The logic flows pretty easily. Fixing something—or making a safety improvement—after someone gets hurt is a clear signal that the “thing” was unsafe from the beginning.

But under the Washington Evidence Rules (specifically ER 407) subsequent remedial measures are not admissible to prove negligence or a product defect.

There are exceptions to the rule. And plaintiffs lawyers are “trained” to try to exploit every exception to get evidence of subsequent remedial measures in front of the jury.

But I think it’s valid to do exactly the opposite…to agree with the defense that no evidence that the defendant tried to improve safety after the injury should be admitted at trial.

Here are a couple reasons why:

• Agreement creates an existential crisis for defendants.

• It’s nice to have the jury infer that the defendant cared so little about safety it didn’t repair the hazard.

• You don’t want jurors to give the defendant credit for fixing the condition/want jurors to feel like they need to send the defendant a message that it’s important to fix the hazard.

If the jury isn’t going to think the condition that caused the injury was “dangerous” without evidence of subsequent remedial measures coming into evidence, it’s probably not a case you want to be trying anyway.