Opinion
13-P-1679
11-19-2014
HELEN CLANCY v. MALL AT ROCKINGHAM, LLC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Helen Clancy, filed a complaint for negligence, alleging that, while walking to her car in a mall parking lot, she tripped over an unmarked or inadequately marked asphalt island. A jury found in favor of the defendant. On appeal, the plaintiff argues that the judge abused his discretion by allowing the defendant's motion in limine to exclude a set of photographs of the island in question and that he should have afforded her a continuance to respond adequately to the motion. She also argues that the excluded photographs were relevant, were more probative than prejudicial, and that the defendant could have explored any differences in the condition of the island on cross-examination.
The photographs were taken by mall security personnel approximately five months after the plaintiff fell; she directed them to the location. The defendant argued for exclusion on the grounds that the photographs were irrelevant and potentially prejudicial because they depicted conditions that the plaintiff did not observe and they did not depict the conditions of the area at the time of the plaintiff's fall. Other photographs of the island were admitted.
We cannot review the plaintiff's claim. None of the photographs are in the record before us. The photographs were not marked for identification, and the plaintiff made no offer of proof, as is required to preserve the issue for appellate review. Commonwealth v. Chase, 26 Mass. App. Ct. 578, 581 (1988). Given the state of the record that is before us, it is unlikely that the plaintiff's claim of error would establish an abuse of discretion. The plaintiff was able to introduce numerous other photographs depicting the area of her fall. The plaintiff has not demonstrated that the judge abused his discretion by excluding the photographs at issue.
In fact, at her deposition the plaintiff testified that the island looked "entirely different" than it had on the day she fell.
The plaintiff also has not demonstrated that the judge abused his discretion by failing, sua sponte, to continue the trial. The judge did recess the hearing on the pretrial motion in limine for approximately forty minutes to give the plaintiff "a moment to get me portions [of Clancy's] deposition" relevant to the issue. The plaintiff did not avail herself of this opportunity and did not request additional time. There was no error.
Judgment affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
Clerk Entered: November 19, 2014.