CHARMLEY, Rеspondent on Review, υ. LEWIS, Petitioner on Review.
TC A8202-00967, CA A31532, SC S32556
Supreme Court of Oregon
Argued and submitted April 1, affirmed December 5, 1986
302 Or 324 | 729 P2d 567
Linde, J., concurred and filed opinion. Peterson, C. J., dissented and filed opinion in which Campbell, J., joined.
Bernard Jolles, Portland, argued the cause and filed the brief for respondent on review. With him on the brief was Jolles, Sokol & Bernstein, P.C., Portland.
GILLETTE, J.
Linde, J., concurred and filed an opinion.
Peterson, C. J., dissented and filed an opinion which Campbell, J., joined.
In this personal injury case, the trial court admitted evidence of plaintiff‘s “habit” of invariably using a particular crosswalk in crossing a street at a certain intersection. Plaintiff offered the evidence to prove that he must have been in that particular crosswalk when he was struck by defendant‘s car. A jury returned a verdict for plaintiff. Defendant appealed. The Court of Appeals affirmed. Charmley v. Lewis, 77 Or App 112, 711 P2d 984 (1985). We granted defendant‘s petition for review to determine whether the Court of Appeals erred in interpreting the requirements contained in
Plaintiff, a pedestrian, was injured in an accident with a car operated by defendant on the evening of November 20, 1981. The accident occurred while plaintiff was walking from his home to the grocery store. He was struck while crossing the street at a “T” intersection where North Syracuse ends at North Ida Street in Portland. It was — and we hesitate to say this — a dark and stormy night.
Crosswalks at the intersection are unmarked. A crucial issue at trial was whether plaintiff was crossing the street within the unmarked crosswalk when he was struck because, if he was, he had the right of way.
Our focus on review is on plaintiff‘s testimony and the testimony of five other witnesses that it was plaintiff‘s invariable habit to cross the intersection within the unmarked crosswalk. Plaintiff testified that, when he crossed North Ida Street at the intersection, he always walked from the northwest corner to the northeast corner and then turned left and walked north about 20 feet along the sidewalk where he would enter the driveway to the store‘s parking lot. This route was within the unmarked crosswalk. Plaintiff testified that he never walked diagonally from the northwest corner to the
Five other witnesses testified as to plaintiff‘s habitual use of that same particular route. All testified that they had seen plaintiff cross straight across the street in the manner plaintiff described and never otherwise. The observations occurred on many occasions and at various times during the day and year, although most observations were made during the summer.
Plaintiff offered, and the trial court admitted, the challenged evidence under
“(1) 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.
“(2) As used in this section, ‘habit’ means a person‘s regular practice of meeting a particular kind of situation with a specific, distinctive type of conduct.”
Defendant contends that plaintiff‘s testimony and the testimony of the witnesses was not habit evidence under
The probative value of admitting habit evidence is well recognized. See 1A Wigmore, Evidence 1607, § 92 (1983); Legislative Commentary to
“Character is a generalized description of a person‘s disposition in respect to a general trait, such as honesty, temperance or peacefulness. Habit, in the present context, is more specific. It denotes one‘s regular response to a repeated situation. If we speak of character for care we think of a person‘s tendency to act prudently in all the varying situations of life — in business, at home, in handling automobiles and in walking across the street. A habit, on the other hand, is
the person‘s regular practice of responding to a particular kind of situation with a specific type of conduct. Thus, a person may be in the habit of bounding down a certain stairway three steps at a time, of patronizing a particular pub after each day‘s work, or of driving his automobile without using a seatbelt. The doing of the habitual act may become semi-automatic, as with the driver who invariably signals before changing lanes.” McCormick, Evidence, 575-76, § 195 (3d ed 1984).
The Federal Rules of Evidence have adopted this distinction between habit and character.
The history of
“* * * ‘[H]abit’ mеans a person‘s regular practice of meeting a particular kind of situation with a specific, distinctive type of conduct.”
When the proposal was discussed by the Joint Legislative Committee on the Judiciary — Evidence (October 6, 1980), the definition of habit was taken from the Commentary and placed in subsection (2) of the rule. At that time, however, the term “distinctive” was deleted from the rule. There seemed to be a desire that the Oregon rule be shaped to track the federal rule in order that this state have the benefit of federal interpretation.
“Distinctive” was reinserted into the final version of the rule by the legislature just before final enactment of the evidence code. (Minutes, House Committee on the Judiciary, July 10, 1981.) Speaking to an earlier meeting of the committee, Judge (as he then was) Robert E. Jones explained that the Advisory Committee had originally inserted the term distinctive to keep out habits that everyone has, such as stopping at stop signs. He explained that the Advisory Committee felt and tried to reflect in the Commentary that habit had to be unique; admissible habit had to be acting in a given circumstance in an “ingrained” way. Minutes, House Committee on the Judiciary, Subcommittee 1, February 19, 1981.
In interpreting the words of, commentary on and legislative intent of
Regular Response to Particular Kind of Situation
A person‘s regular response to a particular kind of situation has two components: the practice must be frequent, and it must be invаriable or, at least, consistent. Kirkpatrick, supra, at 115. Plaintiff‘s evidence meets these criteria. The
Defendant argues that, even if plaintiff met Kirkpatrick‘s frequency and invariability requirements, the requisite response to a “particular kind of situation” was not met because neither plaintiff nor his witnesses specifically testified to seeing plaintiff cross the street on rainy winter evеnings. We disagree. There was testimony that plaintiff crossed North Ida Street in the manner described during all seasons and in the evening. The Court of Appeals correctly concluded that
“the particularity requirement does not necessitate an exact duplication of the climatic conditions. Defendant‘s argument concerns the weight which the habit evidence deserves, and not its admissibility, and defendant did argue to the jury that plaintiff‘s practice on the night of the accident may have been different because of the rain.” 77 Or App at 116-17 n 1.
Habit Must Be Specific
The specificity requirement is the primary tool for weeding out character evidence when it is offered as habit evidence. For example,
“[a] рerson‘s tendency to be accident-prone, or habitually careful, is probably too general to satisfy the definition of habit. However, a driver‘s behavior in always using a hand signal in addition to a turn signal or always traveling a particular route to the office may satisfy the specificity requirement.” Kirkpatrick, supra, at 115-16.
Plaintiff‘s route was a specific response to going to the grocery store. Evidence of the route was not an indication of care. Plaintiff‘s attorney carefully limited testimony of plaintiff‘s habit to physical descriptions of where plaintiff crossed North Ida and how, not whether he was careful or that he always crossed all streets within the crosswalk.
Admission of plaintiff‘s evidence of habit is also consistent with the Legislative Commentary to
Distinctiveness Requirement
As noted, the distinctiveness requirement presents the real issue in this case. The two commentaries on
“Subsection (2). The Legislative Assembly felt it desirable to include a definition of ‘habit’ in Rule 406. The definition is intended to forestall the use, as habit evidence, of evidence of conduct which in fact shows a character trait.
“There has been much confusion between the concepts of habit and trait of character. Much character evidence has been smuggled into court under the guise of habit. A character trait, such as character for care, is a person‘s tendency to act in a certain way in all the varying situations of life — in business, in family life, in handling an automobile, in walking across the street. A habit, on the other hand, is the person‘s regular practice of meeting a particular situation with a specific type of conduct which is distinctive. Conduct is ‘distinctive’ if there is some aspect оf the activity that would set it apart from the ordinary response to the same situation. For example, an individual who always stops a motor vehicle at a particular stop sign cannot be said to be in the ‘habit’ of stopping at the sign. The individual‘s behavior is not distinctive. It is a response that is required by law and that is typical of most drivers at the same intersection. However, if
the individual never stops at that particular sign, then that distinctive and specific conduct is ‘habit.’ “Other examples of habit or routine practice can be found in Oregon case law. State v. Mims, 36 Or 315, 61 P 888 (1900) (habit of deceased to arm himself whenever he became involved in quarrel); McMillan v. Montgomery, 121 Or 28, 253 P 879 (1927) (practice of bank to give notice of dishonor); Start v. Shell Oil Co. [202 Or 99, 260 P2d 468 (1954)] (practice of employer to instruct stenоgrapher to enclose materials with dictated letters, and of stenographer always to follow instructions); Fenton v. Aleshire, supra (habit of child to use particular cross-walk); Krause v. Eugene Dodge, [265 Or 486, 509 P2d 1199 (1973)] (‘inflexible rule, habit and custom’ of auto dealer to require that all buyer‘s orders be completely filled out before being signed by buyer); cf. Blue v. City of Union, 159 Or 5, 75 P2d 977 (1938) (evidence of person repeatedly riding horse rapidly and carelessly about streets of city not habit evidence).” (Emphasis added.)
Kirkpatrick comments:
“* * * [T]he third requirement — that the conduct be ‘distinctive’ — was apparently added to encourage a narrow construction of the rule. Although this requirement is emphasized by the Commentary, it seems likely to cause the greatest difficulty of interpretation. Merely because conduct is unusual or distinctive does not establish that it is a habit. On the other hand, many behaviors that would seem clearly to be habits are not distinctive. Many of the cases cited with approval in the Commentary where habit evidence was admitted under prior Oregon law do not involve distinctive conduct. It would not seem ‘distinctive’ for a stenographer to follow instructions, a child to use a particular crosswalk, or a car dealer to require orders to be completely filled out. Because the Commentary does not indicate an intention to overturn prior case law, courts should be flexible in interpreting the distinctiveness requirement when the regular practice and specific behavior requirements are сlearly satisfied.” Kirkpatrick, supra, at 116.
We have the same difficulty with “distinctive” that Professor Kirkpatrick has. The examples of habit in the Legislative Commentary are not all that “distinctive.”2 Is
Not definitively. While the Advisory Committee wanted a rule similar to the federal rule, it wanted a construction of the rule ensuring that character evidence was not admitted as habit and that admissible habit evidence was set apart from ordinary conduct. The Advisory Committee‘s rationale for choosing the term “distinctive” to further this aim is not clear. Different terms were proposed or discussed at different times during consideration of thе habit rule, including “semi-automatic” (Advisory Committee meeting, April 9, 1976), “unique” (Advisory Committee meeting, October 22, 1976), “extraordinary or unusual” (Id.; see also Advisory Committee meeting, December 17, 1976), and “idiosyncratic” (House Committee on the Judiciary, Subcommittee 1, February 19, 1981). The Advisory Committee finally settled on “distinctive” with the understanding that examples from existing Oregon law would be inserted into the Commentary to illustrate what was intended. (Advisory Committee meetings December 17, 1976; January 21, 1977.)
The term “distinctive” must have some meaning outside of, or complementary to, the other requirements. The Advisory Committee thought it fairly characterized the examples of habit included in the Commentary. Thus, to the Committee, the habit of a child crossing a particular crosswalk, in Fenton, was distinctive, while an individual always stopping at a particular stop sign was not.
The specific use of Fenton as an illustrative example of habit evidence also was highlighted in the legislative discussion. Representative Mason, during the House Judiciary Subcommittee discussion of habit, stated
“[T]his section [then proposed 406] specifically rejects the no witness limitation of admissibility, then later the Commentary says evidence that a child used a particular crosswalk is
admissible as habit. Fenton v. Aleshire. I would assume that the particular crosswalk is that distinctive habit we‘ve been talking about. Is that correct? And then it further discusses Fenton v. Aleshire down under the first paragraph, the relationship with existing law. This section changes existing Oregon law eliminating the requirement there be no eyewitness. Thus you could bring in the child‘s actions I assume in the Fenton case irregardless or regardless of whether or not there was eyewitnesses as long as you could show that the habit was distinctive? So the no eyewitness rule would be moot so long as the habit was distinctive.”
Judge Jones responded, “That is right.” Tape recording, House Committee on the Judiciary, Subcommittee 1, February 19, 1981, Tape 82, side B at 074-146.
In essence, the construction of “distinctive” for which the defendant argues is that it requires that the form of habit be unusual, if not unique. From the Commentary and legislative discussion, however, we conclude that the use of “distinctive” does not so much require that a certain act be wholly unusual, in the sense that no one elsе does it — although that condition would doubtless satisfy the rule — as that it at least be a semi-automatic and recurring response, beyond mere obedience to the law, by an actor confronted by a particular situation to which a variety of definable responses would be more or less equally reasonable.
Our view is supported by the dictionary definition. “Distinctive” means “having the quality of distinguishing; serving or used to distinguish or discriminate; characteristic, distinguishing.” Oxford English Dictionary 526 (1971). “Distinctive” applied to the present context means behavior that has sufficient particular characteristics to permit it to be distinguished from all other reasonable responses to the same situation. That is, a behaviоr can only achieve the status of habit, under
Seen in this way, the choice of an intersection crosswalk by the child in Fenton is distinctive, not because it is unusual — one may assume that many people cross there —
This evaluation of the use of Fenton v. Aleshire as an example of habit is also consonant with the other key example from the Commentary, viz., it is not evidence of habit that a person always stops at a particular stop sign. A stop sign does not present, to one who approaches it, a variety of definable responses, each of which would be more or less equally reasonable. The only reasonable response is to stop. There is nothing from which the automatic response of stopping can be distinguished. (Unreasonable responses, on the other hand, may be distinctive by the very fact of their unreason. It would be evidence of habit, for example, if the driver always stopped by crashing into the sign or by pulling off the road оr if the driver always drove past the sign without stopping.) The key to the present case is plaintiff‘s unfailing use of one of several reasonable and definable alternatives for crossing the street to reach the store.
The evidence that plaintiff always crossed this particular street within this particular crosswalk demonstrated an ingrained habit that meets the requirements of
The decision of the Court of Appeals and of the trial court is affirmed.
LINDE, J., concurring.
It is unfortunate that the drafters of
It is also unfortunate that everyone debating the addition of “distinctive” to the rule and everyone debating the present case have had their minds so firmly fixed on the uses of habit evidence in automobile tort actions that there are few clues as to how the generalizations formulated in describing a “distinctive” habit in crossing a street would fit other kinds of habitual conduct in very different contexts. But, of course, the rule does not apply only to traffic accidents. Some examples of quite different cases were inserted in the Legislative Commentary quoted by the Court, and many more can be found in other state and federal courts. I write primarily to note that the present opinion should be understood to apply specifically to the kind of cоnduct involved in this case and that the meaning of “distinctive” remains open for further argument in other settings.
Perhaps “distinctive” was chosen to express the idea of habitual conduct different from other people‘s behavior, but there is no obvious reason for this. If evidence of a person‘s invariable practice under the relevant circumstances tends to support an inference that the person more likely than not behaved in the same way on a particular occasion, why does it matter whether other people might behave differently? And how is the common behavior of other people to be shown before a trial judge rules on the admissibility of evidenсe, if that fact is disputed?
Why does it matter, moreover, how frequently the occasion for “habitual” conduct arises, as the Court quotes Professor Kirkpatrick, as long as one repeatedly responds in the same way whenever it arises? Is evidence admissible that a person habitually deposited a weekly paycheck on payday, but not a monthly paycheck or a quarterly dividend check? That a family habitually ate fish on Friday nights but not that they invariably ate turkey on Thanksgiving Day? If the fact to be inferred is what a man ate for Thanksgiving dinner, why not look for “distinctiveness” from his ordinary meals rather than from the meals of other people? How frequently any class of
The facts in the present case do not call for defining the frequency or distinctiveness of a “regular practice” for all kinds of issues and types of behavior that may raise questions under
PETERSON, C. J., dissenting.
The majority correctly states that the
- The evidence must be “the regular practice of a person responding to a particular kind of situation.”
- The habit must be “specific.”
- The habit must be “distinctive.”
The majority has, however, misapplied the rule that it adopts. The evidence in this case only meets the requirements of elements 1 and 2. There is no evidence that the plaintiff‘s conduct was “distinctive.”
There can be no question that in adding the words “a specific, distinctive type of conduct,” the legislature intended a restrictive rule of admissibility. The Advisory Committee considered using the terms “extraordinary,” “unusual,” or “unique” and finally settled on “distinctivе.” The majority settles on a definition that “distinctive” means “behavior that has sufficient particular characteristics to permit it to be distinguished from all other reasonable responses to the same situation.” Charmley v. Lewis, 302 Or 324, 334, 729 P2d 567 (1986). As I will explain below, that definition merely restates the specificity requirement of the rule; it does not address the distinctiveness requirement.
I read the word “distinctive” to mean more than
The very word “distinctive” implies that there must be a comparison of some kind. Something must distinguish that conduct from other conduct.
In determining whether conduct is a “distinctive type of conduct,” these inquiries should be made:
- Determine the issue for which the evidence is offered. Even if a particular person‘s conduct is distinctive in one sense, it may not be distinctive as to the issue in question. The trial court first must isolate the issue with relation to which the evidence is offered, and admit the evidence only if the actor‘s invariable past acts or responses were unusual or not ordinary.
- The trial court must determine (a), whether there were several possible definable responses or choices to an actor confronted with a specific situation and (b), that the actor‘s invariable response or choice was not an ordinary or usual response or choice to the specific situation. The actor‘s invariable response or choice need not be a reasonable choice or even a lawful choice among several definable responses.
- To be distinctive implies and likely requires a comparison. In determining whether conduct is unusual or not ordinary, the trial court likely will be required to determine the comparison group or a comparison group. In determining the ordinary response, the comparison may be to other members of the community or to the hypothetical “reasonable person.”
The legislative history quoted by the majority is not inconsistent with this analysis. Charmley v. Lewis, supra, 302 Or at 331. The paragraph beginning with the phrase “other examples of habit or routine practice can be found in Oregon case law” merely lists illustrative decisions of this court in some of which evidence of habit had been received and in others the evidence was not received.
“In view of another trial, however, it should be stated that we have given no consideration to evidence admitted over objection that it was the habit of the deceased to use the crosswalk on Southwest Parkway. The defendant Aleshire testified that the accident occurred a considerable distance east of the crosswalk. The great weight of authority in this country supports the rule that ‘* * * evidence of the general habits of a person is not admissible for the purpose of showing the nature of his conduct upon a specific occasion * * *.‘” Id. at 36-37.
The colloquy between Representative Mason and Judge Jones quoted in the majority opinion may not support the conclusion reached by the majority. Representative Mason asked,
“Thus you could bring in the child‘s actions, I assume in the Fenton case irregardless or regardless of whether or not there was eyewitnesses as long as you could show that the habit was distinctive? So the no eyewitness rule would be moot so long as the habit was distinctive.” Tape Recording, Subcommittee I of the House Committee on the Judiciary, February 19, 1981, Tape 82, Side B at 074-146.
The colloquy largely concerned the “no eye witness rule.” I am not convinced that the exchange concerned evidence that a person always walked within a crosswalk.
Even conceding that the colloquy supports the majority, I am convinced that the only way that we can give meaning to this statute is to require that the term “distinctive” means something other than “specific” and something more than “different.” In considering legislative intent, one should keep in mind the in-and-out history of the word “distinctive.”
Before the full Interim Committee, Senators Jernstedt and Brown led a discussion that resulted in the deletion of the distinctiveness requirement. The senators apparently objected because the term “distinctive” connotes something unique and unusual. Such a requirement would limit habit to conduct out-of-the-ordinary, rather than apply
The Jernstedt and Brown argument did not survive the House Judiciаry‘s consideration of
At the House hearings, Judge Jones stated that habit evidence deals with a person‘s “idiosyncrasies.”1 Id. at 6. He stated that the Advisory Committee tightened up the Commentary from the federal rule and that the Advisory Committee wanted to avoid evidence of habit of what everyone does. Id.
Chairperson Mason stated that one of the problems with the proposal is that the word “habit” in the rule itself indicates “mundane” things, and that it does not indicate distinctive habits. Id. He suggested putting the word distinctive into the rule itself. Id. Judge Jones stated that that would be fine, and that such an amendment would tighten up the rule even more. Id. Mason suggested that the term would keep out “general” habit (as opposed to “distinctive” habits). Id. at 7.
The majority states that “distinctive”
“means behavior that has sufficient particular characteristics to permit it to be distinguished from all other reasonable responses to the same situation. That is, a regular behavior can achieve the status of habit under OEC 406(2) if the situation giving rise to it reasonably could be responded to in a variety of ways, each of which ways has unique characteristics by which it can be readily distinguished (i.e. shown to be distinct) from the others.” Charmley v. Lewis, supra, 302 Or at 334-335.
That definition makes all habit admissible merely by showing that it is regular (element number 1) and specific
Many, perhaps most, situations involve a choice among alternatives. Under the majority opinion, one‘s invariable practice of following one choice among multiple available alternatives would meet the requirement of the rule, even if the choice made was that of most persons and was a mundane choice. With the addition of the word “distinctive,” Oregon departed from the traditional definition of habit. That a given response to a certain stimulus is reasonable, regular and specific does not make it distinctive. The drafters may have felt that evidence of regularly repeated conduct that was no more than the ordinary response to a particular situation would be given undue weight, especially when directed at the key fact at issue.
The distinctiveness requirement bars evidence of average or ordinary conduct or tendencies (however frequent and invariable) to act in a certain manner from determining a key fact at issue, particularly with respect to whether due care was exercised.
Under its federal counterpart, the evidencе is admissible. Under
Campbell, J. joins in this dissent.
Notes
“‘* * * When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no “rule of law” which forbids its use, however clear the words may appear on “superficial examination.” * * *.‘” State ex rel Cox v. Wilson, 277 Or 747, 750, 562 P2d 172 (1977), quoting U. S. v. Amer. Trucking Ass‘ns, 310 US 534, 542-44, 60 S Ct 1059, 84 L Ed 1345 (1940).
Websters New International Dictionary, 1237 (2d ed 1959) defines “idiosyncratic” as “of peculiar temper or disposition, of one‘s peculiar individual character.” (Emphasis added.)