Based on public policy considerations, some types of potentially relevant evidence can’t be used at trial. One example is subsequent remedial or precautionary measures taken after an accident or other event, which, if it had been done before the event, would have tended to make it less likely to happen. Evid C §1151. Repairs and fixes can’t be used against a defendant unless it fits within an exception to the rule.
Evidence of subsequent remedial or precautionary measures is inadmissible to prove negligence or culpable conduct in connection with the event. Evid C §1151. For instance, evidence of an insurer’s subsequent revisions of an exclusionary clause in a policy is inadmissible. State Farm Fire & Cas. Co. v Eddy (1990) 218 CA3d 958, 972. And in a medical malpractice action, post-event hospital peer review evidence is inadmissible to prove negligence. Fox v Kramer (2000) 22 C4th 531, 535.
This rule is designed to avoid having defendants postpone making repairs or taking desirable precautionary measures from fear that such acts may be used against them as admissions of fault.
But there are exceptions: Evid C §1151 doesn’t bar evidence of subsequent remedial conduct if it’s admissible for another purpose, such as:
- Strict liability actions. Evidence Code §1151 doesn’t apply to cases based on strict products liability. Such cases don’t involve issues of “culpable conduct” and the manufacturer’s self-interest is in continuing to make product improvements without regard to the possible use of remedial conduct as evidence of the defective nature of the original product. Ault v International Harvester Co. (1974) 13 C3d 113, 118. But the court still has the discretion to exclude evidence of subsequent remedial action even in a strict liability case. See Aguayo v Crompton & Knowles Corp. (1986) 183 CA3d 1032, 1040.
- For impeachment. Evidence of subsequent safety measures may under certain circumstances be offered to show prior inconsistent acts or statements, presumably subject to a limiting instruction. Daggett v Atchison, T. & S.F. Ry. (1957) 48 C2d 655, 665.
- When someone else took the subsequent safety measure. Evidence of post-accident modifications of equipment made by the plaintiff’s employer is admissible to show that the product was defective. Magnante v Pettibone-Wood Mfg. Co. (1986) 183 CA3d 764, 767. Similarly, evidence of postsurgery regulatory action by the FDA was admissible in a product liability case. Scott v C. R. Bard, Inc. (2014) 231 CA4th 763, 782.
Get specific guidance on the requirements to admit or object to this type of evidence, as well as sample questions to ask, in CEB’s Effective Introduction of Evidence in California, chap 52. For an excellent overview of evidence issues, check out CEB’s California Trial Practice: Civil Procedure During Trial, chap 10.
Other CEBblog™ blog posts you may find useful:
- Inadmissible Evidence May Still Get In for a Limited Purpose
- Introducing Evidence? Make an Offer of Proof!
- 7 Ways to Respond to an Evidence Objection
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