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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

Mueller v. Buscemi (5/21/2010) sp-6477, 230 P3d 1153

     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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