Conn. R. Evid. 4-7
Conn. Code. Evid. 4-7
COMMENTARY
(a) General rule.
Subsection (a) reflects the general rule announced in Nalley v. Hartford Carpet Co., 51 Conn. 524, 532 (1884), and its progeny. E.g., Hall v. Burns, 213 Conn. 446, 456-57, 569 A.2d 10 (1990); Rokus v. Bridgeport, 191 Conn. 62, 65, 463 A.2d 252 (1983); Carrington v. Bobb, 121 Conn. 258, 262, 184 A. 591 (1936).
The rationale behind this exclusionary rule is twofold. First, evidence of subsequent remedial measures is of relatively slight probative value on the issue of negligence or culpable conduct at the time of the event. E.g., Hall v. Burns, supra, 213 Conn. 457-59 & n.3; Waterbury v. Waterbury Traction Co., 74 Conn. 152, 169, 50 A. 3 (1901). Second, the rule reflects a social policy of encouraging potential defendants to take corrective measures without fear of having their corrective measures used as evidence against them. Hall v. Burns, supra, 457; see Waterbury v. Waterbury Traction Co., supra, 169.
Evidence of subsequent remedial measures may be admissible for purposes other than proving negligence or culpable conduct. Such evidence is admissible as proof on issues such as ownership, control or feasibility of precautionary measures. See, e.g., Williams v. Milner Hotels Co., 130 Conn. 507, 509-10, 36 A.2d 20 (1944) (control); Quinn v. New York, N.H. & H. R. Co., 56 Conn. 44, 53-54, 12 A. 97 (1887) (feasibility). These issues must be "controverted,'' however, before evidence of subsequent remedial measures is admissible. See Wright v. Coe & Anderson, Inc., 156 Conn. 145, 155, 239 A.2d 493 (1968); Haffey v. Lemieux, 154 Conn. 185, 193, 224 A.2d 551 (1966).
The list in subsection (a) of other purposes for which evidence of subsequent remedial measures may be offered is meant to be illustrative rather than exhaustive. See Rokus v. Bridgeport, supra, 191 Conn. 66. So long as the evidence is not offered to prove negligence or culpable conduct, it may be admitted subject to the court's discretion. See id., 66-67 (post-accident photograph of accident scene at which subsequent remedial measures had been implemented admissible when photograph was offered solely to show configuration and layout of streets and sidewalks to acquaint jury with accident scene); see Baldwin v. Norwalk, 96 Conn. 1, 8, 112 A. 660 (1921) (subsequent remedial measures evidence also may be offered for impeachment purposes); see also Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 60 A.3d 222 (2013) (post-accident photograph of subsequent remedial measure improperly admitted for impeachment purposes in absence of balancing probative value against prejudicial effect).
(b) Strict product liability of goods.
Subsection (b) adopts the rule announced in Sanderson v. Steve Snyder Enterprises, Inc., 196 Conn. 134, 146-148, 491 A.2d 389 (1985). 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 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 . . . .'' Id., 146.
Second, it reasoned that because the defectiveness of mass produced goods is at issue in a strict product liability case, rather than the producer/defendant's negligence or culpable conduct, the probative value of the evidence is high. Id., 147.
Permitting evidence of subsequent remedial measures also conforms to the designation of the risk-utility test as the primary basis for proving strict product liability for design defects, under which the availability of a reasonable alternative design generally is an essential element of proof. See Bifolck v. Philip Morris, Inc., 324 Conn. 402, 434-35, 152 A.3d 1183 (2016); see also Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172, 202, 136 A.3d 1232 (2016).