The Andersons where guest at a motel. Linda Anderson was
assaulted and raped after an assailant forcibly entered the
The Andersons filed suit alleging that the Df - negligently
failed to provide them with reasonably safe lodging and
fraudulently misrepresented the level of security to the motel
Court Refused to admit
The court refused to admit evidence that the Df - installed
safety chains and peep holes in the entrance doors of the motel
Defense Safe Arg
They did everything reasonably safe.
Defense Pl - Negligence Arg
She was negligence opening the door to a stranger.
FRE 407 prohibits (When offered to prove negligence or culpable
Rule 407 prohibits the admission of evidence of
subsequent remedial measures
when the evidence is offered to prove negligence or culpable
The plaintiffs assert on appeal that the defendants controverted
the feasibility of the use of peep holes and safety chains.
Thus, the plaintiffs argue that the evidence comes within the
exception of rule 407.
Defense open up the issue about the absence of peep holes or
Question: Did the police chief indicate to you anything about
putting thee peepholes in the doors?
What does feasibility mean?
Whether something is feasible relates not only to actual
possibility of operation, and its cost and convenience, but also
to its ultimate utility and success in its intended performance.
Capable of being utilized, or dealt with successfully.
False sense of security inference
Not only infers that the devices would not successfully provide
security, it also infers that the devices would in fact create a
lesser level of security if they were installed.
Df - controverted the feasibility
With this testimony the defendants
controverted the feasibility of
the installation of these devices, because the
defendant Malloy in effect testified that these devices
were not "capable of being
utilized or dealt with successfully."
Pl have every right to rebut inference
The plaintiffs were entitled to show affirmatively that these
devices were feasible, and
furthermore to impeach the credibility of the defendants by
showing that, although the defendants testified that they had
done everything necessary for a secure motel, and that chain
locks and peep holes would not be successful,
They in fact took further security measures after Linda Anderson
was raped, and in fact installed the same devices that they
testified could not be used successfully.
(If they were not needed the why did they install them???)
Trial Courts Application for 407
it was an abuse of discretion for the trial court to refuse to
admit the only evidence that would effectively rebut the
inferences created by the defendants.
We find the trial court committed prejudicial error in the
ruling discussed above; accordingly, we vacate the judgment of
the district court, and remand the case for a new trial.
Majority stretches feasibility.
Should be about necessity or desirability.
Pl - make no contention of impeachment exception.
Closing argument certainly cannot be use to justify introduction
of evidence during the court of the trial.