Evidence of Signs Posted After Accident Inadmissible

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Evidence—Subsequent Remedial Measures

Johnson v. State, CV 08-0077 Ariz. , P.3d (App., Div. I, June 18, 2009) (J. Barker)

EVIDENCE OF WARNING SIGNS PLACED AFTER ACCIDENT NOT ADMISSIBLE UNDER RULE 407 SUBSEQUENT REMEDIAL MEASURE EVEN WHERE STATE WAS UNAWARE OF PLAINTIFF'S PRIOR ACCIDENT WHEN POSTING THE SIGNS

Plaintiff's decedent rear-ended a tractor trailer that had just entered U.S. 60 from Peckary Road in front of him travelling the same direction. After the accident the state put in “Truck Crossing” signs and a message board warning motorists that trucks would be crossing and entering U.S. 60 from Peckary. These signs were installed by A.D.O.T. without knowledge of plaintiff's decedent's accident. The jury found for the defense. Plaintiff appealed claiming the trial court erred in excluding the signing evidence. The Court of Appeals affirmed.

The court ruled that the policy reason behind rule 407 of Evidence was to encourage people to take steps to increase public safety. Whether or not the state knew of plaintiff's decedent's accident has no bearing on this policy. In fact, to allow admission of this evidence would work to defeat this policy. Further the rule does not require the action be remedial to the particular event at issue only that the measures make the event less likely to occur.

Further, this evidence does not fit within any exception to rule 407. Moving its admission to refute the comparative negligence and open and obvious defense does not meet any exception. To the contrary, to the extent plaintiff's decedent's assigned fault is reduced by such evidence the state's fault is increased and rule 407 expressly prohibits the admission of evidence of subsequent remedial measures to prove culpable conduct.

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