Mathis v. Massachusetts Elec. Co.

• Decision Date: 29 January 1991
• Citation: 409 Mass. 256,565 N.E.2d 1180
• Parties: Brian MATHIS 1 v. MASSACHUSETTS ELECTRIC COMPANY et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1180

565 N.E.2d 1180

409 Mass. 256

Brian MATHIS ¹ v. MASSACHUSETTS ELECTRIC COMPANY et al. ²

Supreme Judicial Court of Massachusetts Norfolk.

Argued Nov. 5, 1990.

Decided Jan. 29, 1991.

Jeffrey N. Roy (Carol R. Steinberg with him), for plaintiffs.

Andrew B. Estrine (Steven E. Thomas with him), for Massachusetts Elec. Co.

Bartlett L. Thomas, for New England Tel. and Tel. Co.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

During the evening of June 23, 1983, the plaintiff, Brian Mathis, sixteen years and eight months old, and three of his friends were gathered in front of the house located directly across from Brian's home in Franklin. Brian crossed the street and, to impress his friends, began climbing a utility pole, jointly owned by defendants Massachusetts Electric Company (MEC) and New England Telephone and Telegraph Company (NET). The pole was located on the property of the plaintiff's parents. It was supported by two guy wires, the upper one installed and owned by MEC, the lower one installed and owned by NET. As Brian climbed the pole, he came in contact with several telephone, cable television, and electrical wires which did not harm him. When Brian reached the top of the utility pole, he grabbed the primary electrical wire and received an electrical shock. Brian fell to the ground. He sustained severe injuries and burns.

In March, 1984, the plaintiff filed suit in Superior Court alleging that MEC's negligence caused his injuries. His mother sought damages for loss of consortium. ³ On May 6, 1988, the plaintiffs moved to amend the complaint to add counts alleging trespass; the plaintiffs alleged that there was no recorded easement authorizing the defendants to place the guy wires on the family's property. A judge denied the motion and, on July 7, 1988, the Appeals Court denied the plaintiffs' interlocutory appeal. ⁴

The case proceeded to trial before a jury. On November 23, 1988, the case was submitted to the jury to decide a number of special verdict questions. Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974). The jury found that MEC violated its duty toward foreseeable child trespassers under G.L. c. 231, § 85Q (1988 ed.). The jury also found that the plaintiff was comparatively negligent. The jury determined that the plaintiff was 75% at fault, while MEC was 25% at fault. Thus, the plaintiff was barred, under the comparative negligence statute, G.L. c. 231, § 85 (1988 ed.), from recovering any damages from MEC. The jury found that NET was not negligent. Judgment for the defendants was entered on November 30, 1988. MEC's third-party complaint and NET's cross claims against MEC were dismissed.

The plaintiff filed a motion for a new trial, and a motion to amend the judgment and for a new trial to assess damages. The judge denied both motions. The plaintiff appeals. He argues that (1) the lower court erred by denying his motion to amend the judgment and for a new trial on damages because the comparative negligence statute, G.L. c. 231, § 85, is inapplicable to an action brought under the child trespasser statute, G.L. c. 231, § 85Q; (2) the judge improperly instructed the jury on the issue of comparative negligence; and (3) the denial of his motion to amend the complaint to add counts for trespass against both defendants was error.

1. Comparative negligence. The plaintiff claims that landowners who violate the child trespasser statute are strictly liable and therefore cannot avail themselves of the principle of comparative negligence. See Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 353-356, 446 N.E.2d 1033 (1983) (comparative negligence has no application to strict liability breach of warranty actions). ⁵ The child trespasser statute states:

"Any person who maintains an artificial condition upon his own land shall be liable for physical harm to children trespassing thereon if (a) the place where the condition exists is one upon which the land owner knows or has reason to know that children are likely to trespass, (b) the condition is one of which the land owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, (d) the utility to the land owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the land owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children" (emphasis supplied). G.L. c. 231, § 85Q (1988 ed.). ⁶

The plaintiff argues that once the five statutory conditions are met, the owners are strictly liable, and therefore negligence principles are inapplicable.

Neither the statute nor the common law doctrine of Soule v. Massachusetts Elec. Co., 378 Mass. 177, 390 N.E.2d 716 (1979), imposes liability on landowners or others irrespective of their degree of fault or knowledge of the risk involved. See Briggs v. Taylor, 397 Mass. 1010, 494 N.E.2d 1023 (1986) (affirming directed verdict in § 85Q action where plaintiffs failed to show both that landowner did not exercise reasonable care and that it knew or should have known about dangerous condition). Compare Bencosme v. Kokoras, 400 Mass. 40, 43, 507 N.E.2d 748 (1987) (owners of residential properties are strictly liable under the lead paint statute, G.L. c. 111, § 199 [1988 ed.] ).

Under the traditional common law rule, a landowner did not have a duty toward a child trespasser, except to refrain from wanton and wilful conduct. Soule v. Massachusetts Elec. Co., supra 378 Mass. at 180, 390 N.E.2d 716. Urban v. Central Mass. Elec. Co., 301 Mass. 519, 523, 17 N.E.2d 718 (1938). The child trespasser statute softened the "Draconian" common law rule. Soule v. Massachusetts Elec. Co., supra. By enacting the statute, the Legislature followed the national trend towards imposing on landowners a uniform standard of care regardless of the status of the injured party. See id. 378 Mass. at 182-184, 390 N.E.2d 716. ⁷

The child trespasser statute and the common law impose on landowners a duty of reasonable care, a negligence standard of liability. See McDonald v. Consolidated Rail Corp., 399 Mass. 25, 27, 502 N.E.2d 521 (1987); Briggs v. Taylor, supra; Schofield v. Merrill, 386 Mass. 244, 246 n. 2, 435 N.E.2d 339 (1982); Soule v. Massachusetts Elec. Co., supra 378 Mass. at 184, 390 N.E.2d 716. ⁸ See also W. Prosser & W. Keeton, Torts § 59, at 401-402 (5th ed. 1984) (attractive nuisance doctrine gives child trespasser much of the protection of ordinary negligence doctrine).

Since the child trespasser statute, G.L. c. 231, § 85Q, imposes on landowners a duty of reasonable care, and creates liability based on negligence principles, the comparative negligence defense is available to defendants. O'Malley v. Putnam Safe Deposit Vaults, Inc., 17 Mass.App.Ct. 332, 343-344, 458 N.E.2d 752 (1983). "[T]he policy of negligence liability presumes that people will, or at least should, take reasonable measures to protect themselves and others from harm.... However, if the injured person's unreasonable conduct also has been a cause of his injury, his conduct will be accounted for in apportioning liability for damages." Correia v. Firestone Tire & Rubber Co., supra 388 Mass. at 354, 446 N.E.2d 1033.

The plaintiff argues that a finding by a jury that children, because of their youth, did not "discover the condition or realize the risk involved in intermeddling" with the artificial condition, G.L. c. 231, § 85Q (c ), is irreconcilable with the doctrine of comparative negligence. The plaintiff also argues that, even if such a finding by a jury is not irreconcilable with the doctrine of comparative negligence, the jury's answers to the special verdict questions in this case were inconsistent. The jury found that "the plaintiff, Brian Mathis, because of his youth, fail[ed] to appreciate the risk and danger involved or lack[ed] the understanding to evaluate the peril involved in intermeddling with the subject pole and its attachments." The jury also found that the plaintiff was negligent, and that his negligence was a proximate cause of his injuries. The plaintiff asks us to order a new trial because the jury's answers were inconsistent, and because they cannot be harmonized. See Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 800-801, 507 N.E.2d 662 (1987), and cases cited.

The child trespasser statute addresses a landowner's duty toward a child trespasser. In a case brought under the statute, a landowner's duty of reasonable care toward a foreseeable child trespasser will be breached only if the five conditions of the statute are satisfied. "[I]f the child is fully aware of the condition, understands the risk which it carries, and is quite able to avoid it, he stands in no better position than an adult with similar knowledge and understanding. This is not merely a matter of contributory negligence or assumption of risk, but of lack of duty to the child" (footnotes omitted). W. Prosser & W. Keeton, Torts, supra at 408-409. It is only after the jury determine that the landowner breached his or her duty toward the child that the child's possible negligence is taken into account.

The plaintiff is correct when he argues that an owner's liability under the child trespasser statute and a child's possible contributory negligence are two separate issues. "The question of the child's contributory negligence is a separate problem that must be carefully distinguished from that of the land occupier's duty." 5 F. Harper, F. James & O. Gray, Torts § 27.5 n. 60 (1986). The fact that they are two separate issues, however, does not make them irreconcilable. ⁹

The possible negligence of a child is "judged by the standard of...