Opinion
21-P-27
01-28-2022
JAMIE MARINELLI & another [1] v. ELM ASSOCIATES, INC. [2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 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." Jarry v. Corsaro, 40 Mass.App.Ct. 601, 603 (1996), citing Abraham v. Woburn, 383 Mass. 724, 732 (1981). Likewise, a party also must make a proper objection to special questions in order to preserve the issue for appeal. See Scott v. Boston Hous. Auth., 56 Mass.App.Ct. 287, 297-298 (2002) (waiver if failure to object to special questions). 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) .
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) . Even if we were to apply a miscarriage of justice standard here, the plaintiffs would have an uphill climb to demonstrate a miscarriage of justice. The adequacy of the instructions must be assessed "as a whole." Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 547 (2014). Here, the instructions addressed the open and obvious doctrine by explaining that a landowner's duty to protect visitors from dangerous conditions on their property does not "ordinarily" extend to obvious dangers. However, this was not the judge's sole instruction. The judge also instructed the jury that if a landowner "knows or reasonably should know of a dangerous condition on property under his control, the property owner owes a duty to lawful visitors to make reasonable efforts to protect lawful visitors against the danger." In addition, question one of the special verdict form corresponded with the allegations of negligence in the complaint.
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.
The panelists are listed in order of seniority.
Wendy Marinelli.