Opinion
No. 12–P–622.
2013-05-16
Thomas RIELLY v. Mary ROBINSON.
By the Court (TRAINOR, KATZMANN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury found that defendant Mary Robinson negligently had failed to maintain her residential premises in a safe and secure condition and thereby had contributed to the cause of serious personal injury to the plaintiff, Thomas Rielly, a visitor to the premises. The jury found that Robinson's negligence had enabled a second visitor, Ross Kirby, to assault and batter Rielly. Robinson has appealed from a judgment of substantial compensatory damages upon several evidentiary grounds. For the following reasons, we affirm.
Ross Kirby also had been a defendant but a default judgment entered against him. He settled Rielly's claim against him by payment of $22,000 and no longer is a party to the case.
Background. The jury received the following evidence pertinent to the issues on appeal. Rielly, Robinson, and Kirby had been long-time acquaintances. Robinson resided on a farm in the town of Dartmouth. Their social activities included drug use. Robinson was able to supply cocaine to the others. During the spring or early summer of 2005, Robinson “fronted” or furnished cocaine to Kirby on credit. Kirby moved temporarily to Florida. He forwarded to Rielly an envelope allegedly containing payment for the cocaine. Rielly maintained that the envelope was empty. Robinson did not receive the payment and she blamed Rielly for the nonpayment. Kirby also held Rielly responsible for the nonpayment. Robinson became aware of the conflict between the men. Kirby returned from Florida in early July. On July 9, 2005, Robinson held a party at her farm. Robinson invited Rielly and his wife to the party. When Rielly arrived with a friend, Sam Johnson, Robinson told Johnson that he had “walked into a firestorm” and that the dispute between the two men was “going to be settled today.”
Rielly and Kirby confronted each other amid other guests and exchanged angry words. The two then walked to a location less visible behind a hedge and continued their exchange. Kirby “sucker punched” Rielly in the right eye, and caused him to drop to the ground; Kirby then kicked Rielly repeatedly in the ribs and in the face. The resulting injuries to Rielly were serious and multiple. They resulted in extensive hospitalization, treatment, loss of work, and pain and suffering.
Analysis. Robinson argues (1) that the admission of evidence of Robinson's alleged use and sale of drugs unfairly prejudiced her; (2) that the admission of Johnson's account of Robinson's comments to him similarly inflicted unfair prejudice because, in combination with the evidence of Robinson's drug activity, their prejudicial impact outweighed any probative value; and (3) that the judge wrongly denied her motion for a new trial submitted upon the same evidentiary contentions.
1. Evidence of Robinson's drug activities. A. Procedure. By motion in limine, Robinson sought to exclude the testimony of her alleged drug use and sale. The judge denied the motion. Robinson failed to renew the objection at the time of the introduction of the evidence by Rielly's testimony. “The consequence of the failure properly to object at trial is to waive the issue on appeal.” Hoffman v. Houghton Chem. Corp., 434 Mass. 624, 639 (2001), citing Adoption of Carla, 416 Mass. 510, 515 (1993).
B. Merits. In the alternative, a preserved argument to this effect would lack merit. (Robinson's counsel appears to begin to object to this line of questioning, but does not pursue.) The standard of review for a judge's balance of probative value against prejudicial effect is abuse of discretion. See Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991); Zabin v. Picciotto, 73 Mass.App.Ct. 141, 150 (2008). An abuse of discretion consists of a decision outside the bounds of reasonable alternatives, Davis v. Boston Elev. Ry., 235 Mass. 482, 496–497 (1920), or a decision resting on “whimsy, caprice, or arbitrary or idiosyncratic notions,” Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 642 (1986). In this trial, the information of drug involvement enlightened the jury about the entire story of the case, including (i) the nature of the three actors' relationship, (ii) the nature of the debt between Kirby and Robinson, (iii) the probability of violence between persons engaged in underlying criminal behavior, and (iv) Robinson's willingness to host a confrontation between the two men as a mechanism for collection of the debt. The judge's preliminary ruling and her predictable intratrial ruling lay well within the bounds of sound discretion.
2. Johnson's testimony. This testimony was even more probative. As a matter of tort law governing premises liability, Robinson owed her guests a duty to exercise reasonable care to protect them against foreseeable criminal conduct. See Mullins v. Pine Manor College, 389 Mass. 47, 54 (1983); Whittaker v. Saraceno, 418 Mass. 196, 198–199 (1994); Heng Or v. Edwards, 62 Mass.App.Ct. 475, 483–485 (2004). Her comments to Johnson constituted admissions exempted from the hearsay prohibition and demonstrated her knowledge of foreseeable danger to Rielly from potential criminal conduct such as assault and battery.
3. Denial of motion for new trial. The decision to grant or to deny a motion for a new trial based on the weight of the evidence rests in the sound discretion of the trial judge. Hartmann v. Boston Herald–Traveler Corp., 323 Mass. 56, 59–61 (1948). The settled test for the allowance of a new trial is whether the verdict “in the [trial judge's] judgment ... is so greatly against the weight of the evidence [as to indicate] that it was the product of bias, misapprehension or prejudice.” Jamgochian v. Dierker, 425 Mass. 565, 571 (1997), quoting from Scannell v. Boston Elev. Ry., 208 Mass. 513, 514 (1911). See Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, cert. denied, 493 U.S. 894 (1989). We review a denial for abuse of that discretion. Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 466–467 (2003). In this instance, Robinson grounds her appeal from the denial of the motion upon the evidentiary rulings already held proper. It follows that the denial also rested well within the scope of sound discretion.
Amended judgment dated July 6, 2011, affirmed.
Order denying motion for judgment notwithstanding verdict or for new trial affirmed.
Robinson remains exposed to an amended judgment of damages in the amount of $200,000, less an offset of $22,000 (the amount paid by Kirby), plus prejudgment interest of $85,908.92, and costs.