Charmley v. Lewis

PETERSON, C. J.,

dissenting.

The majority correctly states that the OEC 406(2) habit definition has three elements:

1. The evidence must be “the regular practice of a person responding to a particular kind of situation.”

2. The habit must be “specific.”

3. 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 plaintiffs 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 “distinctive.” 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 *338 “different.” It means “unusual” or “out of the ordinary.” “Conduct is distinctive if there is some aspect of the activity that would set it apart from the ordinary response to the same situation.” Legislative Commentary to OEC 406, published in Kirkpatrick, Oregon Evidence 114 (1982). Distinctive conduct might be legal or illegal, reasonable or unreasonable. Whatever the conduct, it must be unusual or not ordinary.

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:

1. 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.

2. 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.

3. To be distinctive implies and likely requires a 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.

*339 Fenton v. Aleshire, 238 Or 24 , 393 P2d 219 (1964) is one of a number of cases cited in which the evidence was not admitted. In Fenton, evidence of a child’s consistent use of a particular crosswalk was not held admissible. The court stated:

“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 *340 to any invariable repetitive conduct that might be characteristic of many people. Minutes, Joint Committee on the Judiciary 5 (October 6,1980).

The Jernstedt and Brown argument did not survive the House Judiciary’s consideration of OEC 406. The rule proposed by the Interim Committee to the legislature was again amended at the suggestion of Representative Mason to include the distinctiveness requirement. Minutes, Subcommittee 1 of the House Committee on the Judiciary 9 (February 19,1981).

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 *341 (element number 2), for almost all repeated, specific conduct is “distinctive” under that definition. Almost any conduct is different from other conduct. “Distinctive” has to mean more than different.

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 evidence is admissible. Under OEC 406(2) it is not. I would reverse.

Campbell, J. joins in this dissent.

Websters New International Dictionary, 1237 (2d ed 1959) defines “idiosyncratic” as “of peculiar temper or disposition, of one’s peculiar individual character.” (Emphasis added.)