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Matthew Holmes v. Miranda Pomeroy. IA Habit Evidence
This Warrene County, Iowa, case arose out of a car-bicycle accident. The plaintiff's bicycle was struck by the defendant's car in Cumming, IA, and plaintiff sued for his injuries. A doctor arrived on the scene and tended to the plaintiff, who allegedly told the doctor that it was his fault.
A deputy who arrived on the scene testified that "somebody there had mentioned that somebody else maybe had thought she was texting. However, whoever told me that was not the person who witnessed it.... That was complete hearsay." A follow-up question was objected to as hearsay and not allowed. In closing arguments, the plaintiff used a PowerPoint slide which said, "a witness said [defendant] was texting while driving." This was objected to, and the objection was sustained.
The plaintiff appealed, and the Court of Appeals affirmed. The Iowa Supreme Court agreed to hear the case concerning one issue. The plaintiff had attempted to present habit evidence that, on about 20 occasions in three years, the defendant had used her cell phone while driving. The plaintiff had access to a cell phone that defendant had used for about three years after the accident. Out of about a thousand photos found on the phone, there were about 20 that defendant took while driving.
The district court denied admission of this habit evidence on the grounds that only habit evidence before the accident was relevant, and the Court of Appeals affirmed.
The Supreme Court noted that authority existed for both positions. Some cases, such as DeMatteo v. Simon, 812 P.2d 361 (N.M. Ct. App. 1991), hold that conduct subsequent to the particular occasion is irrelevant. As the district court had noted, such evidence "may only be proof of a recently developed habit."
Other courts, such as United States v. Luttrell, 612 F.2d 396 (8th Cir. 1980), allow evidence of subsequent conduct to show habit.
The court went on, however, to not decide the issue. Instead, it held that the 20 photos after the accident were "casual recurrences" and did not rise to the level of habit. The court also noted that it was possible that the defendant was a passenger when she took the photos in question, or that they were taken from a car that was stopped or parked.
No. 19-1162 (May 7, 2021).
Please see the original opinion for the court's exact language.
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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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