Moody v. Haymarket Assoc.
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:1999 ME 17 
Docket:Pen-98-140
Argued:	October 7, 1998
Decided:	January 28, 1999


Panel:WATHEN, C.J., and CLIFFORD, DANA, SAUFLEY, ALEXANDER, and 
	CALKINS, JJ.

DAN C. MOODY

v.

HAYMARKET ASSOCIATES, et al.{1}

WATHEN, C.J.

	[¶1]  Plaintiff Dan C. Moody appeals from a judgment entered in the
Superior Court (Penobscot County, Kravchuk, C.J.) after a jury verdict in
favor of defendants Haymarket Associates and Sidney Epstein, on his
negligence claim.  Plaintiff argues that the court abused its discretion in
allowing irrelevant and prejudicial evidence of the absence of other
accidents.  We agree and vacate.
	[¶2]  The facts may be summarized as follows:  Plaintiff Dan C. Moody
filed a complaint for injuries sustained when he fell in front of the elevator
in the lobby of the Key Plaza office building in downtown Bangor.  The
complaint alleged that defendants negligently maintained said premises.  An
expedited pretrial order was entered, which provided in part that plaintiff
designate any expert witnesses within 60 days of the order, i.e. October 3,
1995.  On November 15, 1995, pursuant to M.R. Civ. P. 16(h), defendants
filed a motion to exclude expert witnesses by plaintiff for failure to designate
witnesses pursuant to the pretrial order, which the court denied, ordering
instead that plaintiff would be limited to one expert for each of the agreed
upon topics of expert testimony. Subsequently, plaintiff filed a motion to
amend the pretrial order and for leave of court to allow an additional expert
to be designated, which the court denied.
	[¶3]  A jury trial was held in December of 1997 and the jury
unanimously responded "no" to the special interrogatory: "Were the
Defendants, Haymarket Associates and Sidney Epstein negligent and was
their negligence a proximate cause of the accident?" Judgment was entered
in favor of defendants Haymarket Associates and Sidney Epstein.  Plaintiff
filed a motion for a new trial, which the court denied.  Plaintiff appeals.
	[¶4]  Plaintiff argues that the court erred in admitting into evidence
testimony concerning the absence of previous accidents.  We review the
court's evidentiary ruling for an abuse of discretion.  See Simon v. Town of
Kennebunkport, 417 A.2d 982, 986 (Me. 1980).  In a negligence action,
evidence of similar accidents or occurrences, or the absence thereof, may be
relevant circumstantially to determine whether a defective or dangerous
condition, notice thereof, or causation existed on the occasion in question. 
Id. at 984-85.    Initially, however, the court must determine whether the
evidence is relevant:  "M. R. Evid. 401 requires the presiding Justice to
determine the relevancy of the evidence on the basis of whether there is a
substantial similarity in the operative circumstances between the proffer and
the case at bar and whether the evidence is probative on a material issue in
the case."  Id. at 986 (footnote omitted).  Second, even if the evidence is
relevant, the court "must then consider whether the probative value of such
evidence is substantially outweighed by the countervailing considerations of
M.R. Evid. 403," that is, the danger of unfair prejudice, confusion of the
issue, or undue delay.  Id. at 986.
	[¶5]  Plaintiff objected to the admission of any evidence of the absence
of other accidents as irrelevant.  Before the trial began, plaintiff made clear
through counsel that he was abandoning his negligent supervision of
maintenance claim and that he did not assert any claim of a recurring
condition or preexisting dangerous condition.  Accordingly, the only issue
for trial was whether, on the particular occasion in question, the janitor
mopped the floor, failed to put out a caution sign, and failed to put the mats
back down.  Plaintiff therefore argued that the evidence of defendants'
accident record was not relevant because of the absence of substantial
similarity in the operative circumstances.
	[¶6]  In overruling the objection, the court concluded that the absence
of prior accidents was relevant and was not unfairly prejudicial to plaintiff.
See M.R. Evid. 403.  We determine that the court erred.  While the
existence or absence of prior accidents may be relevant on issues of notice,
recurring conditions, causation, or supervision of maintenance, evidence of
defendants' accident-free record was not relevant to the very narrow issue of
whether the janitor acted in a particular way on the day in question.  Simply
put, because of the narrow issue before the jury, the absence of other
accidents in the lobby did not present information about substantially similar
circumstances.  In effect, plaintiff limited his claim to an assertion that the
events in question were unique and resulted in his injury.  Because
defendants offered no other reason for the admission of the accident
history, the court erred in admitting it.{2}
	[¶7]  Moreover, even if the evidence had some marginal relevance,
evidence of defendants' accident-free record was prejudicial to plaintiff's
claim in this case.  This is particularly true where defendants presented
evidence of an accident-free record for a period of 10 years prior to the date
of trial.  The fall under consideration by the jury occurred in February of
1991.  The trial was not held until December of 1997.  On the narrow issue
of what the janitor did on the date in question, the jury was permitted to
consider evidence of lack of accidents for years before and after the date of
the alleged negligence.  We conclude, therefore, that the evidence was
unfairly prejudicial because the jury was allowed to make its decision on an
improper basis.
	[¶8]  Plaintiff also argues that the court erred in granting sanctions for
his failure to timely file his list of expert witnesses pursuant to M.R. Civ. P.
16(h).  A trial court is invested with considerable discretion in regard to
determining sanctions and "we will not lightly overrule the court's choice of
an appropriate sanction in a given situation."  Terjelian v. Concord Group
Ins. Co., 606 A.2d 197, 198 (Me. 1992).  The sanctions granted in this case
were within the discretion of the court pursuant to M.R. Civ. P. 16(h) and
were tailored to fit plaintiff's noncompliance.  Therefore, we will not
overrule the court's choice of sanctions. 
	The entry is:
Judgment vacated. Remanded for further
proceedings consistent with this
opinion.

Attorney for plaintiff:

Joseph M. Jabar, Esq., (orally)
Daviau, Jabar & Batten
One Center Street
Waterville, ME 04901-5495

Attorneys for defendants:

John B. Lucy, Esq., (orally)
Frederick J. Badger, Jr., Esq.
Richardson, Whitman, Large & Badger
P O Box 2429
Bangor, ME 04402-2429

FOOTNOTES******************************** {1} The other defendants are Sidney Epstein, Fransway Realty Trust, Kenneth Kurson, and Newell Kurson. At the end of plaintiff's case, the court granted defendants' motion for judgment as a matter of law pursuant to M.R. Civ. P. 50 in favor of defendants Fransway Realty Trust and Kenneth and Newell Kurson. {2} Although limited evidence of accident history regarding the particular lobby at issue may have been relevant on the issue of habit or routine, defendant made no such offer of proof here, and the janitor conceded that he may have been mopping outside of his routine: "I can't say if I was mopping it, or if I had just finished mopping it"