Subsequent Remedial Measures
Inadmissible to Prove Negligence or Culpable Conduct
By Sally A. Roberts
The general rule is that evidence of subsequent repair is not admissible on the issue of
negligence.1 Courts may admit evidence of subsequent remedial measures if offered for other
purposes.2 The rule barring evidence of subsequent repairs in negligence actions is based on
narrow public policy grounds, not on any evidentiary infirmity. It presupposes that to admit
evidence of subsequent repairs to an identified hazardous condition as proof of negligence
penalizes the defendant for taking remedial measures. This discourages alleged tortfeasors from
repairing hazards, thereby perpetuating the danger. This policy fosters the public good by
allowing tortfeasors to repair hazards without fear of having the repair used as proof of
negligence.
Even in negligence actions, however, courts have held proof of subsequent remedial
measures admissible if offered for a purpose other than to show culpable conduct on the part of a
defendant. In several cases, evidence has been admitted when the defendant’s control of the
hazardous instrumentality is at issue in the suit.3 The existence of these exceptions to the general
rule illustrates that the strength of the public policy supporting the rule is not so great as to
demand the exclusion where there is a strong probative use for the evidence, as contrasted with
the somewhat dubious legal relevance of subsequent repairs to the question of negligence itself.4
The central question is the plaintiff’s purpose in introducing the evidence. The doctrine
bars evidence of subsequent repairs when offered to prove negligence. It does not exclude such
evidence when offered to prove some other material issue,5 such as ownership, control, or
feasibility of precautionary measures.6 While repairs made after an accident tend to prove that
the party conducting them retains control over the area in question, if the defendant has admitted
orally that it controlled the premises on which the injury occurred, no reference in testimony to
subsequent repairs should be made.7
Conn. Code of Evidence, § 4-7, provides: “Subsequent Remedial Measures
(a) General rule. Except as provided in subsection (b), evidence of measures taken after an event, which if taken
before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or
culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove
controverted issues such as ownership, control or feasibility of precautionary measures.
2
Smith v. Town of Greenwich, 278 Conn. 428, 447-49 (2006) (defendant's control of the premises where the
incident occurred.)
3
See, e.g., Williams v. Milner Hotels Co., 130 Conn. 507, 510 (1944) (control); Killian v. Logan, 115 Conn. 437,
439 (1932).
4
Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 143-45 (1985).
5
Rokus v. Bridgeport, 191 Conn. 62, 66 (1983) (post-accident photograph of accident scene at which subsequent
remedial measures had be implemented admissible when photograph was offered solely to show configuration and
layout of streets and sidewalk to acquaint jury with accident scene.)
6
Baldwin v. Norwalk, 96 Conn.1, 8 (1921) (subsequent remedial measures evidence may also be offered for
impeachment purposes.)
7
Haffey v. Lemieux, 154 Conn. 185, 192-93 (1966).
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Ordinarily, evidence of various remedial measures which have been taken by a defendant
after the occurrence of a slip and fall accident are inadmissible to prove that the pre-accident
condition of the premises was unreasonably dangerous.8 The rationale most often offered for
this rule is based on the police of encouraging persons to implement safety precautions whenever
necessary to prevent the occurrence of injury-causing accidents. The exceptions to this
evidentiary rule include evidence of post-accident remedial measures allowed to prove some
other related fact, such as the condition of the accident scene at the time of the fall, or for
purposes of impeachment.
One particularly common evidentiary problem in many slip and fall cases involves the
admissibility of evidence regarding the defendant’s clean-up of the premises immediately
following an accident. Often, because of the nature of the defendant’s premises, as well as the
type of hazardous condition involved, the vicinity immediately surrounding an accident site may
be cleaned up and the foreign substance removed before the plaintiff or any other potential
witness has had an opportunity to examine the area. In such cases, the description of the postaccident site, as well as the details of clean-up procedures utilized by persons who actually
removed the hazardous condition, are usually admissible to prove the existence of the alleged
hazardous condition of the premises at the time of the accident.
Connecticut Code of Evidence § 4-7(b) provides: Strict product liability of goods.
Where a theory of liability relied on by a party is strict product liability, evidence of such
measures taken after a event is admissible. Subsection (b) adopts the rule announced in
Sanderson v. Steve Snyder Enterprises, Inc.9 In Sanderson, the court stated two reasons for
rendering the general exclusionary rule inapplicable in strict product liability cases. First, the
court reasoned that the danger of discouraging subsequent corrective measures is not a chief
concern in strict product liability cases. “The contemporary corporate mass producer of goods,
the normal products liability defendant, manufactures tends of thousands of units of goods; it is
manifestly unreasonable to suggest that such a producer will forego making improvements in its
product, and risk innumerable additional lawsuits and the attendant adverse affect upon its public
image, simply because evidence of adoption of such improvement may be admitted in an action
founded on strict liability.”10
Second, it reasoned that because the product’s defectiveness is at issue in as strict product
liability case, rather than the producer/defendant’s negligence or culpable conduct, the probative
value of the evidence is high. Specifically, subsequent remedial measures evidence in strict
product liability cases is probative of the issue of product defectiveness because it gives the fact
finder a safer alternative design against which to compare the previous design. Because the
evidence is offered for purposes other than to prove negligence or culpable conduct, the policy
for exclusion does not exist.11
Similarly, in products liability cases, evidence of post-accident modifications made by a
nonparty are admissible. Subsequent change evidence may be highly probative of defectiveness,
8
See Fed. R. Evid. 407.
196 Conn. 134, 148 (1985).
10
Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 148 (1985).
11
Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 147 (1985).
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because it provides a safer alternative against which to compare the allegedly defective
product.12
In products liability actions, evidence of safety features provided by other manufacturers
of the allegedly defective product prior to or contemporaneous with the manufacture of that
product may be relevant and admissible on the issue of defectiveness.13 Also in products liability
actions, evidence of safety features provided by other manufacturers subsequent to the
manufacture of the allegedly defective product but prior to the date of injury may be permitted if
relevant to the claimed defect and not remote in time or connection to the defect in question.14
The same public policy considerations behind the exclusion of subsequent remedial
measures in a negligence action apply to a statutory cause of action brought under the Defective
Highway Statute, Conn. Gen. Stat. § 13a-144.15
12
Wagner v. Clark Equipment Co., 243 Conn. 168, 191-200 (1997).
Ames v. Sears, Roebuck & Co., 8 Conn. App. 642, 647 (1986).
14
Hartmann v. Black & Decker Mfg. Co., 16 Conn. App. 1, 13-14 (1988).
15
Hall v. Burns, 213 Conn. 446, 460 (1990).
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