This vacates a Court of Appeals opinion we blogged here. The Supreme Court agrees with the result and most of the reasoning but has some different thing to say about the admissibility of remedial measures under Rule 407.
Johnson’s husband, driving on Highway 60, was killed when he hit a truck near an intersection. After the accident the State coincidentally put up a warning sign; it didn’t know there had been an accident. Johnson wanted to present evidence of this at trial. She argued that remedial measures – to be truly “remedial” and therefore excluded by the rule – must be made in response to a specific event. She also argued that the evidence was admissible under the “other purpose” exception in the rule. The trial court disagreed. She lost at trial and appealed. The Court of Appeals affirmed.
The Supreme Court agrees that Rule 407 does not expressly, nor does the word “remedial” impliedly, require knowledge of an accident. And requiring knowledge could discourage people from improving risks that might have caused accidents they didn’t know about.
As to the “another purpose” argument, Johnson’s other purpose was to rebut the State’s claims that there was nothing wrong with the intersection and that the decedent was negligent. But the “mere fact that a defendant denies fault and alleges comparative negligence does not, alone, justify the admission of subsequent measure evidence for impeachment purposes.”
Remedial-measures evidence can come in, however, to rebut evidence “that, if left uncontroverted, would create an unfair advantage or misleading impression for the other party who seeks to exclude any evidence of subsequent measures.” So, for example, it would have been admissible had the State claimed that signs couldn’t be put in, or that the roadway was as safe as it could possibly be, etc. But the State hadn’t said that. Allowing evidence of the signage would not have impeached impeached anything it did say except its basic position that the roadway was reasonably safe – and the latter is what the rule prevents.
The Court of Appeals had indicated that the “another purpose” exception doesn’t apply if other evidence, not barred by 407, is available to serve the same purpose. The Supreme Court, in a footnote, rejects this but adds that the remedial-measure evidence could then be excluded under Rule 403 instead.
On the knowledge issue, the Supreme Court avoids some analytical confusions in the Court of Appeals’ opinion but the take-away is not much different. The “unfair or misleading” exception to Rule 407 is a new wrinkle, though.
Stylistically, we applaud the court’s decision to mention the standard of review briefly and where necessary (although we would still argue that it isn’t really necessary) rather than in a boilerplate paragraph. The statement of jurisdiction, though even less necessary, is at least brief. This is not at all a bad opinion coming from a Justice whose prose style has not historically been his strong point.
(link to opinion)