Opinion
16-P-382
04-21-2017
Mavernie WILLIAMS v. The TJX COMPANIES, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff sued the defendant for negligence, alleging that she slipped on a clothing hanger and fell in one of the defendant's T.J. Maxx stores. The jury returned a verdict for the defendant, and the plaintiff appeals from the ensuing judgment, claiming error in various evidentiary rulings made by the trial judge. We affirm.
We observe at the outset that the plaintiff has waived many of her arguments by failing to raise objections at trial. Specifically, the plaintiff did not object to the admission of evidence relating to her involvement in three automobile accidents occurring twenty-five years ago and in 1998 and 2008. "The consequence of the failure properly to object at trial is to waive the issue on appeal." Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001). Likewise, to the extent the plaintiff is independently challenging the defendant's closing argument, she waived that issue by failing to object to the argument or to request any curative instruction from the judge. See Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. 787, 799 (2007).
With respect to the plaintiff's remaining arguments, we review them only to determine whether the judge abused her discretion in making her evidentiary rulings. See Crown v. Kobrick Offshore Fund, Ltd., 85 Mass. App. Ct. 214, 219 (2014). The admissibility of evidence "is a question ‘addressed to the sound discretion of the trial judge.’ " Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991), quoting from Commonwealth v. Booker, 386 Mass. 466, 469 (1982). Thus, unless there is "palpable error," we must accept the judge's determinations. Ibid., quoting from Booker, 386 Mass. at 470.
None of the plaintiff's arguments demonstrates an abuse of discretion. The plaintiff contends first that the judge erred in allowing the defendant to introduce testimony about a medical malpractice lawsuit filed by the plaintiff in 2013, claiming that the testimony was more prejudicial than probative. But as the plaintiff concedes, the medical malpractice action was relevant to the question of damages. The plaintiff filed the medical malpractice suit only ten days after she filed this suit, and she alleged in both cases that one of her emotional injuries was difficulty sleeping. As the cases therefore involved overlapping damages, the judge did not abuse her discretion in admitting the testimony. Cf. Morrissey v. Connecticut Valley St. Ry. Co., 233 Mass. 554, 556-557 (1919) ("testimony as to other injuries received by the plaintiff was relevant" as it tended to show that his claimed injuries "were in truth caused by other and previous accidents sustained by him").
The plaintiff's next argument concerns a series of questions she posed to T.J. Maxx's assistant store manager, Enid Morales, regarding the vantage point of a store employee who had been standing near the area where the plaintiff fell. Before Morales took the stand, the employee in question, Marie Jones, testified that, at the time of the incident, she was at a podium in front of a fitting room and could not see where the plaintiff fell because a wall blocked her view. The plaintiff's attorney then tried several times to ask Morales whether Jones, or someone else standing at the podium, would have a "clear view" of where the plaintiff fell, but each time the judge sustained the defendant's objection. The judge did not abuse her discretion in this regard. It is plain that the plaintiff's questions were designed to ask Morales to speculate about what Jones could see on the day in question. The plaintiff herself testified that "nobody" was in the area where she fell "except for the lady at the fitting room door." Because the questions called for speculation, the judge properly sustained the objections. See Commonwealth v. Cassidy, 470 Mass. 201, 213-214 (2014).
Lastly, the plaintiff contends that the judge erred in allowing the defendant to question her about whether she kept the high-heeled shoes she was wearing at the time of the fall. Putting aside that the plaintiff did not object to those questions at trial, we discern no abuse of discretion in admitting the testimony. The plaintiff's own counsel opened the door to the topic by asking her on direct examination to describe the high-heeled shoes she had been wearing and then asking whether she "ha[d] those heels anymore." Thus, the judge properly allowed the defendant to explore the topic on cross-examination. See J. Edmund & Co. v. Rosen, 412 Mass. 572, 576 (1992).
The defendant makes no claim that the plaintiff waived this argument.
--------
Judgment affirmed.