ALAN R. GALLOTTA & Another v. JEFFREY G. BURNS & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-236

ALAN R. GALLOTTA & another1

vs.

JEFFREY G. BURNS & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On February 19, 2020, the defendant, Jeffrey Burns, was

driving on Washington Street in Braintree when he crossed the

center yellow lines and collided with a vehicle occupied by the

plaintiffs, Alan and Dianne Gallotta.3 A civil complaint was

filed by the plaintiffs claiming that Jeffrey negligently

operated the motor vehicle and caused their injuries and that

Jeffrey's wife, Marcia,4 as owner of the vehicle, was liable for

Jeffrey's negligence and for negligent entrustment. A jury

found in favor of the plaintiffs with respect to the claim

1 Dianne M. Gallotta.
2 Marcia A. Burns.
3 Dianne Gallotta and Alan Gallotta will be referred to

individually by their first names and collectively as the
"plaintiffs."
4 Jeffrey Burns and Marcia Burns will be referred to individually

by their first names and collectively as the "defendants."
against Jeffrey and awarded damages. The jury found in favor of

Marcia with respect to the claims against her. Jeffrey and the

plaintiffs appealed.5 We address each category of evidence that

Jeffrey argues should not have been admitted before addressing

the category of evidence the plaintiffs argue should have been

admitted.

Background. We summarize the relevant trial evidence and

procedural history as follows. The defendants were married and

lived together for the duration of their marriage. Marcia was

the registered owner of a Ford Explorer, which she allowed

Jeffrey to drive. Although she was aware of Jeffrey's driving

history and knew that he had been involved in driving accidents

in the past, she testified that she had no concerns about his

ability to drive or concerns that he would drive under the

influence of alcohol.

On the night of the collision, Jeffrey was driving Marcia's

Ford Explorer on Washington Street in Braintree. He crossed the

double solid lines on the road and crashed into the plaintiffs'

car. The head on collision injured the plaintiffs and caused

significant damage to both vehicles.

After arriving on the scene, Braintree Police Officer John

Cole spoke with Jeffrey. Jeffrey told Officer Cole that he was

5 Both the defendants make arguments in opposition to the
plaintiffs' cross appeal.

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arguing with his wife on the phone before the collision and was

not paying attention to the road. Officer Cole observed that

Jeffrey was supporting himself with a trash can located on the

sidewalk, his eyes were bloodshot, his breath had a strong odor

of alcohol, and his speech was "thick-tongued" and slurred.

After Officer Cole asked if Jeffrey had consumed any alcohol,

Jeffrey admitted to consuming two to three beers prior to

leaving his house.6

The plaintiffs commenced an action raising negligence

claims against Jeffrey as the driver and Marcia as the owner and

claims of negligent entrustment against Marcia. During the

final pretrial conference, the judge heard arguments regarding

the defendants' motion in limine to preclude any evidence of

Jeffrey's alcohol consumption prior to the accident. The judge

denied the defendants' motion, ruling that the evidence of

alcohol consumption was relevant and admissible. The judge also

heard arguments regarding the defendants' motion in limine to

preclude evidence of Jeffrey's registry of motor vehicles (RMV)

driving history. The judge allowed this motion in part,

allowing evidence of Jeffrey's RMV driving record from October

6 Criminal charges were brought against Jeffrey, which are not
the subject of this appeal. He pleaded guilty to negligent
operation of a motor vehicle.

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29, 2002, to February 10, 2013, and precluding evidence of

Jeffrey's RMV driving record prior to October 29, 2002.

A jury trial began on September 7, 2022. On the second day

of trial, the defendants objected when the plaintiffs sought to

offer hospital records of Dianne's medical expenses. After

hearing arguments, the judge allowed the evidence. The

defendants also objected before the plaintiffs sought to

introduce testimony regarding their respective injuries and

accompanying life expectancy tables. The judge invited the

defendants to object and renew their argument when the

plaintiffs were on the stand, but the defendants never did

during Dianne's testimony, nor during Alan's testimony about his

own injuries, and the testimony was accordingly admitted into

evidence.

The jury ultimately returned a verdict in favor of the

plaintiffs against Jeffrey. They found that Jeffrey was both

negligent and the cause of the plaintiffs' injuries and awarded

damages. The jury found that Marcia, as owner of the vehicle,

was not negligent in allowing Jeffrey to drive her car, because

she did not have the authority or means to control Jeffrey's use

of the car at the time of the accident. On the issue of

negligent entrustment, the jury returned a verdict in favor of

Marcia, finding that Jeffrey was not an incompetent or unfit

driver. This timely appeal and cross appeal followed.

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Discussion. 1. Jeffrey's appeal. a. Alcohol

consumption. Jeffrey argues that the judge abused his

discretion in allowing in evidence of his alcohol consumption

because the probative value was outweighed by the potential that

it might prejudice or inflame the jury. "Relevant evidence is

admissible as long as the probative value of the evidence is not

substantially outweighed by the danger of unfair prejudice"

(citation omitted). Commonwealth v. Reyes, 483 Mass. 65, 74

(2019). "In weighing the probative value of evidence against

any prejudicial effect it might have on a jury, we afford trial

judges great latitude and discretion and will uphold a judge's

decision unless it constitutes an abuse of discretion"

(quotation and citation omitted). Commonwealth v. Fan, 490

Mass. 433, 443 (2022). Here, the judge weighed the probative

value and prejudice of the proffered evidence and allowed the

evidence to be admitted because it was "at the heart of the

negligence claim." We see no abuse of discretion in this

ruling.

In a negligence action, "the plaintiffs bear the burden of

proving that the defendant committed a breach of the duty to use

reasonable care, that the plaintiffs suffered actual loss, and

that the defendant's negligence caused their loss." Glidden v.

Maglio, 430 Mass. 694, 696 (2000). Jeffrey argues that the

evidence of his alcohol consumption was overly prejudicial and

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not needed because it was undisputed that he crossed the

centerline and struck the plaintiffs' vehicle. Indeed, in his

opening statement to the jury, counsel for the defendants

conceded this fact. However, prior to trial, the defendants had

not conceded that Jeffrey had breached his duty to use

reasonable care as a driver and they did not stipulate to

negligence at trial. Accordingly, despite the fact that trial

counsel told the jury that Jeffrey caused the collision, the

plaintiffs still bore the burden of proving the elements of

their case, including negligence by Jeffrey. Evidence that

Jeffrey had been drinking alcohol prior to the accident was

certainly relevant and exceedingly probative.

Jeffrey similarly argues that his guilty plea of negligent

operation of a motor vehicle in the related criminal matter

could have been used to prove his negligence instead of the

evidence of alcohol consumption and that the evidence of alcohol

consumption was overly inflammatory and prejudicial. Again, we

see no reason why the plaintiffs should be constrained in

proving their case by limiting relevant evidence. The

plaintiffs are not required to prove their case using only

evidence that is least harmful to the defendant. See Farnham v.

Lenox Motor Car Co., 229 Mass. 478, 481 (1918) ("Each party must

have on proper demand at least one fair opportunity to present

to the jury the evidence which raises a disputed issue of

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fact"). The evidence of Jeffrey's admission to alcohol

consumption prior to the accident and Officer Cole's

observations was strong evidence to establish negligent

operation. Given that it was "within the judge's discretion to

decide whether the probative value of the evidence outweighs the

possibility that it would mislead or prejudice the jury,"

Kobico, Inc. v. Pipe, 44 Mass. App. Ct. 103, 109 (1997), there

was no abuse of discretion in allowing evidence that Jeffrey had

been drinking prior to the accident. Accordingly, the trial

judge acted within his discretion in concluding that Jeffrey's

alcohol consumption was relevant and the probative value of this

evidence was not outweighed by the risk of unfair prejudice to

the defendants.

Jeffrey also argues that evidence of his alcohol

consumption should not have been admitted because there was no

evidence that alcohol consumption caused the crash. In essence,

he argues that evidence of alcohol consumption should have been

excluded because Jeffrey was found not guilty on the criminal

charge of operating a motor vehicle while under the influence of

alcohol. Jeffrey fails to cite to any case law to support this

contention, and, in any event, this argument lacks merit. While

the defendants were certainly free to argue to the jury that

alcohol did not contribute to the collision, it was not error

for the judge to admit relevant evidence about alcohol

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consumption. The criminal charge of operating a motor vehicle

while under the influence of alcohol and the charge of negligent

operation of a motor vehicle are two separate offenses.7 See

Commonwealth v. Zagwyn, 482 Mass. 1020, 1022 (2019). A finding

of not guilty on a criminal charge of operating under the

influence of alcohol does not automatically mean that a driver

was not negligent or that alcohol did not contribute to that

negligence in a civil context. It was up to the jury to decide,

based upon all of the admitted evidence, what role, if any,

alcohol played in the crash.8 The evidence at trial regarding

Jeffrey's admission to consuming alcohol prior to the crash

coupled with Officer Cole's observations that Jeffrey was

supporting himself with a trash can located on the sidewalk, his

eyes were bloodshot, his breath had a strong odor of alcohol,

7 "There are three elements to the crime of operating under the
influence under G. L. c. 90, § 24: (1) operation of a vehicle,
(2) on a public way, (3) under the influence of alcohol."
Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). "A
conviction of negligent operation requires a showing that the
defendant operated the vehicle 'negligently so that the lives or
safety of the public might be endangered.'" Commonwealth v.
Zagwyn, 482 Mass. 1020, 1021 (2019), quoting G. L. c. 90,
§ 24 (2) (a).
8 Jeffrey also argues that it was unfair that this evidence was

admitted when the defendants were unable to provide evidence
that the driver of the plaintiffs' car may have had alcohol as
well. Given that it was undisputed that Jeffrey crossed the
center line of the road, and that the defendants did not pursue
any sort of contributory negligence claim, we see no merit in
this argument.

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and his speech was "thick-tongued" and slurred, was properly

before the jury.

b. Medical bills. Jeffrey argues that the judge erred in

allowing in evidence of Dianne's medical expenses under the

business records exception pursuant to G. L. c. 233, § 79G.

Essentially, he argues that the medical bills were not properly

attested to when they were produced during discovery and that

therefore they should not have been admitted at trial. "We

review a trial judge's evidentiary decisions under an abuse of

discretion standard." N.E. Physical Therapy Plus, Inc. v.

Liberty Mut. Ins. Co., 466 Mass. 358, 363 (2013).

Whether the records were attested to at the time of

discovery or not does not matter to our analysis. The records

must be attested to at the time of admission at trial and it is

undisputed that they were. Jeffrey is correct that G. L.

c. 233, § 79G requires medical bills to be "subscribed and sworn

to under the pains and penalties of perjury." However, his

argument is inherently flawed, because the lack of attestation

is only a bar to the evidence's admissibility. See G. L.

c. 233, § 79G ("an itemized bill and reports . . . subscribed

and sworn to under the penalties of perjury . . . shall be

admissible as evidence of the fair and reasonable charge for

such services" [emphasis added]). Here, Jeffrey does not

contest that the records were attested to at the time they were

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admitted into evidence. The plaintiffs also met the additional

requirement under G. L. c. 233, § 79G "that written notice of

the intention to offer such bill or report as such evidence,

together with a copy thereof, has been given to the opposing

party or parties, . . . not less than ten days before the

introduction of same into evidence." Accordingly, we see no

abuse of discretion in the admission of Dianne's medical bills

into evidence. See Knight v. Maersk Container Serv. Co., 49

Mass. App. Ct. 254, 255-256 (2000).

c. Testimony of injuries and life expectancy tables. At

trial, both plaintiffs testified about their injuries. Jeffrey

argues that the plaintiffs were not medical experts and thus

could not testify regarding the cause or permanency of their

respective injuries. Similarly, he argues that related life

expectancy tables could not be admitted because without such

testimony, there was no evidence of the permanency of the

plaintiffs' injuries.

On the second day of trial, after some discussion regarding

the defendants' objections to evidence the plaintiffs planned to

offer, including the life expectancy tables and testimony from

the plaintiffs regarding the permanency of their injuries, the

judge stated, "we'll see what the evidence actually does show;

and I invite you, [counsel], to renew your argument." Despite

the judge's invitation, the defendants did not make any

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objections during Dianne's testimony. The failure to make an

objection prevents the defendant from now arguing on appeal that

the admission was error. See Shafnacker v. Raymond James &

Assocs., Inc., 425 Mass. 724, 735 (1997). While the defendants

did object at certain points during Alan's testimony when he

discussed Dianne's injuries, the judge took counsel's vague

objections to be based on a lack of personal knowledge rather

than being improper lay testimony related to causation or

permanency. Moreover, defense counsel made no objections during

Alan's testimony about his own injuries. We accordingly do not

address Jeffrey's appellate arguments concerning the admission

of either the life expectancy tables or testimony about the

plaintiffs' injuries.9

2. Plaintiffs' appeal. We turn now to the plaintiffs'

cross appeal, in which they argue that it was an abuse of

discretion for the judge not to have admitted the entirety of

Jeffrey's RMV driving record and claim that as a result, they

are entitled to a new trial on the negligent entrustment claim.

The plaintiffs argue that Jeffrey's entire driving record was

probative evidence of their negligent entrustment claim against

9 With respect specifically to the life expectancy tables, even
if this issue were preserved by objection, Jeffrey's claim on
appeal fails to rise to the level of appellate argument. See
Donovan v. Gardner, 50 Mass. App. Ct. 595, 602 (2000)
(conclusory statements in brief do not rise to level of
appellate argument).

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Marcia because they alleged that she knew of his past driving

history. We again review for an abuse of discretion. See Fan,

490 Mass. at 443.

To prevail on a claim of negligent entrustment, "the

plaintiff must establish that (1) the defendant entrusted a

vehicle to an incompetent or unfit person whose incompetence or

unfitness was the cause of the plaintiff's injuries; (2) the

persons who owned and controlled the vehicle gave specific or

general permission to the operator to drive the automobile; and

(3) the defendant had actual knowledge of the incompetence or

unfitness of the operator to drive the vehicle." Picard v.

Thomas, 60 Mass. App. Ct. 362, 369 (2004).

The plaintiffs argue that the entirety of Jeffrey's driving

record was required to be admitted because of its probative

nature regarding Marcia's knowledge of her husband's unfitness

to drive a car and that the judge had no discretion not to admit

older portions of it. Specifically, the plaintiffs sought to

introduce evidence that Jeffrey was cited for operating a motor

vehicle under the influence of alcohol in 2000, 1999, and 1992,

as well as more minor incidents prior to October 29, 2002.

As with all evidence, a judge has the obligation to

preclude it when the probative value is substantially outweighed

by the risk of unfair prejudice. See Fan, 490 Mass. at 443.

Here, we see no abuse of discretion in the trial judge's

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determination that the probative value of Jeffrey's RMV record

prior to October 29, 2002, which occurred over eighteen years

before the collision, was not only dated but also was

substantially outweighed by the risk of prejudice.

Conclusion. We discern no abuse of discretion in any of

the trial judge's evidentiary rulings. The judgment on the jury

verdict is affirmed.

So ordered.

By the Court (Ditkoff,
Englander & Walsh, JJ.10),

Assistant Clerk

Entered: January 25, 2024.

10 The panelists are listed in order of seniority.

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