Case Information
*1
[This opinion has been published in
Ohio Official Reports
at
M F ARLAND ET AL ., A PPELLANTS , v . B RUNO M ACHINERY C ORPORATION , A PPELLEE .
[Cite as
McFarland v. Bruno Mach. Corp.
,
Torts—Negligence—Evidence—Evid.R. 407 not applicable to products liability
cases premised upon strict liability in tort. Evid.R. 407, which prohibits the introduction of evidence of subsequent remedial
measures to prove negligence or culpable conduct, is not applicable to products liability cases premised upon strict liability in tort.
(No. 92-2236—Submitted November 9, 1993—Decided February 16, 1994.) A PPEAL from the Court of Appeals for Warren County, No. CA91-11-089. __________________ On December 14, 1988, appellant, Lester McFarland, was injured in
the course of his employment for Amtex. Appellant workеd as a maintenance mechanic for Amtex, a provider of carpet "blanks" for the auto industry. At the time of the accident, appellant was directed to correct a belt-tracking problem on a die cutting press designed and manufactured by appellee, Bruno Machinery Corporation ("Bruno"). Appellant positioned himself under the belt and, after adjusting the tracking problem, he noticed that the machine was making a "noise." Having diagnosed what he believed to be the source of the problem, appellant started to exit from underneath the machine. It was at this time that appellant's fingers on his right hand and then appellant's right arm were somehow "taken up in between the belt and the roller." As a result of his arm being entangled in the machinery, appellant sustained serious injuries. Following the accident, Amtex placed a guard on the machine.
Further, Bruno (appellee) redesigned similar presses so as to prevent the kind of accident incurred by appellant.
{¶ 3} On September 25, 1989, appellant and his wife, Cynthia McFarland, [1] filed a complaint in the Court of Common Pleas of Warren County, naming appellee as the sole defendant. Appellants alleged that the machine manufactured by appellee was defectively designed. Appellants sought recovery against appellee based upon the theory of strict liability in tort. Additionally, Cynthia brought an action for loss of consortium.
{¶ 4} Prior to trial, appellee filed a motion in limine . Appellee requested the trial court to exclude all еvidence regarding any design changes made by appellee to its die cutting presses subsequent to the time the machine which caused Lester's injuries was manufactured. Appellee also sought to preclude evidence that Amtex placed a guard on the machine in question after the incident. Appellee asserted that evidence of modification by either appellee or Amtex was irrelevant, prejudicial, and prohibited by Evid.R. 407. On September 18, 1991, the trial court granted apрellee's motion in
limine . Thereafter, the case proceeded to trial. At trial, counsel for appellants proffered evidence of remedial measures taken by Amtex and appellee. Ultimately, the jury returned a verdict in favor of appellee. Appellants appealed to the Court of Appeals for Warren County. The
court of appeals affirmed the judgment of the trial court. The court of appeals determined that Evid.R. 407 was applicable to products liability cases based upon strict liability in tort and that the trial court properly excluded "evidence of the post- accident modifications that were made to appellee's press." The cause is now before this court pursuant to the allowance of a motion to certify the record.
__________________
Cors & Bassett and Michael L. Gay , for appellants.
1. Cynthia McFarland is also an appellant in this case.
Porter, Wright, Morris & Arthur and Thomas H. Pyper , for appellee. Frank E. Todaro , urging reversal for amicus curiae , Ohio Academy of Trial Lawyers.
Arter & Hadden , Irene C. Keyse-Walker , Mark F. McCarthy and Sonali Bustamante Wilson , urging affirmance for amicus curiae , Ohio Association of Civil Trial Attorneys.
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D OUGLAS , J. The primary issue in this case is whether the proscriptions of Evid.R. 407 apply to an action which alleges that a product is defective in design or formulation. [2] More specifically, we are asked to determine whether the rule applies to a products liability claim grounded upon the theory of strict liability in tort. Evid.R. 407, entitled "Subsequent Remedial Measures," provides:
"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 evidencе of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." (Emphasis added.) Evid.R. 407 was designed to preclude admission of evidence of remedial measures taken after an event if the evidence is used to prove "negligence or culpable conduct." This rule, however, does not require exclusion of a remedial measure when offered for anothеr purpose. For instance, evidence can be properly admitted if admitted for the purpose of proving ownership, control, feasibility of precautionary measures (if controverted), [3] or impeaching a witness.
2. See R.C. 2307.75, effective January 5, 1988. This statute sets forth when a product is defective in design or formulation.
3. In the case at bar, feasibility of precautionary measures was not controverted. The policy reasons for Evid.R. 407 have been stated as resting on
two grounds. The first justification for the rule is that evidеnce of subsequent remedial measures is thought to have minimal or nonexistent probative value in establishing negligence . 1 Weissenberger, Ohio Evidence (Rev. 1988) 42, Section 407.3. Taking subsequent remedial action is not an admission of negligence. The rationale is that the injury may have been caused by reason of mere accident or through the plaintiff's contributory negligence. 1 Weissenberger, supra , at 42-43. See, also, Giannelli, Ohio Rules of Evidence Handbook (4 Ed. 1993) 90-91. The second explanation for excluding evidence under the rule is based on the social policy of encouraging repairs or corrections. Weissenberger, supra, at 43; and Giannelli, supra , at 91. See, also, Staff Note to Evid.R. 407. The argument behind this policy reason is that a defendant would be less likely to take subsequent remedial measures if the repairs or corrections could be used as evidence against the defendant at trial. Appellants contend that the trial court erred in not permitting
evidence of remedial measures taken by Amtex and appellee. Appellants argue that they should have been permitted to introduce into evidence the fact that Amtex added a guard to the machine which had caused Lester's injuries and that appellee redesigned similar cutting presses to correct the hazard. Appellants further contend that in applying the proscriptions set forth in Evid.R. 407, both the trial court and the court of appeals committed error. Appellants urge that the rule is applicable solely to actions premised оn negligence or involving culpable conduct and not to products liability claims predicated upon strict liability in tort. We agree that Evid.R. 407 has no application here. By its very
terms, the rule excludes evidence of subsequent remedial measures only when "negligence" or "culpable conduct" [4] is alleged. In Ohio, the contrast between negligence and strict liability in
products liability cases is distinct. See
Bowling v. Heil Co.
(1987), 31 Ohio St.3d
277, 31 OBR 559,
restrictions of the rule apply not only to actions based on negligence but to actions pursued under the theory of strict liability. Appellee posits that support for its position can be gleaned from the language utilized in R.C. 2307.75, and from the history of Evid.R. 407. Appellee points out that Evid.R. 407, as originally drafted, contained a provision that would have allowed evidence of subsequent remedial measures in strict liability actions. Appellee stresses that this provision was eventually deleted and, because this provision did not become part of the rule as adopted, the draftеrs intended that Evid.R. 407 apply to strict liability claims. We disagree.
4. Black's Law Dictionary (6 Ed.1990) 379, defines "culpable conduct" as "[b]lamable; censurable; criminal; at fault ; involving the breach of a legal duty or the commission of a fault . That which is deserving of moral blame." (Emphasis added.) As indicated, strict liability, in the context of a products liability suit,
denotes responsibility without regard to fault or culpability. We believe that if the drafters of Evid.R. 407 had intended to foreclose evidence of subsequent remedial measures with respect to strict liability cases, the rule, as adopted, would have contained an expliсit provision evidencing such an intention. In finding that the trial court did not abuse its discretion in excluding
evidence of the corrective measures taken by Amtex and appellee, the court of appeals relied, in part, on the stated policy reasons which underlie Evid.R. 407. These policy reasons are extensively set forth by both parties and amici curiae for the purpose of establishing their particular position on whether evidence of corrective measures is admissible. The arguments on both sides of the issue are extensive and persuasive. Post-occurrence modifications by a manufacturer have been found
to be admissible in products liability cases grounded in strict liability by a number
of courts. See,
e.g.
,
Caprara
,
supra
;
Caldwell v. Yamaha Motor Co., Ltd.
(Wyo.
1982), 648 P.2d 519;
Matsko v. Harley Davidson Motor Co., Inc.
(1984), 325
Pa.Super. 452,
measures are admissible in a strict liability setting have relied upon the landmark
opinion
Ault v. Internatl. Harvester Co.
(1974),
"Courts and legislatures have frequently retained the exclusionary rule in negligence cases as a matter of 'public policy,' reasoning that the exclusion of such evidence may be necessary to avoid deterring individuals from making improvements or repairs after an accident has occurred. Section 1151 rests explicitly on this 'public policy' rationale. In explaining the purpose of the section, the draftsmen's comment states: 'The admission of evidence of subsequent repairs to prove negligence would substantially discourage persons from making repairs after the occurrence of an accident. * * * [Emphasis sic .] 5. Cal.Evid. Code Section 1151 is virtually identical to Evid.R. 407, except that Evid.R. 407 further provides that exclusion of evidence of subsequent remedial measures is not required when the evidence is offered for certain specific purposes.
"While the provisions of section 1151 may fulfill this anti-deterrent function in the typical negligence action, the provision plays no comparable role in the products liability field. Historically, the common law rule codified in section 1151 was developed with reference to the usual negligence action * * *; in such circumstances, it may be realistic to assume that a landowner or potential defendant might be deterred from making repairs if such repairs could be used against him in determining liability for the initial accident.
"When the context is transformed from a typical negligence setting to the
modern prоducts liability field, however, the 'public policy' assumptions justifying
this evidentiary rule are no longer valid. 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 the products liability area, the exclusionary rule of section 1151 does not affect
the primary conduct of the mass producer of goods, but serves merely as a shield
against potential liability. In short, the purpose of section 1151 is not applicable to
a strict liability case and hence its exclusionary rule should not be gratuitously
extended to that field."
Id.
,
courts. See,
e.g.
,
Ford Motor Co. v. Fulkerson
(Ky. 1991),
recognized authority in this area, noted that:
"* * * Proponents of admitting evidence of subsequent remedial measures in products liability actions argue that it is absurd to believe that a manufacturer would forego repairs in a product's design or manufacture in order to avoid the admission at trial of evidence of its subsequent changes in the product. A rational business does not risk millions of dollars in liability that may result from further injuries in order to avoid creating evidence of subsequent remedial measures. This argument is strengthened when one considers the additional liability in punitive damages that may result from leaving a known dangerous condition unremedied." Weissenberger, supra , at 46, Section 407.5. Appellee suggests that Ault , and authorities in support of that
opinion, are not applicable here because the decision in
Ault
was based on the fact
that the defendant-manufaсturer was a "mass producer." However, an argument
similar to that posed by appellee has been soundly rejected. We agree with the
conclusion reached by the Supreme Court of Wisconsin in
Friederichs v. Huebner
(1983), 110 Wis.2d 581,
{¶ 25}
There are some courts and authorities who have opposed admission
of еvidence of subsequent remedial actions in products liability suits. A number of
these courts and authorities have declined to follow
Ault
,
supra
, and its progeny.
Though different approaches have been espoused, many seem to find that there is
no practical difference between strict liability and negligence in defective design
cases and, therefore, the policy reasons behind excluding evidence of remedial
measures is equally applicable to cases based on strict liability. Sеe,
e.g.
,
Gauthier
v. AMF, Inc.
(C.A.9, 1986), 788 F.2d 634;
Grenada Steel Industries, Inc. v.
Alabama Oxygen Co., Inc.
(C.A.5, 1983),
is based, the case law from Ohio and sister jurisdictions and various treatises that discuss the question. After that review, we believe that the better-reasoned decisions are those that have followed Ault , supra . Given the distinct policy and goals for applying strict liability involving defective products, it is apparent that the reasons for excluding evidence of remedial acts which mаy apply to negligence cases do not extend to claims founded in strict liability. Thus, we hold that Evid.R. 407, which prohibits the introduction of evidence of subsequent remedial measures to prove negligence or culpable conduct, is not applicable to products liability cases premised upon strict liability in tort. Finally, we are aware of the contention by some that the introduction
of evidence of subsequent remedial measures in a strict products liability case could be highly prejudicial to a defendant-manufacturer. While this contention may have some validity, an equally plausible assertion can be made on behalf of an injured plaintiff if such evidence is excluded. Without question, all evidence going to the heart of an issue is, to some extent, "prejudicial" to someone. That is the very essence of "evidence" and our adversary system. Let the jury decide! In the case at bar, the remedial changes implemented by Amtex and
appellee directly concern whеther the machine in question was defective. Such evidence would have been probative of the issue as to whether the machine which caused the injury was safely designed. Proof that Amtex placed a guard on the machine and that appellee changed the design in order to prevent further injuries would be probative of the quality of the machine prior to the time the remedial acts were taken. The jury did not have the benefit of this evidence. Accordingly, based on the foregoing, thе judgment of the court of
appeals is reversed, and the cause is remanded to the trial court for further proceedings not inconsistent with this opinion.
Judgment reversed and cause remanded.
M OYER , C.J., A.W. WEENEY , R ESNICK , F.E. S WEENEY AND P FEIFER , JJ., concur.
W RIGHT , J., dissents.
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W RIGHT , J., dissenting.
As pointed out by the majority, "[t]he arguments on both sides of the
issue [before us] are extensive and persuasive." Likewise, as the majority indicates,
there is respectable authority on both sides of this issue. The notion that evidence
of remedial measures is admissible in a strict liability setting was vigorously argued
in
Ault v. Internatl. Harvester Co.
(1974),
I
{¶ 31} Both the trial court and the court of appeals used Evid.R. 407 to find that remedial measures were barred as evidence. I would agree with the majority that Evid.R. 407 does not specifically deal with causes premised upon strict liability. However, as pointed out by the majority, the original draft of Evid.R. 407 contained a provision that would have allowed evidence of subsequent remedial measures in strict liability actions. This provision was deleted, presumably as superfluous, suggesting, of course, that the rule should apply to causes involving strict liability. The majority takes the view that if the drafters of Evid.R. 407 had intended to foreclose evidence of subsequent remedial measures in strict liability actions they would have said so. I find this portion of the majority opinion, at best, implausible. I am simply not persuaded that the rule against admitting subsequent
remedial efforts should not be applied to a case tried under R.C. 2307.75. I say this because this view is consistent with the legislative history of the rule, its underlying policy, and the basis for this form of tort.
II The rationale underlying Evid.R. 407 is twofold. The first premise
is that while evidence of subsequent remedial measures may be of some probative value, the potential prejudicial effect of the evidence as an admission of liability is devastating. This proposition addrеsses the very heart of the issue. How is such evidence relevant to showing that the product was defective at the time it left the manufacturer's control? And, indeed, does its relevance, if any, outweigh its prejudicial effect? Given that the determinative time frame for ascertaining whether a
product is defective is the time at which the product left the manufacturer's control, R.C. 2307.75, what relevance attaches to subsequent design changes by either the manufacturer or a non-party employеr? In this case, the relevant inquiry is whether the absence of a guard on the machine presented a foreseeable risk and whether the press as designed was defective.
{¶ 35} Appellants suggest that proof appellee actually changed its design in a way to make the press safer is probative of the quality of the earlier design. In light of its underlying considerations of public policy, this is precisely the type of prejudice Evid.R. 407 was adopted to prevent. The use of subsequent design changеs as proof of product defect clearly deters a manufacturer from implementing improvements. In a word, I believe that appellants have argued that this court should apply "hindsight liability." Unhappily, the majority has bought into this concept. Generally "post-event" design changes are not pertinent to whether
a design posed a "foreseeable risk," and was, therefore, defective at the time the product left the manufacturer's control. Thus, little relevance attaches to "post- event" design changes unless, of course, the feasibility of a "post-event" design change is controverted. Evid.R. 407 does not and should not permit the use of subsequent
design changes when an opposing party controverts the feasibility of the subsequent design changes. However, if feasibility is not controverted, as in this case , the fact that the design was actually incorporated into the product is of little relevance and is potentially very prejudicial. Appellants were permitted to produce evidence supporting its
allegation that the press, due to the absence of a barrier guard, was defective in design. Any benefits from admission of the subsequent remedial measure taken by appellee would have been cumulative in character. In my view the trial court did not abuse its discretion in permitting "arguably" relevant evidence to be excluded. The majority's interpretation of R.C. 2307.75, a statute which interjects negligence concepts such as "foreseeable risk" into a product liability аction, greatly enhances the potential for prejudice, and in the process outweighs the relevance of cumulative evidence.
III The second premise underlying Evid.R. 407 is that an admission of
evidence of subsequent remedial measures may deter a manufacturer from making design changes because of fear of a future lawsuit. Appellants, of course, contend that in strict liability claims the fact that the remedial measure will be perceived as an admission of fault is irrelevant beсause in strict tort liability the focus is on the product, not on the reasonableness of the manufacturer's conduct. The problem with this argument is that the distinction between
manufacturer and product is hypertechnical. The suit is against the manufacturer, not the product. It is the fact that the evidence may be used against it, and that the manufacturer will ultimately be liable, that will inhibit the manufacturer from implementing subsequent remedial measures. I also note that the distinction between manufacturer's fault and product defect has become even more hypertechnical under R.C. 2307.75. As stated above, R.C. 2307.75 requires an examination of the foreseeability of the risk at the time the product left the manufacturer's control. The distinction between negligence and strict liability has thus been attenuated by R.C. 2307.75 and its interpretation to such an extent that appellee is reduced to arguing that strict product liability fits into the "culpable conduct" limitation of Evid.R. 407. The fact that in some cases economics will drive a manufаcturer to take subsequent remedial measures regardless of their admissibility obviously does not diminish the policy of encouraging manufacturers to take such action. I suggest that there simply is no appreciable distinction between negligence and strict liability cases in promoting the policy of encouraging remedial action. This was surely the view at the dawn of the concept of strict liability. See Prosser, The Assault Upon the Citadel (1960), 69 Yale L.J. 1099, 1122. It remained the view when this socially useful tort remedy came into full flower. See Prosser, The Fall of the Citadel (1966), 50 Minn.L.Rev. 791, 816. I see no good reason for a change today. Accordingly, I must respectfully dissent.
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