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Tanen v. MA-Center Plaza, LLC

Superior Court of Massachusetts, Suffolk

August 16, 2017

Debra Tanen
MA-Center Plaza, LLC et al. [1]

          Filed August 23, 2017


          Gregg J. Pasquale, Justice

         During a February 2011 snow storm, plaintiff Debra Tanen (" Tanen") slipped and fell on a sidewalk adjacent to the property commonly known as Center Plaza. Tanen subsequently sued MA-Center Plaza, LLC, then the owner of Center Plaza, [2] Equity Office Management, LLC, the property management company for Center Plaza, and C& W Facility Services, Inc.[3] which provided snow and ice removal and treatment services at Center Plaza during the winter of 2010-2011. Tanen alleged that she fell and sustained injuries as a result of the defendants' negligence in failing to prevent slippery conditions on the sidewalk. Tanen's injuries were serious and included a multiple fracture of her ankle. The case proceeded to trial in May 2016 and the jury returned a verdict in favor of the defendants. Tanen now moves for a new trial arguing, among other things, that during the jury selection process, the court erred in permitting defense counsel to exercise peremptory challenges against several African-American jurors. For the reasons that follow, the motion is ALLOWED.[4]


         In February 2011, during a snow storm, the plaintiff slipped on a sidewalk adjacent to the property commonly known as Center Plaza, which is located in Boston. The plaintiff alleged that she fell as a result of invisible or " black ice" on the sidewalk and that the defendants were negligent in preventing the ice from forming.

         Jury impanelment began on Thursday, May 12, 2016 and took place over the course of two days. It is unclear from the record the exact size of the jury pool or the age, gender, racial, and ethnic backgrounds of each prospective juror.

         Following standard preliminary screening questions by the court to the venire, each individual was brought to side bar to determine their potential indifference. The court first inquired about positive responses to the screening questions and asked a series of written questions requested by the plaintiff along with relevant follow up questions. The court, after asking some submitted questions, then allowed plaintiff's counsel, Charles R. Capace (" Attorney Capace"), and defendants' counsel, Jeffrey C. McLucas (" Attorney McLucas"), to conduct individual voir dire. The questions included topics relating to whether the prospective jurors were responsible for clearing snow where they lived or whether that responsibility fell to a landlord as well as any personal experience they had with slip and fall incidents. Each side had fifteen peremptory challenges.

         At the close of the first day of jury selection, the court found fourteen jurors indifferent and Attorney Capace exercised several peremptory challenges. The next day, the voir dire process continued and Attorney Capace exercised additional challenges.[5] At midday, the Court once again seated a panel of fourteen indifferent jurors. Attorney Capace declared that the plaintiff was content with the panel. Attorney McLucas then exercised his first peremptory challenges. He struck six jurors--jurors 9 (seat 5), 25 (seat 14), 32 (seat 12), 111 (seat 4), 121 (seat 8), and 123 (seat 10). Soon afterward, the following colloquy took place among the court, Attorney McLucas, and Attorney Capace:

MR. CAPACE: Your Honor, I'm going to call to the Court's attention that of the jurors dismissed almost all but one were black, and I'm very concerned about that they're basically taking all the black people out of this jury and that that's been a big issue in the and [sic] courts recent years.
THE COURT: Mr. McLucas?
MR. MCLUCAS: That's, that's outrageous, Your Honor, That's outrageous. I based this on responses to questions and while raised by Attorney Capace, race and color have absolutely nothing to do with it. How jurors represented themselves here at sidebar individually.
THE COURT: I'm sorry. Close to the microphone so we can get it.
MR. MCLUCAS: How the jurors presented themselves here. Sidebar is the absolutely only reason I challenged any of these jurors.
THE COURT: Mr. Capace?
MR. CAPACE: Yes, Your Honor. I mean the numbers speak for themselves. There was four out of five, all black. I'm not suggesting Mr. McLucas is racist, he's not, but he certainly knows as we all know that black people tend to favor plaintiffs and they were systematically removed from the jury because of their race.
MR. MCLUCAS: I would, I would suggest that in and of itself is a racist comment, and, absolutely no decision about any individual juror was made of any other basis then a response to questions up here. It has been a lengthy and extensive voir dire, including lengthy questioning by the Court itself.
THE COURT: Mr. Capace, are you, can you point out any study that says African American people are more favorable to plaintiffs?
MR. CAPACE: Study, no. Experience, yes. I think you and I both have it.
THE COURT: Oh, I haven't. I mean actually, I've had, one of the recent cases had paneled I think people that [sic] of color. I have queried. I found them to be fair and your know unbiased in their answers and they don't at least to me say that they lean one way or the other, so I, are you asking me for any type of relief or--
MR. CAPACE: Yes. I mean I think some of those, if they haven't left courthouse, I think they should be recalled. I mean I had that happen back in September and they were recalled, and Justice Giles, I had it happen with Justice Walker the same way and they did the same thing. This is a huge issue these days ...

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