Morgan v. Lalumiere

• Decision Date: 28 May 1986
• Citation: 22 Mass.App.Ct. 262,493 N.E.2d 206
• Parties: Barbara S. MORGAN and others 1 v. Robert LALUMIERE and another. 2
• Court: Appeals Court of Massachusetts

Page 206

493 N.E.2d 206

22 Mass.App.Ct. 262

Barbara S. MORGAN and others ¹ v. Robert LALUMIERE and another. ²

Appeals Court of Massachusetts,

Essex.

Argued March 12, 1986.

Decided May 28, 1986.

Neil Rossman, Boston, for plaintiffs.

Philip T. Tierney, Boston, for defendants.

Before BROWN, DREBEN and FINE, JJ.

FINE, Justice.

On the evening of April 1, 1983, Barbara S. Morgan was crossing the street in front of her house in Merrimac when she was struck by a car operated by the defendant, Joseph Lalumiere. Morgan had just come from purchasing pizza for her family's dinner. She had parked her car across the road from her house, and she was carrying a large box in one hand and a bottle of soda in the other. Lalumiere, coincidentally, was also on his way to buy pizza for his family's dinner. He was operating a vehicle owned by his father, also a defendant. Morgan was seriously injured in the accident. She spent more than five weeks in the hospital, endured two operations, and remains severely disabled. She brought suit against Lalumiere and his father alleging that her injuries were caused by Lalumiere's negligence. Morgan's husband, Ivan, joined in the suit with a claim for loss of consortium; Morgan's thirty-year-old severly handicapped son, Mark, added a claim for loss of parental society. The defendants in their answer alleged, among other things, that the accident was due in whole or in part to Morgan's negligence.

The jury heard the following evidence concerning how the accident occurred. It was a dark but clear night. Morgan testified that as she started across the road she looked to the right and saw headlights in the distance. She proceeded across the street looking straight ahead. When she was in the middle of the road she noticed a vehicle approaching her too closely and she began to run fast, but she was hit before she could reach safety. Lalumiere testified that he had a clear and unobstructed view of the road but that he first saw Morgan when she was five to seven feet in front of his car. According to his version, when he first saw Morgan she was in the roadway, not moving, and facing her house. He applied his brakes and swerved to the left, but he was unable to avoid hitting her. There was conflicting testimony as to the degree of illumination in the area.

The jury's verdict was in the form of answers to special questions. They found that Morgan had suffered damages as a result of the accident in the amount of $160,000. They found Morgan and Lalumiere both to have been causally negligent. They attributed fifty-two percent of the fault to Morgan and forty-eight percent to Lalumiere. Consequently, in the ensuing judgment, Morgan was not awarded any damages. The jury found in favor of Ivan on his loss of consortium claim and awarded him $15,000 in damages. Judgment entered for him in that amount. The jury also found in favor of Mark on his claim, awarding him $12,500, but the judge allowed the defendants' motion for judgment notwithstanding the verdict as to that claim. Morgan moved unsuccessfully for a new trial. The plaintiffs, Morgan and her son Mark, have appealed; so also have the defendants.

1. Morgan's Appeal.

(a) The instructions on comparative negligence. Morgan's attorney made timely objection to the judge's instruction on comparative negligence because it did not include a statement that Morgan was presumed to have been in the exercise of due care as she was crossing the street. The judge did mention to the jury that the defendants had the burden of proving Morgan's negligence. Morgan relies on G.L. c. 231, § 85, as appearing in St. 1973, c. 1123, § 1, which not only places the burden of proving a plaintiff's negligence upon the person seeking to establish such negligence but also provides that "the plaintiff shall be presumed to have been in the exercise of due care." Nothing in the statute requires, however, that the jury be told about the presumption, and the use of such language in an instruction has been commented upon with disapproval. See Potter v. John Bean Div. of Food Mach. and Chem. Corp., 344 Mass. 420, 425-426, 182 N.E.2d 834 (1962); Flaherty v. Massachusetts Bay Transp. Authy., 361 Mass. 853, 854, 279 N.E.2d 701 (1972).

If no evidence had been introduced warranting a finding of Morgan's negligence, the presumption would have operated, upon a proper request, to prevent that issue from going to the jury. Morgan's attorney did not take the position at the appropriate time, however, that the evidence of Morgan's negligence was insufficient to raise a jury issue. Nor do we think he would have succeeded in keeping the issue from the jury had he taken that position. Once some evidence of Morgan's negligence was presented, the presumption of the plaintiff's due care no longer had any effect. For the judge in the circumstances to have informed the jury of the presumption would have engaged him in an unnecessary and confusing theoretical discourse. Failure to give the requested instruction, therefore, was not error.

(b) The denial of the motion for a new trial. Morgan advances a number of bases for her contention that the judge abused his discretion in denying her motion for a new trial. First she contends that the jury's attribution of more than 50% of the fault to her was against the weight of the evidence. A review of the record convinces us that the jury's finding that Lalumiere was causally negligent was amply supported, and no one argues to the contrary on appeal. Morgan asserted for the first time at the hearing on the motion for a new trial, and she asserts now on appeal, that not a scintilla of evidence of negligence on her part was introduced at trial. We disagree. Evidence that a pedestrian, knowing that a car was approaching, crossed a road at night without at least glancing in the direction of the car as she proceeded across, raises an issue of negligence for a jury. See, e.g., Legg v. Bloom, 282 Mass. 303, 304-305, 184 N.E. 832 (1933); Campbell v. Cairns, 302 Mass. 584, 586, 20 N.E.2d 427 (1939); Hebert v. Massachusetts Bay Transp. Authy., 1 Mass.App.Ct. 670, 671, 305 N.E.2d 869 (1974). We may view Morgan's lapse as slight in comparison to Lalumiere's. We would hesitate, however, to substitute our judgment for that of the jury and of the trial judge, all of whom had the opportunity to view the witnesses and assess their credibility.

Second, Morgan contends that the verdict reveals confusion on the part of the jury because they answered the special verdict question about Morgan's damages even though they found greater fault on the part of Morgan than Lalumiere. What the jury did, however, was entirely consistent with the judge's instructions. They were polled as to the answers they gave to the specific questions, and there is no indication that they did not find the facts as recorded in their answers to the questions as they appeared on the verdict form. Further questioning of the jurors by the judge was not required. See generally Commonwealth v. Fidler, 377 Mass. 192, 201-204, 385 N.E.2d 513 (1979). It does not matter that the jurors may have believed that Morgan would recover some portion of the $160,000. ³ See Shears v. Metropolitan Transit Authy., 324 Mass. 358, 359-360, 86 N.E.2d 437 (1949). In fact, although he was not required to do so, the judge in his instructions had informed the jurors that a finding of a greater degree of negligence on Morgan's part than Lalumiere's would mean a "verdict for the defendants."

Finally, Morgan relies upon a generalized claim of manifest injustice in her quest for a new trial. Some aspects of the trial give us pause, although they were not the subjects of proper objection by Morgan at trial and they were not argued on appeal. The judge's instructions on negligence were deficient. The entire instruction on negligence and the required standard of care is reproduced in the margin. ⁴ Essentially the only guidance given the jury as to the meaning of negligence was that it is the failure to use "due care." In the course of their deliberations the jury asked the judge for a further definition of negligence. Again in his supplementary instructions the judge defined negligence by describing it only as the absence of "due care." The instruction failed adequately to convey to the jurors the legal meaning of negligence. ⁵ Negligence is the failure to exercise that degree of care which a reasonable person would exercise in the circumstances. Of course, a judge may elaborate upon that definition so long as what he says is consistent with the correct definition of negligence. Without at least some minimal reference to the reasonable person standard and to the attendant circumstances, however, an instruction does not adequately convey the meaning of negligence. See Beaver v. Costin, 352 Mass. 624, 626, 227 N.E.2d 344 (1967); O'Leary v. Jacob Miller Co., 19 Mass.App.Ct. 947, 948, 473 N.E.2d 200 (1985).

We decline to award a new trial on this ground, however, for the following reasons. Morgan had two opportunities to object to the charge, when it was first given and when it was repeated in answer to the jurors' question, but apparently she was content to have the case go to the jury with such minimal guidance. The words "due care" at least convey some suggestion of a standard of conduct based on reasonableness. The instruction, moreover, was equally objectionable, when given, from the point of view of Lalumiere, whose negligence was also a jury issue. There was no unfairness, because the potential for harm in the instruction cut both ways, and none of the parties objected to it.

Another occurrence at trial may have confused the jurors. The judge originally instructed them to determine the percentage of negligence attributable to each of the parties, to determine the full amount of damages, and then, unless Morgan was found to be more at fault than Lalumiere, to do the appropriate calculations to reduce Morgan's damages....