GERAIGERY v. WISEMAN (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff brought this negligence action to recover for injuries sustained in a motor vehicle collision with the defendant. Following trial in the Superior Court, a jury returned a verdict for the defendant, finding her not to be negligent. The plaintiff filed a motion for a new trial (motion), which the trial judge denied. The plaintiff appeals from the judgment entered in favor of the defendant and the order denying the motion. He claims, among other things, that the judge erred in (1) denying the motion, (2) failing to declare a mistrial, (3) excluding the police report, and (4) failing to correctly instruct the jury. We affirm.

Discussion. As a preliminary matter, the plaintiff has not provided us with the complete trial transcript, thus leaving us with an inadequate record on which to review his claims. See Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). It “is a fundamental and long-standing rule of appellate civil practice” that the appellant has an obligation “to include in the appendix those parts of the [record that] are essential for review of the issues raised on appeal.” Id. See Mass. R. A. P. 8 (a)-(c), as appearing in 481 Mass. 1611 (2019); Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019). While we recognize that the plaintiff is self-represented, he is nonetheless required to comply with the Rules of Appellate Procedure. See Brossard v. West Roxbury Div. of the Dist. Ct. Dep't, 417 Mass. 183, 184 (1994).

1. Motion for a new trial. First, the plaintiff argues that the judge erred in denying his motion because the jury's verdict went against the weight of the evidence and because the defendant's counsel prejudiced the jury by posing two improper questions to the plaintiff. On a motion for a new trial, “[t]he judge should only set aside a verdict as against the weight of the evidence [if he] determine[s] that the jury ‘failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.’ ” O'Brien v. Pearson, 449 Mass. 377, 384 (2007), quoting Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894 (1989). “We review the denial of the [plaintiff's] motion for a new trial for abuse of discretion, extending ‘considerable deference’ where the trial judge and motion judge were the same” (citations omitted). Parsons v. Ameri, 97 Mass. App. Ct. 96, 103 (2020).

a. Negligence. The plaintiff argues that the verdict went against the weight of the evidence. In a negligence action, “the plaintiff[ ] bear[s] the burden of proving that the defendant committed a breach of the duty to use reasonable care, that the plaintiff[ ] suffered actual loss, and that the defendant's negligence caused their loss.” Glidden v. Maglio, 430 Mass. 694, 696 (2000). “Negligence ․ is the failure of a responsible person, either by omission or by action, to exercise that degree of care, vigilance and forethought which, in the discharge of the duty then resting on [her], the person of ordinary caution and prudence ought to exercise under the particular circumstances.” Altman v. Aronson, 231 Mass. 588, 591 (1919). “The standard is not established by the most prudent person conceivable, nor by the least prudent, but by the person who is thought to be ordinarily prudent.” Toubiana v. Priestly, 402 Mass. 84, 88 (1988).

Here, based on the record provided to us, the jury could have found that on the afternoon of January 2, 2019, the defendant was stopped behind the plaintiff at a red light in Woburn; that the defendant was driving her daughters to a doctor's appointment; that when the light turned green, she “took [her] foot off the brake” and “briefly” “glanced” at her cell phone's global positioning system (GPS) to “make sure” she was driving in the right direction; that she then “bumped into [the plaintiff's] car”; that the plaintiff did not see the defendant cause the accident; and that neither the defendant nor her daughters were injured, but the plaintiff was transported to the hospital for a neck injury. From these facts, the jury could have reasonably concluded that the defendant acted as would an ordinarily prudent person in her position, and that the accident was not the result of negligence. See Olofson v. Kilgallon, 362 Mass. 803, 805 (1973) (“The mere happening of an accident does not establish negligence on the part of the defendant, even in a case where the defendant's vehicle strikes the plaintiff's vehicle in the rear,” but “a finding of negligence in such a case may be warranted on slight evidence of the circumstances” [emphasis added]). The jury were free to credit the defendant's testimony and discredit the plaintiff's. See Commonwealth v. Dubois, 451 Mass. 20, 28 (2008) (“The weight and credibility of the evidence is the province of the jury”). “The fact that the jury could have found for the plaintiff[ ] does not make their verdict[ ] against the weight of the evidence or inconsistent with substantial justice, and we conclude that the judge did not abuse his discretion in denying plaintiff[’s] motion for a new trial.” Jamgochian v. Dierker, 425 Mass. 565, 571 (1997).

b. The alleged improper questions. The plaintiff also argues that the judge improperly denied his motion because he was prejudiced by the defendant's counsel questioning him about two prior incidents involving injuries sustained by the plaintiff and which resulted in legal claims. Yet objections to the questions were sustained, the questions were stricken from the record, and the jury were instructed to not consider the questions or any answers that were given. We presume the jury followed those instructions. See Commonwealth v. Kapaia, 490 Mass. 787, 799 (2022). In addition, on the limited record before us, plaintiff's counsel did not object to the instructions or request any other curative measure during the trial, and the plaintiff does not argue otherwise on appeal. Moreover, “[t]he judge was in the best position to evaluate the effect on the jury of the improper [question],” Gath v. M/A-Com, Inc., 440 Mass. 482, 495 (2003), and he concluded that “[the] references of prior claims, [which were] not in evidence, [did] not by themselves taint and/or impact the weight of [the] evidence (testimony and/or exhibits) so as to nullify the verdict reached by the jury.” For these reasons, “[w]e defer to [the judge's] view that the improper [questions] made no difference,” Gath, supra, and hold that he did not abuse his discretion in denying the motion.

2. Mistrial. The plaintiff claims that the judge should have declared a mistrial sua sponte because he was prejudiced by the defendant's counsel's behavior, including the improper questions addressed supra. A request for a mistrial is “an immediate, on-the-spot response to a specific issue so serious that it warrants breaking off a trial that has begun, and may be close to concluding.” Fitzpatrick v. Wendy's Old Fashioned Hamburgers of N.Y., Inc., 487 Mass. 507, 513 (2021). “[A] mistrial should not be granted lightly,” as it “is generally regarded as the most drastic remedy [in civil matters] and should be reserved for the most grievous error where prejudice cannot otherwise be removed” (quotations and citation omitted). Id. Therefore, “[i]n both civil and criminal cases, a motion for a mistrial must be made immediately after the events prompting the motion occur, or as soon as the moving party learns of them.” Id. “Trial counsel in a civil case must object to the improper conduct of opposing counsel, thereby alerting the judge to the impropriety, to preserve the issue for appeal.” Gath, 440 Mass. at 492.

Here, on the limited record before us, the plaintiff's counsel did not object to any improper conduct on the part of defendant's counsel or request a mistrial. This claim is therefore waived. See Gath, 440 Mass. at 492. Even if it was not waived, on the limited record before us, the judge did not abuse his discretion in not ordering a mistrial sua sponte. See Commonwealth v. Roman, 470 Mass. 85, 95-97 (2014).

3. Exclusion of the police report. The plaintiff argues that the judge erred in excluding the police report. “We review a trial judge's evidentiary decisions under an abuse of discretion standard” (quotation and citation omitted). Luppold v. Hanlon, 495 Mass. 148, 154 (2025). “[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives” (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). While police reports may be admissible under the business record exception to the hearsay rule, see Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 453 (1969), individual hearsay statements contained within a report must fall under an exception to the hearsay rule in order to be admitted. See Kelly v. O'Neil, 1 Mass. App. Ct. 313, 316-317 (1973).

Here, the narrative in the police report was hearsay, see Commonwealth v. Cohen, 412 Mass. 375, 393 (1992) (“Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted” [quotation and citation omitted]), and it did not contain any admissible statements that were attributable to the parties. See Federico v. Ford Motor Co., 67 Mass. App. Ct. 454, 460-461 (2006) (“A party is entitled to introduce an out-of-court statement by an opposing party on a subject of relevance”). The judge thus did not abuse his discretion in excluding “information [in the police report] not directly attributable to a particular party (plaintiff or defendant) and/or identifying an opinion of the police officer.” See L.L., 470 Mass. at 185 n.27; Julian v. Randazzo, 380 Mass. 391, 392-393 (1980) (written opinion of officer in police report was inadmissible).

4. Jury instructions. Finally, the plaintiff argues that the judge erroneously failed to instruct the jury on modified comparative negligence and that the jury instructions on negligence were erroneous, incomplete, or confusing. Because the plaintiff did not include the relevant portions of the trial transcript in the record appendix, we are unable to determine whether he objected to the jury instructions below and thus do not have a sufficient record to determine whether the plaintiff's claim is preserved on appeal. See Palmer v. Murphy, 42 Mass. App. Ct. 334, 338 (1997) (“Objections, issues, or claims -- however meritorious -- that have not been raised at the trial level are deemed generally to have been waived on appeal” [citations omitted]).

It is the plaintiff's burden to include the documents that are essential for review of the issues raised on appeal. See Zagami, 30 Mass. App. Ct. at 372-373. This he did not do, and we therefore have no basis on which to disturb the judgment.¹

Judgment affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

1.   For the same reason, we reject the plaintiff's claims of prejudice with respect to (1) the judge's exclusion of evidence of insurance coverage, (2) alleged statements made by prospective jurors during voir dire, (3) the judge's management of the courtroom during the trial, (4) alleged unprofessional conduct on the part of court staff, and (5) allegedly sleeping jurors. With respect to the portions of the trial transcript we do have, there is no record of plaintiff's counsel raising or objecting to any of these issues. The plaintiff's arguments are therefore waived. See Carey, 446 Mass. at 285.