THIS OPINION HAS BEEN VACATED.

This tort case discusses the admissibility of remedial measures under Rule 407.

Plaintiffs’ decedent was killed in a car crash near an intersection on Highway 60. They sued the State for negligent design of the roadway but lost at trial. They appealed, challenging (insofar as the published opinion is concerned) the trial court’s exclusion of evidence that, after the accident, the State installed additional warning signs at the intersection.

Plaintiffs argued (1) that the new signs didn’t constitute “remedial measures” because the State didn’t know about the accident when it installed them, (2) that, even if they did, the trial court should have allowed the evidence under the “other purpose” exception in order to rebut the State’s comparative negligence allegations and to impeach the State’s witnesses regarding knowledge of the danger. An equally interesting issue is one that Plaintiffs didn’t quite realize, it seems, that they were making: that a change of conditions could allow admission of remedial-measures evidence.

The Court of Appeals affirmed.

There is a split of authority in other states on whether a remedial measure must be taken in response to some specific event. This opinion holds that there is no such requirement because the rule doesn’t say so; it refers simply to measures  taken “after an event . . . which if taken previously, would have made the event less likely to occur.”  The court also made the policy argument – that people would be reluctant to make things safer if the rule were narrowed.

The evidence also can’t come in to rebut comparative negligence, because the object of that would be to increase the State’s degree of fault. In other words, the evidence would bear on the State’s negligence, which is what the rule prohibits.

Plaintiffs also argued that the evidence should come in to rebut the State’s “open and obvious” defense. The court pointed out that “open and obvious” is part and parcel of comparative negligence. (This has  been true for a long time; most talk about “open and obvious” is obsolete nonsense, proof of how fond is the legal mind of antique formulae that sound like they must mean something.)

Reading between the lines, “open and obvious” seems to be how Plaintiffs characterized something the State argued rather than a separate defense that the State tried to assert. Apparently,  the Plaintiffs got mixed up by a federal case that allowed evidence of remedial measures because they had changed conditions so much that that plaintiff could no longer rebut the defendant’s argument – which, in that case, was that the condition had been open and obvious.

The court addressed the argument that a change of condition could allow evidence of remedial measures by saying that the condition in this case hadn’t significantly changed – save for the addition of signs to the existing roadway – and because other evidence was available to the Plaintiffs to rebut the State’s assertion (namely, a witness, photographs, and an accident report all indicating that visibility at the intersection was limited, rebutting the State’s argument that it wasn’t).

Finally, the court pointed out that to allow evidence of remedial measures to prove that the State knew of the danger would – since knowledge of the danger is an element of liability – allow it to prove evidence of negligence (which is, again, precisely what the rule prohibits).

We haven’t seen the briefs, so you may take it as coincidence that we are reminded just now how difficult it can be for appellate courts to deal with cases the appellant has not briefed well.