McLaughlin v. Vinios , 39 Mass. App. Ct. 5 ( 1995 )

Greenberg, J.

In outline, the facts are these. The plaintiff, Marianne E. McLaughlin, accompanied by her husband, on the evening of April 21, 1989, arrived at the 57 Park Plaza Hotel garage (57 complex).⁴ The couple had plans to celebrate her thirty-fifth birthday by attending “Dream Girls,” a musical playing at the nearby Colonial Theatre. The plaintiff was about to enter a fifth-floor elevator waiting enclosure, intending to go down to the street level. That area was situated several feet from a right angle turn at the bottom of an exit ramp which came down from the top (sixth) floor of the garage. No bumper blocks or posts protected the area where the plaintiff stood. Nor were there stop signs or devices in place to warn of possible danger. Suddenly, a motor vehicle (later reported as stolen from South Boston) driven by an unidentified operator careened around the corner and sideswiped the plaintiff. The car became snagged on a stanchion, whereupon the operator backed the car over the prostrate plaintiff and drove off. The car was abandoned on the second floor. The driver was never found.

The plaintiff brought an action of negligence against the trustees as owners of the garage, the 57 complex, as operator of the garage under lease, and Security Police, Inc., a company under contract to provide security for the 57 complex. Her children joined in the action seeking to recover for loss of consortium and consequential damages. A Superior Court jury heard the case and in answer to special questions, found that the defendants had been negligent, but that their negligence had not been a proximate cause of the plaintiff’s personal injuries. After judgment entered on the verdicts, the plaintiffs filed a timely motion for a new trial, which was denied. Mass.R.Civ.P. 59, 365 Mass. 828 (1974). On appeal, the plaintiff claims that the judge wrongly excluded certain evidence.

1. Background. All of the contested evidentiary rulings concern rulings made during the direct examination of two Boston police officers and Norman D. Bates, who testified for the plaintiff as an expert witness on security issues. Two theories of recovery were propounded by the plaintiff: first, that there was a substantial amount of criminal activity in and around the garage, such that more security guards at the site were required than the management had provided, and second, that the accident was the result of inadequacies in the layout and warning signage of the garage.

The evidence that the plaintiff unsuccessfully sought to introduce included the testimony of a Boston police detective who had made arrests in the area inside the garage and in the general vicinity of the garage; records of the Boston police department regarding criminal activity in the immediate neighborhood for a period of time preceding the accident; and that a “detex” clock system, installed for the purpose of ensuring that security guards were on timely patrol, was not used on the night in question. Upon this “foundation” testimony, Bates was prepared to testify about the enhanced risk of harm to patrons from persons who might engage in criminal activity in the garage. Bates also was prepared to give his opinion that the presence of more security guards at the garage would probably have deterred speeding motor vehicles.

2. Exclusion of certain evidence regarding prior criminal activity. Over the plaintiff’s objection, the judge excluded evidence of past incidents of prostitution and drug trafficking in the garage and surroundings as irrelevant. Reports of arrests in the general vicinity of the garage were excluded as well. After a lengthy sidebar colloquy, the judge expressed himself as unpersuaded that the driver of the car had committed any crime in the garage. It was equally plausible, as the plaintiff’s expert witness, a traffic engineer who specialized in pedestrian movement and safety, stated on cross-examination, “It appears that [the driver was confused about the right turn] because he overshot the turn and spun out.” Relevant evidence must render the desired inference more probable than it would be without the evidence. Poirier v. Plymouth, 374 Mass. 206, 210 (1978). “[Inferences must be based on probabilities, not possibilities, and may not be the result of speculation.” International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 848 (1983) (citation omitted). In ruling on the point, the judge had substantial doubt that the driver of the offending vehicle was engaged in any criminal activity on the sixth floor. '

The decision whether evidence is relevant remains within the sound discretion of the trial judge. Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 477 (1991), and cases cited. A trial judge will not be reversed on review except for palpable error. Commonwealth v. Young, 382 Mass. 448, 463 (1981). Commonwealth v. Booker, 386 Mass. 466, 470 (1982).

In the case at bar, the question of relevance of the prior criminal activity is a close one. The principle is settled that evidence of a prior crime at or near the locus may be admitted to prove that the owner failed to take “reasonable steps to protect patrons from injury caused by the foreseeable acts of third persons even if those acts are intentional.” Parslow v. Pilgrim Parking, Inc., 5 Mass. App. Ct. 822 (1977), and cased cited. Restatement (Second) of Torts § 344 (1965). See also Fund v. Hotel Lenox of Boston, Inc., 418 Mass. 191, 192 (1994); Flood v. Southland Corp., 33 Mass. App. Ct. 287, 293 (1992), S.C., 416 Mass. 62, 72 (1993) (evidence of police reports about disturbances and fights near store where the plaintiff was attacked was admissible). We think, however, that there was no error in the judge’s exclusion of evidence of other crimes committed in the vicinity of the garage in this case. Without any offer of proof about the tendency of the proffered evidence to show that the plaintiff was a victim of a crime committed inside the garage, the judge could limit the introduction of otherwise relevant information. See Curtiss-Wright Corp. v. Edel-Brown Tool & Die Co., 381 Mass. 1, 9 (1980). If the links in the chain of causation are overly attenuated the evidence may be excluded as speculative. See Commonwealth v. Chasson, 383 Mass. 183, 187 (1981); Maillet v. ATF-Davidson Co., 407 Mass. 185, 188-189 (1990). When the judge asked plaintiffs counsel at the sidebar, “What evidence do you have that criminal activity was going on on the sixth floor on the night of the accident?,” he responded that it was “inferential.” We think the judge was correct in deciding that the plaintiff had not made a connection between ambient crime and foreseeability of traffic-related injury.

The dissenting opinion correctly defines the question before us: whether the jury were entitled to hear evidence of a high rate of crime in and around the garage to assist the jury in deciding if the risk of a speeding automobile striking a garage patron was foreseeable. The chain of logic has to be as follows: there was crime, namely car theft, drug dealing, and prostitution in the vicinity and in the garage; criminals are likely to speed; therefore, it was foreseeable that a car would barrel down the garage off ramp path so fast and recklessly that it would strike a patron of the garage. Had there been a history of motor vehicle accidents traceable to speeding in this garage or in a like garage the chain of reasoning would be strong enough so that the proffered evidence, in turn, would stand the test of relevance. None, however, was adduced. In cases where the theory of negligent security has overcome the intervening cause defense, the crime which occurred has resembled the crimes that historically had happened, crimes against a person. See, e.g., Mullins v. Pine Manor College, 389 Mass. 47, 58-62 (1983) (rape); Sharpe v. Peter Pan Bus Lines, Inc., 401 Mass. 788, 793 (1988), S.C., 406 Mass. 62 (1989) (murder); Fund v. Hotel Lenox of Boston, Inc., supra at 192-195 (murder); Magaw v. Massachusetts Bay Transp. Authy., 21 Mass. App. Ct. 129, 132-135 (1985) (mugging). Application of the reasoning of those cases would put liability to the jury had the plaintiff been robbed, mugged, or sexually assaulted. The evidence of ambient crime did not, however, tend to prove the foreseeability of a traffic-related injury. Trial judges, as previously noted, have discretion to decide close questions of whether proffered evidence is relevant. To some degree this involves the judge in deciding the question of foreseeability. As the classic case of Palsgraf v. Long Island R.R., 248 N.Y. 339, 341-342 (1928), illustrates, however, the outer limits of foreseeability have been long defined by judges. See Barnes v. Geiger, 15 Mass. App. Ct. 365, 367 and n.4 (1983).

3. Exclusion of the testimony of Norman D. Bates. As part of her burden of establishing a greater likelihood that the plaintiff’s injuries came from an act of negligence for which the defendants were responsible, see Forlando v. Hughes, 393 Mass. 502, 507 (1984), the plaintiff sought to introduce the expert testimony of Norman D. Bates, a security consultant. His proposed testimony with respect to traffic safety was excluded upon the judge’s preliminary determination that Bates possessed no expertise on that subject. The plaintiff has not challenged, or appealed, the judge’s ruling on that particular point.

This leaves the question whether the remainder of Bates’ proposed testimony concerning criminal activity around the garage was admissible. Our resolution involves essentially the same inquiry discussed in part 2 of this opinion. The judge could exclude Bates’ evidence of ambient crime for the same reasons as he had before, i.e., too attenuated relevance. See as a further example Toubiana v. Priestly, 402 Mass. 84 (1988), where an expert opinion on causation was held to be “speculative.” Id. at 90.⁵

Similarly, we conclude that Bates’ testimony on the point did not render the desired inference (e.g., that poor security conditions substantially brought about the plaintiff’s injuries) more probable than it would be without the evidence.

Judgment affirmed.

4 That garage was owned by the trustees of the John Philopoulos Associates Trust and operated by 57 Park Plaza Hotel, Inc., all of whom are defendants.

5 As the defendants note in their brief, the judge did allow the plaintiff to introduce evidence which, if accepted by the jury, would have supported plaintiffs’ claims of negligent security as it related to the accident. Included in the evidence before the jury was testimony that the garage was located in the “Combat Zone”; that, in the past, screeching tires had been heard coming from the garage; that there were no security cameras or telephones in the garage; that security guards were expected to enforce the speed restrictions in the garage; and perhaps most compelling, that the person who was director of security at the defendants’ premises after the incident believed that any less than three security guards on duty at the time of the accident was inadequate, and that at the time of the plaintiff’s accident only two security guards were on duty.