Friday, November 20, 2015

Evidence of habit in a negligence case.

Practice point:  In a negligence case, a  party may introduce evidence of a habit or routine practice in order to allow the inference of its persistence, and, therefore, negligence on a particular occasion. However, to justify introduction of evidence as to habit or regular usage, there must be a showing that the party expects to prove a sufficient number of instances of the conduct in question.

Student note:  Here, the earliest proffered instance of the purported habit occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. The court, in its discretion, properly precluded the proffered evidence.

Case:  Gucciardi v. New Chopsticks House, Inc., NY Slip Op 08146 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Operating a vehicle with the right-of-way.