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Thomas v. E-Z Mart Stores11/2/2004
en an objection to its admission is interposed and sustained, must then make a proffer that outlines the proof that would have been adduced had the objection not been sustained.
3) Land possessor's own claim brought against the third party in this action, if indeed actionable, is to be regarded as separate, distinct from, and unaffected by that pressed by the invitee. The latter clearly lies in tort, the former may be viewed as in indemnity or perhaps as one for statutory contribution.
SUMMARY
In sum, the record for this appeal, which so clearly falls short of demonstrating a flawed in-trial evidentiary ruling in the nisi prius exclusion of third party's negligence, gives unequivocal support for the trial court's commission of a reversible error by granting the defendant a new trial.
The trial judge's exclusion of evidence that would have shown a third party's negligence is error free. If proof of that negligence had been proffered during trial - after an objection by the plaintiff - the exclusionary ruling would not have been an error. I am hence compelled to conclude, as the court does today, that the nisi prius new trial grant rests on a pure error of law. It cannot be allowed to stand.
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