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Appeals Court of Massachusetts.

Laurin JOHNSON v. Robert HUNNEWELL & another.1


Decided: November 03, 2021

By the Court (Wolohojian, Sullivan & Hershfang, JJ.2)


This case arises from a multi-car accident on the Massachusetts Turnpike. The plaintiff Laurin Johnson drove the first car, the defendant Robert Hunnewell drove the second, and the defendant Mary Pace drove the third.3 A Superior Court jury returned a verdict in favor of Hunnewell. The plaintiff appeals from the judgment, arguing that the trial judge erred in not giving three jury instructions, only two of which the plaintiff requested at trial. The plaintiff also appeals from the trial judge's order denying her motion for judgment notwithstanding the verdict (judgment NOV) pursuant to Mass. R. Civ. P. 50 (b), as amended, 428 Mass. 1402 (1998), or, in the alternative, for a new trial pursuant to Mass. R. Civ. P. 59, 365 Mass. 827 (1974).4 We affirm.

1. Jury instructions. We review jury instructions “as a whole and in the context of the evidence.” Kiely v. Teradyne, Inc., 85 Mass. App. Ct. 431, 441 (2014). “A judge should instruct the jury fairly, clearly, adequately, and correctly concerning principles that ought to guide and control their action,” Mahoney v. Gooch, 246 Mass. 567, 571 (1923), and retains wide discretion in selecting the language of the instructions. Id. We assess whether “there was any error, and, if so, whether the error affected the substantial rights of the objecting party.” Parr v. Rosenthal, 87 Mass. App. Ct. 787, 792 (2015), S.C., 475 Mass. 368 (2016). Because the instructions accurately stated the applicable law, we find no error.

The trial judge instructed the jury that negligence is “the failure of a person to use that degree of care which a reasonable person would use in the circumstances,” and as “doing something that a reasonably careful person would not do, or failing to do something that a reasonably careful person of ordinary prudence would do.” She instructed the jury that the defendant's behavior is measured against the behavior of a person who is “ordinarily careful,” that is, “how a driver of reasonable carefulness would act in similar circumstances.” These instructions accurately and adequately distilled the law the jury were to apply. See Massachusetts Superior Court Civil Practice Jury Instructions § 2.2.1 (a) (Mass. Cont. Legal Educ. 3d ed. 2014 & Supp. 2018) (“An operator of a motor vehicle must exercise reasonable care under the circumstances ․ [r]easonable care is that amount of care an ordinary and prudent person would exercise under the circumstances”).

The plaintiff argues that the judge erred in not giving three additional instructions, each of which we address in turn.

a. Instruction 13. The plaintiff asked the judge to instruct the jury using language like that of 211 Code Mass. Regs. § 74.04 (2018), which concerns the assignment of fault by insurers. The judge declined to give the instruction, reasoning that the regulation “relates to standards of fault that the Board of Appeals of Motor Vehicles is supposed to use.” The plaintiff did not object to this ruling, either at the time it was made or after the judge instructed the jury. Therefore, the objection was not preserved, see Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974), and accordingly the plaintiff's argument is waived. Even if we overlooked waiver and were to consider the argument on the merits, the plaintiff would fare no better. As the judge correctly understood, the regulation does “not define ‘fault’ or equate it with negligence.” Beach v. Commerce Ins. Co., 69 Mass. App. Ct. 720, 723 (2007).

b. Instruction 14. The plaintiff sought an instruction that, because the defendant's car hit the plaintiff's car from behind, “slight evidence” of the circumstances of the accident sufficed to find the defendant at fault. Through objections, the plaintiff preserved this argument. See Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974).

We discern no error in the trial judge's ruling on this instruction. The cases cited in support of the plaintiff's requested instruction do not announce a different burden of proof for rear-end collision cases. See, e.g., Lech v. Escobar, 318 Mass. 711, 712-713 (1945); Jennings v. Bragdon, 289 Mass. 595 (1935). Rather, those cases require an assessment of negligence on the facts of each case, which is what the judge instructed the jury to do here. Unlike Lech, supra, for example, this case had many complicating factors, including at least: the accident involved multiple cars and multiple collisions; at the time of the first collision, there was evidence that the plaintiff was talking on the phone; the defendant tried to avoid contact by braking hard and turning to the right, hitting the bumper of the plaintiff's car; and the third car hit the defendant's car with great force, such that the collision(s) caused substantial damage to both the front and rear of the defendant's car.

c. Res ipsa loquitur doctrine. The plaintiff argued for the first time after trial, and argues here, that the judge should have, sua sponte, instructed the jury on the doctrine of res ipsa loquitur. The instruction is warranted, the plaintiff maintains, because “a party is entitled to an adequate charge even if the party does not explicitly request it.” But our courts do not routinely apply res ipsa loquitur to the assessment of fault in rear-end collisions. See, e.g., Frazier v. Cordialino, 356 Mass. 465, 466 (1969); Jennings, 289 Mass. at 597. The plaintiff frankly admits as much. Where a legal principle is not generally accepted by the courts, a judge's failure to instruct on it -- let alone sua sponte -- is not error. See DaPrato v. Massachusetts Water Resources Auth., 482 Mass. 375, 391 (2019) (judge did not err by not giving jury instruction that was not correct statement of law).

2. Judgment notwithstanding the verdict and motion for new trial. Following the jury's verdict, the plaintiff moved for a finding of judgment notwithstanding the verdict or, alternatively, for a new trial. The motion was denied. The denial of a motion for judgment NOV presents a question of law reviewed under the same standard used by the trial judge. See O'Brien v. Pearson, 449 Mass. 377, 383 (2007). We view the evidence in the light most favorable to the nonmoving party, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence. See Tosti v. Ayik, 394 Mass. 482, 494 (1985), S.C., 400 Mass. 224 (1987), cert. denied sub nom, and cases cited. We uphold the verdict if it may be determined that anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the nonmovant. See Sullivan v. Five Acres Realty Trust, 487 Mass. 64, 68 (2020), and cases cited. To be reasonable, the inference “must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture” (citation omitted). Reading Co-Op. Bank v. Suffolk Constr. Co., 464 Mass. 543, 556 (2013).

On a motion for new trial, a trial judge “may set aside a jury verdict and order a new trial if the verdict is against the clear weight of the evidence.” J. Edmund & Co. v. Rosen, 412 Mass. 572, 576 (1992). We review the denial of a motion for a new trial for abuse of discretion. Kuwaiti Danish Computer Co. v. Digital Equip. Corp., 438 Mass. 459, 466–467 (2003).

Applying this standard, the evidence would have permitted the jury to find that the plaintiff, who was talking on the phone at the time, stopped her car suddenly, and that -- by contrast -- the defendant was paying attention as he drove, as evidenced by his promptly braking and turning to the right. The jury could also have found that the defendant avoided serious impact, merely “tapp[ing]” the plaintiff's car, thus using reasonable care under the circumstances. From the position and extent of the damage to the three cars, the jury could have also found that the far greater impact was caused when the third car propelled the defendant's car into the rear of the plaintiff's car. There was no error in denying the motion for judgment NOV.

For the same reasons we have outlined above, the verdict was not against the clear weight of the evidence. Instead, it was consistent with an interpretation of the evidence set out by the judge in her denial of the motion for judgment NOV or new trial. The judge did not abuse her discretion in denying the plaintiff's motion.

Conclusion. The judgment is affirmed. The order denying the plaintiff's motion for judgment notwithstanding the verdict or, in the alternative, for new trial, is affirmed.

So ordered.



3.   Mary Pace settled before trial and is not involved in this appeal. All further references to “defendant” are to Robert Hunnewell.

4.   The plaintiff filed a notice of appeal from the order denying her postjudgment motion; however, the plaintiff's brief also raises issues challenging the underlying judgment. As the defendant's brief responds to these arguments without objection, we treat this as an appeal from both the judgment and the order denying the plaintiff's postjudgment motion. See Carter v. Empire Mut. Ins. Co., 6 Mass. App. Ct. 114, 117 n.3 (1978).

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