EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, May 24, 2010

Bad Habit: Supreme Court Of Alaska Finds Eight Photographs Of Parking Lot Insufficient As Habit Evidence

Like its federal counterpart, Alaska Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

In order to present habit evidence, however, the proponent must be able to prove that a person or organization acted in a particular way with sufficient frequency and regularity. And, as the recent opinion of the Supreme Court of Alaska in Mueller v. Buscemi, 2010 WL 2011505 (Alaska 2010), makes clear, this is difficult to do.

In Buscemi,

Mueller slipped and was injured while attempting to enter her car in the rear parking lot of Buscemi's commercial building. She sued Buscemi for personal injuries suffered as a result of the accident, alleging that Buscemi's failure to treat icy conditions and to provide adequate exterior lighting was the proximate cause of her injuries. Mueller claim[ed] to have suffered personal injuries, incurred present and future medical expenses, and lost income because of Buscemi's allegedly negligent maintenance of the parking lot.

After trial, the jury found for Buscemi, prompting Mueller's appeal. Mueller claimed on appeal, inter alia,

that the superior court erred by excluding evidence of improper maintenance in and around Buscemi's building. She argue[d] that this evidence, photographs to be supported by witness testimony, was admissible under Alaska Rule of Evidence 406 because it established that "[i]gnoring maintenance ... was a routine practice of this landlord." Buscemi respond[d] that the photographic evidence Mueller presented was insufficient to establish that Buscemi had a routine practice of improperly maintaining the parking lot.

The Supreme Court of Alaska sided with Buscemi, noting that "[a] trial judge 'possess[es] the discretion usual in this field of circumstantial evidence to exclude (evidence of habit) if the habit is not sufficiently regular and uniform, or the circumstances sufficiently similar, to outweigh the danger, if any, of prejudice or confusion.'" According to the court, "In support of the contention that Buscemi had a habit of ignoring maintenance, Mueller offered eight photographs which appear[ed] to show a water heater, ceiling tiles, a fire extinguisher, a sink, and a wall." The problem, though, was that "[t]he photographs were unaccompanied by any indication of when they were taken."  

The court concluded that "[t]his proffer was inadequate to establish a habit relating to maintenance of the parking lot under Rule 406" because

"It is only when examples offered to establish such pattern of conduct or habit are numerous enough to base an inference of systematic conduct and to establish one's regular response to a repeated specific situation...that they are admissible to establish pattern or habit." Because Mueller's proffer failed to establish a basis for the inference that Buscemi had a habit of improperly maintaining this commercial property, it was not an abuse of discretion for the trial court to exclude the eight photographs.

I agree and think that even if the photographs were taken on eight consecutive days, it would not have been enough to show that Buscemi regularly failed to maintain the area around the building. Instead, the sample size of about a week likely would have been inadequate. But if Mueller would have had a witness who used the parking lot on a daily basis for months or years who would have testified that the parking lot was consistently maintained poorly, that likely would have been adequate.



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