Notes of Advisory Committee on Rules
The rule incorporates conventional doctrine
which excludes evidence of subsequent remedial
measures as proof of an admission of fault.
The rule rests on two grounds. (1) The conduct
is not in fact an admission, since the conduct
is equally consistent with injury by mere
accident or through contributory negligence.
Or, as Baron Bramwell put it, the rule rejects
the notion that "because the world gets
wiser as it gets older, therefore it was
foolish before." Hart v. Lancashire
& Yorkshire Ry. Co., 21 L.T.R. N.S. 261,
263 (1869). Under a liberal theory of relevancy
this ground alone would not support exclusion
as the inference is still a possible one.
(2) The other, and more impressive, ground
for exclusion rests on a social policy of
encouraging people to take, or at least not
discouraging them from taking, steps in furtherance
of added safety. The courts have applied
this principle to exclude evidence of subsequent
repairs, installation of safety devices,
changes in company rules, and discharge of
employees, and the language of the present
rules is broad enough to encompass all of
them. See Falknor, Extrinsic Policies Affecting
Admissibility, 10 Rutgers L.Rev. 574, 590
(1956).
The second sentence of the rule directs attention
to the limitations of the rule. Exclusion
is called for only when the evidence of subsequent
remedial measures is offered as proof of
negligence or culpable conduct. In effect
it rejects the suggested inference that fault
is admitted. Other purposes are, however,
allowable, including ownership or control,
existence of duty, and feasibility of precautionary
measures, if controverted, and impeachment.
2 Wigmore § 283; Annot., 64 A.L.R.2d 1296.
Two recent federal cases are illustrative.
Boeing Airplane Co. v. Brown, 291 F.2d 310
(9th Cir. 1961), an action against an airplane
manufacturer for using an allegedly defectively
designed alternator shaft which cuased a
plane crash, upheld the admission of evidence
of subsequent design modification for the
purpose of showing that design changes and
safeguards were feasible. And Powers v. J.
B. Michael & Co., 329 F.2d 674 (6th Cir.
1964), an action against a road contractor
for negligent failure to put out warning
signs, sustained the admission of evidence
that defendant subsequently put out signs
to show that the portion of the road in question
was under defendant's control. The requirement
that the other purpose be controverted calls
for automatic exclusion unless a genuine
issue be present and allows the opposing
party to lay the groundwork for exclusion
by making an admission. Otherwise the factors
of undue prejudice, confusion of issues,
misleading the jury, and waste of time remain
for consideration under Rule 403.
For comparable rules, see Uniform Rule 51;
California Evidence Code § 1151; Kansas Code
of Civil Procedure § 60-451; New Jersey Evidence
Rule 51.
History of amendment needed.