Opinion
No. 11–P–1665.
2012-08-16
Virginia MURPHY v. David CONSALVI.
By the Court (CYPHER, GRASSO & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Virginia Murphy, suffered personal injuries as the result of a roadway accident in which her automobile collided with the vehicle driven by the defendant, David Consalvi. Murphy brought an action for negligence against Consalvi in Superior Court. In answers to special verdict questions, the jury found that Consalvi had been negligent, but that his negligence had not constituted a substantial contributing cause of the accident. After the entry of judgment in favor of Consalvi, Murphy brought a motion for a new trial. The judge denied it. Murphy has appealed. She argues that the judge (1) incorrectly ruled upon three evidentiary questions, and (2) incorrectly denied her motion for a new trial. For the following reasons, we affirm.
1. Evidentiary rulings. We review evidentiary rulings for palpable error. See Carrel v. National Cord & Braid Corp., 447 Mass. 431, 446 (2006). a. Exclusion of postaccident behavior. Murphy argues that the judge wrongly excluded from evidence Consalvi's deposition statement that, during the substantial time after the accident, he had not made the same left turn from his driveway onto the roadway as he had immediately before the accident. When Murphy's counsel offered the deposition statement, Consalvi's counsel challenged it on the ground that it constituted a subsequent remedial measure. Murphy's counsel did not appear to pursue the point at sidebar conference with the judge. Consequently, we may regard the issue as waived. If the issue were not waived, exclusion would be justified upon the ground of the character of the information as subsequent remedial activity. See, e.g., Martel v. Massachusetts Bay Transp. Authy., 403 Mass. 1, 4–5 (1988); Hubley v. Lilley, 28 Mass.App.Ct. 468, 474 (1990).
Finally, if the purpose of the question was to demonstrate the availability of an alternative method of entering the roadway so as to avoid the position of the cars at the moment of collision, Murphy did receive the opportunity to question Consalvi about the issue of alternative entry and thereby achieve the opportunity to argue the point to the jury in summation. See Carrel v. National Cord & Braid Corp., supra at 450–452.
b. Exclusion of police citation. Murphy argues that the judge incorrectly excluded evidence of a citation issued to Consalvi by the responding police officer. The judge excluded the citation and the proposed testimony of the officer about its issuance. He ruled correctly under authority of LePage v. Bumila, 407 Mass. 163, 164–167 (1990). In that case the court held that a trial judge incorrectly admitted evidence of a citation and payment of a resulting fine as an admission of fault. In this instance, Murphy was offering the citation and its payment for the same purpose.
When the responding officer took the stand, Consalvi's counsel requested a sidebar conference. He stated that the evidence of the citation and any related testimony by the officer should not come in. Murphy's counsel answered, “Well, I have an interrogatory answer that Mr. Consalvi signed that he received a citation and he paid it. Now, again, I think that's another admission in this case.” (Emphasis supplied).
c. Exclusion of officer's opinion of fault. The judge excluded also the proffered opinion of the responding officer (both by testimony and recordation in his report) that Consalvi bore fault for the accident. The judge ruled upon the ground that Murphy had not previously designated the officer as an expert witness intending to offer an opinion. The judge's reasoning was an exercise of sound discretion. The failure to disclose the officer as an intended expert witness and the failure to identify the elements and bases of his opinion and competence in response to an expert interrogatory support the ruling. While the officer's view did not inflict great surprise upon Consalvi, it did cause some surprise and did violate the requirements of the Superior Court standard pretrial conference order compelling designation of expert witnesses.
Independently, the ruling did not cause harm to Murphy's case. Her properly identified expert, Daniel Parkka, testified at trial that responsibility for the accident lay with Consalvi. The officer's testimony would have been cumulative. See Carrel v. National Cord & Braid Corp., supra at 450–452.
2. Motion for new trial. Murphy contends that the judge improperly denied her motion for a new trial. Unfortunately, the appellate record does not include the motion and Consalvi's opposition to it. The duty to furnish an adequate record for decision of appellate issues lies upon the appellant. See Cameron v. Carelli, 39 Mass.App.Ct. 81, 83–84 (1995).
Our standard of review is abuse of discretion. Hartmann v. Boston Herald–Traveler Corp., 323 Mass. 56, 60–61 (1948), and authorities cited. Under that standard, “[t]he judge should only set aside a verdict as against the weight of the evidence when it is determined that the jury ‘failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.’ “ O'Brian v. Pearson, 449 Mass. 377, 384 (2007), quoting from Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894 (1989). The judge must be satisfied that the verdict “is so greatly against the weight of the evidence [as to indicate] that it was the product of bias, misapprehension or prejudice.” Jangochian v. Dierker, 425 Mass. 565, 571 (1997), quoting from Scannell v. Boston Elevated Ry., 208 Mass. 513, 514 (1911). On appeal, “[w]e grant considerable deference to a judge's disposition of a motion for a new trial, ... and we will reverse the ruling only for an abuse of discretion.” Gath v. M/A–Com, Inc., 440 Mass. 482, 492 (2003). In this instance, the jury had ample evidence for the finding that Murphy's negligence superseded any negligence of Consalvi, and proximately caused the accident. In particular, they could credit the testimony of a neutral observer, the witness Robert Driscoll, and attribution of fault to Murphy by Consalvi's accident reconstruction expert.
Driscoll testified that, shortly after 5:00 P.M. on December 29, 2008, he was driving westbound on Route 28 in Marston Mills, and that he saw from a considerable distance Consalvi's pick-up truck in a stationary position in the eastbound lane, illuminated by several different lights and waiting to enter the westbound lane by turning left. He testified that he slowed down and flashed his lights so as to permit Consalvi to pull out in front of him. Driscoll testified also that he saw Murphy's car in the eastbound lane at a substantial distance from Consalvi's pick-up truck. He saw no vehicles in front of Murphy's car. He saw Murphy's car accelerate as it approached the stationary pick-up truck, graze the front of the truck, and collide head on with the car travelling westbound in front of Driscoll.
The jury were entitled to credit the testimony of the percipient witness, Driscoll, and Consalvi's accident reconstruction expert. If they did so, they would have found that Murphy had abundant opportunity to slow and stop her car before the collision with Consalvi's vehicle. Her actions would have superseded any negligence of Consalvi and comprised the proximate cause of the accident.
Accordingly the judge wrote, “There was ample evidence to support the verdict of the jury and this jurist will not act now as the thirteenth, overarching juror, to undo the verdict.” The judge's ruling rested upon sound discretion.
Judgment affirmed.
Order denying motion for new trial affirmed.