PAUZE v. CUMBERLAND FARMS INC (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

We consider the defendant's appeal from the judgment and the portion of the posttrial order denying two motions in this negligence case: its motion for judgment notwithstanding the verdict (judgment n.o.v.), arguing that the plaintiffs' evidence of negligence was insufficient, and its motion for a new trial, based on claims of misconduct by the plaintiffs' attorney at trial.³ ,⁴ We affirm.

Sufficiency of the evidence. Summarizing the evidence under the applicable standard, Lawrence Sav. Bank v. Levenson, 59 Mass. App. Ct. 699, 703 (2003), Jerome, an able-bodied eighty-four year old man who had no difficulty walking, was seriously injured because his shoe became caught in the eroded concrete surface surrounding a gasoline (gas) pump, and its surrounding metal edge, causing him to fall. According to a knowledgeable eyewitness who patronized the gas station daily, the disrepair was both readily apparent and long standing.

The defendant first argues that the gap was so minor a defect that, as a matter of law, it cannot give rise to a violation of the duty of care. As the defendant argues, in some circumstances, a defect may be “so minor or insubstantial that a reasonable person would not have anticipated injury and guarded against it.” Doherty v. Belmont, 396 Mass. 271, 275 (1985). In arguing that the defect at issue here falls into that category, the defendant points primarily to a line of cases involving defects in public ways and public sidewalks. Municipal liability for maintaining public passageways, however, rests on policy considerations inapplicable to the liability of for-profit enterprises like the defendant's gas business here. See, e.g., id. (statutes and policy considerations, not applicable when injury occurs on private land, further limits liability for minor defects on public property); Swenson v. Boston, 317 Mass. 295, 296 (1944) (reasonableness judged relative to character of way and burden that remedying slight variations in pathways would place on municipalities); Vellante v. Watertown, 300 Mass. 207, 208 (1938) (expense of keeping sidewalks free from slight imperfections “would cast an undue burden upon municipalities”).

Even if that were not so, the defendant's argument fails in light of the evidence. See Tobin v. Norwood Country Club, Inc., 422 Mass. 126, 141 (1996) (assessing case on individual circumstances, “[n]egligence is based ․ on reasonable foreseeability of harm, the availability of reasonable measures to avoid that harm, and the failure to take those measures”). While the size of the defect at issue here may be comparable to those in some of the cases cited by the defendant, that fact alone is not dispositive. Instead, it must be viewed together with the other relevant circumstances, including the defect's placement, the longevity of its existence, and the risk it presented to customers whom the defendant invited onto the premises and whom the defendant knew or should have known were likely to step on it. See id. Whether a party was negligent and whether that negligence caused a plaintiff's injury are questions of fact generally left to the jury. See Mullins v. Pine Manor College, 389 Mass. 47, 56, 58 (1983). We disturb the jury's finding of negligence only if “no rational view of the evidence warrants a finding that the defendant was negligent.” Id. at 56. Here, “[t]he jury could reasonably conclude from this evidence that the [defendant] violated a duty of care owed to the plaintiff[s].” Doherty, supra (sufficient evidence where one-half inch metal stub protruding from cement mount existed for at least one year in location owner knew pedestrians walked).

Alternatively, the defendant argues that the evidence of causation was impermissibly speculative. The fact that evidence is circumstantial or contradictory does not require the jury to speculate, rather, such factors merely “go[ ] to the weight to be attached to the plaintiff's ․ theory.” Poirier v. Plymouth, 374 Mass. 206, 214 (1978). At trial, the plaintiffs introduced evidence of the platform's disrepair, that Jerome placed his foot near the gap in the curb, that Jerome was unable to move his foot once it was on the curb, and that he fell as a result. Although Jerome testified that the gap “probably” caused his fall, in light of the other evidence presented, that statement does not, as the defendant argues, leave the jury to speculate as to the cause of the fall. Furthermore, any variations in the witnesses' recollection of which of Jerome's feet became stuck in the gap, or whether his toe or heel became caught, and the importance of that evidence, were for the jury to resolve. “Under these circumstances, any uncertainty in [the witnesses'] testimony presented an issue of weight and credibility for the jury.” Doherty, 396 Mass. at 276. The inference that the gap caused Jerome's fall is not “in the nature of ‘mere speculation and conjecture’ so as to require that consideration of the question be withheld from the jury.” Poirier, supra, quoting Alholm v. Wareham, 371 Mass. 621, 626-627 (1976).

To the extent that the defendant argues Jerome's comparative negligence, “[t]he plaintiffs are not required to eliminate entirely all possibility that the defendant's conduct was not a cause [of the harm]. It is enough that they introduce evidence from which reasonable [people] may conclude that it is more probable that the event was caused by the defendant than that it was not.” Pine Manor College, 389 Mass. at 56, 58 (inferences must be “probabilities,” not “possibilities,” and not the result of “speculation and conjecture”). The jury “need not find that a [landowner's] negligence was the only factor causing the [injury], ․ only that ‘it was more probable than not that a defendant's negligence was a substantial factor in bringing about injury and harm.’ ” Lawrence Sav. Bank, 59 Mass. App. Ct. at 707, quoting Bernier v. Boston Edison Co., 380 Mass. 372, 385-386 (1980).

Attorney misconduct. We review the denial of a motion for new trial based on allegations of attorney misconduct de novo, independently reviewing the record to “determine whether instructions that were given or not given by the judge when a matter was properly brought to her attention amounted to an error of law, and to assess whether the error was prejudicial.” Fyffe v. Massachusetts Bay Transp. Auth., 86 Mass. App. Ct. 457, 471 (2014). See EventMonitor, Inc. v. Leness, 473 Mass. 540, 549 (2016) (questions of law reviewed de novo). To determine whether the alleged misconduct, if error, prejudiced the defendant, “we consider, ‘(1) whether the defendant seasonably objected; (2) whether the error was limited to collateral issues or went to the heart of the case; (3) what specific or general instructions the judge gave to the jury which may have mitigated the mistake; and (4) whether the error, in the circumstances, possibly made a difference in the jury's conclusion.’ ” Fyffe, supra at 472, quoting Commonwealth v. Lewis, 465 Mass. 119, 130-131 (2013).

Here, although the plaintiffs' attorney took a risk when he argued that the defendant was a “big corporation,” and in encouraging the jury to be “outraged,” we do not believe that his hyperbolic advocacy rose to the level of error. Even if it did, any such error did not prejudice the defendant to the extent that a new trial is warranted. Although the first Fyffe factor is satisfied by defense counsel's timely objection, the other factors do not weigh in the defendant's favor. With the exception of the plaintiffs' references to medical care and aspects of Jerome's physical condition not properly in evidence, the alleged misconduct was limited to counsel's argument and generally pertained to collateral matters. The potentially improper testimony concerning Jerome's medical treatment or condition appears to have been inadvertent and may have been due to a misunderstanding of the balance the trial judge attempted through her evidentiary rulings to strike between admissible evidence of lived experiences and inadmissible medical evidence requiring expert testimony and medical records.

With regard to the defendant's corporate status, we conclude that, as a practical matter, being briefly reminded of the size of the defendant's well-known chain of stores was unlikely to have influenced the jury's decision. To the extent that it might have done so, the judge gave an adequate curative instruction on this point.

Finally, we discern no error in the plaintiffs' attorney's characterization of the defendant's evidence, and certainly no error warranting a missing witness instruction, as the defendant suggests. Considering the contested argument in context, we conclude that even assuming error, the defendant has failed to show prejudice.

The judgment entered July 12, 2018, is affirmed. In addition, the portion of the posttrial order that denied the defendant's motion for judgment n.o.v. or for a new trial is affirmed.⁵

So ordered.

Affirmed.

FOOTNOTES

3.   Because the two plaintiffs share the same surname, we use each one's first name to avoid confusion.

4.   The jury awarded Jerome $ 450,000 for injuries resulting from a fall that occurred at a gasoline station on the defendant's property, and awarded his wife Charlotte $ 200,000 for loss of consortium. The trial judge subsequently allowed the portion of the defendant's posttrial motion requesting remittitur, reducing Jerome's damages award to $ 300,000 and Charlotte's to $ 125,000, amounts the plaintiffs have accepted.

5.   We deny the plaintiffs' request for appellate attorney's fees.