NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Mary Schrall, appeals from the judgment on a jury verdict for the defendant in her negligence case, which arose from her May 2, 2009, slip and fall on water that was purportedly on the floor of the "HomeGoods" department store located in Norwell. On August 3, 2009, the plaintiff filed suit against the defendant, TJX Companies, Inc. (TJX), as the corporate parent of the owner of HomeGoods. TJX denied liability, damages, and causation. The sole issue raised on appeal concerns the denial of Schrall's motion in limine to preclude the defendant from introducing evidence of prior unrelated legal actions instituted by the plaintiff. However, Schrall has failed to provide us with the transcript of the trial proceedings, and it is therefore impossible for us to review the issue. In any event, it does not appear that the judge abused her discretion in denying the motion in limine and permitting introduction of the evidence.
To briefly summarize the facts pertinent to the appeal, the plaintiff alleges that she slipped on water on the floor outside of a restroom in the defendant's subsidiary's store. During her deposition, Schrall initially denied involvement in any prior lawsuit, but when confronted with evidence to the contrary, she admitted to having filed at least two prior suits: one involving medical malpractice and the other regarding a construction dispute. At trial, the plaintiff sought to exclude evidence of these lawsuits as irrelevant and inflammatory, while the defendant argued that the evidence was admissible because it related to her credibility. The plaintiff's motion in limine was denied after a hearing. The jury later returned a verdict for the defendant, determining that the defendant was not negligent.
Though we presume that the challenged evidence came before the jury in some form, we have not been provided with a transcript of the trial proceedings. Therefore, to draw any further conclusions regarding the form the evidence took or the context in which it was admitted, in addition to any limiting instructions potentially issued by the trial judge, would require impermissible speculation and guesswork. Accordingly, we deem the issue to be waived due to the appellant's failure to provide the court with an adequate record appendix. See Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 n.2 (1998). The fact that Schrall is a pro se appellant does not detract from that conclusion. See Davis v. Tabachnick, 425 Mass. 1010 (1997) (pro se appellants who provided court with inadequate appendix held to same standard as litigants represented by counsel).
Finally, we must emphasize that a trial judge's decision to admit or exclude evidence on the basis of relevancy is accorded broad discretion. See Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 109 (1997) ("Whether evidence is relevant is a question addressed to the substantial discretion of the trial judge, whose decision we will not overturn except for palpable error"). Similarly discretionary is the determination concerning the probative value versus prejudicial effect of the evidence. Ibid. See Tosti v. Ayik, 394 Mass. 482, 489-490 (1985) (question of admissibility is within "sound discretion" of trial judge) (citation omitted).
Conclusion. For the foregoing reasons, no error has been shown and therefore we affirm.
The panelists are listed in order of seniority.
Clerk Entered: March 25, 2015.