Mueller v. Buscemi

230 P.3d 1153, 2010 Alas. LEXIS 53, 2010 WL 2011505
CourtAlaska Supreme Court
DecidedMay 21, 2010
DocketS-12943
StatusPublished
Cited by4 cases

This text of 230 P.3d 1153 (Mueller v. Buscemi) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mueller v. Buscemi, 230 P.3d 1153, 2010 Alas. LEXIS 53, 2010 WL 2011505 (Ala. 2010).

Opinion

OPINION

CHRISTEN, Justice.

I. INTRODUCTION

Coleen Mueller appeals a jury verdict absolving Lottie Buscemi and Geraldine Esta-brook (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 Buseemi’s property. Mueller claims the trial court erred by: (1) excluding evidence that the insurer’s investigation concluded that the building’s 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 court’s 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 Buscemi’s commercial building. She sued Buscemi for personal injuries suffered as a result of the accident, alleging that Buscemi’s 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 Buscemi’s allegedly negligent maintenance of the parking lot.

Judgment was entered in Buscemi’s favor after a jury trial, and Mueller appeals.

III. STANDARD OF REVIEW

We review the trial court’s eviden-tiary 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

*1155 IY. DISCUSSION

A. Mueller Did Not Preserve Her Right To Challenge the Trial Court’s 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 Buscemi’s insurance company, State Farm. White authored correspondence explaining State Farm’s investigation and its pre-trial agreement to pay for Mueller’s medical bills. Mueller wanted to call White to testify at trial that State Farm’s investigation determined the lights in Buscemi’s 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 [defendants are or are not insured against liability pursuant to Alaska R[ule] [of] Evidence] 411.” Instead of referencing the correspondence in which White explained the results of State Farm’s investigation, Mueller’s 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 Buscemi’s 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 White’s correspondence or her desire to call White as a witness until after the trial. We conclude that Mueller’s 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:

(а) ... 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 ease 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 White’s 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 Mueller’s opposition to Buseemi’s motion in limine did not mention White, White’s correspondence, or State Farm’s 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 White’s correspondence.

B. The Trial Court Did Not Err in Granting Buscemi’s Motion in Li-mine To Exclude Evidence of Other Accidents.

Buscemi filed a pretrial motion in li-mine seeking an order precluding Mueller *1156 from “mentioning, stating, referring to, inquiring about, or otherwise bringing to the jury’s attention” other slip and fall accidents that occurred on Buscemi’s property. Mueller proffered no evidence in opposition to Buscemi’s 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 Buscemi’s motion with leave for Mueller to renew her request to introduce evidence of other accidents at trial, outside the jury’s 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 Buseemi’s building approximately two weeks before Mueller fell. J.K.

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Cite This Page — Counsel Stack

Bluebook (online)
230 P.3d 1153, 2010 Alas. LEXIS 53, 2010 WL 2011505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mueller-v-buscemi-alaska-2010.