When, after an event (including sale of a product to a user or consumer) causing injury, a party takes measures which, if taken earlier, would have made the injury less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.130 Such evidence is generally considered to be of low logical relevance. Further, if evidence of subsequent remedial repairs were admitted, people might be inhibited from taking post-accident precautions, to the general detriment of society.
Evidence of subsequent remedial repairs is not absolutely barred for all purposes, however. Such evidence may come in if it is offered for an independent purpose, such as proving ownership, control or feasibility of precautionary measures, if controverted, or for impeachment.131
130. D.R.E. 407; Grochowski v. Stewart, 53 Del. 330, 169 A.2d 14, 18 (Del. Super. 1961).
131. D.R.E. 407. See also Handler Corp. v. Tiapechco, 901 A.2d 737, 750 (Del. 2006); Craig v. A.A.R. Realty Corp., 576 A.2d 688, 691 n.1 (Del. Super. 1989), aff’d mem., 571 A.2d 786 (Del. 1990); Grochowski v. Stewart, l19 A.2d 14, 18 (Del. Super. 1961).
© 2010 David L. Finger