Opinion
21-P-27
01-28-2022
Jamie MARINELLI & another v. ELM ASSOCIATES, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In this premises liability case, the plaintiffs Jamie and Wendy Marinelli appeal from a judgment entered on a jury verdict for the defendant, Elm Associates, Inc., doing business as Colonial Spirits. On appeal, the plaintiffs challenge the jury instructions and the special verdict form. The plaintiffs also argue that the trial judge's admission of certain evidence was reversible error. We affirm.
Background. Jamie Marinelli contends that he fell on the defendant's premises while making a delivery because of a deep "cut" or a "groove" in the concrete pad where deliveries were made. The defendant installed this groove, which measured thirty inches long, one and one-half inches wide, and two and one-half inches deep, to drain surface water from the concrete pad and to prevent water from freezing on the pad surface in the winter. The groove had created some difficulties when the wheels of pallet jacks would get stuck. To avoid getting pallet jacks stuck in the groove, the defendant's employee would warn and instruct delivery persons who did not make frequent deliveries at the defendant's premises to pull the pallet jacks over the groove in a perpendicular manner. For the people making regular deliveries to the defendant's premises, no such warning or instructions were given.
Because the Marinellis share a surname, we refer to Jamie by his first name.
At the time, Jamie was employed by a nonparty.
Jamie had made only two or three deliveries at the defendant's premises and was not aware of the groove. On the morning of November 13, 2013, Jamie backed his truck to a scissors lift on the defendant's premises and used the defendant's pallet jack to unload the truck. During the delivery process, Jamie was unable to take the pallet jack off the scissors lift because the pallet jack became stuck on the cement pad. Jamie testified that while he was manually unloading his cases, he rolled his ankle and the side of his right foot into the groove and fell backwards on his buttocks and back, sustaining injury.
Both parties submitted their request for jury instructions. The judge ultimately crafted his own jury instructions and special verdict form. Counsel for both parties stated that they were content with both the jury instructions and special verdict form. Question one on the special verdict form asked, "Was the [defendant] negligent [on the date in question] in connection with the alleged accident in which the plaintiff Jamie Marinelli alleges he was injured." The jury answered question one, "No." Accordingly, the jury did not answer any of the remaining questions. Judgment entered in favor of the defendant.
Discussion. 1. Jury instructions and special verdict form. The plaintiffs argue that the jury instructions and special verdict form remain reviewable on appeal because a miscarriage of justice would result if the verdict were not set aside and a new trial ordered. The arguments regarding the substance of the jury instructions and special verdict form are waived. "A party must make a proper objection to a jury instruction before the jury retires in order to preserve the issue for appeal. ... A party who fails to comply with [this] rule ...forfeits his right to complain on appeal of the giving or omission of an instruction" (quotation and citation omitted). Jarry v. Corsaro, 40 Mass. App. Ct. 601, 603 (1996), citing Abraham v. Woburn, 383 Mass. 724, 732 (1981). See Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974) ("No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection"). Likewise, a party also must make a proper objection to special questions in order to preserve the issue for appeal. See Motsis v. Ming's Supermkt., Inc., 96 Mass. App. Ct. 371, 383 (2019). The law of waiver is clear where there is a lack of timely objection to special questions. See Neagle v. Massachusetts Bay Transp. Auth., 45 Mass. App. Ct. 345, 348 (1998). We do not consider issues raised for the first time on appeal. See West Broadway Task Force v. Boston Hous. Auth., 414 Mass. 394, 397 n.2 (1993). Here, counsel for the plaintiffs failed to make a timely objection to the jury instructions or the special verdict form, thereby waiving the arguments raised on appeal. See Boss v. Leverett, 484 Mass. 553, 562-563 (2020).
See Cormier v. Pezrow New England, Inc. , 437 Mass. 302, 311 (2002) (denying review of challenged jury instruction as unpreserved notwithstanding that law of pretext in employment discrimination had changed recently); Ezekiel v. Jones Motor Co., 374 Mass. 382, 392-393 (1978) (declining to review alleged unpreserved error in jury charge that defendant claimed was too low a burden of proof); Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 646 (1961) ("appropriate" instruction not required in absence of relevant request for such instruction); Simmons v. Yurchak, 28 Mass. App. Ct. 371, 379 & n.10 (1990) (because of failure to object to lack of instruction on issue, "the right to raise the 'consciousness of liability' issue on appeal was lost"); Bank of Boston v. Haufler, 20 Mass. App. Ct. 668, 671 n.7 (1985) (party arguing jury charge "may have misassigned the burden of proof" had failed to object and was barred from claiming error on appeal).
The plaintiffs' argument that the jury instructions and special verdict form remain reviewable for a miscarriage of justice relies on concepts from the criminal context that do not apply in the civil context. Substantial risk of a miscarriage of justice review is reserved for criminal cases. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). (substantial risk of miscarriage of justice standard of review is for when "we are left with uncertainty that the [criminal] defendant's guilt has been fairly adjudicated"). Indeed, we have rejected the use of this stringent criminal standard in a civil case. See Wahlstrom v. JPA IV Mgt. Co., 95 Mass. App. Ct. 445, 449 (2019) (applying "actual miscarriage of justice" standard where defendants suffered adverse verdict and sought new trial based on alleged misconduct of plaintiff's counsel). While we have reserved the right to review an unpreserved error in an exceptional case, the plaintiffs cite no published case that reviews a plaintiff's unpreserved error in a jury instruction for manifest injustice. The cases plaintiffs cite granting review for manifest injustice involve plaintiffs' unpreserved error concerning denial of governmental benefits, Cruz v. Commissioner of Pub. Welfare, 395 Mass. 107, 111 (1985) ; Normand v. Director oft he Office of Medicaid , 77 Mass. App. Ct. 634, 643-644 (2010), or award of property or child custody in divorces, none of which is applicable here, Gaw v. Sappett, 62 Mass. App. Ct. 405, 410-411 (2004) ; White v. White, 40 Mass. App. Ct. 132, 134 (1996). The remaining cases on which the plaintiffs rely in which appellate review for manifest injustice may occur in the face of an unpreserved error, even in a jury instruction challenge, involve defendants that were found liable and ordered to pay damages though the verdict was not legally supported, Rotkiewicz v. Sadowsky, 431 Mass. 748, 752 n.3 (2000) ; Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 9-10 (1983) ; Stop & Shop Supermkt. Co. v. Loomer, 65 Mass. App. Ct. 169, 172 (2005) ; Squibb v. R.M. Bradley & Co., 40 Mass. App. Ct. 914, 914-915 (1996), or where there may have been attorney misconduct tainting the verdict against the defendant, Wahlstrom v. JPA IV Mgt. Co., supra.
2. Evidence of lack of prior similar incidents. The plaintiffs argue briefly that they are entitled to a new trial because the judge improperly admitted testimony about the absence of anyone else stepping or falling into the groove. "We [will] not disturb a judge's decision to admit evidence absent an abuse of discretion or other legal error." Zucco v. Kane, 439 Mass. 503, 507 (2003).
The plaintiffs' counsel asked a witness whether the groove "cause[d] or create[d] any impediment to delivery people or persons who are making deliveries" to the defendant. The plaintiffs' counsel also elicited testimony that prior to the date in question other delivery people had caught the caster of the pallet jacks in the drainage groove and that the defendant had a practice of informing delivery personnel not familiar with the premises of the groove. The plaintiffs opened the door to this line of inquiry and have not shown an abuse of discretion or error of law here in allowing the defendant to introduce evidence of lack of notice of an issue with the premises through testimony about the lack of incidents involving the groove. See J. Edmund & Co. v. Rosen, 412 Mass. 572, 576 (1992). See also Commonwealth v. Magraw, 426 Mass. 589, 595-596 (1998).
Judgment affirmed.