Personal Injury Habit Testimony

Brien Roche

Parties try to admit habit testimony where there is a void in the evidence.  For instance one party does not remember what happened on a particular occasion so they try to offer habit testimony as to what that party does as a matter of routine in that situation.  That testimony is then being offered as habit.

Personal Injury Habit – What it is

Evidence of a person’s habit or an organization’s routine practice may be admissible pursuant to Rule 2:406.  For individual practices, habit is the key word.  When you walk into a dark room, you hunt for a light switch.  That is a habit.  Anything that requires judgment or discretion is not habit.  

Personal Injury Habit Testimony-Lack of Foundation

If this type of evidence is offered, it may be prudent to inquire as to the foundation.  For instance what are the prior instances when that course of conduct was engaged in.

Virginia Code § 8.01-397.1 defines habit as a person’s regular response to a repeated specific situation.  A routine practice is the regular course of conduct of a group of persons or an organization in response to repeated specific situations.

The habit testimony must involve numerous sets of responses to specific situations.  Kimberlin v. PM Transport, Inc., 264 Va. 261, 269 (2002)

Habit Testimony is to be Limited

Because of the danger of abuse of such evidence, habit evidence is never to be lightly established.  Wilson v. Volkswagen of America, Inc., 564 F.2d 494, 511 (4th Cir. 1977)  Putting the parking brake on before getting out of a car may be habit.  More general traits such as carelessness or aggressiveness are matters of character and not matters of habit.  Such types of evidence should be limited.  Graham v. Commonwealth, 127 Va. 808, 823 (1920)  The logic of limiting habit testimony is that it keeps the focus on what actually happened as opposed to what may have happened.  Stottlemyer v. Ghramm, 268 Va. 7, 10 (2004)

Likewise habit evidence has no place when offered in the context of attempting to show that one party was not negligent on other occasions and therefore that party had a habit of acting in a safe and careful manner.  Jackson v. Chesapeake & Ohio Ry., 179 Va. 642, 648 (1942)

Personal Injury Habit – Dead Man’s Act

There may be cases where the Dead Man’s Act has application.  Any statements made by that unavailable party as to what actually happened are admissible.  However statements made by the available party as to what happened based upon habit need to be corroborated.  Shumate v. Mitchell, 296 Va. 532, 546 (2018)  See also the post on this site dealing with the Dead Man’s Statute.  

Call, or contact us for a free consult. Also for more info on habit see the Wikipedia pages.