notice of appeal and that evidence of post-accident replacement of a ramp with stairs was properly admitted under Rule 407 to show disputed control, subject to limiting instructions and Rule 403.


Clausen v. Storage Tank Dev. Corp., 21 F.3d 1181 (1st Cir. 1994)