Post-Accident Surveillance Videos Properly Excluded from Trial, Videos Did Not Demonstrate “Habit” or “Routine Procedure” Which Rose to the Level of Admissible Circumstantial Evidence of the Cause of Ice Formation

The Second Department determined surveillance videos of defendant’s employee dumping a bucket of water in a parking lot were properly excluded from the trial in this slip and fall case. The videos were made after plaintiff’s fall. Plaintiff argued that the surveillance demonstrated a “habit” or “routine practice” which led to the forming of the ice which caused plaintiff to fall. The court explained the relevant criteria:

A party in a negligence case is permitted to introduce evidence of a habit or routine practice “to allow the inference of its persistence, and hence negligence on a particular occasion” … . Nonetheless, to justify introduction of habit or regular usage, a party must be able to show on voir dire, to the satisfaction of the court, that the party expects to prove a sufficient number of instances of the conduct in question … . Here, as the Supreme Court pointed out, the earliest proffered instance of the purported “habit” occurred more than two months after the date on which the appellant was injured, and was observed on only seven occasions over the next six weeks. We agree with the court’s determination that the proffered evidence did not establish a habit or regular usage relevant to what occurred on the date the appellant allegedly was injured … . Accordingly, the court did not improvidently exercise its discretion in precluding the proffered evidence. Gucciardi v New Chopsticks House, Inc., 2015 NY Slip Op 08146, 2nd Dept 11-12-15