Is evidence of post-accident investigation in truck accident case automatically excluded as subsequent remedial measures?
Indiana Rule of Evidence 407 states that evidence of “measures that are taken that would have made an earlier injury or harm less likely to occur” is inadmissible to prove negligence. In this case, the complained-of evidence is Hunt’s review and investigation of the accident. It is important to note that the majority of jurisdictions agree that a post-incident investigation and report of the investigation do not constitute inadmissible subsequent remedial measures. E.g., Prentiss & Carlisle Co. v. Koehring–Waterous Div. of Timberjack, Inc., 972 F.2d 6, 10 (1st Cir.1992) (holding that post-accident test of allegedly defective product is not a subsequent remedial measure); Wenger v. W. Pennsbro Twp., 868 A.2d 638, 644 (Pa.Commw.Ct.2005) (holding that post-accident engineering study itself was not a remedial measure as “the whole purpose of [the] investigation was to determine whether remedial measures were warranted”); Fox v. Kramer, 22 Cal.4th 531, 93 Cal.Rptr.2d 497, 994 P.2d 343, 352–53 (2000) (noting with approval that majority of courts “distinguish between an investigation and actual steps taken to correct a problem; postevent investigations do not themselves constitute remedial measures, although they might provide the basis for such measures”) Ensign v. Marion Cnty., 140 Or.App. 114, 914 P.2d 5, 7–8 (1996) (finding that investigation done and report prepared by sheriff’s board of review following a car accident was not a subsequent remedial measure). Other courts disagree. E.g., Maddox v. City of Los Angeles, 792 F.2d 1408, 1417 (9th Cir.1986) (holding that after a police officer used a choke hold on a suspect, subsequent internal affairs investigation was an inadmissible remedial measure); Martel v. Mass. Bay Transp. Auth., 403 Mass. 1, 525 N.E.2d 662, 664 (1988) (holding that post-accident investigation is a “prerequisite to any remedial safety measure” and is “inextricably bound up with the subsequent remedial measures,” and was therefore inadmissible).
Further, the 10th Circuit considered whether tests and a report prepared by a helicopter manufacturer following a helicopter accident was an inadmissible subsequent remedial measure. Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron, 805 F.2d 907 (10th Cir.1986). That Court found the evidence admissible, holding that
[i]t would strain the spirit of the remedial measure prohibition in Rule 407 to extend its shield to evidence contained in post-event tests or reports…. [I]t is usually sounder to recognize that such tests are conducted for the purpose of investigating the occurrence to discover what might have gone wrong or right. Remedial measures are those actions taken to remedy any flaws or failures indicated by the test.
Id. at 918 (emphasis added). Adding to this analysis, which we find to be sound, is the Supreme Court of Alaska, which considered whether a post-accident report was admissible. City of Bethel v. Peters, 97 P.3d 822 (Alaska 2004). Finding that the investigation and report on the investigation did not constitute subsequent remedial measures, the Alaska Court reasoned as follows:
Rule 407 prohibits evidence of “measures” that have been “taken.” We take “measures” to mean concrete actions, and to leave outside the rule’s prohibition preliminary investigations and recommendations pointing toward those actions. Even if post-accident investigations and reports were considered “measures,” the rule would not reach them. The rule excludes “subsequent measures” that would have reduced the likelihood of the accident if they had been “taken previously,” meaning before the accident. “One cannot investigate an accident before it occurs, so an investigation and report … cannot be a measure that is excluded.” The language of Rule 407 and the general presumption of admissibility laid down by Rule 402, along with persuasive authority from other courts, compel us to hold that evidence of post-accident investigations and recommendations are not automatically excluded as subsequent remedial measures.
Id. The Indiana Courts have found this analysis to be compelling, and agree that evidence of post-accident investigations are not automatically excluded as subsequent remedial measures. Therefore, the trial court will review the facts of the case to determine if such evidence is admissible or not.