EvidenceProf Blog

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

Wednesday, February 21, 2024

Central District of California Finds Habit Evidence Admissible in Clam Chowder Slip & Fall Action Against Costco

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

A good example of Rule 406 in action can be found in the recent opinion of the United States District Court for the Central District of California in Lugo v. Costco Wholesale Corporation, 2023 WL 6190868 (C.D. Cal. 2023).

In Lugo, the plaintiff

filed a civil action against Defendants Costco Wholesale Corporation (“Costco”) and a Costco employee, Pedro Molera, alleging negligence and premises liability/failure to warn....Plaintiff alleged that while shopping with her husband and daughter at the Fullerton Costco store, she slipped on clam chowder on the floor, fell, and sustained injuries.

In response, Costco moved for summary judgment, claiming, inter alia, that "there is no evidence that Costco had constructive notice of the chowder in time to clean it up or warn shoppers, because Costco employee, Ashley Montoya, inspected the deli area about ten minutes before Plaintiff's fall and did not see any chowder on the floor."

The court addressed this contention as follows:

Plaintiff's citations to Ms. Montoya's deposition testimony do not identify evidence sufficient to controvert that Ms. Montoya conducted an inspection at the Fullerton Costco on February 26, 2021, between 2:15 p.m.-2:45 p.m. and followed her usual practices while doing so. Even if Ms. Montoya did not recall that specific inspection at her deposition, her testimony about her usual practices is competent evidence of how she conducted the inspection that day. Fed. R. Evid. 406 (“Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.”).

-CM

https://lawprofessors.typepad.com/evidenceprof/2024/02/federal-rule-of-evidence-406-provides-that-evidence-of-a-persons-habit-or-an-organizations-routine-practice-may-be-a.html

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