Question: Can your attorney present evidence of a subsequent repair of a defective condition of something like fixing crumbling stairs to the jury? Answer: Usually, the attorney may not present subsequent remedial actions by the defendant. Rule 407 provides that “when after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.” Two principal reasons have been stated as support for the rule. The first reason is grounded in public policy and is based on the fear that permitting proof of subsequent remedial action will deter a defendant from taking action that will prevent future injuries. The second reason is based on doubt over the probative value of subsequent measures. Evidence of repair is relevant primarily as a form of admission by the defendant. However, evidence of repair “may also connote the defendant’s exercise of care beyond that required by the law: the defendant turns to measures beyond those required by reasonable care.” As our supreme court has observed, “A person may have exercised all the care which the law required, and yet, in light of the new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards.”
