Opinion
15-P-98
02-24-2016
OMAR BASIONY v. CITY OF BOSTON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a trial in Superior Court, a jury found the city of Boston (city) liable for negligence and awarded damages of $22,000 to the plaintiff, Omar Basiony. The jury found that Boston police Officer Shana Cottone negligently drove her cruiser the wrong way down a one-way street and collided with the plaintiff, injuring him and damaging the bicycle he was riding. The city appeals from the order denying its postjudgment motion seeking, in the alternative, judgment as a matter of law, a new trial, or remittitur. The city argues that the judge erred in his evidentiary rulings and failed to adequately sanction plaintiff's counsel for counsel's alleged misconduct during the trial. We affirm.
On appeal, the city makes no argument that the evidence was insufficient to support the verdict, or that the damage award was excessive.
Evidentiary rulings. "We grant considerable deference to a judge's disposition of a motion for a new trial, especially where he was the trial judge, and we will reverse the ruling only for an abuse of discretion." Gath v. M/A-Com, Inc., 440 Mass. 482, 492 (2003), citing Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660, 664 & n.2 (1980).
The city claims that it is entitled to a new trial because the judge improperly allowed Sergeant Scott O'Brien, as the patrol supervisor during Cottone's shift, to testify that he conducted an investigation of the collision and prepared a report. The city argues that this testimony should have been excluded as evidence of a subsequent remedial measure. See Martel v. Massachusetts Bay Transp. Authy., 403 Mass. 1, 4-5 (1988). However, to the extent it was improper, O'Brien's testimony did not amount to prejudicial error warranting a new trial. His testimony in this regard was extremely limited. The judge did not permit the plaintiff to introduce O'Brien's report in evidence, and, as discussed in more detail below, he strongly instructed the jury that the report was inadmissible.
We discern no other error regarding O'Brien's testimony. "Whether evidence is relevant is a question 'addressed to the sound discretion of the trial judge.'" Carrel v. National Cord & Braid Corp., 447 Mass. 431, 446 (2006), quoting from Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991). "The issue of relevancy is a matter on which the opinion of the trial judge will be accepted on review except for palpable error." Anthony's Pier Four, Inc., supra (quotations and citations omitted). Arriving at the scene of the accident shortly after it occurred, O'Brien was a percipient witness of the intersection and the vehicles involved. His testimony regarding Boston police department rule 302, which governs when emergency responders may disregard traffic signs and signals, was permissible. See Commonwealth v. Angelo Todesca Corp., 446 Mass. 128, 138 (2006) ("An employee's violation of his employer's rules, intended to protect the safety of third persons, is evidence of the employee's negligence, for which the employer may be held liable").
Likewise, we discern no error of law or abuse of discretion in the judge's admitting the "surprise" testimony that Basiony started going to physical therapy six months before the trial (almost four years after the accident), but excluding any evidence regarding the costs of such therapy. See Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 131-132 (2002) (trial judges accorded broad discretion in fashioning sanctions for discovery violations).
Plaintiff's counsel's conduct. The city also argues that it is entitled to a new trial because plaintiff's counsel persisted in questioning O'Brien about his report even after the judge ruled it inadmissible. "The misconduct of counsel does not necessarily require a new trial." In-Towne Restaurant Corp. v. Aetna Cas. & Sur. Co., 9 Mass. App. Ct. 534, 544 (1980). When misconduct of counsel is alleged, a trial judge "has discretion to decide whether any action is required and, if it is, what it should be and when it should be taken. This court will not intervene in such a case where no abuse of such discretion is shown." Fialkow v. DeVoe Motors, Inc., 359 Mass. 569, 572 (1971).
In addition to sustaining the city's objections, the judge specifically informed the jury that counsel's questions related to "rulings the Court has already made." He explained that O'Brien's report was inadmissible and then addressed counsel's conduct as follows: "The plaintiff knows that. [Counsel] should not have raised it in front of you, and I am instructing you to disregard entirely any reference to an investigative report by this sergeant." In the final charge to the jury, the judge reiterated, "[Y]ou're to confine your deliberations to the evidence and nothing but the evidence. . . . Questions that were put to a witness by the attorneys are not evidence. . . . [T]he opening statements and the closing arguments of the attorneys are neither evidence nor a substitute for evidence."
"A new trial may be granted on the ground of prejudicial misconduct of counsel that is not cured by the judge's instructions to the jury." Gath v. M/A-Com, Inc., 440 Mass. at 492. Here, the judge's instructions immediately after the impermissible questions and directly preceding deliberations served to cure any misconduct by plaintiff's counsel. See In-Towne Restaurant Corp. v. Aetna Cas. & Sur. Co., 9 Mass. App. Ct. at 544. We detect no error or abuse of discretion in the judge's determination that plaintiff's counsel's conduct had no adverse influence on the jury. See Gath v. M/A-Com, Inc., supra at 494-495.
To the extent plaintiff's counsel impermissibly urged the jury to "send a message" to the city, in isolated instances where the city objected and the judge sustained the objection, there was no prejudicial error requiring a new trial. See Haddad v. Wal-Mart Stores, Inc. (No. 1), 455 Mass. 91, 112 (2009).
We have reviewed the entire record and trial transcript, and we note that the conduct of counsel for both parties at times pushed the envelope of zealous advocacy and strained the limits of civility -- a tone that trial counsel have unfortunately carried into their appellate briefs. This case is not remotely comparable to Fyffe v. Massachusetts Bay Transp. Authy., 86 Mass. App. Ct. 457, 473 (2014), in which one party's misconduct permeated the trial. In denying the city's postjudgment motion, the judge stated, "For the most part, the case was fairly tried and fairly decided. . . . The damage award [of $22,000] is not, in my judgment, contrary to the evidence or indicative of something other than a dispassionate assessment." The parties are entitled to a fair trial, not a perfect one. We see no abuse of discretion in the trial judge's evidentiary rulings or in the corrective actions with regard to plaintiff's counsel's conduct; there was no abuse of discretion in the denial of the postjudgment motion.
We do not find the appeal to be frivolous. Accordingly, Basiony's request for attorney's fees and other sanctions is denied.
Order denying postjudgment motion affirmed.
By the Court (Trainor, Agnes & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: February 24, 2016.