Lapierre v. Sawyer

• Court: New Hampshire Supreme Court
• Writing for the Court: BATCHELDER
• Citation: Lapierre v. Sawyer, 557 A.2d 640, 131 N.H. 609 (N.H. 1989)
• Decision Date: 03 May 1989
• Docket Number: No. 88-066,88-066
• Parties: Marcel H. LAPIERRE v. David SAWYER.

Page 640

557 A.2d 640

131 N.H. 609

Marcel H. LAPIERRE v. David SAWYER.

No. 88-066.

Supreme Court of New Hampshire.

May 3, 1989.

Bossie, Kelly & Hodes P.A., Manchester (Laurence E. Kelly, on the brief and orally), for plaintiff.

Wiggin & Nourie, Manchester (Dennis T. Ducharme, on the brief and orally), for defendant.

BATCHELDER, Justice.

The plaintiff in this case suffered a debilitating eye injury when, during a racquetball doubles match, he was struck by a ball hit by the defendant. Marcel H. Lapierre, the plaintiff, subsequently sued David Sawyer, the defendant, in a negligence action to recover damages for his injury. Following a trial in the Superior Court (Mangones, J.), the jury returned a verdict for the defendant. The plaintiff now appeals certain of the trial court's evidentiary rulings. We affirm those rulings.

The plaintiff's theory of liability at trial was that the defendant, because of his temper, negligently struck a ball that was no longer in play (a "dead ball"), causing it to strike his eye. Prior to trial, the defendant moved in limine to bar the introduction of evidence concerning his tendency to lose his temper in previous racquetball games when he either would begin to lose a game or lose a significant point. The defendant argued that such evidence constituted general character evidence which is inadmissible under New Hampshire Rules of Evidence 404(a) and (b). In response, the plaintiff contended that evidence of the defendant's prior conduct was admissible under Rule 406, as evidence of "habit." Specifically, the plaintiff stated that he had evidence that the defendant had lost his temper in two or three previous games, and that this "habit" led to the eye injury when the plaintiff and defendant were playing racquetball. The trial court granted the defendant's motion on the ground that the plaintiff's evidence "[d]id not quite meet the criteria of Rule 406."

Rule 406 permits the introduction of evidence of a person's habit to prove that the person acted in conformity with that habit on a particular occasion. The rule does not define habit. Generally, however, habit is a "regular response to a repeated specific situation," Reporter's Notes to N.H.R.Ev. 406, a response which may become semi-automatic. See 2 Weinstein & Berger, Weinstein's Evidence p 406, at 406-7 (1988). The admissibility of habit evidence depends on the facts of each case. Id. at 406-8.

We agree with the trial court's ruling that the plaintiff's evidence failed to satisfy the criteria which distinguish habit evidence from character evidence. To prove habit in this instance, the plaintiff needed to show that the defendant's specific response to the repeated situation of falling behind or losing important racquetball points was to strike balls no longer in play, or otherwise to play outside the rules so as to endanger his opponents. The plaintiff's proffer was insufficient to prove anything other than that the defendant may have behaved in an unsportsmanlike manner; it did not prove that the defendant had a habit that caused the plaintiff's injury. We determine that the plaintiff failed to demonstrate a regular response to a specific situation.

The plaintiff argues further, however, that even if the evidence concerning the defendant's temper was character, not habit, evidence, it was admissible under either Rule 404(b) or Rule 405(b). Rule 404(b) provides that evidence of specific acts or wrongs may be admissible for purposes other than to show that the person behaved in conformity with a general character trait. The plaintiff argues that he intended to offer such evidence to show one of those other purposes; namely, absence of mistake or accident. Further, the plaintiff urges this court to adopt a different, more relaxed standard for the admission of evidence in civil cases under Rule 404(b) than the one used in criminal cases.

We reject the plaintiff's arguments. We address first the plaintiff's suggestion that we adopt two separate standards for the admissibility of evidence under Rule 404(b). Rule 1101(b) states that "[t]hese rules apply generally to all civil and criminal proceedings unless otherwise provided by the constitution or statutes of the State of New Hampshire or these rules." The plaintiff cites no authority for his proposition that Rule 404(b) should be applied differently in civil rather than criminal cases, except to note that the issue of admissibility under that rule has been addressed most often in criminal cases. This argument does not convince us.

Second, we need not discuss the admissibility of evidence of the defendant's temper under Rule 404(b) because the plaintiff has failed to explain, and we fail to see, how absence of mistake or accident is relevant in this negligence action. The plaintiff only posits that the defendant lost his temper and that his act of hitting a dead ball was a "willful act." This case is not an action to recover for an intentional tort, however. Because intent is not an issue in this case, the plaintiff's argument is misplaced.

The plaintiff's contention that evidence of the defendant's temper is admissible under Rule 405(b) is likewise without merit. Under that rule, evidence of specific instances of conduct may be admitted to prove character when character is an essential element of the claim. N.H.R.Ev. 405(b); Panas v. Harakis & K-Mart Corp., 129 N.H. 591, 612-13, 529 A.2d 976, 989 (1987). In this case, the defendant's character simply is not an element of the plaintiff's claim that the defendant negligently struck a racquetball which was no longer in play. Cf. Panas supra (specific instances of conduct...