McFarland v. Bruno Machinery Corp.McFarland v. Bruno Machinery Corp.
Lead Opinion
The primary issue in this case is whether the proscriptions of
“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 ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” (Emphasis added.)
The policy reasons for
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
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
We agree that
In Ohio, the contrast between negligence and strict liability in products liability cases is distinct. See Bowling v. Heil Co. (1987),
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
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
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),
The Supreme Court of California upheld the admissibility of the design change. The court, finding that Section 1151 did not apply to products liability cases based on strict, liability, analyzed the' policy considerations behind Section 1151 and remarked that:
“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.]
“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 products 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, simplybecause 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 rulé should not be gratuitously extended to that field.” Id., 13 Cal.3d at 119-120 , 117 CaLRptr. at 815-816,528 P.2d at 1151-1152 .
The reasoning articulated in Ault has been endorsed by numerous courts. See, e.g., Ford Motor Co. v. Fulkerson (Ky.1991),812 S.W.2d 119 , 125 (Policy considerations in negligence cases for excluding evidence of subsequent repairs have little or no application in dealing with a design change because “[t]he issue is not whether the seller has admitted misconduct — the seller is liable even though he has exercised all possible care”); Sanderson v. Steve Snyder Enterprises, Inc. (1985),196 Conn. 134 , 146,491 A.2d 389 , 395 (“Given the strong economic influences on the conduct of a designer or manufacturer created by the existence of the strict liability theory, it is unlikely that any evidentiary use of subsequent remedial measures will discourage a designer or manufacturer from taking them”); and Chart v. Gen. Motors Corp. (1977),80 Wis.2d 91 , 102,258 N.W.2d 680 , 684 (“Economic realities will set the course and these realities are that the sooner remedial measures are taken, the less costly the' defect will be to the manufacturer.”).
Similarly, Professor Weissenberger, an often-cited and well-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-manufacturer 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),
There are some courts and authorities who have opposed admission of evidence 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 are equally applicable to cases based on strict liability. See, e.g., Gauthier v. AMF, Inc. (C.A.9, 1986),
We have thoroughly reviewed the policy reasons upon which the rule 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 may apply to negligence cases do not extend to claims founded in strict liability. Thus, we hold that
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 whether 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, the 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.
Notes
. See
. In the case at bar, feasibility of precautionary measures was not controverted.
. Black’s Law Dictionary (6 Ed.1990) 379, defines “culpable conduct” as “[bjlamable; 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.)
. Cal.Evid.Code Section 1151 is virtually identical to
Dissenting Opinion
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
Both the trial court and the court of appeals used
I am simply not persuaded that the rule against admitting subsequent remedial efforts should not be applied to a case tried under
II
The rationale underlying
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
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.
Appellants were permitted to produce evidence supporting the 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
HI
The second premise underlying
The problem with this argument is that the distinction between manufacturer and product is hyperteehnical. 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 hyper-technical under
Accordingly, I must respectfully dissent.