Hyjek v. Anthony Industries

Decision Date09 October 1997
Docket NumberK-2,No. 64326-1,64326-1
Citation133 Wn.2d 414,944 P.2d 1036
CourtWashington Supreme Court
Parties, Prod.Liab.Rep. (CCH) P 15,084 Gary HYJEK, Appellant, v. ANTHONY INDUSTRIES (corporation), Respondent.

Miracle, Pruzan, Pruzan & Baker, Howard Pruzan, James Baker, Seattle, for appellant.

Garvey, Schubert & Barer, Joanne Blackburn, Robert Stephenson, Seattle, for respondent.

Lane, Powell, Spears & Lubersky, Michael Reilly, Seatle, Thorsrud, Crane & Paulich, Russell Love, Seattle, for amicus Washington Defense Trial Lawyers.

Debra Stephens, Spokane, Harbaugh & Bloom, Gary Bloom. Spokane, Bryan Harnetiaux, Spokane, amicus for Washington State Trial Lawyers Ass'n.

MADSEN, Justice.

Plaintiff Gary Hyjek brought an action claiming design defect against Anthony Industries' subsidiary, K2 Corporation (K2), as a result of an injury he sustained while using a K2 snowboard. Plaintiff contends the trial court's decision excluding evidence of subsequent remedial measures relating to the binding retention system of K2's snowboards was error. We affirm.

STATEMENT OF THE CASE

K2 Corporation (K2), a subsidiary of Anthony Industries Plaintiff purchased a Dan Donnelly XTC and was injured on March 24, 1991, while using the snowboard. He testified that the binding came loose from the snowboard, which then struck his inside left ankle. In 1993, Plaintiff sued Anthony Industries, claiming the snowboard as designed was not reasonably safe in that it provided for the affixing of bindings to the snowboard by means of threaded screws which foreseeably could and did prove to be an inadequate and unsafe binding retention method.

designs, manufactures, and markets snowboards and other winter sports equipment. In 1990, K2 marketed a snowboard model called the "Dan Donnelly XTC." Ex. 6. The Dan Donnelly XTC was sold without bindings, allowing customers to affix their bindings of choice. K2 did not pre-drill the snowboard for bindings. Without a pre-set hole pattern, the purchaser could install his choice of any bindings on the market by simply screwing them into the snowboard. Coarse threaded screws were screwed directly into a fiberglass retention plate in the snowboard's core to affix the bindings ultimately chosen by the customer.

In 1992, K2 began to design a new binding system involving "through-core inserts" molded into the snowboard. Fine threaded screws were then screwed into the inserts to hold the bindings in place. Clerk's Papers (CP) at 34-35. Plaintiff sought to enter into evidence K2's subsequent change in design to support his claim for design defect.

K2 brought a motion in limine to exclude evidence of subsequent remedial measures pursuant to Evidence Rules (ER) 402, 403, and 407 and the motion was granted. A jury returned a special verdict in favor of K2. 1 Plaintiff appealed to Division One of the Court of Appeals, arguing

that ER 407 does not apply to strict product liability cases, and the evidence of subsequent measures should have been admitted. We accepted certification from the Court of Appeals.

DISCUSSION

The issue in this case is whether ER 407, which provides that a party may not introduce evidence of subsequent remedial measures to establish culpable conduct or negligence, applies in products liability cases where strict liability is alleged. ER 407 provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of 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.

Washington's Evidence Rule is identical to former Federal Evidence Rule 407 2 and codifies the common law doctrine which excludes evidence of subsequent remedial measures as a proof of an admission of fault. 3 Wash. Evid. R. 407 advisory committee note; see also Cochran v. Harrison Mem'l Hosp., 42 Wash.2d 264, 254 P.2d 752 (1953).

Courts justify the exclusion of such evidence because it is not relevant and it may discourage development of safety measures. Regarding relevancy, courts have found that evidence of a subsequent repair is of little probative value, since the repair may not be an admission of fault. See Columbia & Puget Sound R.R. Co. v. Hawthorne, 144 U.S. 202, 207-08, 12 S.Ct. 591, 592-93, 36 L.Ed. 405 (1892) (the Supreme Court reasoned that evidence of subsequent remedial measures could not be used to prove negligence because such evidence is irrelevant, confusing to the jury, and prejudicial to the defendant). Rule 407 is a rejection of the notion that " 'because the world gets wiser as it gets older, therefore it was foolish before.' " Fed.R.Evid. 407 advisory committee note (quoting Hart v. Lancashire & Yorkshire Rya. Co., 21 L.T.R.N.S. 261, 263 (1869)). A manufacturer may change a product's design for many other reasons besides the existence of a defect. Washington courts have excluded such evidence on the basis of relevancy. See Bartlett v. Hantover, 84 Wash.2d 426, 526 P.2d 1217 (1974); Aldread v. Northern Pac. Ry. Co., 93 Wash. 209, 160 P. 429 (1916); Wash. Evid. R. 407 advisory committee note.

While the historical use of relevancy as the basis for excluding evidence of subsequent remedial measures as evidence of negligence is well established, the more widely accepted basis for exclusion appears to be the social policy rationale of encouraging safety precautions. Karl B. Tegland, 5 Wash. Prac. Evidence § 131, at 471 (3d ed.1989); see also Codd v. Stevens Pass, Inc., 45 Wash.App. 393, 725 P.2d 1008 (1986). The Federal Advisory Committee Note to Rule 407 specifically indicates a distinct preference for this rationale. Fed.R.Evid. 407 advisory committee note. The expressed concern is that the introduction of such evidence may provide a disincentive for people to take safety precautions. Rule 407 seeks to advance the public policy of encouraging people to take steps in furtherance of added safety by freeing them from the fear that such steps will be used against them in a future lawsuit. Carter v. City of Seattle, 21 Wash. 585, 59 P. 500 (1899); see also Wash. Evid. R. 407 advisory committee note.

Although the rule clearly applies in products liability actions based in negligence, where the claim seeks recovery under theories of strict liability, the applicability of Rule 407 varies from state to state 4 and across the federal circuits. Neither the text of Washington's rule nor the Advisory Committee's Note addresses the issue of whether Rule 407 should apply to strict product liability actions. See Wash. Evid. R. 407 advisory committee note. Additionally, Washington courts have not squarely addressed this question. See Haysom v. Coleman Lantern Co., 89 Wash.2d 474, 573 P.2d 785, 93 A.L.R.3d 86 (1978). 5

In the federal circuits, a solid majority apply Rule 407 in products cases where strict liability is alleged and exclude evidence of subsequent remedial measures only where an exception applies. The First, Second, Third, Fourth, Fifth, Sixth, Seventh, and Ninth Circuits each has applied Rule 407 in strict products liability cases. 6 Only the Eighth and Tenth Circuits allow evidence of subsequent remedial measures to be admitted in strict product liability actions. 7

The debate in the federal courts, however, has recently been answered. Federal Evidence Rule 407 has been amended, adopting the view of the majority of the federal courts, providing that "evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction." (emphasis added). Amend. Fed.R.Evid. 407. (Westlaw 1997). 8

Plaintiff asks this court to adopt the reasoning of those courts finding that ER 407 does not apply to strict products liability actions and find that the trial court erred in excluding evidence of subsequent remedial measures. Finding the majority of federal courts holding that ER 407 applies to actions based in strict liability persuasive and considering the recent amendment to the Federal Rule, we decline to reverse the trial court's decision.

Plaintiff relies primarily on the California Supreme Court's decision in Ault v. International Harvester Co., 13 Cal.3d 113, 528 P.2d 1148, 117 Cal.Rptr. 812, 74 A.L.R.3d 986 (1974), which was one of the first to admit evidence of subsequent remedial measures in a strict liability action. The Ault court reasoned that the public policy considerations underling the rule were not valid in strict products liability cases, and held that a plaintiff may use evidence of a subsequent remedial measure to prove a defect. The court found inapplicable the goal of encouraging repairs in the case of mass produced products. Id., 528 P.2d at 1152, 117 Cal.Rptr. at 816. A mass producer, the court reasoned, would not "risk innumerable additional lawsuits and the attendant adverse effect upon its public image" merely to avoid admission of the evidence in the first lawsuit. Id. The threat of future increased liability for failure to remedy a product defect is a sufficient impetus to encourage the mass producer to take remedial actions. Id. Therefore, the court concluded, exclusion of subsequent remedial actions only provides "a shield against potential liability." Id. The Ault court also considered whether the phrase "culpable conduct" included the actions of manufacturers who were sued under strict liability. Id. at 1151, 117 Cal.Rptr. at 815. If the Legislature had intended to apply the rule to strict liability, the court asserted, a phrase without the connotation of "affirmative fault" would have been used. Id.

The Ault court's dual rationale, that the additional impetus of exclusion is unnecessary to...

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