Fisher v. O'Brien

• Court: District Court, D. New Hampshire
• Decided: January 17, 1996
• Docket: CV-93-638-SD
• Status: Published

Opinion

Fisher v . O'Brien CV-93-638-SD 01/17/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Linda M . Fisher

v. Civil N o . 93-638-SD

Darren M . O'Brien, et al

O R D E R

This order addresses the issues raised by certain pending

pretrial motions.

1. Background

In this litigation, it is alleged that on April 6, 1991,

plaintiff Linda M . Fisher was injured when the horse she was riding was frightened by a dog named "Doogan". The dog was

allegedly owned by defendant Darren M . O'Brien, who at the time

resided in Londonderry with his parents, defendants Lewis

O'Brien, Jr., and Phyllis O'Brien. 2. Defendants' Motion in Limine to Exclude Evidence of an August 1992 Complaint Against "Doogan", document 15 In August 1992, some 16 months after the incident which gives to the litigation, a dog control officer presented defendant Darren M . O'Brien with a complaint that his dog had defecated on the property of another. As of the time of this complaint, Darren M . O'Brien had moved from his parents' residence to another property.

Defendants contend that evidence of the August 1992 incident is not relevant, Rule 4 0 2 , Fed. R. Evid.,1 and by their motion seek to exclude such evidence. Rule 404(b), Fed. R. Evid.,2 generally requires exclusion of evidence of a past act if the only reason for its proffer is a tendency to suggest that the actor acted in a similar way. Moreover, none of the exceptions stated to this general rule are here applicable.

1 Rule 4 0 2 , Fed. R. Evid., provides, "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." 2 Rule 404(b), Fed. R. Evid., provides in relevant part, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . ."

2 Rule 406, Fed. R . Evid.,3 sets forth another exception to

Rule 404(b) in that evidence of habit may be introduced to prove

that a party's conduct was in conformity with the habit on a

material occasion. Undefined in the rule, "habit" is elsewhere

described as a "regular response to a repeated specific

situation." 2 WEINSTEIN & BERGER, WEINSTEIN'S EVIDENCE ¶ 406[01], at

406-07 (1988) (quoted in Lapierre v . Sawyer, 131 N . H . 609, 6 1 1 ,

557 A.2d 6 4 0 , 641 (1989)). Adequacy of sampling and uniformity

of response are key factors in arriving at a determination of

admissible habit. Id. at 406-07, 408.

In the instant case, it is clear that the August 1992

complaint does not qualify for admissibility under either Rule

404(b) or Rule 406, Fed. R . Evid. Evidence of this complaint

will accordingly be excluded at trial, and the motion in limine

is herewith granted.

3 Rule 406, Fed. R. Evid., provides, "Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice."

3 3. Defendants' Motion in Limine to Exclude Evidence that

Defendants' Dog was Unlicensed, document 17

At the time of the April 1991 incident, "Doogan" was

unlicensed, and the failure of this dog to be licensed is

violative of the provisions of New Hampshire Revised Statutes

Annotated (RSA) 466. As enacted, the object of that statute was

to oblige the owners and keepers of dogs to pay the damages

caused by them. State v . Howard, 69 N.H. 5 0 7 , 5 0 8 , 43 A.2d 592

(1898). It provides for forfeitures and fees to effectuate such

purpose.

The licensing portions of RSA 466 do not, however, purport

to set a standard, the violation of which may be considered

evidence of causality in a tort action. And it is well

established that "failure to observe a statutory requirement 'is

immaterial unless it contributed to the accident.'" Dunbeck v .

Exeter & Hampton Elec. Co., 119 N.H. 4 , 7 , 396 A.2d 1101, 1104

(1979) (citing and quoting Vassilion v . Sullivan, 94 N.H. 9 7 ,

101, 47 A.2d 115, 118 (1946)).

As the failure to license the dog is not relevant to the

issues to be here tried, evidence of licensing will be excluded

at trial. The motion in limine is herewith granted.

4 4. Defendants' Motion for Voir Dire Questions, document 16

Defendants have cast in motion form their suggestion for

voir dire questions. While this court will generally cover the

issues thus raised, it will probably not use the language as

requested. Accordingly, defendants' motion is herewith granted

in part and denied in part.

5. Conclusion

The defendants' motions in limine seeking, respectively,

exclusion of the complaint of August 1992 (document 15) and exclusion of evidence that defendant's dog did not possess a license (document 17) have been granted. The defendants' motion for voir dire questions (document 16) has been granted in part and denied in part. SO ORDERED.

Shane Devine, Senior Judge United States District Court

January 1 7 , 1996

cc: David L . Nixon, Esq. Gordon A . Rehnborg, Jr., Esq.