N.M. R. Evid. 11-407
When measures are taken by a defendant that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove the following: 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.
N.M. R. Evid. 11-407
Committee commentary. - The language of Rule 11-407 NMRA was amended in 2012 to be consistent with the restyling of the Federal Rules of Evidence, effective December 1, 2011, to make them more easily understood and to make style and terminology consistent throughout the rules. The amended rule now states that evidence of subsequent remedial measures taken by a defendant are not admissible to prove defects in a product or design or the need for a warning. The rule is not applicable to subsequent remedial measures taken by non-defendants. See Couch v. Astec Indus., Inc., 2002-NMCA-084, 132 N.M. 631, 53 P.3d 398, cert. denied, 132 N.M. 551, 52 P.3d 411 (2002).
[Adopted by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012.]
ANNOTATIONS The 2012 amendment, approved by Supreme Court Order No. 12-8300-015, effective for all cases pending or filed on or after June 16, 2012, rewrote the rule to make stylistic changes and to provide that evidence of subsequent remedial measures is inadmissible to prove a defect in a product or its design or to prove a need for a warning or instruction. Compiler's notes. - This rule is similar to Rule 407 of the Federal Rules of Evidence. Non-defendants. - The prohibition against admitting evidence of subsequent remedial measures does not apply to measures taken by non-defendants. Thus, under Rules 401 and 403, NMRA, evidence that an employer, subsequent to an injury, added a safety device next to a machine was highly relevant in an action by an employee against the manufacturer of the machine and any prejudice to the manufacturer was mitigated by the court's instructions to the jury. Couch v. Astec Indus., Inc., 2002-NMCA-084, 132 N.M. 631, 53 P.3d 398, cert. denied, 132 N.M. 551, 52 P.3d 411. Evidence of remedial measures developed and used prior to accident are admissible. - This rule protects a defendant that is first alerted to the possibility of danger after an accident and is induced by the accident to take steps to prevent further injury. A defendant who is aware of the problems and has proposed measures for remediation prior to the accident is not entitled to the same protection. Williams v. BNSF Ry. Co., 2015 -NMCA-109. In a personal injury action, where plaintiff was injured while setting a handbrake on a locomotive while employed as a locomotive engineer with defendant railway company, evidence that railway company developed and used a handbrake trailer for safety training prior to plaintiff's injury was not a subsequent remedial measure as contemplated by this rule; the trial court's admission of evidence related to the handbrake trailer was not an abuse of discretion. Williams v. BNSF Ry. Co., 2015 -NMCA-109. Cumulative evidence not necessarily admissible. - This rule does not mandate that subsequent remedial measures be admitted once the issue of the feasibility of those measures has been controverted: When such evidence would be strictly cumulative, its exclusion is harmless. Davila v. Bodelson, 1985-NMCA-072, 103 N.M. 243, 704 P.2d 1119. Impeachment exception not applicable. - 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; thus, in an action against a county race track by a jockey who was injured when his horse veered causing him to fall and strike a post and track rail, merely because the defendants' witness testified that he did not believe a dangerous situation existed, evidence of subsequent remedial measures taken by the track should not have been admitted. Yardman v. San Juan Downs, Inc., 1995-NMCA-106, 120 N.M. 751, 906 P.2d 742. Determination of negligence. - Where in light of all the evidence presented, the appellate court cannot say that defendants were prejudiced because the trial court instructed the jury not to consider evidence that manufacturer of ride at New Mexico State Fair had subsequently added a safety cable and rewritten their manual after the accident, defendants were not prejudiced by the trial court's instruction to the jury that it should not consider subsequent remedial measures in determining negligence. Atler v. Murphy Enterprises, Inc., 2005-NMCA-006, 136 N.M. 701, 104 P.3d 1092, cert. granted, 2005-NMCERT-001. Product liability cases. - This rule does not apply to product liability cases. Garcia v. Fleetwood Enterprises, Inc., 200 F. Supp. 2d 1302 (D.N.M. 2002 ). Law reviews. - For article, "The Admissibility of Scientific Evidence Under the New Mexico and Federal Rules of Evidence," see 6 N.M.L. Rev. 187 (1976). For article, "Survey of New Mexico Law, 1979-80: Evidence," see 11 N.M.L. Rev. 159 (1981). Am. Jur. 2d, A.L.R. and C.J.S. references. - 29 Am. Jur. 2d Evidence § 463 et seq. Admissibility of evidence of repairs, change of conditions or precautions taken after accident, 64 A.L.R.2d 1296, 15 A.L.R.5th 119. Admissibility of evidence of repairs, change of condition, or precautions taken after accident - modern state cases, 15 A.L.R.5th 119. Admissibility of evidence of subsequent remedial measures under Rule 407 of Federal Rules of Evidence, 50 A.L.R. Fed. 935. Admissibility of evidence of subsequent remedial measures under Rule 407 of Federal Rules of Evidence, 158 A.L.R. Fed. 609. 65A C.J.S. Negligence §§ 221, 224, 225.