McFarland v. Bruno Mach. Corp.

• Decision Date: 16 February 1994
• Docket Number: No. 92-2236,92-2236
• Citation: 68 Ohio St.3d 305,626 N.E.2d 659
• Parties: , 62 USLW 2580, Prod.Liab.Rep. (CCH) P 13,877 McFARLAND et al., Appellants, v. BRUNO MACHINERY CORPORATION, Appellee.
• Court: Ohio Supreme Court

Page 305

68 Ohio St.3d 305

626 N.E.2d 659, 62 USLW 2580, Prod.Liab.Rep. (CCH) P 13,877

McFARLAND et al., Appellants, v. BRUNO MACHINERY CORPORATION, Appellee.

No. 92-2236.

Supreme Court of Ohio.

Submitted Nov. 9, 1993.

Decided Feb. 16, 1994.

SYLLABUS BY THE COURT

Evid.R. 407, which prohibits the introduction of evidence of subsequent remedial measures to prove negligence or culpable conduct, is not applicable to products liability cases premised upon strict liability in tort.

On December 14, 1988, appellant, Lester McFarland, was injured in the course of his employment for Amtex. Appellant worked as a maintenance mechanic for Amtex, a provider of carpet "blanks" for the auto industry. At the time of the accident, appellant was directed to correct a belt-tracking problem on a die cutting press designed and manufactured by appellee, Bruno Machinery Corporation ("Bruno"). Appellant positioned himself under the belt and, after adjusting the tracking problem, he noticed that the machine was making a "noise." Having diagnosed what he believed to be the source of the problem, appellant started to exit from underneath the machine. It was at this time that appellant's fingers on his right hand and then appellant's right arm were somehow "taken up in between the belt and the roller." As a result of his arm being entangled in the machinery, appellant sustained serious injuries.

Following the accident, Amtex placed a guard on the machine. Further, Bruno (appellee) redesigned similar presses so as to prevent the kind of accident incurred by appellant.

On September 25, 1989, appellant and his wife, Cynthia McFarland, ¹ filed a complaint in the Court of Common Pleas of Warren County, naming appellee as the sole defendant. Appellants alleged that the machine manufactured by appellee was defectively designed. Appellants sought recovery against appellee based upon the theory of strict liability in tort. Additionally, Cynthia brought an action for loss of consortium.

Prior to trial, appellee filed a motion in limine. Appellee requested the trial court to exclude all evidence regarding any design changes made by appellee to its die cutting presses subsequent to the time the machine which caused Lester's injuries was manufactured. Appellee also sought to preclude evidence that Amtex placed a guard on the machine in question after the incident. Appellee asserted that evidence of modification by either appellee or Amtex was irrelevant, prejudicial, and prohibited by Evid.R. 407.

On September 18, 1991, the trial court granted appellee's motion in limine. Thereafter, the case proceeded to trial. At trial, counsel for appellants proffered evidence of remedial measures taken by Amtex and appellee. Ultimately, the jury returned a verdict in favor of appellee.

Appellants appealed to the Court of Appeals for Warren County. The court of appeals affirmed the judgment of the trial court. The court of appeals determined that Evid.R. 407 was applicable to products liability cases based upon strict liability in tort and that the trial court properly excluded "evidence of the post-accident modifications that were made to appellee's press."

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Cors & Bassett and Michael L. Gay, Cincinnati, for appellants.

Porter, Wright, Morris & Arthur and Thomas H. Pyper, Dayton, for appellee.

Frank E. Todaro, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

Arter & Hadden, Irene C. Keyse-Walker, Mark F. McCarthy and Sonali Bustamante Wilson, urging affirmance for amicus curiae, Ohio Ass'n of Civil Trial Attys.

DOUGLAS, Justice.

The primary issue in this case is whether the proscriptions of Evid.R. 407 apply to an action which alleges that a product is defective in design or formulation. ² More specifically, we are asked to determine whether the rule applies to a products liability claim grounded upon the theory of strict liability in tort.

Evid.R. 407, entitled "Subsequent Remedial Measures," 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." (Emphasis added.)

Evid.R. 407 was designed to preclude admission of evidence of remedial measures taken after an event if the evidence is used to prove "negligence or culpable conduct." This rule, however, does not require exclusion of a remedial measure when offered for another purpose. For instance, evidence can be properly admitted if admitted for the purpose of proving ownership, control, feasibility of precautionary measures (if controverted), ³ or impeaching a witness.

The policy reasons for Evid.R. 407 have been stated as resting on two grounds. The first justification for the rule is that evidence of subsequent remedial measures is thought to have minimal or nonexistent probative value in establishing negligence. 1 Weissenberger, Ohio Evidence (Rev.1988) 42, Section 407.3. Taking subsequent remedial action is not an admission of negligence. The rationale is that the injury may have been caused by reason of mere accident or through the plaintiff's contributory negligence. 1 Weissenberger, supra, at 42-43. See, also, Giannelli, Ohio Rules of Evidence Handbook (4 Ed.1993) 90-91.

The second explanation for excluding evidence under the rule is based on the social policy of encouraging repairs or corrections. Weissenberger, supra, at 43; and Giannelli, supra, at 91. See, also, Staff Note to Evid.R. 407. The argument behind this policy reason is that a defendant would be less likely to take subsequent remedial measures if the repairs or corrections could be used as evidence against the defendant at trial.

Appellants contend that the trial court erred in not permitting evidence of remedial measures taken by Amtex and appellee. Appellants argue that they should have been permitted to introduce into evidence the fact that Amtex added a guard to the machine which had caused Lester's injuries and that appellee redesigned similar cutting presses to correct the hazard. Appellants further contend that in applying the proscriptions set forth in Evid.R. 407, both the trial court and the court of appeals committed error. Appellants urge that the rule is applicable solely to actions premised on negligence or involving culpable conduct and not to products liability claims predicated upon strict liability in tort.

We agree that Evid.R. 407 has no application here. By its very terms, the rule excludes evidence of subsequent remedial measures only when "negligence" or "culpable conduct" ⁴ is alleged.

In Ohio, the contrast between negligence and strict liability in products liability cases is distinct. See Bowling v. Heil Co. (1987), 31 Ohio St.3d 277, 31 OBR 559, 511 N.E.2d 373, and Onderko v. Richmond Mfg. Co. (1987), 31 Ohio St.3d 296, 31 OBR 576, 511 N.E.2d 388. In a products case based on strict liability, the focus is solely on the defective condition of the product and not, as in an action premised on negligence, on what the defendant knew or should have known of the defect which caused the injury. Id. at 301, 31 OBR at 579-580, 511 N.E.2d at 392. One court, contrasting strict liability with negligence, has correctly emphasized that "under the evolved doctrine of strict products liability, the scienter that is so vital to the negligence suit need not be shown. The shift so wrought is from fault to defect. * * * " Caprara v. Chrysler Corp. (1981), 52 N.Y.2d 114, 123, 436 N.Y.S.2d 251, 255, 417 N.E.2d 545, 549. Despite the clear wording of Evid.R. 407, appellee argues that the restrictions of the rule apply not only to actions based on negligence but to actions pursued under the theory of strict liability. Appellee posits that support for its position can be gleaned from the language utilized in R.C. 2307.75, and from the history of Evid.R. 407. Appellee points out that Evid.R. 407, as originally drafted, contained a provision that would have allowed evidence of subsequent remedial measures in strict liability actions. Appellee stresses that this provision was eventually deleted and, because this provision did not become part of the rule as adopted, the drafters intended that Evid.R. 407 apply to strict liability claims. We disagree.

As indicated, strict liability, in the context of a products liability suit, denotes responsibility without regard to fault or culpability. We believe that if the drafters of Evid.R. 407 had intended to foreclose evidence of subsequent remedial measures with respect to strict liability cases, the rule, as adopted, would have contained an explicit provision evidencing such an intention.

In finding that the trial court did not abuse its discretion in excluding evidence of the corrective measures taken by Amtex and appellee, the court of appeals relied, in part, on the stated policy reasons which underlie Evid.R. 407. These policy reasons are extensively set forth by both parties and amici curiae for the purpose of establishing their particular position on whether evidence of corrective measures is admissible. The arguments on both sides of the issue are extensive and persuasive.

Post-occurrence modifications by a manufacturer have been found to be admissible in products liability cases grounded in strict liability by a number of courts. See, e.g., Caprara, supra; Caldwell v. Yamaha Motor Co., Ltd. (Wyo.1982), 648 P.2d 519; Matsko v. Harley Davidson Motor Co., Inc. (1984), 325 Pa.Super. 452, 473 A.2d 155; and Jeep Corp. v. Murray (1985), 101 Nev. 640, 708 P.2d 297. See, also, R.W. Murray Co. v. Shatterproof Glass Corp. (C.A.8, 1985), 758 F.2d 266; a...