Kelly v. Foxboro Realty Associates, LLC

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Cordy
• Citation: Kelly v. Foxboro Realty Associates, LLC, 909 N.E.2d 523, 454 Mass. 306 (Mass. 2009)
• Decision Date: 16 July 2009
• Docket Number: SJC-10294.
• Parties: Janice KELLY, individually and as executrix,<SMALL><SUP>1</SUP></SMALL> v. FOXBORO REALTY ASSOCIATES, LLC, & another<SMALL><SUP>2</SUP></SMALL> (and a companion case<SMALL><SUP>3</SUP></SMALL>).

909 N.E.2d 523

454 Mass. 306

Janice KELLY, individually and as executrix,¹ v. FOXBORO REALTY ASSOCIATES, LLC, & another² (and a companion case³).

SJC-10294.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 2009.

Decided July 16, 2009.

Myles W. McDonough, Boston, for Foxboro Realty Associates, LLC.

John A.K. Grunert, Boston, for Apollo Security, Inc.

Andrew C. Meyer, Jr., Boston (Adam R. Satin with him) for Janice Kelly.

Present: MARSHALL, C.J., IRELAND, SPINA, CORDY, BOTSFORD, & GANTS, JJ.

CORDY, J.

In this personal injury case we must decide whether it was permissible for a judge to instruct jurors that they could discuss evidence among themselves during the course of the trial, without the agreement of all parties. We do not indorse the practice except in civil trials where all parties agree, but conclude that the defendants suffered no prejudice in this case from the judge's decision to allow the jury to do so. We also must decide whether the judge correctly instructed the jury on the "control" an employer must exercise over an independent contractor to be liable for the contractor's negligence. We conclude that the judge's instruction on "control" was proper. We affirm judgment for the plaintiffs.

1. Facts. This case arises from tragic events on August 29, 2003. Based on the evidence, the jury could have found the following.

Early in the afternoon, a bus carried passengers from a golf tournament in Norton to Gillette Stadium in Foxborough, where the passengers previously had parked their vehicles. As the bus traveled down an access road owned by the defendant Foxboro Realty Associates, LLC (Foxboro), a large security gate arm swung into the road, piercing the side of the bus. A number of passengers suffered serious injuries; one passenger, Thomas Kelly, later died from his injuries.⁴ Foxboro owned the property on which the accident occurred, Apollo Security, Inc. (Apollo), provided security guards for the stadium parking lots and surrounding areas, and Standard Parking Corporation (Standard) managed stadium parking operations.

On the second day of what was to be a two and one-half week trial, the judge instructed the jurors that they would be permitted to discuss the evidence among themselves throughout the course of the trial.⁵ The instruction directed, however, that they could exercise this option only when they were together as a group,⁶ and cautioned that they could not "judge" the evidence midtrial.⁷ The defendants' objection was overruled.

During the trial, the parties first focused on the condition of the security gate at the time of the accident. The defendants conceded that the gate arm was normally secured in the "open" position by dropping a three-pound pin through a hole in the gate pole and a sleeve in a post on the side of the road. If the pin was twisted, a flange would lock into place, preventing the pin from being lifted out of the sleeve. At the time of the accident, the pin was found in an unsecured, raised position; witnesses were unsure when it had been placed in that position or who had placed it there. There was evidence of strong wind gusts on the day of the accident, and the plaintiffs' expert opined that the wind blew the unsecured gate arm into the bus.

Next, the parties offered evidence with respect to who was responsible for safely securing the gate. It was uncontested that Foxboro hired Standard, an independent contractor, to run stadium parking operations for New England Patriots football games, soccer games, and other events; and that Foxboro hired Apollo, also an independent contractor, to handle security operations on the day of the accident. Foxboro and Apollo employees testified that prior to a stadium event, the ten to fifteen security gates would be in the "closed" position, each secured by a padlock. Apollo employees would then unlock the padlocks, but leave the gate arms in the closed position with the unlocked padlocks loosely holding the gate arms together. At a specific time, Standard employees would then remove all the padlocks, open the gates, and begin directing traffic into the parking lots. Foxboro stipulated that it "established the protocol for how the gate was to be opened and how the gate was to be secured in the open position." However, witnesses testified that protocols relating to gate arm safety were never put into writing, and they were unsure whether Foxboro had explained the protocols to Standard or Apollo. The plaintiffs essentially argued that Standard and Apollo were responsible for opening and maintaining the gates in a safe "open" position, and that Foxboro was liable for their negligent performance of that responsibility because of its "control" over Standard's or Apollo's operation of the gate.⁸

The jury found Foxboro, Apollo, and Standard liable for Thomas Kelly's pain and suffering prior to his death and for the Kelly family's loss of consortium, and awarded $4,400,000 in damages.⁹ Foxboro and Apollo appealed, and we granted Foxboro's application for direct appellate review, which Apollo had joined.

2. Discussion. On appeal, the defendants argue that the judge improperly (1) instructed the jury that during the trial they could discuss evidence as a group, and (2) failed to instruct the jury that Foxboro could be liable for its contractors' negligence only if it exercised a "degree of control" over the contractors' work.

a. Instruction allowing a jury to discuss evidence during the trial. When reviewing jury instructions to which there has been an objection, we conduct a two-part test: "whether the instructions were legally erroneous, and (if so) whether that error was prejudicial." Masingill v. EMC Corp., 449 Mass. 532, 540 n. 20, 870 N.E.2d 81 (2007), citing Blackstone v. Cashman, 448 Mass. 255, 270, 860 N.E.2d 7 (2007). This is also the standard for reviewing the use of an "innovative" jury technique over a party's contemporaneous objection. See United States v. Lewis, 716 F.2d 16, 19 (D.C.Cir.), cert. denied sub nom. Motlagh v. United States, 464 U.S 996, 104 S.Ct. 492, 78 L.Ed.2d 686 (1983) (standard on appeal from conviction by "dual jury" is "whether there exists evidence indicating that the dual jury caused specific prejudice to someone's defense at trial"). Cf. Commonwealth v. Britto, 433 Mass. 596, 611, 744 N.E.2d 1089 (2001) ("defendant has the burden of showing actual prejudice from juror questions").

As to the first part of the test, the defendants argue that the instructions were legally erroneous under Commonwealth v. Benjamin, 369 Mass. 770, 772 & n. 2, 343 N.E.2d 402 (1976) (Benjamin). In that case, the court specifically "disapprove[d]" the judge's instructions, given to the jury on the first day of trial, that they were "free to discuss the case in the jury room among themselves and that a married juror could tell his or her spouse what the juror had heard." Id. at 771-772, 343 N.E.2d 402.¹⁰ The court further noted that where there had been no objection to the instruction by trial counsel, the issue was waived, and because there was no showing of prejudice by the defendant, the court would not consider the matter further under G.L. c. 278, § 33E. However, the court took the opportunity to direct trial judges to use "[a]n appropriate instruction for such occasions" which pointedly included an admonition that "[u]ntil this case is submitted to you, you must not discuss it with anyone, even with your fellow jurors." Id. at 772, 343 N.E.2d 402.¹¹

We have not had occasion to consider again the propriety of giving a variant of the type of instruction that we explicitly disapproved in Benjamin.¹² Since that case was decided, however, several States (including Massachusetts) have conducted studies to determine whether certain innovative jury practices would improve the quality of jury deliberation. See, e.g., Diamond, Juror Discussions During Civil Trials: Studying an Arizona Innovation, 45 Ariz. L.Rev. 1, 16-17, 22-32 (2003); Lakamp, Deliberating Juror Predeliberation Discussions: Should California Follow the Arizona Model, 45 U.C.L.A. L.Rev. 845, 850 (1998); Massachusetts Project on Innovative Jury Trial Practices Final Report, National Center for Citizen Participation in the Admin. of Justice at 55-56 (2001) (Massachusetts Report). The Massachusetts study analyzed a wide range of innovative techniques (sixteen in all) during the course of 150 actual trials, including allowing jurors to suggest questions for witnesses, placing time limits on attorneys, giving jurors notebooks to enable them to take notes during the trial, providing jurors with written or recorded instructions, and allowing the jury to discuss evidence as it is entered. Id. at 48, 51, 54. Some of these techniques are minimally intrusive, and others (including the one at issue here) change more fundamentally the jury's deliberative process, as we have traditionally administered it.¹³

Twenty-four judges, including the trial judge in this case, participated in the Massachusetts study.¹⁴ During the study, only one of the judges employed the innovation at issue here—instructing juries that they were permitted to engage in discussions during trial—and did so in only six civil trials. The parties in those trials all agreed to the instruction, and before employing the practice in those trials, the judge sought and received permission from a single justice of this court. While some of the innovative techniques used in the study have gained a measure of acceptance in Massachusetts and elsewhere,¹⁵ this one remains controversial.¹⁶

Massachusetts judges enjoy discretion in using the innovations included in the project, except where the court has specifically disapproved of the proposed innovation. While the judge's instructions to the jury in this case differed from the judge's instructions in Benjamin, and were less objectionable, they still violated our directive in Benjamin not to permit jurors to discuss the case with each...