First Premier Bank v. Kolcraft Enterprises, Inc.

In 1992, 10-month-old Daniel Boone was severely burned while sleeping in a playpen in his parents’ apartment. Kolcraft Enterprises (Kolcraft) (defendant) manufactured pads for its Playard playpens using polyurethane foam. To comply with California law, the foam in playpens sold in California was treated with a fire retardant, but for playpens sold everywhere else it was not. Boone’s guardian ad litem, First Premier Bank (Boone) (plaintiff), sued Kolcraft, alleging that the playpen was defective and unreasonably dangerous in its design or because of a failure to warn. South Dakota had adopted the Federal Rules of Evidence, but not a 1997 congressional amendment of Rule 407, which expressly added language including strict-liability actions to the rule’s prohibition on introducing evidence of subsequent remedial measures to prove culpable conduct. At trial, citing undue delay pursuant to South Dakota’s statute adopting Federal Rule of Evidence 403, the court did not allow Boone to introduce evidence that in 1993 or 1994, following the incident, Kolcraft began using fire retardant foam in all its playpen pads. The trial court denied Kolcraft’s motions for summary judgment and for a directed verdict, in which Kolcraft argued that Boone failed to prove proximate cause. The jury found for Kolcraft and denied Boone’s motion for a new trial. Boone appealed to the South Dakota Supreme Court, arguing, among other things, that the trial court erred in excluding evidence of Kolcraft’s subsequent remedial measures under Rule 403.