The Repair Rule: Maine Rule of Evidence 407(a) and the Admissibility of Subsequent Remedial Measures in Proving Negligence

Evidence of subsequent repairs is generally excluded when submitted for admission as circumstantial evidence of negligence. Although this Comment will examine various theories under which such evidence has been held inadmissible, these theories are all based on one of two assumptions. Evidence of subsequent repairs has been excluded either because it is regarded as irrelevant to the issue of negligence, or although relevant, as incompetent because its admission is believed to counteract the strong public policy to encourage repairs. Most modern rules of evidence now base the exclusion on the public policy rationale. Thus, the effect of the subsequent repair rule is to exclude relevant evidence that might aid the finder of fact in determining liability. The rule excluding evidence of subsequent repairs has suffered only minor criticism in recent years. The Maine Supreme Judicial Court, however, has broken with traditional acceptance of the rule. The court has promulgated a rule that "evidence of subsequent repairs is admissible." Maine will now be the only jurisdiction admitting evidence of subsequent repairs as circumstantial evidence of negligence. An analysis of the history of the subsequent repair rule and an assessment of its current status affirms the wisdom of the court's abolition of this mandatory rule. Evidence of repairs will be admissible subject only to the discretionary rules normally governing the admissibility of relevant evidence. If evidence of repairs is relevant in an individual case, the court will weigh its probative value against its potential prejudicial effect to determine its admissibility.