2.7​Subsequent Remedial Measures

“When measures are taken that would have made an event less likely to occur, evidence of subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.” MRE 407. “But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.” Id.

“The purpose of MRE 407 is to encourage, or at least not to discourage, people from taking steps in furtherance of added safety.” Ellsworth v Hotel Corp of America, 236 Mich App 185, 189 (1999). However, evidence of subsequent repairs may be admissible if the following criteria are met:

“(1) evidence of subsequent remedial action is otherwise relevant, (2) admission of the evidence would not offend policy considerations favoring encouragement of repairs, and (3) the remedial action is not undertaken at the direction of a party plaintiff so that it does not constitute a self-serving, out-of-court declaration by that party.” Denolf v Frank L Jursik Co, 395 Mich 661, 669-670 (1976).⁵⁸

In Denolf, after the plaintiff sustained injuries, a safety guard was installed on the truck lift that had injured the plaintiff’s hand. Denolf, 395 Mich at 666. The jury was allowed to view the truck, and photos of the truck, with the altered lift. Id. The Court stated that MRE 407 “is primarily grounded in the policy that owners would be discouraged from attempting repairs that might prevent future injury if they feared that evidence of such acts could be introduced against them.” Denolf, 395 Mich at 667. However, the Court concluded the exclusion was inapplicable in the case because “evidence of subsequent repairs was not introduced for the purpose of establishing the negligence of [defendant], which undertook the remedial action, nor did it prejudice [defendant] in any way. Id. at 669. The exclusionary rule “is confined to the context where (1) evidence of subsequent remedial action is otherwise relevant, (2) admission of the evidence would not offend policy considerations favoring encouragement of repairs, and (3) the remedial action is not undertaken at the direction of a party plaintiff so that it does not constitute a self-serving, out-of-court declaration by that party.” Id. at 669-670.

In Ellsworth, plaintiff sought “to impeach defendant’s witness with evidence that defendant renovated [its] sidewalks after plaintiff’s fall. Ellsworth, 236 Mich App at 187. “[E]vidence of a subsequent remedial measure is admissible as impeachment when the opposing party has denied making a repair,” and the impeachment evidence “may be either direct or circumstantial.” Id. at 189. An objection to the impeachment evidence is not a prerequisite to admission of the evidence. Id. at 190 (holding the trial court erred in concluding plaintiff was required to object to the evidence). Ellsworth involved an “extensive renovation project, [where] defendant replaced three thousand feet of sidewalk, which necessarily included the area where plaintiff fell,” at least 7 months after plaintiff’s accident. Id. “This was not a ‘subsequent remedial repair’ as described in MRE 407. The construction was too remote in time from plaintiff’s accident and covered too large a territory to be considered a ‘repair’ to the accident site.” Ellsworth, 236 Mich App at 190. “There was no evidence to suggest that this large-scale construction project was prompted by or otherwise related to plaintiff’s fall;” thus, it was “not the sort of ‘repair that may be used to impeach testimony that no repair was made after the plaintiff’s accident.” Id.