MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On May 31, 2012, plaintiff Maria Folino fell while in a crosswalk in Mattapan as a Massachusetts Bay Transportation Authority (MBTA) bus drove past her. The plaintiff alleged that the bus driver was negligent and either struck or nearly struck her and caused her to fall and injure herself. After a four-day jury trial, a defense verdict was rendered. The plaintiff now appeals from the judgment and subsequent denial of a motion for a new trial, claiming that she was denied a fair trial because the judge improperly limited her voir dire of the jury; failed to enter in evidence or take proper judicial notice of G. L. c. 89 § 11 (the crosswalk statute); restricted the plaintiff from inquiring of the MBTAs designee about negligence; allowed the bus driver to testify about undisclosed matters; and impermissibly limited her closing. For the following reasons, we affirm.
Discussion. 1. Attorney conducted voir dire. Beginning in 2014, the Legislature provided attorneys and self-represented parties the right to question jurors during voir dire. G. L. c. 234A, § 67A. Admittedly, the process of empaneling a jury takes more time, but “when attorneys participate in voir dire, the consensus is that ․ it has improved the process.” Commonwealth v. Dabney, 478 Mass. 839, 848 (2018). However, the Legislature and the Supreme Judicial Court took care to note that attorneys do not have unfettered discretion, as it is well recognized that “the scope of such questioning remains in the discretion of the judge.” Id. In addition to the legislation, the Superior Court has implemented rules providing guidance for attorney-conducted voir dire. Rule 6 of the Rules of the Superior Court (2017). We review limitations on voir dire for an abuse of discretion. Commonwealth v. Espinal, 482 Mass. 190, 194 (2019) (“Following voir dire, a judges determination that a jury are impartial will not be disturbed absent a clear error of law or abuse of discretion”).
Prior to trial, the plaintiffs counsel filed a motion in limine regarding attorney-conducted voir dire. Attached to the motion was a list of over eighty sample questions that counsel could possibly ask, but counsel did not want to be limited to those specific questions. The trial judge denied the plaintiffs motion for panel voir dire but allowed counsel to follow up at sidebar on any questions with individual jurors. As the empanelment process began, the trial judge asked the entire venire several questions to ferret out jurors who were biased or otherwise unable to be fair and impartial. Then, at sidebar, the judge individually questioned each potential juror who answered “yes” to any of the judges questions and allowed some follow up questions by counsel for both parties.
The plaintiffs counsel questioned potential jurors numerous times during empanelment: asking a juror whether they had a general attitude toward civil lawsuits; inquiring if some jurors thought civil lawsuits were frivolous; asking for more details about an accident a juror witnessed between an MBTA bus and a bicyclist; asking the same potential juror about a close personal friend who had filed a lawsuit; asking another juror about an incident in which her mother was injured in a train accident; asking a juror about any formed opinions on personal injury matters; asking a juror about a school bus which hit the jurors wifes car; asking a juror about lasting injuries of the jurors parent resulting from a car accident; inquiring about a jurors prior jury experience, with follow-up questions; asking a juror about his understanding of the English language; asking two jurors about the preponderance of the evidence standard; asking a juror whether they would have any difficulty rendering a verdict which included a substantial award; asking a juror whether she had experienced any safety concerns while using the MBTA; asking a juror whether he had any stickers on his car and asking for a description; and asking another juror about the extent of their claustrophobia. There were several occasions when the trial judge did not allow the plaintiffs counsel to inquire when there was no follow-up of the judges questions.
When fourteen jurors were seated, the plaintiffs counsel was asked if he was satisfied with the jury, to which he responded “[o]ther than my objection, I would move to strike about 12 of them cause [sic] I wasnt able to ask questions. So, Id have to put on the record that given the fact that I was unable to voir dire them, I am not satisfied.”
The record does not support the plaintiffs claim that her right to a fair trial was impacted because her counsel was severely restricted in his line of questions. Certainly, as seen above, plaintiffs counsel was able and did ask many questions to jurors to ferret out bias or unfitness. He is not entitled to unlimited questions and unfettered discretion. Requiring trial judges to allow infinite attorney-lead voir dire questions would be untenable. A review of the record shows that the trial judge gave the plaintiff a fair opportunity to question the jurors and properly limited the plaintiff.
2. The crosswalk statute. The plaintiff asked the judge to take judicial notice of the crosswalk statute and then requested that it be entered in evidence. As to the issue of judicial notice, the plaintiff is correct that trial judges must take judicial notice of all General Laws of the Commonwealth. Mass. G. Evid. § 202(a)(1) (2022). Judicial notice is “[a] courts acceptance ․ of a well-known and indisputable fact.” Blacks Law Dictionary 1012 (11th ed. 2019). By giving a clear and correct final instruction to the jury summarizing the relevant portions of the crosswalk statute, the judge took judicial notice of the crosswalk statute.
The judge also did not err in denying the plaintiffs request to admit the crosswalk statute in evidence. During the cross-examination of the superintendent of training for bus operations for the MBTA, the plaintiff sought to have the crosswalk statute entered in evidence because the witness had stated he was “aware that hes to follow it.” It is well established that a violation of a statute is evidence of negligence on the part of a violator as to all consequences that the statute was intended to prevent. Campbell v. Cape & Islands Healthcare Servs., Inc., 81 Mass. App. Ct. 252, 254 (2012). Here, the judge instructed the jury as to the statute and that violation of the statute was evidence of negligence.
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The plaintiff cites no authority, and we find no authority, saying that instructing on this statute instead of admitting it as evidence was error. Accordingly, the judge did not abuse his discretion by declining to directly admit the statute as evidence.
3. Cross-examination regarding negligence. The plaintiff next argues that she was inappropriately restricted from cross-examining the superintendent of training for bus operations about negligence. The superintendent of training was not a percipient witness at the scene of the accident and was not qualified as an expert witness. He could not provide the jury with his opinion as to whether the actions of the MBTA driver amounted to negligence. Commonwealth v. Hernandez, 481 Mass. 189, 194 (2019) (lay opinion only admissible when rationally based on witnesss perception and “not based on scientific, technical, or other specialized knowledge”). The issue whether the driver was negligent was an issue properly before the jury. Puopolo v. Honda Motor Co., 41 Mass. App. Ct. 96, 98 (1996) (expert should not testify as to whether defendant was negligent or to matters which touch on reasonable care). Accordingly, it was not error for the judge to limit questions that touched on the ultimate issue in this case.
4. Testimony regarding undisclosed matters. The plaintiff argues that allowing testimony regarding the drivers knowledge of the incident amounted to “trial by ambush” because the defendant never disclosed what the driver knew about the incident. The driver testified generally that “[a]s far as I can recall, no accidents happened” on the date in question. To support her argument, the plaintiff also states that the defendant failed to identify the driver of the bus for over five years.
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To show a “trial by ambush,” the plaintiff is required to show that the delay in receiving the information caused prejudice. Hawkins v. Hawkins, 397 Mass. 401, 407 n.5 (1986). Here, discovery remained open for a period of time after the plaintiff became aware of the identity of the driver and the plaintiff had ample opportunity to depose the bus driver and determine whether the driver did or did not have knowledge of the incident. The idea that the plaintiff was “ambushed” by the drivers testimony is even less persuasive where the driver is listed as the plaintiffs witness in a pretrial memorandum. Because the plaintiff cannot show what prejudice was suffered, this does not amount to “trial by ambush” and we hold the judge did not abuse his discretion by allowing this testimony.
5. Closing argument. The plaintiffs final argument is that the judge improperly limited her closing by preventing her from stating that the preponderance of the evidence standard meant the plaintiff had to show any evidence over “50.0000000001” percent, evidence that is “slightly over the 50 yard line,” or evidence that causes “the scale [to] tip[ ] ever so slightly.” Although these explanations are technically correct summaries of the law, it is the judges duty to instruct the jury on the law and it was appropriate for him to limit statements that could have confused the jury about the burden of proof. Commonwealth v. Olmande, 84 Mass. App. Ct. 231, 241 n.4 (2013) (Agnes, J., concurring) (“[T]he Supreme Judicial Court consistently has endorsed the practice of judges exercising discretion to intervene, sua sponte, to prevent and correct improper closing arguments”).
Judgment affirmed.
Order denying motion for new trial affirmed.
FOOTNOTES
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. “If you find that the MBTA bus operator violated any safety statute, ordinance, regulation or rule applicable to him and that the eventual occurrence was one of the things that the statute or rule was designed to prevent, then the violation is some evidence of negligence on the part of the MBTA.”
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. The defendant informed the plaintiff of the drivers identity on February 7, 2018. Nothing in this decision should be taken to suggest we condone the time it took for the MBTA to identify the bus driver to the plaintiff.