Reset A A Font size: Print

Appeals Court of Massachusetts,Middlesex.

Pamela HOBBS 1& others 2 v. TLT CONSTRUCTION CORP. & another.3

No. 09-P-1491.

Decided: October 27, 2010

Present: Kantrowitz, Brown, & Sikora, JJ. Robert C. Autieri for the plaintiffs. Michael J. Sacchitella for Martin Surfacing, Inc.

This appeal has its genesis in a series of lawsuits brought by various individuals for injuries sustained during a renovation project at Gloucester High School, including the alleged negligent installation of defective flooring by Martin Surfacing, Inc. (Martin Surfacing). The plaintiffs' appeal concerns only one of the three original defendants, Martin Surfacing.4 Martin Surfacing manufactured and, as a subcontractor, installed the flooring materials used in the project.

The plaintiffs' action against Martin Surfacing alleged negligence and breach of warranty. The plaintiffs' specific complaint was that the flooring materials manufactured and installed by Martin Surfacing, and, in particular, the isocyanates in the flooring, emitted noxious fumes that caused a variety of ailments, including skin irritations, allergies, respiratory problems, and other diseases. The jury rendered verdicts, on special questions,5 and found that Martin Surfacing was negligent in handling the isocyanates, but that Martin Surfacing's negligence as to this substance was not a “substantial contributing factor” in causing the plaintiffs' injuries.6

The plaintiffs' primary argument pressed on appeal is that the trial judge misinstructed the jury as to causation (and damages) and as to joint and several liability of joint tortfeasors, by failing to instruct in accordance with the standard articulated in O'Connor v. Raymark Indus., Inc., 401 Mass. 586, 591-592, 518 N.E.2d 510 (1988).7 Passing the question whether the plaintiffs made specific objections to those issues below,8 we discern no reversible error. The judge broke this extraordinarily complex case down into digestible and understandable elements for the jury and for their verdicts.

The judge's instructions and the jury slip were the subject of protracted-more than a day-discussions between the parties. The plaintiffs objected to the proposed verdict slip and jury instructions pertaining to causation, contribution and indemnification issues, and the apportionment of fault and damages. In our opinion, the injuries allegedly caused by the defendants, however, were not indivisible; they were specifically the result of three different categories of toxic substances that were emitted by separate acts of TLT or Martin Surfacing.

The trial judge's instructions and verdict slip (which has the status of an instruction to the jury) reflect a measured and responsible attempt to discern some reasonable view of the case which allowed for different possible findings of fault against the separate defendants. In other words, the judge constructed the verdict slip to flush out any potential liability of Martin Surfacing which the plaintiffs may have been pursuing through their theory of concurrent liability and indivisible injury. Viewed in this light, the verdict slip questions precluded any possible error or prejudice to the plaintiffs.9

Amended judgments affirmed.