Opinion
13-P-1206
11-14-2014
MARIE BIJOUX v. DEMOULAS SUPERMARKETS, INC.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a judgment on a jury verdict in a negligence action asserting that the judge improperly failed to give her requested jury instructions. Because the claim was not properly preserved, the judgment is affirmed.
Discussion. Rule 51(b) of the Massachusetts Rules of Civil Procedure, 365 Mass. 816 (1974), requires that in order to appeal from a trial judge's jury charge, counsel must object to the charge before the jury begins deliberations. While there is no "hard and fast" rule that the objection be made after the charge, Flood v. Southland Corp., 416 Mass. 62, 67 (1993), here the plaintiff objected to the instruction neither before nor after the judge charged the jury. See Rotkiewicz v. Sadowsky, 431 Mass. 748, 751-752 (2000). The portion of the record relating to the postcharge conference is recorded as "indiscernible" and the plaintiff has not argued that she made any postcharge objection. "The burden is on the appellant in the first instance to furnish a record that supports his claims on appeal." Arch Med. Assocs. v. Bartlett Health Enterprises, Inc., 32 Mass. App. Ct. 404, 406 (1992). The plaintiff has not sought to reconstruct the record in accordance with Mass.R.A.P. 8(c), as amended, 378 Mass. 932 (1979). Accordingly, the issue is waived. Toney v. Zarynoff's, Inc., 52 Mass. App. Ct. 554, 563-564 (2001).
"No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."
In the conference held before trial the judge indicated she would not give the requested instruction and plaintiff's counsel responded, "Okay. Fair enough." At the precharge conference counsel specifically objected to another requested jury instruction but did not object to the instruction at issue in this appeal.
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Judgment affirmed.
By the Court (Cypher, Grainger & Maldonado, JJ.),
Clerk Entered: November 14, 2014.