CRE 407

History

(Federal Rule Identical.) COMMITTEE COMMENT The phrase ‘‘culpable conduct’’ is not deemed to include proof of liability in a ‘‘strict liability’’ case based on defect, where the sub- sequent measures are properly admitted as evi- dence of the original defect. But see § 13-21- 404, C.R.S. (1978 Supp.). ANNOTATION Law reviews. For article, ‘‘Rule 407: Subse- quent Remedial Measures?’’, see 20 Colo. Law. 895 (1991). For article, ‘‘Applicability of C.R.E. 407 In Federal Court’’, see 34 Colo. Law. 77 (Jan. 2005). This rule is applicable in product liability cases involving allegation of inadequate warnings. Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo. 1986). The ‘‘feasibility of precautionary mea- sures’’ exception to this rule is applicable when the defendant contests the feasibility of precautionary measures at the time of the inci- dent. Evidence of ‘‘subsequent remedial mea- sures’’ may be used to impeach testimony that precautionary measures were not feasible at the time of the incident. Duggan v. Weld County Bd. of Comm’rs, 747 P.2d 6 (Colo. App. 1987). Testimony as to subsequent remedial mea- sures proper for impeachment. In a slip and fall case, where landlord testified to changes in a ditch owned by the landlord only prior to the time of the fall, questioning concerning whether landlord had previously testified that changes occurred after the fall was for impeachment purposes and was proper under this rule. V allejo v. Eldridge, 764 P.2d 417 (Colo. App. 1988). Evidence of subsequent remedial measures is admissible as evidence concerning the issue of visibility of the obstacle and to impeach expert on that issue. Martinez v. W.R. Grace Co., 782 P.2d 827 (Colo. App. 1989). Evidence that one of the defendants had recommended installation of air inlet shutoff devices on gas hauling trucks fell within one of the exceptions of the rule. In light of de- fense offered by defendants that the devices create a hazard rather than a safety feature when used on truck engines, the evidence directly impeached the contention of the defendants. White v. Caterpillar, Inc., 867 P.2d 100 (Colo. App. 1993). Evidence that, after plaintiff’s accident, defendant changed its manual to move a warning from the end of a section to the beginning of the same section is excluded. To the extent that this evidence was offered to prove negligence or culpable conduct, it was not admissible. White v. Caterpillar, Inc., 867 P.2d 100 (Colo. App. 1993). Only measures which take place after the ‘‘event’’ are excluded under this rule. Com- bined Com. Corp. v. Pub. Serv. Co., 865 P.2d 893 (Colo. App. 1993). Evidence of subsequent remedial measures may be admitted to prove feasibility of pre- cautionary measures, if that issue is contro- verted. Biosera, Inc. v. Forma Scientific, Inc., 941 P.2d 284 (Colo. App. 1996), aff’d, on other grounds, 960 P.2d 108 (Colo. 1998). The provisions of this rule do not apply in strict liability claims that are premised on a design defect theory. The explicit language of the rule does not permit the exclusion of evi- dence of remedial actions in strict liability claims premised on design defect because the manufacturer’s conduct, whether culpable or negligent, is not germane. Forma Scientific, Inc. v. Biosera, Inc., 960 P.2d 108 (Colo. 1998). Applied in Larsen v. Archdiocese of Denver, 631 P.2d 1163 (Colo. App. 1981).