SUPREME COURT OF ARIZONA En Banc
KRISTEN JOHNSON, surviving ) Arizona Supreme Court spouse of MARK WAYNE JOHNSON, ) No. CV-09-0267-PR deceased, individually, and as ) statutory plaintiff and as ) Court of Appeals natural mother and next of ) Division One friend of GARRETT JOHNSON, a ) No. 1 CA-CV 08-0077 minor; MASON JOHNSON, a minor; ) KELLEY JOHNSON, a minor; and ) Maricopa County JENNA JOHNSON, a minor, ) Superior Court surviving children of MARK WAYNE ) No. CV2004-017564 JOHNSON, deceased; and GARRY ) JOHNSON and JANE JOHNSON, ) husband and wife, and surviving ) parents of MARK WAYNE JOHNSON, ) O P I N I O N deceased, ) ) Plaintiffs/Appellants, ) ) v. ) ) STATE OF ARIZONA, by and through ) its Department of Transportation, ) ) ) Defendant/Appellee. ) ) __________________________________)
Appeal from the Superior Court in Maricopa County The Honorable Thomas Dunevant, III, Judge
AFFIRMED ________________________________________________________________
Opinion of the Court of Appeals, Division One 222 Ariz. 58, 213 P.3d 207 (App. 2009)
VACATED ________________________________________________________________
LUIS P. GUERRA LLC Phoenix By Luis P. Guerra And
LAW OFFICES OF CHARLES M. BREWER LTD Phoenix By Charles M. Brewer
And
LAW OFFICES OF DAVID L. ABNEY Phoenix By David L. Abney Attorneys for Kristen Johnson, Mark Wayne Johnson, Garrett Johnson, Mason Johnson, Kelley Johnson, Jenna Johnson, Garry Johnson, and Jane Johnson
BURKE PANZARELLA RICH Phoenix By Thomas P. Burke, II Shauna B. Yoder Elizabeth L. Fleming Attorneys for State of Arizona and Arizona Department of Transportation ________________________________________________________________
P E L A N D E R, Justice
¶1 Arizona Rule of Evidence 407 generally excludes
evidence of “measures” taken “after an event” to prove a party’s
negligence or culpability “in connection with the event.” We
hold that Rule 407 applies even if the party took such measures
without knowledge of, or for reasons unrelated to, the prior
event. We also hold that the trial court did not err in finding
that the evidence of subsequent measures was not offered for
“another purpose.”
I
¶2 This wrongful death action arose from a collision in
which decedent Mark Johnson, while driving westbound on U.S.
2 Highway 60, struck the rear end of a dump truck.1 Before the
accident, the truck driver exited a mining pit, stopped at the
Peckary Road intersection, and turned onto the highway. He
traveled approximately seven hundred feet before decedent’s
vehicle hit his truck. An eyewitness stated the decedent made
no attempt to stop, swerve, or slow down before the collision.
¶3 The decedent’s surviving spouse, Kristen Johnson, sued
the State, alleging it had negligently designed and maintained
the Peckary Road intersection. The State denied any negligence
and alleged that the decedent was comparatively at fault and
that the accident was not intersection-related.
¶4 Johnson unsuccessfully sought to introduce evidence at
trial that, after the accident, the State had posted a truck-
crossing sign and allowed the mining company to install a
variable message board near the Peckary Road intersection. She
argued those signs were not “subsequent remedial measures” under
Rule 407 because the State installed them without knowledge of,
and not in response to, the decedent’s accident. She also
argued that, even if the measures were remedial, the rule did
not preclude admission of this evidence for “another purpose” -
to rebut the State’s claims that the decedent was comparatively
1 We view the facts in the light most favorable to upholding the jury’s verdict. Hutcherson v. City of Phoenix, 192 Ariz. 51, 53 ¶ 13, 961 P.2d 449, 451 (1998). 3 negligent and that the roadway conditions were open and obvious,
and to prove the State’s knowledge of the dangerous
intersection.
¶5 The trial court ruled that the evidence of subsequent
signage “is not admissible merely because the State in this case
denies that the intersection was unsafe,” finding impermissible
any “backdoor attempt[] to use remedial measures to establish
negligence [in] not having installed [the signs] earlier.” The
jury returned a verdict in favor of the State. The trial court
denied Johnson’s motion for new trial, ruling that Rule 407
applied even if the State had not known of the decedent’s
accident when the signs were installed.
¶6 The court of appeals affirmed, holding that
“subsequent remedial measures need not be in response to the
incident at issue for Rule 407 to apply.” Johnson v. Ariz.
Dep’t of Transp., 222 Ariz. 58, 62 ¶ 12, 213 P.3d 207, 211 (App.
2009). The court further concluded that the trial court did not
abuse its discretion in rejecting Johnson’s efforts to admit the
evidence for “another purpose” under Rule 407. Id. at 62-65
¶¶ 13-26, 213 P.2d at 211-14.
¶7 We granted review to address issues of statewide
importance and first impression in Arizona relating to Rule 407.
This Court has jurisdiction pursuant to Article 6, Section 5(3)
of the Arizona Constitution and Arizona Revised Statutes section 4 12-120.24 (2003).
II
¶8 Arizona Rule of Evidence 407 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.
¶9 The rule seeks to “encourage remedial measures by
freeing the defendant from concern that such steps might be used
against him as an admission by conduct.” Readenour v. Marion
Power Shovel, 149 Ariz. 442, 445, 719 P.2d 1058, 1061 (1986).
“The limitation provided by Rule 407 is not based so much upon a
lack of relevancy as it is upon the policy decision to promote
changes which decrease accidents.” Id. at 446, 719 P.2d at
1062; see also Hallmark v. Allied Prods. Corp., 132 Ariz. 434,
440, 646 P.2d 319, 325 (App. 1982) (noting the rule reflects “a
social policy of encouraging people to take, or at least not
discouraging them from taking, steps in furtherance of added
safety” (quoting Fed. R. Evid. 407 advisory committee’s notes));
1 Joseph M. Livermore, et al., Arizona Practice Series: Law of
Evidence § 407 (Daniel J. McAuliffe & Shirley J. Wahl eds., rev.
4th ed. 2008) (“Taking greater care, in short, ought not to be
5 punished by adverse evidentiary consequences, and that is the
proposition underlying Rule 407.”). We review de novo issues
relating to interpretation and application of the rule. State
v. Hansen, 215 Ariz. 287, 289 ¶ 6, 160 P.3d 166, 168 (2007).
¶10 Johnson argues that evidence of post-injury changes
should be excluded under Rule 407 only if the defendant knew
about an injury and made changes in response to it. Otherwise,
she argues, the measures are not “remedial” within the meaning
of the rule’s title, “Subsequent Remedial Measures.”
¶11 There is nothing inherent in the word “remedial,”
however, that presupposes knowledge of a prior accident by one
undertaking repairs; a dangerous condition is remedied by
subsequent measures even if the repairer is not aware that the
condition has already caused an injury. Further, Rule 407 does
not on its face require a causal relationship between the
measures and the event, only that the measures were taken
“after” the event and “would have made the event less likely to
occur” if they had been taken before. See Kaczmarek v. Allied
Chem. Corp., 836 F.2d 1055, 1060 (7th Cir. 1987); cf. City of
Phoenix v. Harnish, 214 Ariz. 158, 163 n.2, ¶ 20, 150 P.3d 245,
250 n.2 (App. 2006) (a statute’s language is more important than
its title or heading).
¶12 We find similarly unpersuasive Johnson’s argument that
the rule’s policy of encouraging safety improvements is not 6 furthered when defendants act without knowledge of the event in
question and, thus, without awareness of their potential
liability. Although defendants who improve safety without
knowledge of previous accidents may not be deterred by the risk
of liability to a particular claimant, they may nonetheless be
deterred by the risk of potential liability to unknown claimants
if subsequent measure evidence were routinely admitted when
measures are taken without knowledge of previous injuries. See
Doe v. Johnston, 476 N.W.2d 28, 34 (Iowa 1991) (“[T]he policy
underlying the rule should apply not only when the safety
measures are taken in reaction to an accident, but also when
they are taken merely upon discovery that change is needed.”
(citing Petree v. Victor Fluid Power, Inc., 831 F.2d 1191, 1198
(3d Cir. 1987))).
¶13 In support of her position, Johnson relies on an
Oregon case in which the plaintiff was badly burned after
accidentally falling into hot springs on the defendant’s land.
Van Gordon v. Portland Gen. Elec. Co., 693 P.2d 1285, 1286-87
(Or. 1985). The plaintiff introduced evidence at trial that the
defendant had installed additional warning signs after the
accident. Id. at 1288. The Oregon Supreme Court held that the
evidence was not covered by that state’s Rule 407 (virtually
identical to Arizona’s Rule 407), reasoning that the newly
posted signs would not have made the plaintiff’s accident less 7 likely to occur because he had entered the hot springs area from
a different path than the one on which the new signs were
placed. Id. at 1289.
¶14 In addition, the court found Rule 407 inapplicable
because, before posting the signs, the defendant “did not know
of the accident and was motivated to change the signs simply for
aesthetic reasons,” not in response to the plaintiff’s accident.
Id. at 1290. The court concluded that “a defendant must know of
the prior event in order to fashion a safety measure to remedy
any hazard that caused the event.” Id. at 1289; see also 23
Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice
and Procedure § 5283 (1980) (“[I]t is difficult to see how
[remedial measures taken without knowledge of the accident]
could be construed as an admission of negligence with respect to
the particular accident and the decision to make the change
could not have been affected by fear of liability to the instant
plaintiff.”).
¶15 We disagree with this dictum in Van Gordon, as did the
Iowa Supreme Court in Johnston. See 476 N.W.2d at 34. As that
court observed, Rule 407’s “policy would not be served if
evidence of defendants’ changed behavior could be used to prove
liability just because defendant was unaware that any injury or
accident had occurred.” Id.; see also Bush v. Michelin Tire
Corp., 963 F. Supp. 1436, 1449 (W.D. Ky. 1996) (language of 8 Federal Rule of Evidence 407 “does not go to Defendant’s intent
in adopting the later measures” but “simply asks whether the
later measures could have prevented the earlier accident”); Webb
v. CSX Transp., Inc., 615 S.E.2d 440, 448 (S.C. 2005) (rejecting
“view of Rule 407 . . . that only measures taken in direct
response to the accident qualify for exclusion” because “this
narrow interpretation ignores the literal language of the
rule”); Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 88 (Tenn.
2008) (defendant’s clearing of vegetation at railroad crossing
after fatal accident was “a subsequent remedial measure” because
“it corrected an allegedly dangerous condition and made the
crossing safer for future motorists,” even though “the clearing
was carried out pursuant to corporate policy” rather than in
response to the accident).
¶16 In sum, we hold that Rule 407 requires the exclusion
of evidence of subsequent measures to prove a party’s negligence
or culpable conduct, even when such measures are taken without
specific knowledge of the accident in question. Because the
evidence of the State’s post-accident signage fell within Rule
407, Johnson was not permitted to introduce the evidence unless
it was “offered for another purpose.” Ariz. R. Evid. 407. We
next address that issue.
III
¶17 Although Rule 407 excludes evidence of subsequent 9 measures to prove negligence or culpability, the rule does not
require exclusion of such evidence “when offered for another
purpose, such as proving ownership, control, or feasibility of
precautionary measures, if controverted, or impeachment.” Ariz.
R. Evid. 407. Here, the State did not contest its ownership and
control of Highway 60 or the feasibility of installing warning
signs at or near the Peckary Road intersection. But Johnson
argues that evidence of the State’s subsequent measures should
have been admitted to “(a) impeach the adverse witnesses;
(b) rebut the argument that the intersection was faultless; and
(c) fight the defense of contributory negligence.” We review a
trial court’s ruling on the admissibility of evidence under Rule
407 for abuse of discretion. Robles v. Shoreside Petroleum,
Inc., 29 P.3d 838, 845 (Alaska 2001); cf. Gemstar Ltd. v. Ernst
& Young, 185 Ariz. 493, 506, 917 P.2d 222, 235 (1996) (relating
to Arizona Rule of Evidence 403).
¶18 Courts have differed on whether evidence of subsequent
measures should be admissible to rebut a defendant’s denial of
fault or allegations of a plaintiff’s contributory negligence.
Some courts have allowed admission of such evidence for those or
similar purposes. See, e.g., Pitasi v. Stratton Corp., 968 F.2d
1558, 1560-61 (2d Cir. 1992) (admitting evidence of ski slope
operator’s post-accident signage to rebut contributory
negligence defense “based upon the nature or condition of the 10 accident scene”); Rimkus v. Nw. Colo. Ski Corp., 706 F.2d 1060,
1063-66 (10th Cir. 1983) (same, finding evidence of subsequent
measures admissible to refute defense that rocks on ski slope
were open and obvious).
¶19 In contrast, many courts have concluded that evidence
of subsequent remedial measures is not admissible merely because
defendants dispute their liability, allege contributory
negligence, or argue that existing designs, standards, or
conditions were adequate. See, e.g., Kelly v. Crown Equip. Co.,
970 F.2d 1273, 1278 (3d Cir. 1992); Hardy v. Chemetron Corp.,
870 F.2d 1007, 1011 (5th Cir. 1989) (“Evidence of subsequent
measures is no more admissible to rebut a claim of non-
negligence than it is to prove negligence directly.”); Flaminio
v. Honda Motor Co., 733 F.2d 463, 468 (7th Cir. 1984) (“Although
any evidence of subsequent remedial measures might be thought to
contradict and so in a sense impeach a defendant’s testimony
that he was using due care at the time of the accident, if this
counted as ‘impeachment’ the exception would swallow the
rule.”); Fasanaro v. Mooney Aircraft Corp., 687 F. Supp. 482,
486 (N.D. Cal. 1988) (“Plaintiff’s attempt to phrase her
argument . . . as rebuttal of [defendant’s] contributory
negligence defense is purely semantic. . . . [S]he argues that
the decedent was not contributorily negligent because the
defendant was negligent.”); Keating v. United Instruments, Inc., 11 742 A.2d 128, 130-31 (N.H. 1999); Herzog v. Lexington Twp., 657
N.E.2d 926, 931-34 (Ill. 1995).
¶20 For example, in Herzog, the plaintiff sued the
township following a car accident, arguing that a single
“winding road” sign was insufficient to warn motorists of a
series of curves on the road where he was injured. 657 N.E.2d
at 928. Before trial, the defendant successfully moved to
exclude evidence that it had posted additional signs on that
stretch of road after the plaintiff’s accident. Id. at 928,
932. On appeal, the plaintiff claimed such evidence should have
been admitted to impeach the defendant’s witnesses, who
testified that the single sign was adequate. Id. at 929.
¶21 The Illinois Supreme Court affirmed the trial court’s
ruling, concluding that “evidence is not admissible for
impeachment where the sole value of the impeachment rests on
[the] same impermissible inference of prior negligence.” Id. at
933. It reasoned that allowing evidence of subsequent remedial
measures “under the guise of impeachment” whenever a defendant
disputes the plaintiff’s negligence claim “would swallow the
general rule prohibiting the introduction of subsequent remedial
measures and frustrate the policy considerations that support
it.” Id.; see also Hallmark, 132 Ariz. at 439, 646 P.2d at 324
(“[T]he trial judge has broad power to insure that remedial
measures evidence is not improperly admitted under the guise of 12 the ‘other purpose’ exception.”); Hightower v. Kan. City S. Ry.
Co., 70 P.3d 835, 854 n.33 (Okla. 2003) (“Due to the very nature
of the comparative negligence defense, it is inherently
incapable of consideration separate and apart from the
negligence claim to which it relates.”); DiPietro v. Cessna
Aircraft Co., 16 P.3d 986, 991 (Kan. Ct. App. 2000) (“The
process of determining comparative fault, when only two parties
are involved, is a ‘zero sum game.’ When negligence is moved
out of the plaintiff’s column, it must move into the defendant’s
column.”).2
¶22 We find this latter line of cases persuasive. The
mere fact that a defendant denies fault and alleges comparative
negligence does not, alone, justify the admission of subsequent
measure evidence for impeachment purposes. See Tuer v.
McDonald, 701 A.2d 1101, 1112 (Md. 1997) (“The prevailing, and
pragmatically necessary, view is that the impeachment exception
cannot be read in so expansive a manner.”). Admitting such
evidence when it does not directly impeach a witness’s testimony
or other evidence offered by a defendant contravenes the general
2 Although Johnson sued multiple defendants, the evidence of subsequent signage would have been probative only on the question of the State’s liability. Moreover, the jury returned verdicts in favor of all defendants. Therefore, to the extent the evidence allegedly refuted the State’s denial of fault and affirmative defenses, it would have served to increase only the State’s liability. 13 rule that such evidence is inadmissible to prove negligence.
See Slow Dev. Co. v. Coulter, 88 Ariz. 122, 127-28, 353 P.2d
890, 893-94 (1960) (before adoption of Rule 407, recognizing
general common law rule of inadmissibility subject to exception
when evidence of subsequent measures “tends to impeach the
testimony of a witness”); cf. Baroldy v. Ortho Pharm. Corp., 157
Ariz. 574, 585-87, 760 P.2d 574, 585-87 (App. 1988) (upholding
trial court’s admission, with limiting instruction, of various
documents for purposes of impeaching manufacturer’s claim that
its product could not have caused the plaintiff’s injury).
¶23 Evidence of subsequent measures may be admissible for
impeachment purposes, however, when “the defendant goes beyond
stating that the original condition was safe or adequate, and
attempts to make exaggerated claims that the condition was the
‘safest possible.’” Herzog, 657 N.E.2d at 933; accord Kelly,
970 F.2d at 1278 (evidence of subsequent changes did not impeach
expert’s statements because he did not claim “the [product’s]
design was the best or the only one possible”); cf. Slow Dev.
Co., 88 Ariz. at 127-28, 353 P.2d at 893-94 (upholding admission
of subsequent measures evidence to impeach results of
defendant’s safety tests because tests were conducted after
safety improvements had been made). Two of the cases Johnson
cites illustrate this point. In Muzyka v. Remington Arms Co.,
774 F.2d 1309, 1311-14 (5th Cir. 1985), the court held that 14 evidence of design changes to the defendant’s rifle made shortly
after the plaintiff’s injury was admissible to impeach
defendant’s “superlative[]” claims that its rifle was the “best”
and “safest” on the market. Similarly, in Anderson v. Malloy,
700 F.2d 1208, 1212-14 (8th Cir. 1983), evidence that the
defendants had installed additional safety features after the
plaintiff’s injury was found admissible in part to impeach the
defendants’ “testi[mony] that they had done everything
necessary” to assure safety.
¶24 Here, the State made no such exaggerated claims about
the safety of the intersection. In its opening statement, the
State said the decedent took “no evasive action” and was “solely
responsible for this rear-end accident.” In its closing
argument, the State contended this was “not an intersection-
related accident.” In addition, a co-defendant stated the
accident “occurred on a well-designed state highway with a clear
line of sight for hundreds and hundreds of feet.”
¶25 The overarching purpose of Rule 407’s “impeachment”
provision is to allow a party to refute evidence that, if left
uncontroverted, would create an unfair advantage or misleading
impression for the other party who seeks to exclude any evidence
of subsequent measures. Minter v. Prime Equip. Co., 451 F.3d
1196, 1212-13 (10th Cir. 2006); Duchess v. Langston Corp., 769
A.2d 1131, 1146-50 (Pa. 2001). But Johnson does not point to 15 any witness testimony or other direct claim by the State that
the intersection was perfect or could not have been made safer;
and the evidence of subsequent signage would not have
contradicted the State’s comments. See Hardy, 870 F.2d at 1011
(plaintiff’s proffered evidence “would not have impeached [the
witness’s] testimony” and the plaintiff “points to no other
evidence that the subsequent design change might have been used
to impeach”). To admit the evidence of subsequent signage for
impeachment purposes, we would have to “accept the premise that
the conduct of placing additional signs . . . supports the view
that the original condition was unsafe . . . [, which] directly
contradicts the assumptions that support the general rule
regarding subsequent remedial measures.” Herzog, 657 N.E.2d at
933. Therefore, we find the other purpose provision in Rule 407
inapplicable on this record and hold that the trial court did
not abuse its discretion by excluding the evidence of subsequent
signage under Rule 407.3
3 As the court of appeals correctly concluded, admitting evidence of subsequent signage to prove the State’s knowledge of a dangerous condition “would have allowed [Johnson] to explicitly prove elements of negligence with evidence of subsequent remedial measures,” a purpose clearly prohibited by Rule 407. Johnson, 222 Ariz. at 65 ¶ 26, 213 P.3d at 214. But we reject the court of appeals’ suggestion that evidence of subsequent measures is inadmissible for “another purpose” under Rule 407 if “other proof” is available to fulfill that purpose. Id. at ¶ 24. Even if evidence of subsequent measures is admissible for another purpose, however, a trial court may appropriately consider whether it should be excluded under 16 IV
¶26 For the reasons stated above, we affirm the trial
court’s judgment in favor of the State and vacate the court of
appeals’ opinion.
_____________________________________ A. John Pelander, Justice
CONCURRING:
_____________________________________ Rebecca White Berch, Chief Justice
_____________________________________ Andrew D. Hurwitz, Vice Chief Justice
_____________________________________ Michael D. Ryan, Justice
_____________________________________ W. Scott Bales, Justice
Arizona Rule of Evidence 403. See, e.g., Readenour, 149 Ariz. at 449-50, 719 P.2d at 1065-66; Hallmark, 132 Ariz. at 439, 646 P.2d at 324; see also Hernandez v. State, 203 Ariz. 196, 197 ¶ 1, 200 ¶ 15, 52 P.3d 765, 766, 769 (2002) (holding that Arizona Rule of Evidence 408 does not preclude use of statements in notice of claim “to impeach a party’s credibility,” but admission of impeachment evidence “remains subject to Rules 401, 402 and 403, Ariz. R. Evid.”). 17