What is the “Benevolent Gestures Statute” and how it affects evidence at trial: Nunes v. Duffy, Mass. App. (2022)

July 28, 2022 – Benevolent Gesture Statute

Nunes v. Duffy, _ _ _ Mass. App. _ _ _ (2002) (G.L. c. 233, S23D; Benevolent Gesture Statute)

Officially released on July 28, 2022

Key Points: The Appellate Court held that while the first portion of an alleged statement, “I’m so sorry,” was inadmissible as an expression of sympathy under the benevolent gestures statute, the second part of the statement, “It was all my fault” was not merely an expression of sympathy but an admission of liability that should have been admitted as evidence in civil trial for a motor vehicle accident.

The facts: In May of 2014, the Plaintiff, John Nunes, was operating a motorcycle when he was involved in a collision with the Defendant, Sarah Duffy.

At his deposition, John Nunes claimed that immediately after the accident, Duffy said, “I’m so sorry. It was all my fault,” three times. At her deposition, Duffy stated that she did not recall whether she said she was sorry and that she did not say that the accident was her fault.

Prior to empanelling a jury, the trial judge allowed Duffy’s motion in limine to exclude testimony of her alleged apology and admission of fault to Nunes at the scene of the accident. The trial judge ruled that the entire statement constituted an expression of sympathy or benevolence and was inadmissible.

The Appellate Court noted generally, an admission of fault is considered an admission of a party opponent, and as such, is admissible to prove liability. Mass. G. Evid. s. 801(d)(2) (2022). However, statements of sympathy or “benevolent gestures” are deemed inadmissible under G. L. c. 233, s. 23D. The Court explained that the statute is based upon the public policy of encouraging people to act with humanity and decency.

The Appellate Court went on to write that It is unaware of any reported decisions that squarely addresses the application of the statute to apologies and admissions of fault made at the same time.

The Appellate Court looked at the plain language of the statute in order to determine the Legislature’s intent. The Court determined that the plain language of the statute “makes clear that only statements of sorrow or apology are barred, and admissions of fault or liability are not.”

The Appellate Court determined that Duffy’s entire statement should have been broken down into two parts. The part of the statement that only served as an expression of sympathy, “I’m so sorry” was rightfully excluded as inadmissible under the benevolent gestures statute. However, the second portion of the alleged statement, “It was all my fault,” was an admission of liability that should have been admitted at trial.

Finally, the Appellate Court held that excluding the second part of the statement was a prejudicial error of law since the jury was charged with determining fault and the statement was highly probative. Accordingly, “Nunes is entitled to a new trial.”

The judgments were vacated and the case was remanded.

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