Flood v. Southland Corp.

616 N.E.2d 1068, 416 Mass. 62, 1993 Mass. LEXIS 513

• Court: Massachusetts Supreme Judicial Court
• Decided: August 5, 1993
• Status: Published

Opinions

Wilkins, J.

The plaintiff sustained serious injuries one night in August, 1979, when the defendant John Darcy stabbed him outside a Wakefield 7-Eleven store operated by the corporate defendant (Southland). Because of several prejudicial rulings of the trial judge, the Appeals Court vacated the judgment that the plaintiff had obtained against Southland and Darcy and remanded the case for a new trial on liability only. Flood v. Southland Corp., 33 Mass. App. Ct. 287, 302-303 (1992).

We allowed the plaintiff’s application for further appellate review. We did so principally to consider the Appeals Court’s ruling that evidence would be admissible at the new trial that the plaintiff’s assailant Darcy had pleaded guilty to armed assault with intent to murder the plaintiff and to assault and battery on the plaintiff by means of a dangerous weapon. Id. . To put that evidentiary issue in perspective, we shall first consider the plaintiff’s challenge to the Appeals Court’s determination that the judge erred in not submitting the question to the jury whether Darcy’s stabbing of the plaintiff was intentional and not negligent. Id. at 299. The issue whether Darcy’s conduct was intentional, and the admissibility of evidence bearing on his intent, are important for two reasons. First, if the stabbing was intentional, Darcy’s conduct would not be involved in the jury’s comparative negligence assessment (G. L. c. 231, § 85 [1992 ed.]). Second, proof that Darcy intentionally rather than negligently stabbed the plaintiff would tend to increase the prospect that a jury would conclude that the stabbing was not a reasonably foreseeable intervening act for which Southland would be responsible. Finally, we shall briefly discuss South-land’s argument, rejected by the Appeals Court (33 Mass. App. Ct. at 296-299), that the judge should have allowed its motions for a directed verdict and for judgment notwithstanding the verdict. We agree with the Appeals Court that various errors require that there be a new trial on liability.²

1. The trial judge should have put the question to the jury whether Darcy intentionally stabbed the plaintiff. There was, as the Appeals Court said (id. at 299), evidence warranting an inference that Darcy acted intentionally.³ If, as we have said, the stabbing was intentional and not the unintended consequence of negligent youthful horseplay, the likelihood would be greater that the jury would conclude that conduct such as Darcy’s was not reasonably foreseeable and, therefore, Southland owed no duty of care to the plaintiff in the circumstances. It was also important for the purposes of the comparative negligence statute (G. L. c. 231, § 85) for the jury to decide whether Darcy intentionally stabbed the plaintiff or did so negligently.

Section 85 of G. L. c. 231 speaks only of contributory negligence and of negligence attributable to plaintiffs and defendants. Intentional tortious conduct cannot be negligent conduct. Waters v. Blackshear, 412 Mass. 589, 590 (1992). If a defendant’s misconduct was intentional, that misconduct is not involved in the application of § 85. See Lane v. Meserve, 20 Mass. App. Ct. 659, 663 n.6 (1985); V.E. Schwartz, Comparative Negligence § 5.2, at 97 (2d ed. 1986); H. Woods, Comparative Fault § 7.1, at 165 (2d ed. 1987 & Supp. 1993). It is not surprising that a court which, has held that § 85 does not apply even to a breach of warranty action (see Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 353 [1983]) should hold that § 85 does not apply to intentional tortious conduct. A contrary conclusion would result in § 85 reducing plaintiffs’ recoveries in cases to which the concept of contributory fault had no common law application, an unlikely legislative intention. The strong majority view across the country is that comparative fault statutes do not apply to intentional tort claims, with exceptions arising especially where the statute uses terms broader than negligence, such as “culpable conduct” or “fault.” See V.E. Schwartz, supra at § 5.2, at 97-100; H. Woods, supra at § 7.1, at 165-167 (2d ed. 1987 & 1993 Supp.).

The plaintiff does not seriously challenge the significance of Darcy’s intention in this case, beyond his claim, which we and the Appeals Court have rejected, that there was no evidence that Darcy intended to stab the plaintiff. He contends rather that Southland failed to preserve its challenge to the judge’s failure to instruct the jury to decide whether the stabbing was intentional and, if it was, to instruct concerning its significance to the case. Although there must be a retrial on other grounds, we consider this argument, one made to the Appeals Court but not discussed by it. In doing so, we hope to assist in an understanding of this court’s position on the manner by which the right to challenge a judge’s jury instructions on appeal may be preserved.

Rule 51 (b) of the Massachusetts Rules of Civil Procedure, 365 Mass. 816 (1974), provides in part: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” A general objection to a portion of a charge will not save appellate rights. See Huff v. Holyoke, 386 Mass. 582, 583 n.2 (1982). Nor will a blanket objection to a judge’s failure to give a party’s requested instructions. See Narkin v. Springfield, 5 Mass. App. Ct. 489, 491 (1977). If a party requests an instruction, the judge does not give it, the party objects after the charge was given and explains the significance of the request, and the judge acknowledges an understanding of the issue but nevertheless declines to give the instruction, the requirements of rule 51 are unquestionably satisfied. See Collins v. Baron, 392 Mass. 565, 568 n.3 (1984). Counsel proceeds at considerable peril in objecting to a jury charge simply by reference to discussions had, and rulings made, during a charge conference, in the absence of some acknowledgement by the judge that the procedure was sufficient to alert the judge to the grounds of the objection. See Finberg Mfg. Co. v. Carter, 16 Mass. App. Ct. 1013, 1014 (1983). Cf. Simmons v. Yurchak, 28 Mass. App. Ct. 371, 379 (1990). Also, a postcharge objection to the failure to give an instruction, made simply by reference to the number of the requested charge, normally will not satisfy rule 51 unless the judge requests that counsel follow such a procedure and assures counsel that the objection is understood. Stepakoff v. Kantar, 393 Mass. 836, 839-840 (1985). Where instructions not given are the subject of a charge conference at which the judge specifically rules that those instructions will not be given and objections to those rulings are then made, and where the party renews the objection after the charge without restating reasons, the purpose of rule 51 (b) to put the judge on notice is fairly met. See Little v. Green, 428 F.2d 1061, 1070 (5th Cir.), cert, denied, 400 U.S. 964 (1970); 9 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2553, at 638-639 (1971 & Supp. 1993). Indeed, there can be circumstances where the request, the pretrial ruling, and the objection to the ruling are so explicit that a postcharge objection need not be made. See Brown v. AVEMCO Inv. Corp., 603 F.2d 1367, 1370-1373 (9th Cir. 1979); 9 C.A. Wright & A.R. Miller, supra at § 2553, at 639-640; 5A Moore’s Federal Practice par. 51.04, at 51-29 — 51-31 (1993).⁴ Cautious counsel, however, wisely will renew any earlier objection with specificity after the charge unless the judge then instructs otherwise. We reject the hard and fast approach of the United States Court of Appeals for the First Circuit which apparently requires, under the similar Federal rule, that all relevant events must occur after the charge. See Transnational Corp. v. Rodio & Ursillo, Ltd., 920 F.2d 1066, 1069 (1st Cir. 1990).⁵

In this case, the judge ruled at the charge conference that she would not give any of Southland’s requested instructions concerning Darcy’s allegedly intentional conduct. South-land’s counsel objected at that time, and the issue of Darcy’s allegedly intentional conduct was discussed in connection with the comparative negligence statute. Southland made the sound argument that an intentional tort is not included in the comparison to be made under G. L. c. 231, § 85. It was at this point that the judge said that “[tjhere was no evidence that it was an intentional act.” After the charge, counsel for Southland objected to the omission of two requested instructions concerning Darcy’s intentional conduct, neither of which explained to the jury what they should do were they to find that Darcy intentionally stabbed the plaintiff. Neither of them concerned the comparative negligence statute. South-land’s counsel did not then object to the judge’s failure to charge concerning the effect of the comparative negligence statute if the jury should find .that Darcy intentionally stabbed the plaintiff. Because there is to be a new trial ordered in any event, we need not decide whether Southland adequately protected its appellate rights ás to issues concerning instructions on Darcy’s allegedly intentional stabbing of the plaintiff.⁶

2. At the retrial, evidence will be admissible that Darcy pleaded guilty to, and was convicted of, two serious crimes, each requiring proof that Darcy intentionally stabbed the plaintiff. Darcy’s intention when he stabbed the plaintiff is, as we have said, a material issue in this case. Darcy’s guilty pleas are relevant to that issue as tending to prove that he stabbed the plaintiff intentionally. Southland sought to admit evidence of the guilty pleas solely on the ground that they were admissions of a party opponent.⁷ The trial judge rejected the argument that the guilty pleas were admissions of a party opponent. The Appeals Court concluded, however, that Southland’s position and Darcy’s position were sufficiently adverse that the hearsay exception allowing admissions of a party opponent in evidence should extend to the admission of the guilty pleas as probative of his intention. 33 Mass. App. Ct. at 295-296. We shall return to this issue, but first we shall discuss an independent and dispositive ground for the admissibility of evidence of the convictions and guilty pleas.

The intention of a person can be determined only indirectly through that person’s words and deeds. Darcy’s guilty pleas seem inherently reliable as words and deeds indicative of his state of mind when he stabbed the plaintiff.⁸ The inherent reliability of such a manifestation of intent is apparent, and, if there were not a hearsay exception that made such pleas admissible in this situation, we would be inclined to create one.⁹ We need not do so, however, because there is a rule of evidence that makes Darcy’s pleas admissible.

Rule 803 (22) of the Proposed Massachusetts Rules of Evidence, substantively identical to the Federal rule of the same number, provides that the hearsay rule does not exclude “[e]vidence of a final judgment, entered . . . upon a plea of guilty . . . adjudging a person guilty of a crime punishable by . . . confinement in excess of one year, to prove any fact essential to sustain the judgment . . ..”¹⁰ Under this rule, evidence of Darcy’s convictions upon pleas of guilty would be admissible against the plaintiff and Darcy (see M.H. Graham, Federal Practice and Procedure § 6773, at 728 [1992]), but would not be binding even on Darcy (see Aetna Casualty & Sur. Co. v. Niziolek, 395 Mass. 737, 747 [1985]). Substantially more than one-half of the States have adopted rules of evidence similar to Fed. R. Evid. 803 (22). See 4 Weinstein’s Evidence, par. 803 (22) [02] (1992 & Supp. Mar. 1993). Consistent with our continuing practice, on a case-by-case basis, of considering the adoption of principles set forth in the Proposed Massachusetts Rules of Evidence, we accept the principles of proposed rule 803 (22).

We add a few observations about the Appeals Court’s application to this case of the exception for admissions of a party opponent. 33 Mass. App. Ct. at 293-296. We agree with the Appeals Court’s summary of the law of the Commonwealth on this issue. We also agree that two parties who are not opponents in a pleadings sense could have adverse positions on some issue. In some circumstances evidence offered by one such party of an admission made by the other party could properly be admitted in application of the principles underlying the party opponent rule. The problem in this case is that Southland concedes on appeal that, on the theory of party opponent admissions, the convictions and guilty pleas were admissible only against Darcy. At trial, however, Southland made no such limited offer. The judge’s exclusion of the evidence of Darcy’s guilty pleas was correct for this reason alone. In any event, the admission of that evidence only against Darcy could have confused the jury in deciding the question of Darcy’s intent in stabbing the plaintiff and in deciding how to allocate comparative fault. It is true that, in certain respects, Southland and Darcy were adversaries, as the Appeals Court said. Id. at 295-296. But where the plaintiff also opposed the introduction of Darcy’s guilty pleas, the jury could have been confused by the admission of that evidence against only Darcy, and for that reason the judge might properly have excluded that evidence in her discretion.

The appropriate result at retrial would be to admit that evidence against both the plaintiff and Darcy rather than exclude it. In this case, that result can be obtained through application of the principles underlying Proposed Mass. R. Evid. 803 (22), and we need not decide the question under the rule concerning admissions of a party opponent.

3. The judge properly denied Southland’s motions for a directed verdict and for judgment notwithstanding the verdict. As presented to the Appeals Court, Southland’s argument was that it was not reasonably foreseeable that Darcy would stab the plaintiff and hence Southland had no duty to take steps to prevent or discourage such an attack. Although there had been numerous problems with youthful conduct at or near the store, there had been, so the argument goes, no serious injury at the site. Moreover, Southland continues, although there was evidence that criminal activity might be reasonably foreseen at such a store and although certain security precautions could reasonably have been taken but were not, Southland could not have reasonably foreseen the specific injury that the plaintiff sustained in “drunken horseplay between two teenage friends.” Finally, Southland argues, evidence of its employee’s knowing specific facts about the boys, which included their being “pretty high” and Darcy displaying a knife, would not warrant finding that Southland’s employee reasonably should have foreseen any danger to the plaintiff.¹¹

Southland owed a duty of reasonable care to the plaintiff (Mounsey v. Ellard, 363 Mass. 693, 707-708 [1973]) to prevent injury by third persons whether their acts were accidental, negligent, or intentional (Carey v. New Yorker of Worcester, Inc., 355 Mass. 450, 452 [1969]). Southland argues, however, that it owed no duty to the plaintiff in this case because the risk that led to the plaintiffs injury was not one which could be reasonably anticipated by the defendant. Foley v. Boston Hous. Auth., 407 Mass. 640, 646 (1990). In deciding on the reasonable foreseeability of harm, all the circumstances are examined. Mullins v. Pine Manor College, 389 Mass. 47, 56 (1983). Mounsey v. Ellard, supra at 707-709. The Appeals Court did precisely that and reached the proper conclusion. 33 Mass. App. Ct. at 298-299.

We write only to deal explicitly with the claim that there was no duty because it was not reasonably foreseeable that one customer would stab another. The resolution of this contention is relatively easy in this case because of the information that Southland’s employee had about Darcy and the plaintiff. He knew that they were “pretty high,” that Darcy had a knife, and that the boys were gathered just outside the store where he could not see them. A jury would be warranted in such circumstances in determining that a risk of harm, the stabbing of someone, was reasonably foreseeable. See Carey v. New Yorker of Worcester, Inc., supra at 451-453. The way in which the stabbing occurred and the fact that the plaintiff might be the one to be harmed need not have been reasonably foreseeable. That these events occurred within the reasonably foreseeable risk of harm was enough to present a jury question.¹²

4. The judgment is vacated, and the case is remanded to the Superior Court as to all parties on the question of liability only, including, however, the application of the comparative negligence statute.

So ordered.

2 We concur with the Appeals Court’s conclusions and reasoning in the sections of its opinion numbered 8 (error in the instruction that Southland was held to the standard of an expert in providing security for its customers) and numbered 10 (requiring an instruction, on request, concerning the consequences of the application of the comparative negligence statute to all parties if the effect of that statute as to the plaintiff is mentioned). The plaintiff did not explicitly ask us to consider these issues in his application for further appellate review. They are nevertheless before us. See Bradford v. Baystate Medical Ctr., 415 Mass. 202, 204 (1993). We agree with the Appeals Court’s conclusions on the other issues that we do not discuss.

By a supplemental brief, filed after our allowance of the application for further review (see Mass. R. A. P. 27.1 [f], as amended, 367 Mass. 922 [1975]), Southland raises challenges to the judgment not presented in any brief it filed with the Appeals Court. The argument that the plaintiff should lose because he was a trespasser is particularly inappropriate because counsel for Southland expressly waived the claim at trial (“I don’t think there’s any evidence that anybody can find that they were trespassers”). Subsequently, we shall comment briefly on two other late contentions. See note 11 below.

3 For example, Darcy’s statement, twice made, that he would stab him if the plaintiff hit him.

4 In Commonwealth v. Grenier, 415 Mass. 680, 686 n.8 (1993), we accepted, under the cognate criminal procedure rule, an objection registered at a charge conference at which the judge told counsel that appellate rights were preserved.

5 That court might treat the issue, however, under a narrow plain error exception to rule 51. See Smith v. Massachusetts Inst. of Technology, 877 F.2d 1106, 1110 (1st Cir.), cert. denied, 493 U.S. 965 (1989).

6 The issue is close. Southland did make an explicit request at the charge conference for an instruction concerning the effect of G. L. c. 231, § 85 (1992 ed.), if the jury were to find Darcy intentionally stabbed the plaintiff, but Southland failed to return to the point after the charge. Southland requested an instruction concerning the effect of an intentional stabbing as the basis for a finding that Southland was not the cause of the plaintiff’s injuries, and Southland properly objected to its omission from the charge. But then Southland addressed the point only in passing in its Appeals Court brief. See note 2, second par., above and note 11 below.

This appears, in any event, to be a situation in which a plain error exception to rule 51 might be appropriately applied. See 9 C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2558, at 675 (1971); 5A Moore’s Federal Practice, par. 51.04, at 51-14 — 51-22 (1993).

7 It is not explicit on the record that Southland wished, as it now claims, to use the two convictions to impeach Darcy. Southland did not use the word “impeachment” in arguing that it had the right to cross-examine Darcy about his guilty pleas. His guilty pleas .were prior inconsistent statements relevant to a material issue in the case, and evidence of them would have been admissible for impeachment purposes. The bare fact of Darcy’s criminal convictions could have been used to impeach him. See G. L. c. 233, § 21 (1992 ed.). Southland, of course, optimally wanted to use the convictions and guilty pleas as probative evidence against the plaintiff, as well as Darcy.

8 A judge took the guilty pleas, we assume, in the usual manner. Darcy was represented by counsel. He had time for reflection and for consultation with his counsel and others. There was, we also assume, a full colloquy with the judge who accepted the pleas. In that process, Darcy was presumably informed of each element of the crimes charged and, thereafter, he knowingly and voluntarily pleaded guilty.

9 Darcy’s guilty pleas are declarations against his penal interest but, under the principles that we have adopted to date, the declarant must be unavailable for such a declaration to be admissible for probative purposes. See Commonwealth v. Carr, 373 Mass. 617, 624 n.ll (1977). See also Fed. R. Evid. 804 (b) (3); Proposed Mass. R. Evid. 804 (b) (3).

10 Proposed rule 803 (22) reads as follows:

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . .

“(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or confinement in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Commonwealth in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.”

In this case, the crimes are punishable by imprisonment of more than one year. See G. L. c. 265, § 18 (6) (1992 ed.) (assault with intent to murder while armed with a dangerous weapon, up to twenty years); G. L. c. 265, § 15A (6) (1992 ed.) (assault and battery'by means of a dangerous weapon, up to ten years).

11 In its supplemental brief, which, as we have said, presented new issues (see note 2 above), Southland makes two arguments which we discuss as guidance at any new trial. We pass by the apparent untimeliness of raising issues in this court not presented on brief to the Appeals Court on a properly preserved challenge to an adverse trial court ruling. See Phillips v. Youth Dev. Program, Inc., 390 Mass. 652, 660 (1983). Southland argues that the stabbing was intentional as a matter of law and that, because the jury found the plaintiff to have been five times as negligent as Southland (25% and 5% respectively), judgment should have been entered for Southland. This argument falters at least because it was a jury question whether the stabbing was intentional.

Second, Southland asserts that the plaintiffs provocation of Darcy as a matter of law was a supervening event breaking any causal connection between any breach of duty by Southland and the plaintiffs injury. This too was a jury question.

12 Of course, evidence that Southland reasonably should have taken certain general security precautions in its Wakefield store, and evidence of numerous problems with youth disturbances there, also related to the reasonable foreseeability of the risk of harm. We need not, however, decide whether this evidence alone, taken collectively or viewed in individual aspects, would have warranted a finding that there was a reasonably foreseeable risk of harm.