Learning Outcomes
After reading this article, you will understand the exclusion of subsequent remededial measures as a policy-based rule of evidence. You will be able to identify when evidence of repairs or changes after an incident is inadmissible, recognize the key exceptions, and apply these principles to MBE-style questions. You will also be able to distinguish between the exclusionary rule and its exceptions, ensuring accurate analysis on the MBE.
MBE Syllabus
For the MBE, you are required to understand the rules and policy behind excluding evidence of subsequent remedial measures. This includes knowing when such evidence is inadmissible, the recognized exceptions, and how these rules apply in negligence, strict liability, and product liability cases. For revision, focus on:
- The general rule excluding evidence of subsequent remedial measures to prove negligence, culpable conduct, product defect, or need for a warning.
- The recognized exceptions where such evidence may be admitted (e.g., to prove ownership, control, or feasibility of precaution).
- The application of these rules to different types of claims, including negligence and product liability.
- The rationale behind the exclusion as a matter of public policy.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
-
Evidence that a defendant repaired a staircase after a plaintiff fell is generally:
- Admissible to prove the defendant was negligent.
- Admissible to prove the defendant owned the property.
- Inadmissible to prove negligence, but may be admissible to show ownership.
- Inadmissible for any purpose.
-
In a product liability case, evidence that a manufacturer changed a product design after an accident is:
- Always admissible to prove a design defect.
- Inadmissible to prove a defect, but may be admissible to show feasibility of a safer design.
- Admissible only if the manufacturer admits liability.
- Inadmissible for any purpose.
-
Which of the following is NOT an exception to the exclusion of subsequent remedial measures?
- Proving feasibility of precautionary measures.
- Proving ownership or control.
- Proving the need for a warning.
- Impeaching a witness.
Introduction
Evidence law excludes certain types of evidence not because they are irrelevant, but because admitting them would discourage socially beneficial behavior. One such rule is the exclusion of subsequent remedial measures—actions taken after an incident to make something safer or prevent recurrence. This rule is rooted in public policy: courts do not want to deter parties from making improvements out of fear that such actions will be used against them in court.
Key Term: Subsequent Remedial Measure
A change, repair, or safety improvement made after an injury or harm has occurred, intended to prevent future incidents.
The General Rule: Exclusion of Remedial Measures
Evidence that a party made repairs, changed procedures, added warnings, or otherwise improved safety after an accident is generally inadmissible to prove:
- Negligence or fault,
- Culpable conduct,
- A defect in a product or its design,
- The need for a warning or instruction.
This exclusion applies in both negligence and strict liability cases, including product liability claims.
Key Term: Policy Exclusion
A rule that excludes otherwise relevant evidence because its admission would discourage socially desirable conduct, such as safety improvements.
Rationale
The rule exists to encourage parties to fix hazards or improve products without fearing that these actions will be used as admissions of fault in litigation. The law prefers safer conditions over using such evidence to prove liability.
Exceptions: When Remedial Measures May Be Admitted
There are important exceptions where evidence of subsequent remedial measures may be admitted:
- To prove ownership or control of the property or instrumentality, if disputed.
- To show the feasibility of precautionary measures, if feasibility is contested.
- To impeach a witness, such as when a party claims that nothing could have been done to prevent the harm.
Key Term: Feasibility
The practical possibility of making a change or taking a precautionary measure to prevent harm.Key Term: Ownership or Control
Evidence showing who possessed or had authority over property or equipment at the time of the incident.
Worked Example 1.1
A customer slips on a wet floor in a grocery store. After the incident, the store installs non-slip mats. At trial, the plaintiff seeks to introduce evidence of the mats to prove the store was negligent.
Answer: The evidence is inadmissible to prove negligence. However, if the store disputes that it controlled the area where the mats were installed, the evidence may be admitted to show control.
Worked Example 1.2
A plaintiff sues a manufacturer for a defective ladder. After the accident, the manufacturer redesigns the ladder. The plaintiff offers evidence of the redesign to show the original design was defective. The manufacturer claims that a safer design was not feasible.
Answer: If the manufacturer contests feasibility, evidence of the redesign may be admitted to show that a safer design was possible. Otherwise, it is inadmissible to prove a defect.
Application to Product Liability
The exclusion of subsequent remedial measures applies to product liability cases, including those based on strict liability. Plaintiffs cannot use evidence of design changes or added warnings after an accident to prove a product was defective or unreasonably dangerous. However, if the manufacturer claims that a safer design was not feasible, evidence of the change may be admitted to rebut that claim.
Exam Warning
Evidence of subsequent remedial measures is never admissible to prove negligence or a defect, even in strict liability cases. Do not confuse this with the rule for other policy exclusions, such as offers to settle or pay medical expenses, which have different exceptions.
Limitations and Scope
- The exclusion applies only to remedial measures taken after the incident in question.
- The rule does not exclude evidence of measures taken by a third party not involved in the litigation.
- The exclusion does not apply to evidence of prior accidents or conditions existing before the incident.
Revision Tip
If you see a question about repairs, design changes, or added warnings after an accident, ask: Is the evidence being offered to prove fault or defect? If so, it is likely inadmissible—unless it fits a recognized exception.
Key Point Checklist
This article has covered the following key knowledge points:
- Evidence of subsequent remededial measures is generally inadmissible to prove negligence, fault, product defect, or need for a warning.
- The exclusion applies in negligence and strict liability cases, including product liability.
- Exceptions allow admission to show ownership, control, feasibility, or for impeachment.
- The rule does not apply to measures by third parties or to conditions existing before the incident.
- The policy behind the rule is to encourage safety improvements without fear of legal consequences.
Key Terms and Concepts
- Subsequent Remedial Measure
- Policy Exclusion
- Feasibility
- Ownership or Control
