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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mueller v. Buscemi (5/21/2010) sp-6477
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| COLEEN L. MUELLER, | ) |
| ) Supreme Court No. S- 12943 | |
| Appellant, | ) |
| ) Superior Court No. 3AN-05- 04457 CI | |
| v. | ) |
| ) O P I N I O N | |
| LOTTIE BUSCEMI and GERALDINE | ) |
| ESTABROOK, individually and as | ) No. 6477 May 21, 2010 |
| Trustees of the MICHAEL NAFLA | ) |
| IRREVOCABLE TRUST, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Kenneth P. Jacobus, Kenneth P.
Jacobus, P.C., Anchorage, for Appellant.
Laura L. Farley, Farley & Graves, P.C.,
Anchorage, for Appellees.
Before: Fabe, Winfree, and Christen,
Justices. [Carpeneti, Chief Justice, not
participating.]
CHRISTEN, Justice.
I. INTRODUCTION
Coleen Mueller appeals a jury verdict absolving Lottie
Buscemi and Geraldine Estabrook (collectively, Buscemi), owners
of a commercial building and adjacent parking lot, of tort
liability. Mueller slipped and was injured while attempting to
enter her car in the rear parking lot of Buscemis property.
Mueller claims the trial court erred by: (1) excluding evidence
that the insurers investigation concluded that the buildings
exterior lights were not working when Mueller fell; (2) excluding
evidence of other substantially similar accidents; and (3)
excluding evidence that Buscemi had a habit of ignoring building
maintenance. Because the trial courts exclusion of this evidence
was not an abuse of discretion, we affirm.
II. FACTS AND PROCEEDINGS
Mueller slipped and was injured while attempting to
enter her car in the rear parking lot of Buscemis commercial
building. She sued Buscemi for personal injuries suffered as a
result of the accident, alleging that Buscemis failure to treat
icy conditions and to provide adequate exterior lighting was the
proximate cause of her injuries. Mueller claims to have suffered
personal injuries, incurred present and future medical expenses,
and lost income because of Buscemis allegedly negligent
maintenance of the parking lot.
Judgment was entered in Buscemis favor after a jury
trial, and Mueller appeals.
III. STANDARD OF REVIEW
We review the trial courts evidentiary rulings for
abuse of discretion.1 An abuse of discretion will be found when
we are left with a definite and firm conviction that the trial
court erred in its ruling and the error affected the substantial
rights of a party.2
IV. DISCUSSION
A. Mueller Did Not Preserve Her Right To Challenge the
Trial Courts Order Excluding Evidence of Liability
Insurance Because She Failed To Comply with Alaska Rule
of Evidence 103.
Mueller argues that the trial court erred by excluding
testimony from Gayle White, a claim representative for Buscemis
insurance company, State Farm. White authored correspondence
explaining State Farms investigation and its pre-trial agreement
to pay for Muellers medical bills. Mueller wanted to call White
to testify at trial that State Farms investigation determined the
lights in Buscemis parking lot were not working when Mueller fell
and that State Farm accepted liability for payment of medical
bills on that basis.
Before trial, Buscemi filed a motion in limine seeking
an order preventing Mueller from introducing any evidence that
the [d]efendants are or are not insured against liability
pursuant to Alaska R[ule] [of] Evid[ence] 411. Instead of
referencing the correspondence in which White explained the
results of State Farms investigation, Muellers opposition to the
motion in limine argued that Alaska Rule of Evidence 411 applies
to the trial and that the motion was premature and admission of
any reference to liability insurance should be addressed at
trial, if and when evidence of any particular reference to
liability insurance is sought to be admitted. The trial court
granted Buscemis motion and ordered that all evidence of
liability insurance is excluded and [p]laintiff may not mention
insurance or any discussions with Defendants insurer, or question
any witnesses about insurance, in front of the jury. Purportedly
relying on this order, Mueller did not disclose Whites
correspondence or her desire to call White as a witness until
after the trial. We conclude that Muellers failure to comply
with Alaska Rule of Evidence 103 constitutes a waiver of her
argument on this point.
Alaska Rule of Evidence 103 provides that:
(a) . . . Error may not be predicated upon a
ruling which admits or excludes evidence
unless a substantial right of the party is
affected; and . . . (2) . . . In case the
ruling is one excluding evidence, the
substance of the evidence was made known to
the court by offer or was apparent from the
context within which questions were asked.
Under this rule, a party ordinarily waives its right to challenge
the exclusion of evidence unless an offer of proof as to the
substance of the evidence is made at the time the evidence is
excluded.3 In this case, Mueller made no mention of Whites
testimony before the trial court excluded evidence of insurance
in a pre-trial order. A party may still preserve her claim of
error if she attempts to introduce the evidence in subsequent
motion practice, or at trial, and apprises the judge of the
substance of the excluded evidence.4 The function of an offer of
proof is to inform the court what counsel expects to show by the
excluded evidence so the court can determine whether or not it is
admissible.5 Muellers opposition to Buscemis motion in limine
did not mention White, Whites correspondence, or State Farms
investigation, and Mueller did not renew her effort to introduce
the evidence at trial. Under these circumstances, Mueller failed
to preserve any objection or claim on appeal relating to her
inability to call White or her inability to introduce Whites
correspondence.
B. The Trial Court Did Not Err in Granting Buscemis Motion
in Limine To Exclude Evidence of Other Accidents.
Buscemi filed a pretrial motion in limine seeking an
order precluding Mueller from mentioning, stating, referring to,
inquiring about, or otherwise bringing to the jurys attention
other slip and fall accidents that occurred on Buscemis property.
Mueller proffered no evidence in opposition to Buscemis pretrial
motion in limine to exclude evidence of other accidents; she
primarily argued that the motion was premature and that the issue
should be reconsidered at trial when the facts concerning other
accidents had been fully developed. The trial court granted
Buscemis motion with leave for Mueller to renew her request to
introduce evidence of other accidents at trial, outside the jurys
presence.
At trial, Mueller argued that evidence of three other
substantially similar accidents should be admitted. The trial
court disagreed and the evidence was excluded. On appeal,
Mueller argues the trial court erred by excluding this evidence;
Buscemi counters that the proffered evidence of other accidents
did not satisfy the substantial similarity test.
As a general rule, evidence of prior or subsequent
accidents is admissible in personal injury actions to demonstrate
that a defective or dangerous condition existed, so long as the
incident took place under substantially similar circumstances.6
The first accident Mueller wanted to reference involved J.K., a
pregnant woman who allegedly fell on a walkway in front of
Buscemis building approximately two weeks before Mueller fell.
J.K. was not listed on Muellers trial witness list, she was not
available to testify, she had not been deposed, and the court had
almost no information about the circumstances or conditions of
her fall. In fact, Mueller was unsure whether J.K. was still
living at the time of trial. It is not clear how Mueller
intended to introduce evidence of J.K.s accident; we presume for
purposes of this appeal that Mueller had a witness who had
personal knowledge of it. The second accident was to be
described by Ulrike Ward, an employee of a business in Buscemis
building. Mueller claimed that Ward would testify that on the
same day Mueller fell, an unidentified woman entered the business
where Ward worked and complained that she had slipped and fallen
on her way into the building. According to Mueller, Ward did not
see the woman fall but believed she fell in front of the
building, not in the back parking lot where Mueller fell.
Finally, Mueller sought to introduce evidence that Tom Drake fell
and hurt his knee in front of the building on the same day
Mueller fell. Mueller did not request permission to call Drake
as a witness and did not include him on her trial witness list.
It was Muellers burden to prove that her fall and these
other falls occurred under substantially similar circumstances.
It is well-settled that it is an appellants responsibility to
present this court with a record sufficient to allow meaningful
review of his or her claims.7 The only similarity Mueller
identified between the proffered accidents and her own was that
two of them allegedly occurred on the same day as her accident.
Neither occurred in the same parking lot as her fall, and falls
at other locations around Buscemis building are not necessarily
probative of the conditions that existed in the buildings rear
parking lot. Given the scant evidence Mueller proffered, we are
not left with a definite and firm conviction . . . that the trial
court erred in its ruling when it declined to allow the admission
of this evidence.8
C. The Trial Court Properly Excluded Photographic Evidence
Depicting Other Examples of Building Maintenance at
Buscemis Property.
Mueller argues that the superior court erred by
excluding evidence of improper maintenance in and around Buscemis
building. She argues that this evidence, photographs to be
supported by witness testimony, was admissible under Alaska Rule
of Evidence 406 because it established that [i]gnoring
maintenance . . . was a routine practice of this landlord.
Buscemi responds that the photographic evidence Mueller presented
was insufficient to establish that Buscemi had a routine practice
of improperly maintaining the parking lot.
Alaska Rule of Evidence 406 provides:
Evidence of the habit of a person or of the
routine practice of an organization, whether
corroborated or not and regardless of the
presence of eyewitnesses, is relevant to
prove that the conduct of the person or
organization on a particular occasion was in
conformity with the habit or routine
practice.
A trial judge possess[es] the discretion usual in this field of
circumstantial evidence to exclude (evidence of habit) if the
habit is not sufficiently regular and uniform, or the
circumstances sufficiently similar, to outweigh the danger, if
any, of prejudice or confusion.9 In support of the contention
that Buscemi had a habit of ignoring maintenance, Mueller offered
eight photographs which appear to show a water heater, ceiling
tiles, a fire extinguisher, a sink, and a wall. The photographs
were unaccompanied by any indication of when they were taken.
This proffer was inadequate to establish a habit relating to
maintenance of the parking lot under Rule 406.10 It is only when
examples offered to establish such pattern of conduct or habit
are numerous enough to base an inference of systematic conduct
and to establish ones regular response to a repeated specific
situation . . . that they are admissible to establish pattern or
habit.11 Because Muellers proffer failed to establish a basis
for the inference that Buscemi had a habit of improperly
maintaining this commercial property, it was not an abuse of
discretion for the trial court to exclude the eight photographs.
V. CONCLUSION
The trial courts exclusion of these three classes of
evidence was not an abuse of discretion. We AFFIRM the trial
courts rulings in all respects.
_______________________________
1 Noffke v. Perez, 178 P.3d 1141, 1144 (Alaska 2008)
(citing Bierria v. Dickinson Mfg. Co., Ltd., 36 P.3d 654, 657
(Alaska 2001)).
2 Fleegel v. Estate of Boyles, 61 P.3d 1267, 1270 (Alaska
2002).
3 Agostinho v. Fairbanks Clinic Pship, 821 P.2d 714, 717
(Alaska 1991).
4 See Landers v. Mun. of Anchorage, 915 P.2d 614, 616
(Alaska 1996) (trial judge apprised of evidence of sentimental
value of private property destroyed by police); Collins v. Wayne
Corp., 621 F.2d 777, 781 (5th Cir. 1980) (noting plaintiff
preserved appeal point by making substance of deposition known to
trial court) superceded on other grounds by Mathis v. Exxon
Corp., 302 F.3d 448 (5th Cir. 2002); Himango v. Prime Time
Broad., Inc., 680 P.2d 432, 436 (Wash. App. 1984) (although party
made no formal offer of proof, issue was preserved where it was
fully argued in motion in limine and trial court was aware of
basis for proffered evidence).
5 Collins, 621 F.2d at 781.
6 Walden v. Dept of Transp., 27 P.3d 297, 303 (Alaska
2001).
7 Id. (citing Adrian v. Adrian, 838 P.2d 808, 811 n.5
(Alaska 1992)).
8 Id. at 301 (citing Bliss v. Bobich, 971 P.2d 141, 144
n.3 (Alaska 1998)).
9 Robles v. Shoreside Petroleum, Inc., 29 P.3d 838, 845
(Alaska 2001) (quoting Farnsworth v. Steiner, 601 P.2d 266, 271
(Alaska 1979)).
10 We acknowledge that these photographs may have had some
impeachment value in light of testimony that the buildings
maintenance was far in excess of industry standards, but there
was no effort to introduce this evidence for impeachment
purposes.
11 Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 511
(4th Cir. 1977) (internal citations and quotations omitted); see
also Simplex, Inc. v. Diversified Energy Sys., Inc., 847 F.2d
1290, 1293 (7th Cir. 1988) ([B]efore a court may admit evidence
of habit, the offering party must establish the degree of
specificity and frequency of uniform response that ensures more
than a mere tendency to act in a given manner, but rather,
conduct that is semi-automatic in nature.); Farnsworth v.
Steiner, 601 P.2d 266, 271 (Alaska 1979) (trial court did not
abuse discretion by excluding evidence of habit where testimony
would have established only that decedent had performed aerobatic
maneuvers on more than one occasion).
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