Opinion
No. 15–P–338.
11-07-2016
Tara MURRAY v. COPLEY PLAZA HOTEL OPERATING COMPANY & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Tara Murray, appeals from the denial of her motion for a new trial, alleging multiple errors by the trial judge. This follows a jury verdict finding the defendant not negligent on a complaint arising out of an injury received by the plaintiff during an event at the defendant's hotel. We affirm.
Background. On the night of November 4, 2008, the plaintiff attended an event in the ballroom of the Fairmont Copley Plaza Hotel in Boston. In the early morning hours, she alleges that she was in the ballroom when she was suddenly hit from behind by “something huge” which primarily collided with her right leg. When she turned around, she saw a “large metal cart laden with food type things” pushed by two unknown males in “matching uniforms.” She alleges that she spoke to the men, who then pushed the cart off into the crowd. The plaintiff, claiming injuries to her right ankle as a result of the collision, later filed the action at issue here.
Discussion. The plaintiff argues that the judge erred by: (1) allowing the testimony of the defendant's sole witness, Robert Lovering, which the plaintiff deems false and misleading; (2) allowing in evidence certain photographs of the ballroom and food carts; (3) not allowing as inadmissible hearsay her proffered statements made by the two men pushing the cart; and (4) denying her motion for a new trial based on newly discovered evidence.
First, we note that neither party in their appendices has provided this court with complete transcripts of the proceedings below. Due to the insufficiency of the record, we are unable to review the evidence presented at trial to determine whether the plaintiff met her burden of proof. Cameron v. Carelli, 39 Mass.App.Ct. 81, 83–84 (1995). We will, however, briefly address those issues raised by the plaintiff to the extent allowed by the limited record before us. We review any findings of fact for clear error, White v. Hartigan, 464 Mass. 400, 414 (2013), and any rulings of law for abuse of discretion. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The plaintiff has provided roughly forty-five nonconsecutive pages of transcript of the three-day trial. The defendant's supplemental appendix provides roughly 141 pages of transcript, with many of the portions overlapping those from the plaintiff's appendix.
The credibility of Robert Lovering was for the jury. Demoulas v. Demoulas Super Mkts., 424 Mass. 501, 509 (1997). On its face, there is nothing irregular about his testimony. During his deposition, Lovering testified that he had no personal knowledge of the events of the night in question. At trial, he gave the same testimony. He also gave general testimony about what types of food carts were used by the hotel, and their use in the ballroom in question. The plaintiff's counsel had, and took, the opportunity to cross- and recross-examine Lovering, which included the opportunity to impeach him with any prior inconsistent testimony. See Mass. G. Evid. § 613 (2016). As the judge noted, “[t]he jury was entitled to evaluate the credibility of the plaintiff's evidence .”
Our review of this argument is hampered by the plaintiff's failure to provide an adequate record. For example, the plaintiff has provided only four pages of Lovering's deposition transcript.
The plaintiff next argues that three photographs offered by the defendant were erroneously admitted in evidence. We review evidentiary rulings for abuse of discretion, and we will only find error if it is shown that “the judge made a clear error of judgment ... such that the decision falls outside the range of reasonable alternatives.” L.L., supra at 185 n.27. Exhibits 3, 4, and 5 appear to be, respectively, photographs of two types of carts used by the defendant during functions, and a photograph of a six-inch-high step from a back hallway into the ballroom. As to exhibit 3, an objection was made and overruled. There was no error. A photograph of a cart regularly used by the defendant in a trial in which the plaintiff alleges she was hit by a cart is clearly relevant. See Mass. G. Evid. § 401 (2016). As to exhibits 4 and 5, no objection was made at trial, so the issue has been waived. “A party must move to strike erroneously admitted evidence prior to the close of evidence in order to preserve the issue for appeal.” Jarry v. Corsaro, 40 Mass.App.Ct. 601, 609 (1996). See Costa v. Brait Builders Corp., 463 Mass. 65 (2012) ; Squibb v. R.M. Bradley & Co., 40 Mass.App.Ct. 914 (1996).
The plaintiff's counsel objected as exhibit 4 was offered, but his objection was to Lovering's testimony about the use of carts, not to the photograph itself.
The plaintiff next contends that it was error for the judge to rule statements made to her by the two men pushing the cart as inadmissible hearsay. From the record before us, there is nothing to suggest who the two men were, other than the plaintiff's assertion that they wore matching uniforms. When the defendant's objection was sustained, the plaintiff made no offer of proof that the men were employees or agents of the defendant, or authorized to speak on its behalf. See Mass. G. Evid. §§ 801(d)(2)(C) & (D) (2016). Without any additional evidence as to who the men were or what their relationship to the defendant was, there was no abuse of discretion in refusing their statements.
Finally, the plaintiff claims error in the judge's denial of her motion for a new trial in which she claimed “newly discovered evidence” under Mass.R.Civ.P. 60(b)(2), 365 Mass. 828 (1974). Newly discovered evidence is evidence that “could not by due diligence have been discovered earlier by the movant.” Cahaly v. Benistar Prop. Exchange Trust Co., 451 Mass. 343, 361 (2008). The plaintiff claims that the offered evidence was not reasonably discoverable before trial because “there was no reason to discover it or search for it.” However, in a trial where the central issue appears to be the use of carts in the ballroom where the plaintiff was injured, it would be expected that the workings of the ballroom, including the defendant's use of carts within it, would be a topic of reasonable discovery by the plaintiff. See Mass.R.Civ.P. 26(b)(1), 365 Mass. 772 (1974); Mass.R.Civ.P. 34, as appearing in 466 Mass. 1407 (2013); Mass. G. Evid. § 401 (2016). There is no indication in the record before us that the defendant did or failed to do anything to impede the plaintiff's right to pursue this discovery in advance of trial. Thus, the judge did not abuse his discretion in denying the plaintiff's motion for a new trial.
The plaintiff's motion is titled “Motion For Judgment Notwithstanding the Verdict Or In The Alternative Motion For New Trial.” Because the plaintiff did not move for a directed verdict at the close of evidence, a motion for JNOV is not available. See Mass.R.Civ.P. 50(b), as amended, 428 Mass. 1408 (1996). Though she did not explicitly cite rule 60 in her motion, she bases her argument on an affidavit in which she states that after the trial, she personally observed carts going into the hotel ballroom, in contradiction of Lovering's testimony. Thus, her motion is properly treated as a motion for relief from judgment pursuant to rule 60(b)(2).