Subsequent Remedial Measure Inadmissible to Counter Claim Intersection was Safe and Plaintiff was Comparatively at Fault

Evidence - Subsequent Remedial Measure Excluded; Defendant's Knowledge of Prior Death Irrelevant

Johnson v. State of Arizona, __Ariz. Adv. Rep. __ No. CV-09-0267-PR (July 8, 2010) (J. Pelander)

SUBSEQUENT REMEDIAL MEASURE EXCLUDED EVEN WHERE DEFENDANT WAS UNAWARE OF PLAINTIFF'S ACCIDENT AT TIME OF PUTTING UP NEW SIGNS AND EVEN WHERE DEFENDANT DENIED THE INTERSECTION WAS UNSAFE WITHOUT THE SIGNS AND ALLEGED COMPARATIVE FAULT ON PLAINTFF

Plaintiff's decedent drove into the back of a dump truck killing himself on Highway 60 after entering the highway from a side street. His survivors sued the state claiming that the roadway was unreasonably dangerous due to a failure to warn motorists on the side street the truck crossing traffic. Plaintiff's survivors attempted to introduce evidence that subsequent to their decedent's accident the state installed "truck crossing" signs and a variable message board. The trial court excluded the evidence as a "subsequent remedial measure under Rule 407 of Evidence. The Court of Appeals and Supreme Court agreed.First the Supreme Court rejected the plaintiff's argument that since the state was unaware of decedent's accident when it put up the signs it was not conduct "remedial" to that accident and therefore admissible. Justice Pelander noted that first there is nothing "inherent in the word 'remedial,' . . . that presupposes knowledge of a prior accident by one undertaking the repairs." Second the public policy behind the Rule is to encourage defendants to improve the safety of its instrumentalities without fear that the improvement will be used against them in court. "Although defendants who improve safety without knowledge of previous accidents may not be deterred by the risk of liability to a particular claimant, they may nonetheless be deterred by the risk of potential liability to unknown claimants if subsequent measure evidence were routinely admitted when measures are taken without knowledge of previous injuries." Finally, the court found no basis to allow this evidence "for another purpose, such as proving ownership, control, or feasibility of precautionary measures if controverted, or impeachment." Here the state did not deny ownership, control or feasibility. The state did allege contributory negligence and denied the intersection was unsafe without the signs. This alone however was not enough to allow the evidence for "other purposes." Such evidence may be admissible where the defendant goes beyond stating the condition was safe or adequate and makes exaggerated claims like, "it was the safest possible" or the "design was the best or the only one possible" or "the best or safest on the market" or they had done "everything necessary to assure safety."

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