Section 406. Routine Practice of Business; Individual Habit

(a) Routine Practice of Business. Evidence of the routine practice of a business or one acting in a business capacity, established through sufficient proof, is admissible to prove that the business acted in conformity with the routine practice on a particular occasion.

(b) Individual Habit. Evidence of an individual’s personal habit is not admissible to prove action in conformity with the habit on a particular occasion.

NOTE

This section is derived from Palinkas v. Bennett, 416 Mass. 273, 276–277, 620 N.E.2d 775, 777 (1993). “A habit is a regular response to a repeated situation with a specific type of conduct.” Id. at 277, 620 N.E.2d at 777. A trial judge has discretion in distinguishing between a routine practice of a business and a personal habit. Id.

Subsection (a). Evidence of a routine practice or custom of a business is admissible to prove that the business acted in conformity therewith. See, e.g., Commonwealth v. Torrealba, 316 Mass. 24, 30, 54 N.E.2d 939, 942 (1944) (custom of selling goods with receipt); Santarpio v. New York Life Ins. Co., 301 Mass. 207, 210, 16 N.E.2d 668, 669 (1938) (custom of submitting insurance applications); Prudential Trust Co. v. Hayes, 247 Mass. 311, 314–315, 142 N.E. 73, 73–74 (1924) (custom of sending letters).

“Massachusetts draws a distinction between evidence of personal habit and evidence of business habit or custom. Evidence of a person’s habits is inadmissible to prove whether an act was performed in accordance with the habit. . . . [F]or the purpose of proving that one has or has not done a particular act, it is not competent to show that he has or has not been in the habit of doing other similar acts. Despite this rule, evidence of business habits or customs is admissible to prove that an act was performed in accordance with the habit. . . . The fact that a habit is done by only one individual does not bar it from being a business habit.” (Quotation and citations omitted.)

Palinkas v. Bennett, 416 Mass. 273, 276, 620 N.E.2d 775, 777 (1993). See Mumford v. Coghlin, 249 Mass. 184, 188, 144 N.E. 283, 284–285 (1924) (notary’s procedure of protesting notes); Mayberry v. Holbrook, 182 Mass. 463, 465, 65 N.E. 849, 850 (1903) (physician’s records of rendering services). A person is competent to testify about a routine business practice if the person is familiar with the practice. O’Connor v. SmithKline Bio-Science Labs., Inc., 36 Mass. App. Ct. 360, 365, 631 N.E.2d 1018, 1021 (1994). Cf. Section 601, Competency.

Subsection (b). Unlike Federal practice, evidence of an individual’s personal habit is not admissible to prove action in conformity therewith. See Davidson v. Massachusetts Cas. Ins. Co., 325 Mass. 115, 122, 89 N.E.2d 201, 205 (1949). See also Commonwealth v. Wilson, 443 Mass. 122, 138, 819 N.E.2d 919, 933 (2004) (owner’s personal, not business, habit of locking door would be inadmissible); Figueiredo v. Hamill, 385 Mass. 1003, 1004–1005, 431 N.E.2d 231, 232–233 (1982) (evidence that pedestrian accident victim habitually acted in reckless manner properly excluded).

Habit Versus Character. The distinction between habit and character is often difficult to make: habit “is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct,” whereas character “is a generalized description of one’s disposition, or of one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness.” Figueiredo v. Hamill, 385 Mass. at 1004, 431 N.E.2d at 232, quoting Advisory Committee Notes, Fed. R. Evid. 406.