Colo. R. Evid. 407
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.
(Federal Rule Identical.)
CRE 407
Committee Comment
The phrase "culpable conduct" is not deemed to include proof of liability in a "strict liability" case based on defect, where the subsequent measures are properly admitted as evidence of the original defect. But see § 13-21-404 , C.R.S. (1978 Supp.).
Annotation Law reviews. For article, "Rule 407: Subsequent Remedial Measures?", see 20 Colo. Law. 895 (1991). For article, "Applicability of C.R.E. 407 In Federal Court", see 34 Colo. Law. 77 (January 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 measures" exception to this rule is applicable when the defendant contests the feasibility of precautionary measures at the time of the incident. Evidence of "subsequent remedial measures" 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 measures 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. Vallejo v. Eldridge, 764 P.2d 417 (Colo. App. 1988). Evidence of subsequent remedial measures is admissable 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 defense 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. Combined 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 precautionary measures, if that issue is controverted. 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 evidence 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).