Toney v. Zarynoff's, Inc.
Toney v. Zarynoff's, Inc.
Opinion of the Court
On the evening of September 29, 1991, the plaintiff Albert Monroe Toney, m, and Robert Domiano, Jr., were dining with friends at the Ding Ho restaurant owned by the defendant Zarynoff’s Inc., T-A Ding Ho Restaurant I & II (Ding Ho) and located in a building owned by the defendant Babcock-Colton Associates (Babcock) at 38 Southbridge Street in Worcester. When Toney, an off-duty Worcester police officer, went to pay the bill, he observed the operator of the restaurant, John Ng, engaged in a heated argument with three men over Ng’s refusal to serve them take-out food. When Toney saw one of the men, later identified as Curtis Johnson, spit in Ng’s face, he decided to intervene. Toney identified himself as a police officer, displayed his badge, and requested that the three men leave the restaurant. The three men then turned their attention away from Ng to Toney. Johnson, apparently doubting that Toney was a police officer, began yelling profanities at him. Toney responded by asking Johnson’s companions to remove Johnson from the restaurant. Within a minute or two, Johnson’s two companions persuaded him to leave.
Moments later Toney, Domiano, and their friends also left the Ding Ho. As they did so, they were confronted by Johnson and his two companions, who were standing on the sidewalk outside the restaurant. Toney told his friends to ignore them and walk away. As Toney and his friends walked away, Johnson, without warning, pulled out a gun and shot Toney, then Domiano and a third member of their group. Toney was seriously injured and Domiano died soon after at the hospital. The shooting took place on the sidewalk approximately fifty feet from the entrance to the Ding Ho. Johnson was subsequently apprehended and convicted of the murder of Domiano
Based on this incident, Toney and Domiano’s administrator
The plaintiffs filed a motion for a new trial alleging that the trial judge had committed reversible error as follows: (1) in refusing to question the jury venire about bias against homosexuals; (2) in failing to allow into evidence sixteen police reports dated prior to August, 1986, relating to criminal activity at and in the neighborhood of the Ding Ho while allowing Ng to testify that no customer of the Ding Ho had ever been injured from 1965 to the date of the shooting; (3) in excluding from evidence three newspaper articles from the Worcester Telegram and Gazette pertaining to criminal activity at and in the neighborhood of the Ding Ho; and (4) in refusing the plaintiffs’ requested jury instructions pertaining to the duty of care owed an off-duty police officer, the rescue doctrine, and the duty to warn visitors of dangers of which the defendants knew or should have known. The trial judge denied the motion. The plaintiffs appeal from the judgment and denial of the motion for a new trial on the grounds asserted in their motion for a new trial. We affirm the judgment and the denial of the motion.
We address each of the plaintiffs’ claims of error.
1. The voir dire. Before empanelment, the plaintiffs requested that the judge question the jury as a whole regarding any bias against homosexuals on the ground that during the trial it would become obvious to the jury that Toney and Domiano were homosexuals. Concluding that their homosexuality was a “totally extraneous issue” which he would “hate to inject” into the case, the judge denied the request but stated that he would give an instruction to the jury that they were to decide the case upon the law and facts without any regard to bias or prejudice. The plaintiffs argued that a curative instruction would come too late and would not alleviate their concern about a biased jury. The judge, nevertheless, declined to ask the question but, as promised, did instruct the jury that they were to decide the case on the evidence and law presented and were not to be swayed by such factors as sympathy, bias or anything of that nature
Under G. L. c. 234, § 28, first par., a judge is required to question the venire collectively whether any juror “is related to either party or has any interest in the case, or has expressed or formed an opinion, or is sensible of any bias or prejudice, therein . . . .” Similarly, under Mass.R.Civ.P. 47(a), 365 Mass. 812 (1974), a judge is required to ask those questions as well as whether any juror knows of any reason why he or she cannot be indifferent in the case. The judge may also in his discretion propound additional questions to the venire, either upon a party’s motion or sua sponte. Mass.R.Civ.P. 47(a). A judge’s refusal to ask questions beyond those mandated by § 28 and rule 47(a) will be upheld unless the judge is shown to have committed an abuse of discretion.
Here, the plaintiffs alleged that, based on the evidence, a reasonably perceptive juror would know that there was a homosexual relationship between Toney and Domiano, and that some people have strong feelings in that regard.
homosexuality of one of the parties may be a central issue in the case. See Commonwealth v. Plunkett, 422 Mass. 634, 640-641 (1996) (while recognizing that juror attitudes toward homosexuality require careful attention, individual voir dire was
not required in a murder case where the defendant alleged the victim was a homosexual and made unwanted sexual advances toward him). But see Commonwealth v. Shelley, 381 Mass. 340, 353 n.11 (1980) (homosexuality might constitute a class under G. L. c. 234, § 28, second par.). Thus, the plaintiffs’ allegations
that Toney and Domiano were a homosexual couple and that some people have strong feelings about homosexuals were insufficient to demonstrate that the venire from which the jury would
be selected would be so infected with those feelings that they could not render an impartial verdict on the evidence presented. Cf. Commonwealth v. Estremera, 383 Mass. at 387-389 (whether jurors harbored prejudice against psychiatrists); Commonwealth v. Sheline, 391 Mass. at 291 (whether a juror would believe a police officer over other witnesses).
Nevertheless, where there was the possibility of prejudice against homosexuals among prospective jurors, we think that the better practice would have been to ask the question. Commonwealth v. Ramos, 31 Mass. App. Ct. 362, 364 (1991) (“[Ajppellate decisions have consistently encouraged trial judges to respond generously to motions that they question jurors individually about possible prejudice”). That said, however, we cannot say that in the circumstances of this case the judge abused his discretion in refusing to inquire about pos
Nor are we persuaded that the outcome would have been any different if the question had been asked. The plaintiffs bore the burden of proving that the risk of harm against which the landowner or person in control of the premises could have taken reasonable preventive steps was reasonably foreseeable. Fund v. Hotel Lenox of Boston, Inc., 418 Mass. 191, 192-193 (1994). In the circumstances of this case, the plaintiffs’ proof on this issue was open to considerable doubt. While the plaintiffs introduced evidence of criminal activity afoot in the neighborhood and at the Ding Ho and presented expert testimony that no reasonable security measures were in place at the time of the incident, they had to overcome the fact that once Toney interceded in the argument among Ng, Johnson, and his two companions over Ng’s refusal to serve them take-out food, there was no evidence that Johnson and his two companions threatened Toney with harm, committed any violent acts toward anyone, displayed any weapons, or gave any indication that their dispute had not ended with their departure from the restaurant. In light thereof, it is unlikely that the defendants could have reasonably anticipated that moments later, without warning, Johnson would pull out a gun and shoot Toney, Domi-ano, and a third companion as they walked away from the
We comment further on the necessity for a voir dire about jurors’ attitudes toward homosexuals when one of the parties in a civil case is a homosexual. On the criminal side of the court, appellate decisions have consistently encouraged trial judges to respond generously to motions that they question jurors individually about possible prejudice. See Commonwealth v. De La Cruz, 405 Mass. 269, 274 (1989); Commonwealth v. Proulx, 34 Mass. App. Ct. 494, 497 (1993). We think that the same practice should prevail on the civil side of the court.
Both by statute and by court rule, a judge is charged with determining whether any juror in a case is aware of any bias or prejudice that the juror may have. There is no question that some people do harbor prejudice against homosexuals. See Commonwealth v. Plunkett, 422 Mass. at 641 & n.4. When faced with a question designed to detect such bias, a judge
2. Police reports. The plaintiffs argue that the judge erred in refusing to allow the plaintiffs to introduce sixteen police reports relating to incidents at the Ding Ho covering the period from November, 1980, through August, 1986, to impeach Ng’s testimony that no customer of the Ding Ho had been injured since 1965 and to demonstrate that an attack on the plaintiffs was within the foreseeable risk of harm created by the Ding Ho’s failure to provide adequate security for its patrons.
Of the sixteen reports, thirteen involved incidents in which the police were called because customers of the Ding Ho attempted to leave the restaurant without paying their bill. Of these thirtéen reports, one referred to customers being bumped by another customer attempting to flee without paying the bill; another referred to a customer who was charged with being a disorderly person after attempting to flee without paying the bill
Because those reports did not contradict Ng’s testimony that no customer had previously been injured at the Ding Ho, see Commonwealth v. Basch, 386 Mass. 620, 623 (1982), and were either too remote in time or bore little resemblance to the criminal activity in this case, see McLaughlin v. Vinios, 39 Mass. App. Ct. 5, 8-9 (1995), the judge did not err in refusing to admit this evidence. In any event, even if we were to assume that the judge erred in excluding one or more of those police reports, the error would have been harmless because of the admission into evidence of numerous police reports of criminal activity at the Ding Ho or within 1,000 feet of the Ding Ho, from September, 1986, to the date of the shooting, including two reports where Ng or one of his employees fought with patrons who attempted to leave without paying their bills and a report where the Ding Ho’s bartender was stabbed when he ordered seven youths to leave the restaurant’s entrance.
3. Newspaper articles. The plaintiffs argue that three newspaper articles from the Worcester Telegram and Gazette should have been admitted as evidence because they were relevant on the issue whether the defendants knew or should have known of criminal activity at or within the neighborhood of the Ding Ho. See Coyne v. Taber Partners I, 53 F.3d 454, 461 & n.6 (1st Cir. 1995) (newspaper articles regarding a strike by taxi drivers and labor unrest were admissible when offered for the purpose of showing that a hotel knew or should have known of the possibility of violence and should have taken precautions to protect guests transported to the hotel from the airport). One of the articles described an incident in which the Ding Ho’s bartender was stabbed by a teen outside the Ding Ho; another involved a robbery at the Ding Ho in which the robber fired his gun after leaving the Ding Ho; and the third involved a kidnaping which occurred more than 1,000 feet from the Ding Ho.
4. Jury instructions. The plaintiffs claim that the judge committed reversible error in failing to instruct the jury on the duty owed to off-duty police officers
We comment further on the plaintiffs’ request for instruction on the rescue doctrine. The judge declined to give the instruction because it was inapplicable. As noted, the rescue doctrine has been characterized as follows: “negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well.” Barnes v. Geiger, 15 Mass. App. Ct. 365, 369 (1983). Hopkins v. Medeiros, 48 Mass. App. Ct. 600, 603 (2000). As requested, it would ordinarily contemplate three entities: a tortfeasor, victim, and rescuer. Here the requested instruction was inapplicable because the alleged tortfeasor and victim, Ng (who was the proprietor of Ding Ho), were one and the same, and the injury which befell Toney
Judgment affirmed.
Order denying motion for new trial affirmed.
The murder conviction was subsequently reviewed on appeal and a new trial was granted. Commonwealth v. Johnson, 435 Mass. 113 (2001).
A judge may also be required to conduct an individual voir dire of each prospective juror if it appears that a substantial risk exists that an extraneous issue might affect the outcome of the case. G. L. c. 234, § 28, second par. Commonwealth v. Kater, 432 Mass. 404, 413 (2000). Here, because the plaintiffs did not request an individual voir dire, our analysis is limited to whether the judge abused his discretion in not conducting a collective inquiry of the jury.
The following evidence was introduced at trial. Toney testified that he was divorced and had a five year old daughter, and that Domiano and he were
The judge, however, should be ever mindful of the requirements of G. L. c. 234, § 28, second par., which may necessitate an individual voir dire.
The requested instruction reads as follows: “The fact that Albert Monroe Toney, III[,] was an off-duty police officer does not lessen the defendants’ duty of care with regard to protecting him or other patrons against reasonably foreseeable risks. The defendants owed the same duty to Albert Monroe Toney[,] □![,] as they owed to any other patron.”
The requested instruction reads as follows: “Negligence which creates peril invites rescue and, should the rescuer be hurt in the process, the tortfeasor will be held liable not only to the primary victim, but to the rescuer as well. Barnes v. Geiger, 15 Mass. App. Ct. [365, 369] (1983).”
The requested instruction reads as follows: “ ‘A [landowner] who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons . . . , and by the failure of the [landowner] to exercise reasonable care to:
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.’ Restatement (Second) of Torts [§] 344 [1965].”
Even if we were to assume that the plaintiffs had properly preserved their claims that the judge erred in failing to give the requested instruction on the duty of care owed Toney and in failing to give a supplemental instruction on the duty of a restaurant owner to warn of dangers of which visitors were not aware, we would consider those claims waived by the failure of the plaintiffs to provide us with proper appellate argument. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). The plaintiffs’ argument relating to the duty of care owed Toney as an off-duty police officer consists solely of a factual description of the claim and a conclusory statement of error without legal citations. The plaintiffs’ claim relating to the duty to warn consists of a one-sentence argument and a conclusion of error without legal citations. This is not acceptable appellate argument. Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1, 6 n.4 (1996). Larson v. Larson, 30 Mass. App. Ct. 418, 428 (1991). Lyman v. Commissioner of Correction, 46 Mass. App. Ct. 202, 208 (1999).
Ding Ho’s request for costs of the appeal is denied.
Reference
- Full Case Name
- Albert Monroe Toney, Third, & others v. Zarynoff's, Inc., T-A Ding Ho Restaurant I & II & another
- Cited By
- 7 cases
- Status
- Published