Boucher v. Lowell Automatic Transmission

2001 Mass. App. Div. 176
CourtMassachusetts District Court, Appellate Division
DecidedAugust 8, 2001
StatusPublished

This text of 2001 Mass. App. Div. 176 (Boucher v. Lowell Automatic Transmission) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boucher v. Lowell Automatic Transmission, 2001 Mass. App. Div. 176 (Mass. Ct. App. 2001).

Opinion

Coven, J.

This is a motor vehicle tort action to recover for personal injuries sustained by the plaintiff as a passenger in her husband’s car when it was struck from the rear by a truck driven by defendant John Crider (“Crider”). Following a jury verdict and the entry of judgment for the defendants, the plaintiff filed this Dist/Mun. Cts. RAD.A, Rule 8C, appeal to present the following issues: (1) whether the trial judge erred by failing to instruct the jury properly on the concept of joint and several liability, (2) whether the verdict slip prepared by the court and presented to the jury without a special question on joint and several liability was erroneous, and (3) whether the jury’s verdict was against the weight of the evidence.

The record indicates that the motor vehicle acddent in question occurred on June 18,1996. As noted, the plaintiff was a passenger in a vehicle operated by her husband, and defendant Crider was driving a tow truck in the course of his employment with defendant Lowell Automatic Transmission, the owner of the truck. According to the plaintiff she and her husband were traveling up a road with a small incline when her husband slowed to avoid children playing near the road. The plaintiff testified that their vehicle was then rear-ended by defendant Crider’s tow truck, which had “raced up” behind them. The plaintiff could not remember whether her husband “let up off the gas” or “put on the brake.” She did recall that prior to the collision, she saw a child’s head in between two cars on the right side of the road.

Defendant Crider testified that he and the plaintiffs husband were driving approximately eight to fifteen miles per hour, and that the plaintiffs husband did not just slow down, but “dead stopped” in the street Crider did not see any children in the area. A neutral witness testified that she saw the accident and did not see any children. The plaintiff commenced suit against Crider and his employer. The plaintiffs husband was also named in the suit but the plaintiff settled that claim before trial for a nominal amount

During the charge conference, the judge stated that the joint tortfeasor statute did not apply because the plaintiffs husband was no longer a party in the case. The judge instructed the jury on negligence, and prepared a verdict slip that asked three questions. Only the first two questions are relevant on this appeal. Question 1 stated: “Was the defendant negligent?” Question 2, which was to be answered only if the jury’s response to question 1 was “yes,” stated: “Was the defendants negligence a substantial factor in plaintiffs injuries?”

Plaintiffs counsel objected during the charge conference to the words “sub[177]*177stantial factor,” arguing that under joint tortfeasor law, a plaintiff needed to prove only that the defendant was one (1 %) percent negligent to prevail. Plaintiffs counsel did not, however, submit any preferred instruction in writing. The jury answered question 1 in the affirmative, question 2 in the negative, and returned a verdict for the defendants.

1. The principles of joint and several liability allow a plaintiff to sue any one or all tortfeasors who have caused plaintiff’s injuries.3 “[I]f two or more wrongdoers negligently contribute to the personal injury of another by their several acts, which operate concurrently, so that in effect the damages suffered are rendered inseparable, they are jointly and severally liable.” Chase v. Roy, 363 Mass. 402, 405 (1973). Prior to trial, however, the case against the alleged joint tortfeasor, the plaintiff s husband, had been settled. The introductory statement read to the jury at the beginning of trial included only Crider and Lowell Automatic Transmission Co., the remaining defendants. While the plaintiff argues that the trial judge did not instruct the jury on joint and several liability, the judge addressed issues presented by multiple tortfeasors and used language consistent with controlling statutes.4 The judge’s instructions to the jury included the following:

An accident can have several causes. A defendant will be liable if its conduct was the cause of the accident; regardless of the feet that other persons or parties may have been at fault as well. A negligent defendant is not relieved of liability just because another’s negligence might also be a factor in causing the injury. A plaintiff may recover the full amount of damages for injuries that the defendants negligence was a substantial factor in causing, even if the concurrent negligence of others contributed to the accident

The essence of the plaintiffs argument is that because this was a joint tort situation, percentages of negligence are relevant and plaintiff only needed to prove [178]*178that Crider was one (1 %) percent negligent to prevail. Comparative negligence, however, is not to be confused with the concept of joint tortfeasors. The comparative negligence statute provides for the comparison of plaintiff’s negligence to that of anyone else against whom recovery is sought See G.L.c. 231, §85. When comparative negligence is applied, the plaintiff is precluded from recovering any damages when his/her negligence is greater than the defendants negligence. Rolanti v. Boston Edison Corp., 33 Mass. App. Ct. 516, 531-532 (1992). The law of joint and several liability does not include an apportionment of liability as does the comparative negligence statute. See Mitchell v. Hastings and Koch Enterprises, Inc., 38 Mass. App. Ct. 271, 280 (1995) (comparative negligence is irrelevant to the apportionment of damages among joint tortfeasors).

In a negligence case, it is sufficient to use the phrase “substantial factor” when giving an instruction on proximate cause. O’Connor v. Raymark Industries, Inc., 401 Mass. 586, 592 (1988); Tritsch v. Boston Edison Co., 363 Mass. 179, 182 (1973); Mastaby v. Central Hospital, Inc., 34 Mass. App. Ct. 942 n. 3 (1993). Contrary to the plaintiffs contention, the trial judge did advise the jury that there could be a number of different factors which may combine to create liability. The jury was not lead to believe that the plaintiff had the burden of proving either that the defendant was more culpable than plaintiffs husband, or “but for” causation. The language requiring the jury to determine if the defendant’s acts were a substantial factor in causing the plaintiffs injuries is appropriate even in cases where “the concurrent negligence of others contributed to the incident” Delicata v. Bourlesses, 9 Mass. App. Ct. 713, 720 (1980). See also O’Connor v. Raymark Industries, Inc., supra at 591.

2. Because the trial judge’s instruction to the jury that the defendant had to be a substantial factor in causing the plaintiffs injuries was proper, the trial judge did not err when she included this language in the jury verdict slip. We note in this regard that it is within the trial judge’s broad discretion to decide whether Mass. R Civ. E, Rule 49, special verdicts and interrogatories will even be submitted to the jury, Terrio v. McDonough, 16 Mass. App. Ct. 163, 177 (1983), and to determine the “nature, scope and form” of any special questions so submitted. Draghetti v. Chmielewski, 416 Mass. 808, 818 (1994); Price v. Cole, 31 Mass. App. Ct. 1, 5 (1991).

3.

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Related

Tritsch v. Boston Edison Co.
293 N.E.2d 264 (Massachusetts Supreme Judicial Court, 1973)
Robertson v. Gaston Snow & Ely Bartlett
536 N.E.2d 344 (Massachusetts Supreme Judicial Court, 1989)
O'CONNOR v. Raymark Industries, Inc.
518 N.E.2d 510 (Massachusetts Supreme Judicial Court, 1988)
Delicata v. Bourlesses
404 N.E.2d 667 (Massachusetts Appeals Court, 1980)
Glicklich v. Spievack
452 N.E.2d 287 (Massachusetts Appeals Court, 1983)
Bergdoll v. Suprynowicz
268 N.E.2d 362 (Massachusetts Supreme Judicial Court, 1971)
Turnpike Motors, Inc. v. Newbury Group, Inc.
596 N.E.2d 989 (Massachusetts Supreme Judicial Court, 1992)
Terrio v. McDONOUGH HARTFORD FIRE INS. CO.
450 N.E.2d 190 (Massachusetts Appeals Court, 1983)
Price v. Cole
574 N.E.2d 403 (Massachusetts Appeals Court, 1991)
Chase v. Roy
294 N.E.2d 336 (Massachusetts Supreme Judicial Court, 1973)
Rolanti v. Boston Edison Corp.
603 N.E.2d 211 (Massachusetts Appeals Court, 1992)
Draghetti v. Chmielewski
626 N.E.2d 862 (Massachusetts Supreme Judicial Court, 1994)
Mastaby v. Central Hospital, Inc.
613 N.E.2d 123 (Massachusetts Appeals Court, 1993)
Mitchell v. Hastings & Koch Enterprises, Inc.
647 N.E.2d 78 (Massachusetts Appeals Court, 1995)
Dao Bui v. Vazquez
1999 Mass. App. Div. 5 (Mass. Dist. Ct., App. Div., 1999)

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Bluebook (online)
2001 Mass. App. Div. 176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boucher-v-lowell-automatic-transmission-massdistctapp-2001.