Tuesday, September 13, 2011
In The Habit?: Central District Of Illinois Deems Safety Rating Evidence Admissible As Habit Evidence
Federal 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.
So, let's say that a car driver sues a truck driver and his employer for negligence after a car accident and seeks to present into evidence the employer's safety ratings? Should the court allow for the admission of the evidence pursuant to Federal Rule of Evidence 406? According to the recent opinion of the United States District Court for the Central District of Illinois in Campbell v. RAP Trucking Inc., 2011 WL 3924177 (C.D.Ill. 2011), the answer is "yes." I agree that the evidence was admissible but don't agree that it was admissible under Rule 406.
I already discussed the facts of Campbell in my prior post, which dealt with the admissibility of evidence of log books under the Best Evidence Rule. In Campbell, the defendants tried to preclude the plaintiffs from presenting evidence of RAP Trucking's (presumably bad) safety ratings. In response, the plaintiff claimed "that evidence of RAP Trucking's safety ratings is admissible pursuant to Federal Rule of Evidence 406, as evidence of the habit and routine practice of RAP Trucking." Specifically, the plaintiff asserted "that the relevance of such evidence is that a poor rating of driver fatigue is relevant to the training and supervision by RAP Trucking over its drivers, including Defendant Gross."
The Central District of Illinois agreed with the plaintiff, concluding
that the safety ratings are permissible habit evidence of RAP Trucking under Rule 406 to prove that RAP Trucking might be lacking in its supervision and training of employees....Under Illinois common law, an employer may be liable for injuries resulting to third persons for negligent training or supervision of an employee if the plaintiff can establish "that the employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, having this knowledge, failed to supervise the employee adequately, or take other action to prevent the harm." Doe v. Brouillette, 906 N.E.2d 105, 115-16 (Ill.Appp.Ct. 2009) (internal quotations omitted). Although the Defendant is correct that poor safety ratings do not establish that Defendant Gross himself behaved in a dangerous manner, the poor safety ratings are potentially probative to the issue of whether RAP Trucking supervised their employees adequately or took other action to prevent the harm suffered by the Plaintiff. Nevertheless, unless the Plaintiff can actually present any evidence that RAP Trucking "knew or should have known" that Defendant Gross himself was behaving in a dangerous or incompetent manner, the probative value of the safety ratings have the potential to be substantially outweighed by the danger of misleading the jury.
As I said in the introduction, I think that the Central District of Illinois correctly concluded that this evidence was (potentially) admissible, but I don't think that it was admissible under Rule 406. Indeed, the court iteself noted that this evidence was only admissible if RAP Trucking "knew or should have known" that Defendant Gross himself was behaving in a dangerous or incompetent manner. That's because the evidence was admissible if at all to prove knowledge under Federal Rule of Evidence 404(b). Evidence that a defendant is "unsafe" us either inadmissible propensity character evidence or admissible under Rule 404(b). I don't see how evidence of safety ratings could be specific enough to qualify as habit evidence under Rule 406.