Solimene v. B. Grauel & Co., K.G.

• Decision Date: 04 May 1987
• Citation: 399 Mass. 790,507 N.E.2d 662
• Parties: , Prod.Liab.Rep. (CCH) P 11,407 Maria F. SOLIMENE v. B. GRAUEL & CO., K.G., et al. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 662

507 N.E.2d 662

399 Mass. 790, Prod.Liab.Rep. (CCH) P 11,407

Maria F. SOLIMENE v. B. GRAUEL & CO., K.G., et al. ¹

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued January 7, 1987.

Decided May 4, 1987.

Ansel B. Chaplin, Boston, for B. Grauel & Co., K.G.

Cynthia J. Cohen (Leo V. Boyle and Michael B. Bogdanow, Boston, with her), for plaintiff.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

ABRAMS, Justice.

On October 8, 1975, the plaintiff, Maria F. Solimene, was injured while working with an industrial machine manufactured by the defendant, B. Grauel & Co., K.G. (Grauel). The plaintiff sought damages from Eastern Marking Machine Corporation (Eastern), who, she alleged, distributed the machine to her employer, and from the machine's manufacturer, Grauel, on the theories of negligent design and breach of warranty. After trial, the jury found that Grauel was negligent and had violated its warranty of merchantability. ² We granted the defendant's petition for direct appellate review.

Grauel raises several issues on appeal. First, Grauel argues that its motion for directed verdict or for judgment notwithstanding the verdict should have been allowed and judgment entered in its favor on both the negligence and warranty counts because the conduct of the plaintiff's employer constituted a superseding cause of the plaintiff's injuries as a matter of law. ³ Grauel further argues that the trial judge abused his discretion by permitting the plaintiff's expert to testify as to a condition diagnosed only ten days before trial, in violation of a pretrial discovery order. As to the jury instructions and special questions, Grauel contends that the verdicts entered against it, but in favor of Eastern, are inconsistent and must be set aside. In addition, Grauel argues that the special questions were insufficient because they did not specifically refer to the issue of proximate cause. Grauel also argues that the verdicts must be set aside as against the weight of the evidence. Grauel also challenges the amount of damages awarded by the jury. Grauel contends that the trial court erred in declining to order a remittitur because the amount awarded was against the weight of the evidence. Grauel also challenges the judge's use of a table depicting various interest and inflation rates to support the conclusion that the jury's award was not so excessive as to require remittitur. Last, Grauel argues that there was insufficient evidence to support recovery for impairment of future earning capacity. We affirm the judgment for the plaintiff.

We summarize the facts. In reviewing the judge's refusal to direct verdicts for Grauel, we view the evidence in the light most favorable to the plaintiff. Everett v. Bucky Warren, Inc., 376 Mass. 280, 282, 380 N.E.2d 653 (1978). On the day of the accident, the plaintiff was working for the Crystalonics Division of Teledyne, Inc. (Teledyne). The plaintiff's job was to operate a machine, designated a "B3/FR" by the manufacturer. The machine consisted of two parts, an imprinting unit and a motorized unit. ⁴ With this machine, the plaintiff imprinted information on small electronic parts. While she was operating the B3/FR on the day of the accident, one of the objects that the plaintiff was imprinting fell off the base of the machine. The plaintiff turned off the machine so that she could retrieve the object. While the plaintiff was in the process of retrieving the object, the plaintiff inadvertently reactivated the machine. An oscillating arm descended and pinned the plaintiff's wrist to the base of the machine.

The plaintiff was trapped in the machine for twenty to forty minutes. Several coworkers struggled to move the oscillating arm but were unsuccessful. When the plaintiff's wrist finally was freed from the machine, her hand immediately became swollen and she was taken to a hospital.

Although the plaintiff was treated and released on the same day, five weeks later, on November 14, 1975, surgery was performed on the plaintiff's right wrist to relieve symptoms of carpal tunnel syndrome, a condition caused by pressure on a nerve in the hand. The evidence indicated that the plaintiff's right hand continues to be severely impaired. She has impaired grip strength and continues to suffer from traumatic sympathetic reflex dystrophy, which is characterized by throbbing pain, burning sensation, intermittent swelling, and a feeling of vise-like compression at the wrist.

Nine months after the accident, on July 6, 1976, the plaintiff returned to her position at Teledyne. From July, 1976, until January, 1977, the plaintiff operated the same B3/FR that she had operated prior to the accident. In May, 1977, Teledyne transferred her to another job within the company. She has been steadily employed at an increasing salary since her return to work.

The trial began on January 7, 1985, in the Superior Court. At the conclusion of the evidence, the judge submitted the matter to the jury on special questions. See Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974). In their answers to the special questions, the jury found that Eastern was not negligent. Grauel's negligence was assessed at ninety-five per cent and the plaintiff's negligence was assessed at five per cent. See G.L. c. 231, § 85 (1984 ed.). ⁵ On the breach of warranty claim, the jury found that Eastern did not violate its warranty but that Grauel did violate its warranty of merchantability. On this claim, the jury awarded the plaintiff $275,000, plus interest. ⁶ Judgment entered for the plaintiff. On January 28, 1985, ⁷ Grauel filed posttrial motions for judgment notwithstanding the verdict and for a new trial. See Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974). The judge denied the motions. Grauel appeals.

1. The motions for directed verdict and judgment notwithstanding the verdict. At the close of the plaintiff's case and at the close of all the evidence, Grauel moved for a directed verdict. See Mass.R.Civ.P. 50(a), 365 Mass. 814 (1974). The judge denied these motions. Grauel thereafter moved for judgment notwithstanding the verdict and, in the alternative, for a new trial, arguing that the duty to prevent harm to the plaintiff had shifted from it to the plaintiff's employer as a matter of law. Grauel also argues that the judge denied the posttrial motions on purely speculative grounds. We do not agree with these contentions.

Generally, questions of causation, proximate and intervening, present issues for the jury to decide. See, e.g., Michnik-Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 12, 453 N.E.2d 430 (1983); Mullins v. Pine Manor College, 389 Mass. 47, 58, 449 N.E.2d 331 (1983); Jesionek v. Massachusetts Port Auth., 376 Mass. 101, 106, 378 N.E.2d 995 (1978); Lane v. Atlantic Works, 111 Mass. 136, 140 (1872). Relying on § 452 of the Restatement (Second) of Torts (1965), Grauel asserts that the question of superseding cause should be decided by the judge as a matter of law. ⁸ Grauel neglects to consider other sections of the Restatement which bear on this claim. Restatement (Second) of Torts, supra at § 453 comment b, which discusses the function of the court on questions of superseding cause, states that "[i]f ... the negligent character of the third person's intervening act ... is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury." The judge left this issue to the jury. The jurors determined that any negligence of the employer was not a superseding cause of the plaintiff's injuries.

Because the employer had owned the B3/FR for nine years and was aware of the particular risks associated with use of the product, Grauel argues that the employer was in a better position than the manufacturer to make the machine safe for its intended use. Whether a third party is in a better position to prevent harm to another is not determinative of the issue of superseding cause. ⁹ In McDonald v. Snelling, 14 Allen 290, 296 (1867), we stated that "[t]he test is to be found, not in the number of intervening events or agents, but in their character, and in the natural and probable connection between the wrong done and the injurious consequence." See Jesionek, supra 376 Mass. at 105, 378 N.E.2d 995; Lane, supra 111 Mass. at 140.

In this case, Grauel designed the product to operate as the plaintiff was using it. There was no evidence that Teledyne modified or altered the machine in any way. Although the employer gave the plaintiff few instructions as to proper use of the B3/FR, the evidence indicates that Grauel did not give Teledyne any warnings or instructions as to proper use of the machine. Thus, Teledyne's use of this product, as it was intended and without any alterations to the product, is a foreseeable use.

As a general rule, a tortfeasor is liable "for the foreseeable intervening conduct of a third party whether that conduct is negligent or not." Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 352 n. 10, 446 N.E.2d 1033 (1983), quoting Wilborg v. Denzell, 359 Mass. 279, 285, 268 N.E.2d 855 (1971). Grauel, as the designer of the product, was in the best position to recognize and eliminate design defects. See Uloth v. City Tank Corp., 376 Mass. 874, 881, 384 N.E.2d 1188 (1978). The judge correctly left this issue to the jury through appropriate jury instructions. ¹⁰ See Sweenor v. 162 State St., Inc., 361 Mass. 524, 527, 281 N.E.2d 280 (1972) (rare case that it can be ruled as a matter of law that defendant's burden of proof has been satisfied).

Grauel also contends that its motion for judgment notwithstanding the verdict should have been granted because the judge improperly speculated that the jury relied on one of the two theories of defect advanced by the plaintiff....