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Yardman v. San Juan Downs Inc.8/23/1995
introduce evidence of such changes as evidence of a defendant's negligence. See ) (Fed. R. Evid. 407); . See generally Thomas M. Fleming, Admissibility of Evidence of Repairs, Change of Conditions, or Precautions Taken After Accident--Modern State Cases, 15 A.L.R.5th 119 (1993 & Supp. 1994).
23. Although evidence of remedial measures may properly be admitted for impeachment purposes, nevertheless, the decision of whether to admit such evidence must be carefully balanced by the trial court in order to determine whether the probative value of such evidence outweighs the possibility of unfair prejudice, confusion of the issues, or misleading the jury. See SCRA 1986, 11-403 (Repl. 1994).
24. We agree with Defendants that merely because a defendant denies that it was negligent and contends that it acted in a reasonable manner does not automatically open the door for the admission of evidence of remedial action under the impeachment exception and allowance of testimony, and the impeachment exception must be carefully evaluated so as not to negate the underlying purpose of the rule. Therefore, "the trial Judge should guard against the improper admission of evidence of subsequent remedial measures to prove prior negligence under the guise of impeachment." 10 James Wm. Moore, Moore's Federal Practice § 407.04, at IV-159 (2d ed. 1995). "The fact that the proof can be introduced for impeachment purposes invites courtroom 'games.'" 2 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 127, at 26 (2d ed. 1994). Trial counsel should not be allowed to set up a Hobson's choice whereby the witness must admit that the condition was unsafe or be impeached with evidence that subsequent remedial measures were implemented. See id. As observed in ) (quoting ), the impeachment exception "must be applied with care, since 'any evidence of subsequent remedial measures might be thought to contradict and so in a sense impeach [a party's] testimony that he was using due care at the time of the accident . . . . If this counted as "impeachment" the exception would swallow the rule.'" See also Wilkinson v. Carnival Cruise Lines. Inc., 920 F.2d 1560, 1567 (11th Cir. 1991) (impeachment exception must be applied with care to avoid defeating rule's purpose); 1 Jack B. Weinstein et al., Weinstein's Evidence, P 402 (1995).
25. The Court applied these principles in the context of impeachment through changed conditions in ), cert. denied, 108 N.M. 97, 766 P.2d 1331 (1988). Cumming sued for personal injury and property damage resulting from a head-on collision. . The highway where the accident occurred was under construction, , and the plaintiff moved to introduce photographs taken three weeks after the accident, arguing "under the 'feasibility of precautionary measures' exception to SCRA 1986, 11-407, and that they were relevant for impeachment purposes." . We affirmed the trial court's refusal to admit this evidence because the photographs of subsequent remedial measures would not be relevant to impeach the testimony of the defendant's witnesses as to the condition of the area on the night of the accident. Id.
26. In the present case, Mr. Demoney stated that, in his opinion, the rail, the path, and the gate were not "dangerous." He further testified that he believed that the fact that Plaintiff shifted his weight had the effect of altering the direction of the horse. Absent other evidence, these opinions, however, do not constitute a sufficient basis to ignore the raison d'etre of SCRA 11-407 so as to permit the admission of subsequent remedial measures under the impeachment exception. See ) ("Evidence of subsequent remedial measures is no more admissible to rebut a claim of non-negligen
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