Roberts v. Southwick
| Decision Date | 09 June 1993 |
| Parties | Judith ROBERTS v. Rebecca SOUTHWICK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Anne V. Romano, Northampton, for plaintiff.
Carol Booth, Amherst (Susan S. Woglom, with her), for defendant.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.
The plaintiff's amended complaint asserts claims against Rebecca Southwick and Aetna Casualty and Surety Co. This appeal raises issues only between the plaintiff and Southwick (defendant). The complaint alleges that on January 28, 1985, the defendant was the general contractor at the site of a house construction project in the town of Leverett. It is alleged that on that day the plaintiff was present at the site as the defendant's invitee "for the purpose of learning carpentry skills with the consent of the [d]efendant" and not as an employee of the defendant. The complaint says that, as a result of the defendant's negligence, the plaintiff was injured by falling sheetrock. The case was tried to a jury, and the jury, responding to special questions, found that the defendant had been negligent, but that the defendant's negligence had not been the proximate cause of the plaintiff's injuries. The plaintiff moved for a new trial and her motion was denied. Judgment was then entered for the defendant and the plaintiff appealed. We granted the plaintiff's application for direct appellate review. We now affirm the judgment.
There was evidence at the trial that the defendant ran a program at the work site that was designed to teach carpentry skills to women for an enrollment fee. Before the incident giving rise to this case occurred, the plaintiff had worked mostly in sales and marketing but she had been laid off and was unemployed when she learned about the defendant's program. During the approximately one and one-half weeks before the incident, the plaintiff had attended the workshop for "a couple of half days." When asked what she did on those occasions, the plaintiff testified that the first couple of times she was at the site she "watched, because [she] really didn't have the skills and abilities to participate," but she remembered carrying lumber, stacking it, and handing it to carpenters, and she remembered measuring lumber for some carpenters. On the day of the plaintiff's accident, according to her testimony, the plaintiff "was actually involved in hammering nails to put up the outside siding of one of the houses that was being built." Upon discovering that her nails "were not going into anything," the plaintiff "went inside of the house to see if there was an interruption in the framing that would make it so that there wouldn't be anything for [her] to be nailing into." While engaged in that endeavor, a stack of sheetrock fell on the plaintiff, injuring her.
The following relevant admissions of the defendant were read to the jury. The defendant admitted that the plaintiff "was not paid for time or work done at the construction site," but she was an invitee to whom the defendant owed a duty of reasonable care. The defendant also admitted that "the sheetrock stored on the job site which fell on [the plaintiff] was precariously balanced prior to the fall" and the falling sheetrock injured the plaintiff.
On appeal, the plaintiff argues that the judge erred in excluding from evidence certain Occupational Safety and Health Administration (OSHA) regulations, namely, 29 C.F.R. § 1926.16, entitled "Rules of construction," § 1926.20, entitled "General safety and health provisions," § 1926.21, entitled "Safety training and education," and § 1926.250, entitled "General requirements for storage." The plaintiff also contends on appeal that the judge erred in excluding expert testimony about the stability of properly-stacked sheetrock and the force required to pull properly stacked sheetrock down. Lastly, the plaintiff argues that the judge's actions during the trial constituted judicial misconduct in violation of the plaintiff's constitutional right to an impartial magistrate. The plaintiff says that, because of these errors, she is entitled to a new trial. We do not agree.
After a careful review of the record, we are satisfied that the plaintiff failed to offer in appropriate form the OSHA regulations that she now argues the judge erroneously excluded. 1 1 Although the defendant has not argued that point, we are unwilling to grant a new trial based wholly or partly on the ground that the judge failed to admit evidence that, in our view, was never properly offered.
The plaintiff's counsel called the defendant to the witness stand and asked her whether she understood the OSHA regulations for safety on job sites. Defense counsel objected, and the plaintiff's counsel told the judge that he wanted to ask about the OSHA regulations pertaining to general safety. The judge observed that the OSHA regulations "go on for page after page," and requested counsel to be more specific. The plaintiff's counsel began a discussion of "[f]ive particular points," the first point being that general contractors are not relieved from compliance with respect to work performed under the contract. The judge asked whether the regulations apply "to a contractor of this type" and the plaintiff's counsel answered, "I believe they apply to anything that comes under FHA." Then the following colloquy occurred:
Earlier in the trial, the plaintiff's counsel had conducted a voir dire examination of Robert Reckman, whom the plaintiff planned to present as an expert witness. In the words of the judge, the voir dire was to "find out what [the witness was] going to talk about." The voir dire examination of Reckman was interrupted by the testimony of other witnesses including the testimony of the defendant mentioned above. Then the voir dire examination of Reckman resumed. Reckman testified that there are OSHA regulations regarding the stacking of materials so they will not fall and injure workers, and that OSHA regulations require the contractor to be responsible for safety on the job site. In response to plaintiff's counsel's question as to which particular regulation the witness was referring to, the witness responded that it was perhaps in volume 29 of the Code of Federal Regulations, part 1926R, and he purported to quote from that regulation. There is no such part or § 1926R, but the quoted material appears to be the last sentence of § 1926.16(a), which states, "In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract." The judge stated, "I'm not going to let him get into the OSHA regulations based on the evidence I have in front of me." No specific OSHA regulations were offered by the plaintiff at that, or any other, time. The judge did not "exclude," and therefore did not erroneously exclude, the particular regulations the plaintiff now argues she was entitled to have admitted in evidence.
In addition to her contention that the judge erred in excluding certain OSHA regulations from evidence, the plaintiff says that the judge erred in refusing to allow an expert called by the plaintiff to testify about the force that would have been needed to topple properly-stacked sheetrock of the size and amount that fell on the plaintiff. Any error with respect to the exclusion of the expert's testimony was clearly harmless. The defendant admitted that the sheetrock was precariously stacked and that it fell on the plaintiff and injured her. The jury also found that the defendant was negligent. It was abundantly clear that, if the sheetrock had been stacked properly, it would not have fallen on the plaintiff. The single live issue at trial was whether the plaintiff had pivoted or pulled the precariously stacked sheetrock thereby breaking the chain of causation involving the defendant's conduct and proximately causing her own injuries. After the plaintiff testified on direct examination that she had discovered that her nails "were not going into anything," and that she went into the house to find out why that was so, she testified,
On cross-examination, the plaintiff was asked, "Isn't it true that you tried to move that sheetrock to look behind, to find your nail?" The plaintiff answered, The record shows that a "pad" was "returned" to the plaintiff by her counsel, and the...
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