Can Habit be Proven Through Post-Accident Conduct?

Similar to its federal counterpart, Iowa Rule of Evidence 5.406 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, can a party prove habit through conduct that comes after a crime or civil wrong? This question was raised in the recent opinion of the Supreme Court of Iowa in its opinion today in Holmes v. Pomeroy, 2021 WL 1822806 (Iowa 2021).

In Pomeroy,

On June 8, 2015, Miranda Pomeroy (Pomeroy) was driving westbound on Cumming Avenue in Cumming, Iowa. At the same time, Matthew Holmes (Holmes) was riding his bicycle southbound on a bike trail heading toward Cumming Avenue. Holmes suffered injuries when he turned left onto Cumming Avenue and collided with Pomeroy's vehicle. On June 1, 2017, Holmes filed a petition and jury demand against Pomeroy alleging her negligence caused his injuries and damages.

Pomeroy then "filed a motion in limine asking the district court to prevent Holmes from making any argument that she has a habit of driving while distracted." The court granted the motion, ordering that "Holmes could not use evidence of Pomeroy's cell phone use while driving that occurred subsequent to the accident to prove a habit." The jury ultimately returned a verdict for Pomeroy.

On appeal, the Supreme Court of Iowa noted that

Some courts have held that conduct subsequent to the particular occasion is irrelevant as habit evidence. DeMatteo v. Simon, 812 P.2d 361, 363 (N.M. Ct. App. 1991) (holding the defendant's driving record from after the accident at issue is irrelevant to show habit); Gucciardi v. New Chopsticks House, Inc., 133 A.D.3d 633, 634 (N.Y. App. Div. 2015) (“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. We agree with the court's determination that the proffered evidence did not establish a habit or regular usage relevant to what occurred on the date the appellant allegedly was injured.” (citations omitted)); Jackson v. Chesapeake & Ohio Ry., 20 S.E.2d 489, 492 (Va. 1942) (“[T]he specific acts of negligence claimed to have been committed seven months after the alleged negligent act which caused the injury are too remote in time and too indefinite in substance to be relevant....”).

Other courts take the position that evidence's relevance in proving a habit is not defeated due to its occurrence after the incident in question. United States v. Luttrell, 612 F.2d 396, 397 (8th Cir. 1980) (per curiam) (upholding district court's admission of the defendant's failure to file timely tax returns for 1976, 1977, and 1978 as habit evidence in a prosecution for failure to file tax returns for 1974 and 1975); Gasiorowski v. Hose, 897 P.2d 678, 682 (Ariz. Ct. App. 1994) (holding evidence showing doctor's epidural privileges were suspended from July 1989 until September 1990 was relevant as habit evidence that he improperly administered an epidural in April 1988); People v. Memro, 700 P.2d 446, 462, 466 (Cal. 1985) (in bank), (determining evidence of law enforcements’ conduct after the defendant's interrogation might be relevant in showing law enforcement had a habit or custom of using coercive interrogation methods), overruled on other grounds by People v. Gaines, 205 P.3d 1074 (Cal. 2009); Kita v. Borough of Lindenwold, 701 A.2d 938, 941 (N.J. Super. Ct. App. Div. 1997) (allowing admission of habit evidence that the defendant failed to maintain pipes and ditches between 1993 and 1996 in determining whether the defendant was similarly negligent prior to 1989); In re Est. of Ciaffoni, 446 A.2d 225, 270 (Pa. 1982) (per curiam) (holding in a will contest that wills drafted both before and after the execution of the decedent's will by the purported scrivener of the decedent's will should have been admitted).

The court, however, held that it did not need to resolve this issue because the vast majority of examples of cell phone use that Holmes sought to introduce

consist[ed] of photos Pomeroy took while driving. In some of the examples, it is possible Pomeroy was using her cell phone while in a vehicle she was not driving. In others, it is possible the vehicle was stopped or completely parked. Holmes had access to the cell phone that Pomeroy used during the entire approximately three-year-postaccident period and this was all he could find out of over a thousand photos. Based on the limited evidence offered, Pomeroy's cell phone use while driving does not rise to the level of a habit but rather “casual recurrences.”

-CM