Kristen Johnson v. Adot

SUPREME COURT OF ARIZONA
En Banc

KRISTEN JOHNSON, surviving ) Arizona Supreme Court
spouse of MARK WAYNE JOHNSON, ) No. CV-09-0267-PR
deceased, individually, and as )
statutory plaintiff and as ) Court of Appeals
natural mother and next of ) Division One
friend of GARRETT JOHNSON, a ) No. 1 CA-CV 08-0077
minor; MASON JOHNSON, a minor; )
KELLEY JOHNSON, a minor; and ) Maricopa County
JENNA JOHNSON, a minor, ) Superior Court
surviving children of MARK WAYNE ) No. CV2004-017564
JOHNSON, deceased; and GARRY )
JOHNSON and JANE JOHNSON, )
husband and wife, and surviving )
parents of MARK WAYNE JOHNSON, ) O P I N I O N
deceased, )
)
Plaintiffs/Appellants, )
)
v. )
)
STATE OF ARIZONA, by and through )
its Department of Transportation, )
)
)
Defendant/Appellee. )
)
__________________________________)

Appeal from the Superior Court in Maricopa County
The Honorable Thomas Dunevant, III, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
222 Ariz. 58, 213 P.3d 207 (App. 2009)

VACATED
________________________________________________________________

LUIS P. GUERRA LLC Phoenix
By Luis P. Guerra
And

LAW OFFICES OF CHARLES M. BREWER LTD Phoenix
By Charles M. Brewer

And

LAW OFFICES OF DAVID L. ABNEY Phoenix
By David L. Abney
Attorneys for Kristen Johnson, Mark Wayne Johnson, Garrett
Johnson, Mason Johnson, Kelley Johnson, Jenna Johnson, Garry
Johnson, and Jane Johnson

BURKE PANZARELLA RICH Phoenix
By Thomas P. Burke, II
Shauna B. Yoder
Elizabeth L. Fleming
Attorneys for State of Arizona and Arizona Department of
Transportation
________________________________________________________________

P E L A N D E R, Justice

¶1 Arizona Rule of Evidence 407 generally excludes

evidence of “measures” taken “after an event” to prove a party’s

negligence or culpability “in connection with the event.” We

hold that Rule 407 applies even if the party took such measures

without knowledge of, or for reasons unrelated to, the prior

event. We also hold that the trial court did not err in finding

that the evidence of subsequent measures was not offered for

“another purpose.”

I

¶2 This wrongful death action arose from a collision in

which decedent Mark Johnson, while driving westbound on U.S.

2
Highway 60, struck the rear end of a dump truck.1 Before the

accident, the truck driver exited a mining pit, stopped at the

Peckary Road intersection, and turned onto the highway. He

traveled approximately seven hundred feet before decedent’s

vehicle hit his truck. An eyewitness stated the decedent made

no attempt to stop, swerve, or slow down before the collision.

¶3 The decedent’s surviving spouse, Kristen Johnson, sued

the State, alleging it had negligently designed and maintained

the Peckary Road intersection. The State denied any negligence

and alleged that the decedent was comparatively at fault and

that the accident was not intersection-related.

¶4 Johnson unsuccessfully sought to introduce evidence at

trial that, after the accident, the State had posted a truck-

crossing sign and allowed the mining company to install a

variable message board near the Peckary Road intersection. She

argued those signs were not “subsequent remedial measures” under

Rule 407 because the State installed them without knowledge of,

and not in response to, the decedent’s accident. She also

argued that, even if the measures were remedial, the rule did

not preclude admission of this evidence for “another purpose” -

to rebut the State’s claims that the decedent was comparatively

1
We view the facts in the light most favorable to upholding
the jury’s verdict. Hutcherson v. City of Phoenix, 192 Ariz.
51, 53 ¶ 13, 961 P.2d 449, 451 (1998).
3
negligent and that the roadway conditions were open and obvious,

and to prove the State’s knowledge of the dangerous

intersection.

¶5 The trial court ruled that the evidence of subsequent

signage “is not admissible merely because the State in this case

denies that the intersection was unsafe,” finding impermissible

any “backdoor attempt[] to use remedial measures to establish

negligence [in] not having installed [the signs] earlier.” The

jury returned a verdict in favor of the State. The trial court

denied Johnson’s motion for new trial, ruling that Rule 407

applied even if the State had not known of the decedent’s

accident when the signs were installed.

¶6 The court of appeals affirmed, holding that

“subsequent remedial measures need not be in response to the

incident at issue for Rule 407 to apply.” Johnson v. Ariz.

Dep’t of Transp., 222 Ariz. 58, 62 ¶ 12, 213 P.3d 207, 211 (App.

2009). The court further concluded that the trial court did not

abuse its discretion in rejecting Johnson’s efforts to admit the

evidence for “another purpose” under Rule 407. Id. at 62-65

¶¶ 13-26, 213 P.2d at 211-14.

¶7 We granted review to address issues of statewide

importance and first impression in Arizona relating to Rule 407.

This Court has jurisdiction pursuant to Article 6, Section 5(3)

of the Arizona Constitution and Arizona Revised Statutes section
4
12-120.24 (2003).

II

¶8 Arizona Rule of Evidence 407 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.

¶9 The rule seeks to “encourage remedial measures by

freeing the defendant from concern that such steps might be used

against him as an admission by conduct.” Readenour v. Marion

Power Shovel, 149 Ariz. 442, 445, 719 P.2d 1058, 1061 (1986).

“The limitation provided by Rule 407 is not based so much upon a

lack of relevancy as it is upon the policy decision to promote

changes which decrease accidents.” Id. at 446, 719 P.2d at

1062; see also Hallmark v. Allied Prods. Corp., 132 Ariz. 434,

440, 646 P.2d 319, 325 (App. 1982) (noting the rule reflects “a

social policy of encouraging people to take, or at least not

discouraging them from taking, steps in furtherance of added

safety” (quoting Fed. R. Evid. 407 advisory committee’s notes));

1 Joseph M. Livermore, et al., Arizona Practice Series: Law of

Evidence § 407 (Daniel J. McAuliffe & Shirley J. Wahl eds., rev.

4th ed. 2008) (“Taking greater care, in short, ought not to be

5
punished by adverse evidentiary consequences, and that is the

proposition underlying Rule 407.”). We review de novo issues

relating to interpretation and application of the rule. State

v. Hansen, 215 Ariz. 287, 289 ¶ 6, 160 P.3d 166, 168 (2007).

¶10 Johnson argues that evidence of post-injury changes

should be excluded under Rule 407 only if the defendant knew

about an injury and made changes in response to it. Otherwise,

she argues, the measures are not “remedial” within the meaning

of the rule’s title, “Subsequent Remedial Measures.”

¶11 There is nothing inherent in the word “remedial,”

however, that presupposes knowledge of a prior accident by one

undertaking repairs; a dangerous condition is remedied by

subsequent measures even if the repairer is not aware that the

condition has already caused an injury. Further, Rule 407 does

not on its face require a causal relationship between the

measures and the event, only that the measures were taken

“after” the event and “would have made the event less likely to

occur” if they had been taken before. See Kaczmarek v. Allied

Chem. Corp., 836 F.2d 1055, 1060 (7th Cir. 1987); cf. City of

Phoenix v. Harnish, 214 Ariz. 158, 163 n.2, ¶ 20, 150 P.3d 245,

250 n.2 (App. 2006) (a statute’s language is more important than

its title or heading).

¶12 We find similarly unpersuasive Johnson’s argument that

the rule’s policy of encouraging safety improvements is not
6
furthered when defendants act without knowledge of the event in

question and, thus, without awareness of their potential

liability. Although defendants who improve safety without

knowledge of previous accidents may not be deterred by the risk

of liability to a particular claimant, they may nonetheless be

deterred by the risk of potential liability to unknown claimants

if subsequent measure evidence were routinely admitted when

measures are taken without knowledge of previous injuries. See

Doe v. Johnston, 476 N.W.2d 28, 34 (Iowa 1991) (“[T]he policy

underlying the rule should apply not only when the safety

measures are taken in reaction to an accident, but also when

they are taken merely upon discovery that change is needed.”

(citing Petree v. Victor Fluid Power, Inc., 831 F.2d 1191, 1198

(3d Cir. 1987))).

¶13 In support of her position, Johnson relies on an

Oregon case in which the plaintiff was badly burned after

accidentally falling into hot springs on the defendant’s land.

Van Gordon v. Portland Gen. Elec. Co., 693 P.2d 1285, 1286-87

(Or. 1985). The plaintiff introduced evidence at trial that the

defendant had installed additional warning signs after the

accident. Id. at 1288. The Oregon Supreme Court held that the

evidence was not covered by that state’s Rule 407 (virtually

identical to Arizona’s Rule 407), reasoning that the newly

posted signs would not have made the plaintiff’s accident less
7
likely to occur because he had entered the hot springs area from

a different path than the one on which the new signs were

placed. Id. at 1289.

¶14 In addition, the court found Rule 407 inapplicable

because, before posting the signs, the defendant “did not know

of the accident and was motivated to change the signs simply for

aesthetic reasons,” not in response to the plaintiff’s accident.

Id. at 1290. The court concluded that “a defendant must know of

the prior event in order to fashion a safety measure to remedy

any hazard that caused the event.” Id. at 1289; see also 23

Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice

and Procedure § 5283 (1980) (“[I]t is difficult to see how

[remedial measures taken without knowledge of the accident]

could be construed as an admission of negligence with respect to

the particular accident and the decision to make the change

could not have been affected by fear of liability to the instant

plaintiff.”).

¶15 We disagree with this dictum in Van Gordon, as did the

Iowa Supreme Court in Johnston. See 476 N.W.2d at 34. As that

court observed, Rule 407’s “policy would not be served if

evidence of defendants’ changed behavior could be used to prove

liability just because defendant was unaware that any injury or

accident had occurred.” Id.; see also Bush v. Michelin Tire

Corp., 963 F. Supp. 1436, 1449 (W.D. Ky. 1996) (language of
8
Federal Rule of Evidence 407 “does not go to Defendant’s intent

in adopting the later measures” but “simply asks whether the

later measures could have prevented the earlier accident”); Webb

v. CSX Transp., Inc., 615 S.E.2d 440, 448 (S.C. 2005) (rejecting

“view of Rule 407 . . . that only measures taken in direct

response to the accident qualify for exclusion” because “this

narrow interpretation ignores the literal language of the

rule”); Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 88 (Tenn.

2008) (defendant’s clearing of vegetation at railroad crossing

after fatal accident was “a subsequent remedial measure” because

“it corrected an allegedly dangerous condition and made the

crossing safer for future motorists,” even though “the clearing

was carried out pursuant to corporate policy” rather than in

response to the accident).

¶16 In sum, we hold that Rule 407 requires the exclusion

of evidence of subsequent measures to prove a party’s negligence

or culpable conduct, even when such measures are taken without

specific knowledge of the accident in question. Because the

evidence of the State’s post-accident signage fell within Rule

407, Johnson was not permitted to introduce the evidence unless

it was “offered for another purpose.” Ariz. R. Evid. 407. We

next address that issue.

III

¶17 Although Rule 407 excludes evidence of subsequent
9
measures to prove negligence or culpability, the rule does not

require exclusion of such evidence “when offered for another

purpose, such as proving ownership, control, or feasibility of

precautionary measures, if controverted, or impeachment.” Ariz.

R. Evid. 407. Here, the State did not contest its ownership and

control of Highway 60 or the feasibility of installing warning

signs at or near the Peckary Road intersection. But Johnson

argues that evidence of the State’s subsequent measures should

have been admitted to “(a) impeach the adverse witnesses;

(b) rebut the argument that the intersection was faultless; and

(c) fight the defense of contributory negligence.” We review a

trial court’s ruling on the admissibility of evidence under Rule

407 for abuse of discretion. Robles v. Shoreside Petroleum,

Inc., 29 P.3d 838, 845 (Alaska 2001); cf. Gemstar Ltd. v. Ernst

& Young, 185 Ariz. 493, 506, 917 P.2d 222, 235 (1996) (relating

to Arizona Rule of Evidence 403).

¶18 Courts have differed on whether evidence of subsequent

measures should be admissible to rebut a defendant’s denial of

fault or allegations of a plaintiff’s contributory negligence.

Some courts have allowed admission of such evidence for those or

similar purposes. See, e.g., Pitasi v. Stratton Corp., 968 F.2d

1558, 1560-61 (2d Cir. 1992) (admitting evidence of ski slope

operator’s post-accident signage to rebut contributory

negligence defense “based upon the nature or condition of the
10
accident scene”); Rimkus v. Nw. Colo. Ski Corp., 706 F.2d 1060,

1063-66 (10th Cir. 1983) (same, finding evidence of subsequent

measures admissible to refute defense that rocks on ski slope

were open and obvious).

¶19 In contrast, many courts have concluded that evidence

of subsequent remedial measures is not admissible merely because

defendants dispute their liability, allege contributory

negligence, or argue that existing designs, standards, or

conditions were adequate. See, e.g., Kelly v. Crown Equip. Co.,

970 F.2d 1273, 1278 (3d Cir. 1992); Hardy v. Chemetron Corp.,

870 F.2d 1007, 1011 (5th Cir. 1989) (“Evidence of subsequent

measures is no more admissible to rebut a claim of non-

negligence than it is to prove negligence directly.”); Flaminio

v. Honda Motor Co., 733 F.2d 463, 468 (7th Cir. 1984) (“Although

any evidence of subsequent remedial measures might be thought to

contradict and so in a sense impeach a defendant’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.”); Fasanaro v. Mooney Aircraft Corp., 687 F. Supp. 482,

486 (N.D. Cal. 1988) (“Plaintiff’s attempt to phrase her

argument . . . as rebuttal of [defendant’s] contributory

negligence defense is purely semantic. . . . [S]he argues that

the decedent was not contributorily negligent because the

defendant was negligent.”); Keating v. United Instruments, Inc.,
11
742 A.2d 128, 130-31 (N.H. 1999); Herzog v. Lexington Twp., 657

N.E.2d 926, 931-34 (Ill. 1995).

¶20 For example, in Herzog, the plaintiff sued the

township following a car accident, arguing that a single

“winding road” sign was insufficient to warn motorists of a

series of curves on the road where he was injured. 657 N.E.2d

at 928. Before trial, the defendant successfully moved to

exclude evidence that it had posted additional signs on that

stretch of road after the plaintiff’s accident. Id. at 928,

932. On appeal, the plaintiff claimed such evidence should have

been admitted to impeach the defendant’s witnesses, who

testified that the single sign was adequate. Id. at 929.

¶21 The Illinois Supreme Court affirmed the trial court’s

ruling, concluding that “evidence is not admissible for

impeachment where the sole value of the impeachment rests on

[the] same impermissible inference of prior negligence.” Id. at

933. It reasoned that allowing evidence of subsequent remedial

measures “under the guise of impeachment” whenever a defendant

disputes the plaintiff’s negligence claim “would swallow the

general rule prohibiting the introduction of subsequent remedial

measures and frustrate the policy considerations that support

it.” Id.; see also Hallmark, 132 Ariz. at 439, 646 P.2d at 324

(“[T]he trial judge has broad power to insure that remedial

measures evidence is not improperly admitted under the guise of
12
the ‘other purpose’ exception.”); Hightower v. Kan. City S. Ry.

Co., 70 P.3d 835, 854 n.33 (Okla. 2003) (“Due to the very nature

of the comparative negligence defense, it is inherently

incapable of consideration separate and apart from the

negligence claim to which it relates.”); DiPietro v. Cessna

Aircraft Co., 16 P.3d 986, 991 (Kan. Ct. App. 2000) (“The

process of determining comparative fault, when only two parties

are involved, is a ‘zero sum game.’ When negligence is moved

out of the plaintiff’s column, it must move into the defendant’s

column.”).2

¶22 We find this latter line of cases persuasive. The

mere fact that a defendant denies fault and alleges comparative

negligence does not, alone, justify the admission of subsequent

measure evidence for impeachment purposes. See Tuer v.

McDonald, 701 A.2d 1101, 1112 (Md. 1997) (“The prevailing, and

pragmatically necessary, view is that the impeachment exception

cannot be read in so expansive a manner.”). Admitting such

evidence when it does not directly impeach a witness’s testimony

or other evidence offered by a defendant contravenes the general

2
Although Johnson sued multiple defendants, the evidence of
subsequent signage would have been probative only on the
question of the State’s liability. Moreover, the jury returned
verdicts in favor of all defendants. Therefore, to the extent
the evidence allegedly refuted the State’s denial of fault and
affirmative defenses, it would have served to increase only the
State’s liability.
13
rule that such evidence is inadmissible to prove negligence.

See Slow Dev. Co. v. Coulter, 88 Ariz. 122, 127-28, 353 P.2d

890, 893-94 (1960) (before adoption of Rule 407, recognizing

general common law rule of inadmissibility subject to exception

when evidence of subsequent measures “tends to impeach the

testimony of a witness”); cf. Baroldy v. Ortho Pharm. Corp., 157

Ariz. 574, 585-87, 760 P.2d 574, 585-87 (App. 1988) (upholding

trial court’s admission, with limiting instruction, of various

documents for purposes of impeaching manufacturer’s claim that

its product could not have caused the plaintiff’s injury).

¶23 Evidence of subsequent measures may be admissible for

impeachment purposes, however, when “the defendant goes beyond

stating that the original condition was safe or adequate, and

attempts to make exaggerated claims that the condition was the

‘safest possible.’” Herzog, 657 N.E.2d at 933; accord Kelly,

970 F.2d at 1278 (evidence of subsequent changes did not impeach

expert’s statements because he did not claim “the [product’s]

design was the best or the only one possible”); cf. Slow Dev.

Co., 88 Ariz. at 127-28, 353 P.2d at 893-94 (upholding admission

of subsequent measures evidence to impeach results of

defendant’s safety tests because tests were conducted after

safety improvements had been made). Two of the cases Johnson

cites illustrate this point. In Muzyka v. Remington Arms Co.,

774 F.2d 1309, 1311-14 (5th Cir. 1985), the court held that
14
evidence of design changes to the defendant’s rifle made shortly

after the plaintiff’s injury was admissible to impeach

defendant’s “superlative[]” claims that its rifle was the “best”

and “safest” on the market. Similarly, in Anderson v. Malloy,

700 F.2d 1208, 1212-14 (8th Cir. 1983), evidence that the

defendants had installed additional safety features after the

plaintiff’s injury was found admissible in part to impeach the

defendants’ “testi[mony] that they had done everything

necessary” to assure safety.

¶24 Here, the State made no such exaggerated claims about

the safety of the intersection. In its opening statement, the

State said the decedent took “no evasive action” and was “solely

responsible for this rear-end accident.” In its closing

argument, the State contended this was “not an intersection-

related accident.” In addition, a co-defendant stated the

accident “occurred on a well-designed state highway with a clear

line of sight for hundreds and hundreds of feet.”

¶25 The overarching purpose of Rule 407’s “impeachment”

provision is to allow a party to refute evidence that, if left

uncontroverted, would create an unfair advantage or misleading

impression for the other party who seeks to exclude any evidence

of subsequent measures. Minter v. Prime Equip. Co., 451 F.3d

1196, 1212-13 (10th Cir. 2006); Duchess v. Langston Corp., 769

A.2d 1131, 1146-50 (Pa. 2001). But Johnson does not point to
15
any witness testimony or other direct claim by the State that

the intersection was perfect or could not have been made safer;

and the evidence of subsequent signage would not have

contradicted the State’s comments. See Hardy, 870 F.2d at 1011

(plaintiff’s proffered evidence “would not have impeached [the

witness’s] testimony” and the plaintiff “points to no other

evidence that the subsequent design change might have been used

to impeach”). To admit the evidence of subsequent signage for

impeachment purposes, we would have to “accept the premise that

the conduct of placing additional signs . . . supports the view

that the original condition was unsafe . . . [, which] directly

contradicts the assumptions that support the general rule

regarding subsequent remedial measures.” Herzog, 657 N.E.2d at

933. Therefore, we find the other purpose provision in Rule 407

inapplicable on this record and hold that the trial court did

not abuse its discretion by excluding the evidence of subsequent

signage under Rule 407.3

3
As the court of appeals correctly concluded, admitting
evidence of subsequent signage to prove the State’s knowledge of
a dangerous condition “would have allowed [Johnson] to
explicitly prove elements of negligence with evidence of
subsequent remedial measures,” a purpose clearly prohibited by
Rule 407. Johnson, 222 Ariz. at 65 ¶ 26, 213 P.3d at 214. But
we reject the court of appeals’ suggestion that evidence of
subsequent measures is inadmissible for “another purpose” under
Rule 407 if “other proof” is available to fulfill that purpose.
Id. at ¶ 24. Even if evidence of subsequent measures is
admissible for another purpose, however, a trial court may
appropriately consider whether it should be excluded under
16
 IV

¶26 For the reasons stated above, we affirm the trial

court’s judgment in favor of the State and vacate the court of

appeals’ opinion.

_____________________________________
A. John Pelander, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

_____________________________________
W. Scott Bales, Justice

Arizona Rule of Evidence 403. See, e.g., Readenour, 149 Ariz.
at 449-50, 719 P.2d at 1065-66; Hallmark, 132 Ariz. at 439, 646
P.2d at 324; see also Hernandez v. State, 203 Ariz. 196, 197 ¶
1, 200 ¶ 15, 52 P.3d 765, 766, 769 (2002) (holding that Arizona
Rule of Evidence 408 does not preclude use of statements in
notice of claim “to impeach a party’s credibility,” but
admission of impeachment evidence “remains subject to Rules 401,
402 and 403, Ariz. R. Evid.”).
17