Flood v. Southland Corp.

• Decision Date: 05 August 1993
• Citation: 616 N.E.2d 1068,416 Mass. 62
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: David FLOOD v. SOUTHLAND CORPORATION & another. 1

Page 1068

616 N.E.2d 1068

416 Mass. 62

David FLOOD v. SOUTHLAND CORPORATION & another. ¹

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 8, 1993.

Decided Aug. 5, 1993.

Thomas D. Burns, Boston (John J. McGivney with him), for Southland Corp.

Edward M. Swartz, Boston (Alan L. Cantor with him), for plaintiff.

Before WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

WILKINS, Justice.

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, 601 N.E.2d 23 (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. [416 Mass. 64] at 293-296, 601 N.E.2d 23. 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, 601 N.E.2d 23. 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 Southland's argument, rejected by the Appeals Court (33 Mass.App.Ct. at 296-299, 601 N.E.2d 23), 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, 601 N.E.2d 23), 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, 591 N.E.2d 184 (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, 482 N.E.2d 530 (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, 446 N.E.2d 1033 [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, 436 N.E.2d 952 (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, 364 N.E.2d 1074 (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, 467 N.E.2d 171 (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, 455 N.E.2d 451 (1983). Cf. Simmons v. Yurchak, 28 Mass.App.Ct. 371, 379, 551 N.E.2d 539 (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, 473 N.E.2d 1131 (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, 91 S.Ct. 366, 27 L.Ed.2d 384 (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. Southland'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 "[t]here 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. Southland'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 as to issues concerning instructions on Darcy's allegedly intentional stabbing of the plaintiff....