Subsequent remedial measures - Next Generation Bar Exam

1. Under FRE 407, what is the status of remedial measures taken before the plaintiff's injury?

   The rule does not apply to them. Pre-accident measures are analyzed under the general relevance rules.

2. How does FRE 407 apply in strict products liability cases?

   It applies, barring subsequent remedial measures to prove a product or design defect. The 1997 amendment resolved a prior split by extending the rule to products liability.

3. After a customer slipped, a store installed non-slip mats. In the customer's negligence suit, the customer offers the mats to show the store was careless. How should the court rule?

   Exclude the evidence under FRE 407. It is offered to prove negligence, a forbidden purpose.

4. A landlord denies controlling a stairway where a tenant fell. The tenant offers evidence that the landlord repaired the stairway after the fall. For what purpose is the evidence admissible?

   To prove control of the stairway. Control is a permitted purpose when disputed.

5. When may a party use subsequent remedial measures to prove feasibility?

   Only when the opposing party has disputed feasibility. If feasibility is conceded, the exception does not apply.

6. What are the policy bases for FRE 407?

   Encouraging safety measures and the weak inference of fault from later repairs. Parties should not be discouraged from taking steps to improve safety.

7. A manufacturer testifies a safety guard was not technologically possible. The plaintiff shows it added one after the accident. On what basis is this admissible?

   To rebut the disputed claim of feasibility. The defendant placed feasibility in issue.

8. Under FRE 407, for what purposes is evidence of subsequent remedial measures inadmissible?

   To prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. The measures must be taken after the injury or harm.

9. Under FRE 407, for what purposes may subsequent remedial measures be admitted?

   Purposes such as impeachment or, if disputed, ownership, control, or feasibility of precautionary measures. The listed purposes are examples, not an exclusive list.

10. What is the status under FRE 407 of remedial measures taken by a nonparty?

    The rule generally does not apply, because excluding the evidence would not affect the defendant's incentives. Most courts admit nonparty measures subject to FRE 403.

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