⚡ 10-Second Rule
Repairs made after an accident can't be used to prove the accident was your fault.
🧒 ELI-10 Scene
Nina slips on the wooden stairs at her uncle's house and bruises her knee. The next morning, Uncle Ray nails a rubber mat onto every step. Nina's dad grumbles: "See? The mat proves the stairs were dangerous!" But think about what happens if fixing counts as confessing. Uncle Ray would leave the stairs slippery forever, just to avoid blame. We want people to fix things fast. So the mat can't be used against him. But if Uncle Ray claims the stairs belong to a neighbor, the mat matters. People don't usually nail mats onto someone else's stairs.
⚖️ Actual Rule
Federal Rule of Evidence 407 provides: "When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction. But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures." The rule reaches only measures taken after the plaintiff's injury, and it does not bar evidence of repairs made by someone other than the defendant, since excluding a non-party's fix would not serve the rule's purpose of encouraging defendants to make repairs.
ELI-10 translation: the fix can't prove fault, but it can prove who controlled the thing, or call out a lie.
🔍 Ask These Questions
- Was a measure taken after the injury that would have made the harm less likely? (Did the fix come after this accident, not before it?)
- Was the measure taken by the defendant? (A stranger's repair isn't protected; the rule only shields the person being sued.)
- Is it offered to prove negligence, culpable conduct, a product defect, or a need for a warning? (Is the point "the fix proves they were wrong"? That's banned.)
- Is it offered to prove ownership or control — and is that actually disputed? (If the defendant says "not my stairs," the fix can answer back.)
- Is it offered to prove feasibility of precautions — and is feasibility actually disputed? (If the defendant says "no safer design was possible," the fix calls the bluff.)
- Is it offered for impeachment of specific testimony? (If a witness swears the stairs were perfectly safe, the fix can contradict that boast.)
⚠️ Bar Trap
Exam language: The permitted uses for ownership, control, and feasibility apply only "if disputed." Examiners have the defendant concede control or never contest feasibility, then bait you into admitting the repair under an exception with no live dispute to support it. The mirror trap: a defendant who merely denies negligence has not disputed feasibility — general denial does not open the feasibility door.
ELI-10: The side doors only open if the defendant actually argues about that exact thing. Saying "I wasn't careless" is not the same as saying "no safer way existed." No fight over control or feasibility means no side door.
🧪 Question
A delivery driver sued the owner of an office building after tripping on a broken concrete step at the building's rear entrance. The owner's answer denies negligence and asserts that, under its lease, a ground-floor tenant had exclusive responsibility for and control over the rear entrance. Two weeks after the accident, the owner hired a contractor to replace the broken step. The driver offers evidence of the repair, and the owner objects under Rule 407.
How should the court rule on the evidence of the repair?
(A) Inadmissible, because evidence of subsequent remedial measures is barred for all purposes. (B) Inadmissible, unless the driver first proves the owner acted negligently in maintaining the step. (C) Admissible, to prove the broken step was a dangerous condition the owner should have repaired sooner. (D) Admissible, to prove the owner controlled the rear entrance, because the owner disputes control.
Answer: (D). FRE 407 bars the repair only when offered to prove negligence, culpable conduct, defect, or need for a warning. Here the owner put control in dispute by blaming the tenant, and the owner's own decision to hire the contractor tends to show it controlled the entrance — a purpose Rule 407 expressly permits when disputed.
💡 Why the Wrong Answers Are Wrong
- (A) overstates the rule; FRE 407 is a purpose-specific bar, not a blanket ban, and expressly lists permitted other purposes.
- (B) inverts the rule: proving negligence is the one purpose the repair can never serve, not a precondition to admitting it.
- (C) offers the repair for exactly the forbidden inference — that fixing the step proves it was dangerously maintained before.
- ELI-10: The misconception is treating the repair as either totally banned or totally allowed. The fix is banned for one job — proving fault — and available for the jobs the defendant put in play.
