McFarland v. Bruno Machinery Corp. , 68 Ohio St. 3d 305 ( 1994 )

Douglas, 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 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.)

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 another 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.

The policy reasons for Evid.R. 407 have been stated as resting on two grounds. The first justification for the rule is that evidence 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 plaintiffs 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 on 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, 511 N.E.2d 373, and Onderko v. Richmond Mfg. Co. (1987), 31 Ohio St.3d 296, 31 OBR 576, 511 N.E.2d 388. In a products case based on strict liability, the focus is solely on the defective condition of the product and not, as in an action premised on negligence, on what the defendant knew or should have known of the defect which caused the injury. Id. at 301, 31 OBR at 579-580, 511 N.E.2d at 392. One court, contrasting strict liability with negligence, has correctly emphasized that “under the evolved doctrine of strict products liability, the scienter that is so vital to the negligence suit need not be shown. The shift so wrought is from fault to defect. * * * ” Caprara v. Chrysler Corp. (1981), 52 N.Y.2d 114, 123, 436 N.Y.S.2d 251, 255, 417 N.E.2d 545, 549.

Despite the clear wording of Evid.R. 407, appellee argues that the 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 drafters intended that Evid.R. 407 apply to strict liability claims. We disagree.

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 explicit 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, 473 A.2d 155; and Jeep Corp. v. Murray (1985), 101 Nev. 640, 708 P.2d 297. See, also, R.W. Murray Co. v. Shatterproof Glass Corp. (C.A.8, 1985), 758 F.2d 266; and Herndon v. Seven Bar Flying Serv., Inc. (C.A.10, 1983), 716 F.2d 1322, certiorari denied sub nom. Piper Aircraft Corp. v. Seven Bar Flying Serv., Inc. (1984), 466 U.S. 958, 104 S.Ct. 2170, 80 L.Ed.2d 553. Additionally, some courts have concluded that subsequent remedial actions taken by an employer are admissible in a strict liability suit by the plaintiff against the manufacturer. Courts that have taken this view express the opinion that the evidence is relevant and policy considerations behind excluding evidence of subsequent remedial conduct are not applicable when liability is not asserted against the person taking the remedial measure. See, e.g., Magnante v. Pettibone-Wood Mfg. Co. (1986), 183 Cal.App.3d 764, 228 Cal.Rptr. 420; and Denolf v. Frank L. Jursik Co. (1976), 395 Mich. 661, 238 N.W.2d 1.

Most courts which have determined that subsequent remedial measures are admissible in a strict liability setting have relied upon the landmark opinion Ault v. Internatl. Harvester Co. (1974), 13 Cal.3d 113, 117 Cal.Rptr. 812, 528 P.2d 1148. In Ault, a passenger in a motor vehicle sued the manufacturer of the vehicle, alleging that he sustained injuries as a result of a defect in the design of the vehicle’s gear box. The suit was grounded on strict liability, breach of warranty and negligence. At trial, evidence was admitted showing that after the accident the manufacturer changed the design of the gear box from aluminum to malleable iron. On appeal, the manufacturer asserted that evidence of a design change was barred by Cal-Evid. Code Section 1151.⁵

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, 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 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), 110 Wis.2d 581, 329 N.W.2d 890, wherein the court concluded that the justification for imposing strict liability is applicable to both large and small manufacturers and that there is no sound reason for. distinguishing between classes of manufacturers.

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), 788 F.2d 634; Grenada Steel Industries, Inc. v. Alabama Oxygen Co., Inc. (C.A.5, 1983), 695 F.2d 883.

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 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 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.

Moyer, C.J., A.W. Sweeney, Resnick, F.E. Sweeney and Pfeifer, JJ., concur. Wright, J., dissents.

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.

4 . 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.)

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.