August 23, 2017
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR A NEW TRIAL
J. Pasquale, Justice
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,
Equity Office Management, LLC, the property management
company for Center Plaza, and C& W Facility Services,
Inc. 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.
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.
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.
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.
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. 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
MR. MCLUCAS: How the jurors presented themselves here.
Sidebar is the absolutely only reason I challenged any of
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
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 ...