Rule 407 Subsequent remedial measures. 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. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving dangerous defect in products liability cases, ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. L 1980, c 164, pt of §1
RULE 407 COMMENTARY
This rule is similar to Fed. R. Evid. 407, the Advisory Committee's Note to which points out: "The rule incorporates conventional doctrine which excludes evidence of subsequent remedial measures as proof of an admission of fault.... The ... 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 rule is broad enough to encompass all of them."
This rule is limited strictly to exclusion of such evidence when offered as proof of negligence or culpable conduct. The second sentence of the rule lists some of the other purposes for which this evidence may be admitted. The rule varies from Fed. R. Evid. 407 in the addition of "dangerous defect in products liability cases" as one permissible purpose for which remedial measures may be admitted. This codifies the result in Ault v. International Harvester Co., 117 Cal. Rptr. 812, 815-16, 528 P.2d 1148, 1151-52 (1975), where the court held that the rule barring evidence of subsequent repairs should not apply in a products liability case. The Ault court reasoned as follows:
While [the traditional rule] may fulfill this anti-deterrent function [of encouraging, or at least not discouraging, the making of repairs by defendants] in the typical negligence action, the provision plays no comparable role in the products liability field....
The contemporary corporate mass producer of goods, the normal products liability defendant, manufactures tens of thousands of units of goods; it is manifestly unrealistic to suggest that such a producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image simply because evidence of adoption of such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement.... In short, the purpose of [the traditional rule] is not applicable to a strict liability case and hence its exclusionary rule should not be gratuitously extended to that field.
In Hawaii, under Stewart v. Budget Rent-a-Car Corp., 52 H. 71, 75, 470 P.2d 240, 243 (1970), a manufacturer, seller, or lessor is strictly liable in products liability cases provided there is proof of "a defective product which is dangerous to the user or consumer or to his property." Evidence of subsequent remedial measures is admissible under this rule to prove such a defect.
Case Notes
Measures that are taken after an event but that are predetermined before the event are not "remedial" under this rule, because they are not intended to address the event; thus, because such measures are not "remedial", evidence of such measures are not inadmissible under the plain language of this rule. 115 H. 462, 168 P.3d 592 (2007).
Structure Hawaii Revised Statutes
106 Remainder of or related writings or recorded statements.
201 Judicial notice of adjudicative facts.
302 Presumptions in civil proceedings.
303 Presumptions imposing burden of producing evidence.
304 Presumptions imposing burden of proof.
306 Presumptions in criminal proceedings.
401 Definition of "relevant evidence".
402 Relevant evidence generally admissible; irrelevant evidence inadmissible.
403 Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
404 Character evidence not admissible to prove conduct; exceptions; other crimes.
405 Methods of proving character.
407 Subsequent remedial measures.
408 Compromise, offers to compromise, and mediation proceedings.
409 Payment of medical and similar expenses.
410 Inadmissibility of pleas, plea discussions, and related statements.
412 Sexual offense and sexual harassment cases; relevance of victim's past behavior.
501 Privileges recognized only as provided.
502 Required reports privileged by statute.
504 Physician-patient privilege.
504.1 Psychologist-client privilege.
509 Privilege against self-incrimination.
511 Waiver of privilege by voluntary disclosure.
512 Privileged matter disclosed under compulsion or without opportunity to claim privilege.
513 Comment upon or inference from claim of privilege; instructions.
601 General rule of competency.
602 Lack of personal knowledge.
605 Competency of judge as witness.
606 Competency of juror as witness.
608 Evidence of character and conduct of witness.
609 Impeachment by evidence of conviction of crime.
610 Religious beliefs or opinions.
611 Mode and order of interrogation and presentation.
612 Writing used to refresh memory.
613 Prior statements of witnesses.
614 Calling and interrogation of witness by court.
616 Televised testimony of child.
701 Opinion testimony by lay witnesses.
704-416 overrides this rule. 71 H. 591, 801 P.2d 27 (1990).
703 Bases of opinion testimony by experts.
704 Opinion on ultimate issue.
705 Disclosure of facts or data underlying expert opinion.
803 Hearsay exceptions; availability of declarant immaterial.
804 Hearsay exceptions; declarant unavailable.
806 Attacking and supporting credibility of declarant.
901 Requirement of authentication or identification.
903 Subscribing witness' testimony unnecessary.
1003 Admissibility of duplicates.
1004 Admissibility of other evidence of contents.
1007 Testimony or written admission of party.
1008 Functions of court and jury.
1102 Jury instructions; comment on evidence prohibited.
626-2 Effective date; applicability to future cases and pending cases.