Loughan v. Firestone Tire & Rubber Co., 749 F.2d 1519 

U.S. Court of Appeals for the Eleventh Circuit

1985

Chapter

9

Title

A Return to Relevance II:  Character and Habit

Page

428

Topic

Rule 406.  Habit; Routine Practice

Quick Notes

Loughan was a tire mechanic that suffered head injuries while working on a tire.  District Court held that the evidence of Loughans drinking was sufficient to constitute as regular habit evidence admissible pursuant to FRE 406.  Loughan Contends that the district court committed a reversible error in admitting prior instances of his drinking alcoholic beverages.

Court - Holding

o         We will find the district court's admission of evidence relating to Loughan's drinking on the job rose to the level of habit pursuant to rule 406.

Court - Controlling considerations of Habit Evidence

o         Although a precise formula cannot be proposed for determining when the behavior may become so consistent as to rise to the level of habit, 'adequacy of sampling and uniformity of response' are controlling considerations.

Habit evidence superior to character evidence

o         Habit evidence is considered to be highly probative and, therefore, superior to character evidence because "the uniformity of one's response to habit is far greater than the consistency with which one's conduct conforms to character or disposition."

Rule 406. Habit; Routine Practice

o    Evidence of the habit of a person or of the routine practice of an organization,

o    whether corroborated or not

o    and regardless of the presence of eyewitnesses,

o    is relevant to prove that the conduct of the person or organization

o    on a particular occasion

o    was in conformity with the habit or routine practice

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether habit evidence can be used to establish ones conduct conformed to a particular occasion?  Yes.

Procedure

Trial

o         United States District Court for the Southern District of Florida granted judgment to Firestone  in Loughan's action for negligence and strict liability when a wheel assembly that appellant was repairing separated with explosive force.

Appellant

o         Affirmed.

Facts/Cases

Discussion

Key Phrases

Rules/Laws

Pl - Loughan

Df - Firestone

Description

o         Loughan was a tire mechanic that suffered head injuries while working on a tire.

District Court

o         Held that the evidence of Loughans drinking was sufficient to constitute as regular habit evidence admissible pursuant to FRE 406.

Loughan Contends

o         That the district court committed a reversible error in admitting prior instances of his drinking alcoholic beverages.

Habit Analysis of Admissibility

o         FRE 401:  Examination of the purpose for with the evidence is offered.

Firestones Purpose

o         Firestone's intent to establish that Loughan's faculties were impaired due to his consumption of alcoholic beverages at the time of the accident.

Reyes v. Missouri Railroad Co

o         In Reyes, a Missouri Pacific railroad train ran over Joel Reyes as he lay on the railroad tracks.

o         Reyes sued the railroad alleging negligence on the part of the railroad's employees in failing to discover him as he lay on the tracks.

Permitted contributory negligence defense - 4 prior public intoxication convictions

o         The district court permitted the railroad to support its defense of contributory negligence by introducing into evidence Reyes' four prior misdemeanor convictions for public intoxication.

Fifth Circuit - reversed the district court

o         Held that the four prior convictions for intoxication were inadmissible under Federal Rule of Evidence 404.

o         The evidence was inadmissible because it was proffered to prove that Reyes acted in conformity with his character on the night of the accident.

o         The court held that the four convictions failed to constitute habit evidence.

o         A precise formula cannot be proposed for determining when the behavior may become so consistent as to rise to the level of habit,

Controlling Factors

o         Adequacy of sampling and uniformity of response.

Loughan Argues

o         Like Reyes, Thompsons testimony that he fired Loughan for drinking was too remote.

Thompsons testimony

o         He fired Loughan because of his drinking. He enumerated the indications that Loughan drank, including Loughan's slurred speech, wobbly walk, alcoholic breath, and complaints from customers.

o         Thompson also testified that Loughan's reputation in the community was a "happy, easy-to-get-along-with guy, but he drank too much."

Firestone relied on 3 separate sources of proof

o         To establish Loughan's habit of drinking between 1968 and July 24, 1974, the date of the accident.

1.     Testimony from Thompson, Loughan's previous employer,

2.     Orr, Loughan's supervisor, and

3.     Loughan himself.

Evidence adduced from 3 sources

o         Demonstrates a uniform pattern of behavior.

o         Loughan admitted that he carried a cooler of beer on his truck while employed by Slutz and that he would drink beer at some time between the hours of 9 a.m. and 5 p.m.

o         Orr, Loughan's supervisor at Slutz, testified that Loughan routinely carried a cooler of beer on his truck and that he was in the habit of drinking on the job.

o         Orr stated that complaints had been made by customers regarding Loughan's drinking while working on their equipment and that Loughan "normally" had something to drink in the early morning hours.

o         Thompson, Loughan's former employer, further corroborated Loughan's habit when he testified that he fired Loughan because, based on his general observations and complaints from customers; he believed Loughan drank beer on the job.

Thompsons and Orrs testimony are consistent

o         Thompson's observations of Loughan while under his employ between 1969 and 1971 are consistent with Orr's testimony regarding Loughan's behavior in Florida between 1971 and 1974.

Loughan Argues - There is no direct evidence

o         It was improper to admit evidence to establish his habit of drinking on the job.

Court - Rejects

o         We reject this reasoning because proof of habit is through indirect evidence offered to prove that the conduct of a person conformed with his routine practice.

Rule 406. Habit; Routine Practice

o    Evidence of the habit of a person or of the routine practice of an organization,

o    whether corroborated or not

o    and regardless of the presence of eyewitnesses,

o    is relevant to prove that the conduct of the person or organization

o    on a particular occasion

o    was in conformity with the habit or routine practice

Loughan Assert - He did not have anything to drink that day

Orrs Testimony - Loughan did not drink after reporting to work

o         He did not have the cooler in the back of his truck.

Loughan Concerned - Habit evidence does not establish conformance with the particular occasion.

Court - Trier of facts may infer habit conformed with particular occasion.

Court - Character and habit are close akin.

Character

o         Character is a generalized description of one's disposition, or one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness.

o    If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, in family life, in handling automobiles, and in walking across the street

Habit

o         "Habit," in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation.

o         If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, in family life, in handling automobiles, and in walking across the street.

o    A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or giving the hand signal for a left turn, or of alighting from railway cars while they are moving.

o    The doing of the habitual acts may become semi-automatic.

Court - No prcised formula.

Court - Controlling considerations of Habit Evidence

o         Although a precise formula cannot be proposed for determining when the behavior may become so consistent as to rise to the level of habit, 'adequacy of sampling and uniformity of response' are controlling considerations.

Habit evidence superior to character evidence

o         Habit evidence is considered to be highly probative and, therefore, superior to character evidence because "the uniformity of one's response to habit is far greater than the consistency with which one's conduct conforms to character or disposition."

Court - Holding

o         We will find the district court's admission of evidence relating to Loughan's drinking on the job rose to the level of habit pursuant to rule 406.

o         Affirmed

Rules

Rule 406. Habit; Routine Practice

o    Evidence of the habit of a person or of the routine practice of an organization,

o    whether corroborated or not

o    and regardless of the presence of eyewitnesses,

o    is relevant to prove that the conduct of the person or organization

o    on a particular occasion

o    was in conformity with the habit or routine practice

Class Notes