Saturday, July 10, 2010
No Prior Knowledge: Supreme Court Of Arizona Finds Rule 407 Applies Even If Party Lacks Knowledge Of Prior Event
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.
But does the Rule apply even if the party took such measures without knowledge of, or for reasons unrelated to, a prior event? That was the question addressed by the recent opinion of the Supreme Court of Arizona in its recent opinion in Johnson v. State, Dept. of Transp., 2010 WL 2680379 (Ariz. 2010).
Johnson was a
wrongful death action [which] arose from a collision in which decedent Mark Johnson, while driving westbound on U.S. Highway 60, struck the rear end of a dump truck. Before the accident, the truck driver exited a mining pit, stopped at the Peckary Road intersection, and turned onto the highway. He traveled approximately seven hundred feet before decedent's vehicle hit his truck. An eyewitness stated the decedent made no attempt to stop, swerve, or slow down before the collision.
The decedent's surviving spouse, Kristen Johnson, thereafter brought an action against the State, alleging that it had negligently designed and maintained the Peckary Road intersection. At trial, Johnson sought to introduce evidence at trial that, after the accident, the State had posted a truck-crossing sign and allowed the mining company to install a variable message board near the Peckary Road intersection. She argued, inter alia, that those signs were not "subsequent remedial measures" under Rule 407 because the State installed them without knowledge of, and not in response to, the decedent's accident. The trial court, however, deemed this evidence inadmissible, and the jury subsequently returned a verdict in favor of the State.
Johnson thereafter moved for a new trial, claiming, inter alia, that Rule 407 does not apply when a party takes measures without knowledge of, or for reasons unrelated to, a prior event. The Supreme Court of Arizona initially noted that Rule 407 "seeks to 'encourage remedial measures by freeing the defendant from concern that such steps might be used against him as an admission by conduct.'" The court then found that
There is nothing inherent in the word "remedial," however, that presupposes knowledge of a prior accident by one undertaking repairs; a dangerous condition is remedied by subsequent measures even if the repairer is not aware that the condition has already caused an injury. Further, Rule 407 does not on its face require a causal relationship between the measures and the event, only that the measures were taken "after" the event and "would have made the event less likely to occur" if they had been taken before.
Moreover, the court found
unpersuasive Johnson's argument that the rule's policy of encouraging safety improvements is not furthered when defendants act without knowledge of the event in question and, thus, without awareness of their potential liability. Although defendants who improve safety without knowledge of previous accidents may not be deterred by the risk of liability to a particular claimant, they may nonetheless be deterred by the risk of potential liability to unknown claimants if subsequent measure evidence were routinely admitted when measures are taken without knowledge of previous injuries.
In sum, the Arizona Supremes found "that Rule 407 requires the exclusion of evidence of subsequent measures to prove a party's negligence or culpable conduct, even when such measures are taken without specific knowledge of the accident in question."