Section 12.3 Routine Practice of a Business

• Library: Evidence 2017

B. (§12.3) Routine Practice of a Business

Just as evidence of habit can be powerful proof of a person’s regular response to a given situation, the routine practice of a business or its custom can accomplish the same result in litigation involving a corporate or business party. A business’s routine practice or the behavior of any organized group falls into the category of habit or custom of a business organization. Fed. R. Evid. 406 Advisory Committee Notes; see also Gorman v. Wal-Mart Stores, Inc., 19 S.W.3d 725 (Mo. App. W.D. 2000) (evidence permitted to show that routine maintenance of the sidewalks was a duty undertaken by Wal-Mart employees and that ice glaze on the sidewalk was considered by Wal-Mart to be an unacceptable condition in violation of company safety standards). The United States District Court for the Western District of Missouri has held that testimony as to an organization’s custom and practice “is admissible as circumstantial evidence, subject to the usual condition that its probative value outweigh[s] any prejudicial impact.” Seven Provinces Ins. Co. v. Commerce & Indus. Ins. Co., 65 F.R.D. 674, 689 (W.D. Mo. 1975) (quoting United States v. Oddo, 314 F.2d 115, 117 (2^nd Cir. 1963)). If admitted, any testimony concerning trade usage must be limited to the actual trade usage and not address any implications of rights or liabilities that occur...