A habit is generally defined as a person’s regular practice to act or behave in the same way in the same or similar circumstances.1 Federal Rule of Evidence (FRE) 406 and its state counterparts provide for the admissibility of evidence of a person’s habit to prove that his or her conduct on a particular occasion was in conformity with that habit.2 Likewise in New York where “evidence of habit has, since the days of the common law reports, generally been admissible to prove conformity on specified occasions.”3
While habit evidence is admissible under FRE 406 in negligence actions to show what occurred on the occasion of a person’s injury, or careful or careless conduct on the issue of the person’s negligence or comparative fault without any limitations,4 present New York law does not freely permit evidence of habit as permitted under FRE 406, and instead is restrictive regarding the admissibility of habit evidence in negligence actions.5 This column will discuss the current state of the law and then recommend that New York law abandon its restrictive approach and follow the FRE 406 approach.
