Blythe v. Sears, Roebuck & Co.

• Decision Date: 23 August 1991
• Citation: 586 So.2d 861
• Parties: Prod.Liab.Rep. (CCH) P 12,956 Charles BLYTHE v. SEARS, ROEBUCK & COMPANY and Emerson Electric Company. 89-1566.
• Court: Alabama Supreme Court

Page 861

586 So.2d 861

Prod.Liab.Rep. (CCH) P 12,956

Charles BLYTHE v. SEARS, ROEBUCK & COMPANY and Emerson Electric Company.

89-1566.

Supreme Court of Alabama.

Aug. 23, 1991.

Alva C. Caine of Hare, Wynn, Newell & Newton, Birmingham, for appellant.

Samuel H. Franklin and Adam K. Peck of Lighfoot, Franklin, White & Lucas, Birmingham, for appellee.

INGRAM, Justice.

The appellant, Charles Blythe, was injured while operating a Craftsman Weed Wacker gas-powered, curved-shaft line trimmer. The line trimmer was owned by the parents of Blythe's girlfriend, Donna Bassett. It had been modified by the attachment of a 10-inch metal blade. The line trimmer carried a warning that stated:

"Don't use metal blades with this unit. It doesn't have the necessary protective equipment. For safe operation read operator's manual."

The metal blade had been attached to the line trimmer by Jessie Turner, who was the boyfriend of Donna's sister, Lynn. The blade, purchased at a Handy City store, stated on its packaging that it was for use on a Weed Eater model XR-90 line trimmer. The model XR-90 is unlike the curved-shaft line trimmer in that it is a straight-shaft line trimmer marketed with a metal blade and corresponding safety features that are not on a curved-shaft line trimmer. Blythe was injured when the blade kicked back and cut his leg. His leg was ultimately amputated because of the injuries suffered.

Blythe filed suit against Sears, Roebuck & Company, the retailer of the line trimmer, and Poulan/Weed Eater, a division of Emerson Electric Company and manufacturer of the line trimmer, claiming that the line trimmer was defectively designed because a metal blade would easily fit a curved-shaft line trimmer, such as the Craftsman Weed Wacker, and claiming that the fact that a blade would easily fit created a dangerous condition. Blythe also claimed that the failure to put on the blade a warning that the blade was not to be used with a curved-shaft line trimmer made the blade unreasonably dangerous.

Sears and Poulan presented expert testimony from Ronald Loyd, who had designed the line trimmer and the blade, as well as other products, while employed with Poulan from 1973 to 1982. Loyd testified that there were design features of the line trimmer that prevented a metal blade from being easily attached, including the fact that the hub of the line trimmer was larger than the hole in the blade. He also testified that, in his opinion, the instruction on the metal blade package, stating that the blade was to be used with a straight-shaft line trimmer, taken along with the warning provided on the shaft of the curved-shaft line trimmer, was adequate. Blythe, during the cross-examination of Loyd, attempted to introduce a new metal blade that carried the warning: "Do not use on unit with curved drive shaft." The trial judge excluded the evidence as evidence of a subsequent remedial measure.

The jury returned a verdict against Blythe and in favor of Sears and Poulan. Blythe moved for a new trial, based upon the trial court's exclusion of the evidence of the new warning on the metal blade manufactured after the date of Blythe's accident. The trial court denied the motion, and Blythe appealed.

The single issue on appeal is whether evidence of a subsequent design change should have been admitted for the purpose of impeachment of an expert witness who had testified that the product was safe as marketed. "It is axiomatic that rulings as to the admissibility of evidence rest largely within the discretion of the trial court. Such rulings will not be disturbed on appeal in the absence of a gross abuse of discretion." Russellville Flower Craft, Inc. v. Searcy, 452 So.2d 478, 480 (Ala.1984).

The general rule excluding evidence of subsequent remedial measures is that "evidence of repairs or alterations made, or precautions taken, by the defendant after the injury to the plaintiff in an accident is not admissible as tending to show the defendant's antecedent negligence [or culpable conduct]." C. Gamble, McElroy's Alabama Evidence § 189.02(1) (4th ed. 1991) (citing Macon County Comm'n v. Sanders, 555 So.2d 1054 (Ala.1990); Hyde v. Wages, 454 So.2d 926 (Ala.1984); Banner Welders, Inc. v. Knighton, 425 So.2d 441 (Ala.1982)). Subsequent remedial measures have been excluded on two grounds: (1) evidence of a subsequent repair or change was irrelevant to show antecedent negligence, see Hart v. Lancashire & Yorkshire Ry., 21 L.T.R. 261, 263 (1869), cited in Comment, The Impeachment Exception to Rule 407: Limitations on the Introduction of Evidence of Subsequent Measure, 42 U.Miami L.Rev. 901, 903 (1988); see also Proposed Rules of Evidence, 46 F.R.D. 161, 236 (1969); and (2) public policy favored promoting safety by removing the disincentive to repair, see Alabama Power Co. v. Marine Builders, Inc., 475 So.2d 168, 171-72 (Ala.1985); see also Probus v. K-Mart, Inc., 794 F.2d 1207, 1210 (7th Cir.1986). Even though the rule was established to exclude evidence of subsequent repairs, evidence of such repairs could be introduced for purposes other than proving negligence or culpable conduct. One of the other purposes was impeachment.

Evidence of subsequent remedial measures was used for impeachment purposes to prevent a defendant from gaining an unfair advantage from self-serving, false, or misleading statements that would go unchallenged under the exclusionary rule. See Going v. Alabama Steel & Wire Co. 141 Ala. 537, 37 So. 784 (1904), Bedgood v. T.R. Miller Mill Co., 202 Ala. 299, 80 So. 364 (1918); Frierson v. Frazier, 142 Ala. 232, 37 So. 825 (1904). These cases allowed a defendant who made self-serving, false, or misleading claims to be impeached by evidence of a subsequent remedial measure that contradicted his testimony or constituted a statement or act inconsistent with his present testimony.

When evidence of a subsequent remedial measure is offered to impeach a witness's statement through evidence of a prior inconsistent act, the Alabama cases seem to require (1) that the introduction of the testimony a party seeks to impeach has been initiated by the defendant; see, e.g., Bedgood v. T.R. Miller Mill Co., supra; (2) that the testifying witness had some control over the subsequent repair or alteration; see, e.g., Frierson v. Frazier, supra; and (3) that the evidence meet the test established by Holland v. First National Bank of Brewton, 519 So.2d 460 (Ala.1987). The rationale seems to be that evidence of a subsequent remedial measure is not evidence of conduct inconsistent with the testimony of a witness who did not authorize or direct the change because, in regard to such a witness, the change cannot be said to be the "prior act" of the witness. However, it is apparent that such evidence may be inconsistent with the same testimony from a witness who had authorized the change. See Frierson v. Frazier, supra; see also Brown v. Flying Wheels Motorcross Club, 569 So.2d 313 (Ala.1990) (this Court held that although evidence of a subsequent remedial measure could be admissible to impeach, it was properly excluded by the trial court under Holland, supra ).

If an attempt is made to use evidence of a subsequent remedial measure to impeach the testimony of a witness who did not authorize or direct the change, the cases from this jurisdiction, as well as federal cases interpreting Fed.R.Evid. 407, seem to require that the evidence clearly contradict the testimony of the witness. Evidence of a subsequent remedial measure can be introduced to show that the witness has testified in a false or misleading manner, and the very existence of the subsequent remedial measure, if it clearly contradicts the witness's testimony, is clear and convincing evidence that the witness's testimony is false. See Bedgood, supra. Also, evidence of a subsequent remedial measure may be introduced when the witness testifies in superlatives, e.g., that the condition was "the safest" or the "the best." Compare Muzyka v. Remington Arms Co., 774 F.2d 1309 (5th Cir.1985) (expert testified that the rifle...