Srebnick v. Lo-Law Transit Management, Inc.

Decision Date24 July 1990
Docket NumberLO-LAW,No. 89-P-169,89-P-169
Citation29 Mass.App.Ct. 45,557 N.E.2d 81
PartiesDonna M. SREBNICK v.TRANSIT MANAGEMENT, INC. et al. 1
CourtAppeals Court of Massachusetts

Francis X. Kiley, Boston, for Lo-Law Transit Management, Inc. et al.

Richard J. Glynn, Boston, for plaintiff.

Before DREBEN, FINE and PORADA, JJ.

FINE, Justice.

On a snowy morning in February of 1979, the plaintiff suffered injuries when her automobile, while stopped at a traffic light at an intersection in Somerville, was struck in the rear by another vehicle. She did not see what hit her. After the impact she saw a bus stopped 50 to 200 feet across the intersection from her vehicle. She observed the bus to be colored grey, silver and white, and, based upon her experience, she identified it as a Massachusetts Bay Transportation Authority (MBTA) bus. The plaintiff noticed the number "6166" in large white print at the right corner of the bus's rear window. She testified that she wrote down the number "6166" with a pencil and paper given to her by Harold West, the driver of a truck that had been traveling behind her. West had come to the plaintiff's assistance. West's testimony at trial was that he saw a bus leave a ramp leading from the McGrath highway, attempt to fit between the plaintiff's car and an island in the road, and strike the plaintiff's car. West also described the bus as an MBTA bus. He too saw the number "6166" on the rear window of the bus and wrote it down on a piece of paper. The plaintiff and West waited for a few minutes for the driver of the bus to come over to them. The driver did not disembark, however, and the bus quickly drove off.

The plaintiff brought a negligence action against the MBTA in the Superior Court on February 8, 1980. On September 8, 1987, the plaintiff filed a motion to amend her complaint to add Lo-Law Transit Management (Lo-Law) as a defendant. The motion was allowed on September 9, 1987. Lo-Law had received no notice of the motion and was not present at the hearing. Lo-Law first learned of the claim when it was served with a summons on September 15, 1987.

The case was tried before a jury in February of 1988. There was evidence that the MBTA had sold bus number 6166 to Lo-Law on January 9, 1978, and that on the date of the accident the bus was in Lo-Law's control. It was regularly operated, however, only in the Lowell area. The jury answered special questions as follows: Lo-Law, not the MBTA, owned and controlled the bus at the relevant time; Lo-Law was causally negligent in its operation of the bus; and the plaintiff's damages were $45,000. Judgment entered accordingly, and Lo-Law appealed.

We agree with Lo-Law's contention that the trial judge improperly made remarks during his instructions which had the effect of taking the negligence issue from the jury. We, therefore, order a new trial on the issue of Lo-Law's negligence. We also agree that, although improper in form, Lo-Law's attempt to raise the issue of the plaintiff's allegedly prejudicial delay in bringing the claim against Lo-Law was worthy of consideration. On remand, therefore, that issue may be heard.

1. The negligence issue was not waived. Lo-Law denied in its answer that it was negligent, and negligence was never expressly conceded. The plaintiff, therefore, had the burden of proving Lo-Law's negligence by a fair preponderance of the evidence. Although the principal issue at trial was ownership of the bus, there was testimony, both on direct and in cross-examination, from both the plaintiff and West about the accident, the extent of their particular observations, and the road and weather conditions. As Lo-Law denied that one of its buses was involved in the accident and claimed that its buses only operated in the Lowell area, it is understandable that, apart from the occurrence of the accident, there was no direct evidence that Lo-Law's operator was not negligent. Lo-Law's closing argument focused on the ownership issue; negligence was not discussed. Lo-Law presented requests for jury instructions relating to negligence, however, and a special verdict question was posed on the issue of negligence without objection from the plaintiff.

The judge in his instructions did not define negligence for the jury. On the contrary, he said to the jurors: "[S]omeone was careless here.... There is no evidence to the contrary, the fact that someone was not careless." The defendant made a timely objection.

The issue on appeal is whether negligence was a live issue at trial or whether, on the other hand, it had been impliedly waived as a result of the way in which the trial was conducted. See Dalton v. Post Publishing Co., 328 Mass. 595, 598-599, 105 N.E.2d 385 (1952); O'Donnell v. Bane, 385 Mass. 114, 120-121, 431 N.E.2d 190 (1982). If negligence was a live issue, surely the failure of the judge to define negligence in terms of reasonableness in the circumstances and to emphasize the plaintiff's burden of proof on that issue were not harmless. While the evidence of negligence was considerable, the plaintiff had not seen a bus before she felt the impact, and the jurors were not obliged to believe West's version of the accident. On the basis of our review of the trial as a whole, we think negligence, although not the principal issue tried, remained an issue in the case on which Lo-Law had the right to a jury finding on proper instructions. See Mahoney v. Gooch, 246 Mass. 567, 571, 141 N.E. 605 (1923); Horowitz v. Bokron, 337 Mass. 739, 745-746, 151 N.E.2d 480 (1958).

No case of which we are aware compels a decision to the contrary. In Dalton v. Post Publishing Co., 328 Mass. at 598-599, 105 N.E.2d 385, relied upon by the plaintiff, a party complained of a judge's failure to instruct the jury on a theory which had been pleaded. An implied waiver of the theory was found because the case had been tried on an inconsistent theory and because the judge, during trial, had made a statement of the issues he believed were being tried, and the statement, which was consistent with his instructions, was unchallenged. In O'Donnell v. Bane, 385 Mass. at 120-121, 431 N.E.2d 190, the theory found to have been impliedly waived had not been pleaded, and no objection had been taken to instructions omitting reference to that theory.

In the present case, apart from the failure of Lo-Law's attorney to argue the negligence issue, nothing occurred at trial which could have led the judge reasonably to believe the issue was waived. In our view, the judge's failure to correct his instructions upon objection entitles Lo-Law to a new trial on the negligence issue. Because the finding of proximate cause presumed negligence, and because negligence and proximate cause are so closely intertwined, the causation issue should also be presented again to the jury.

2. On remand, the issue of prejudicial delay should be considered. Lo-Law received notice of the plaintiff's claim for the first time seven and one-half years after the plaintiff brought this action against the MBTA and eight and one-half years after the accident, following allowance of the plaintiff's motion to amend her complaint, pursuant to Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974), to add Lo-Law as a defendant. As grounds for the motion, she stated that she had only recently received discovery documents from the MBTA indicating that Lo-Law had owned and operated the bus involved in the accident on the relevant date. The MBTA assented to the motion, and it was allowed by a judge although Lo-Law, the only party with an interest in opposing it, had received no notice and was not heard. Lo-Law did not attempt to raise the issue of the propriety of the allowance of the motion to amend by means of its own pretrial motion, but, instead, it pleaded the affirmative defense of laches in its answer.

After the jury were impanelled, Lo-Law's laches defense was discussed at a sidebar conference. The judge firmly refused to permit Lo-Law's attorney to refer to it at trial. Later in the trial, still precluding discussion of the defense, the judge stated that it should have been raised before trial by a motion to dismiss.

The form in which Lo-Law sought to raise the issue was not correct. A judge may find as a fact that laches exists if there has been unjustified, unreasonable, and prejudicial delay in raising a claim. See Stewart v. Finkelstone, 206 Mass. 28, 36, 92 N.E. 37 (1910); Norton v. Chioda, 317 Mass. 446, 452, 58 N.E.2d 828 (1945). Laches is available, if affirmatively pleaded, as a defense to a claim that is equitable in nature. See Cohen v. Bailly, 266 Mass. 39, 48-49, 165 N.E. 7 (1929); Albano v. Puopolo, 309 Mass. 501, 509-510, 36 N.E.2d 398 (1941); Three Sons, Inc. v. Phoenix Ins. Co., 357 Mass. 271, 278, 257 N.E.2d 774 (1970). It is not generally available as a defense to a legal claim. As long as there is no statute of limitations problem, unreasonable delay in pressing a legal claim does not, as a matter of substantive law, constitute laches. See Cohen v. Bailly, 266 Mass. at 48-49, 165 N.E. 7; Bedford Heating & Air Conditioning Co. v. Milano, 6 Mass.App.Ct. 898, 377 N.E.2d 438 (1978); Smith & Zobel, Rules Practice § 8.17 (1974). 2

The plaintiff's tort claim is legal, not equitable, in nature. Moreover, the claim was not barred by the statute of limitations as, under Mass.R.Civ.P....

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