Arizona Court ofAppeals Division One Holds That Trial Court Properly Excluded Evidence of Subsequent Remedial Measures Under Rule 407.

In December 2003, Mark Johnson (“Decedent”) died after rear-ending a dump truck that had been exiting a mining pit at an intersection.  After the accident, but without knowledge of the accident, the State installed a truck-crossing sign and a variable message board to warn drivers that trucks would be crossing or entering the intersection.  Decedent’s parents, the Johnsons, brought a wrongful death suit against the State, alleging that it negligently designed the intersection and failed to take reasonable measures to eliminate the dangerous conditions of the intersection.  The State denied liability and claimed that Decedent was comparatively negligent.  The jury returned a defense verdict.  The Johnsons filed a motion for new trial challenging, among other things, the trial court’s exclusion of evidence concerning the State’s installation of warning signs.  The trial court denied the motion, and the Johnsons timely appealed.

The ArizonaAppeals Court affirmed.  The Court began by holding that evidence of the State’s installation of warning signs was inadmissible under Ariz. R. Evid. 407 because it was a “subsequent remedial measure.”  The fact that the State was not aware of the accident when it installed the signs was irrelevant because Rule 407 applies whenever “measures are taken” “after an event,” regardless of whether those measures are taken in response to the event.  The Court further explained that its holding supported the policy underlying Rule 407, which is to encourage defendants to make safety changes without fearing potential claims. 

The Court then held that the exclusion in Rule 407 allowing the introduction of “evidence of subsequent measures when offered for another purpose” did not apply in this case.  First, evidence of the sign installation could not be introduced to refute the State’s comparative negligence affirmative defense because that defense is inextricably intertwined with the State’s negligence, and thus the remedial measures evidence “constitutes direct proof of the defendant’s alleged primary negligence.”  Second, the evidence could not be introduced to refute the State’s defense that the danger was open and obvious because the Johnsons had other evidence to rebut that defense.  Finally, the Court rejected the Johnson’s argument that the evidence was admissible to establish the State’s knowledge of the dangerous conditions, explaining that the State’s knowledge was an element of negligence, and thus did not constitute “another purpose.” 

Judge Barker authored the opinion; Presiding Judge Weisberg and Judge Downie concurred.