Opinion
No. 11–P–1150.
2012-05-22
Lawrence E. HYDE & another v. VERMONT MUTUAL INSURANCE COMPANY & others.
By the Court (GRAHAM, GRAINGER & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a judgment on a jury verdict and the denial of their motion for a new trial. They argue that the verdict was against the weight of the evidence and that the judge erred when he denied their request for an instruction alleging an alternative theory of negligence. We affirm.
The plaintiffs own land abutting property owned by defendants Michael W. Kinchala and Hildred Pennoyer. On April 16, 2005, the defendants received a burn permit from town of Dover officials to burn brush in their yard. The defendants had never burned brush before, but used an area of their yard which had clearly been used in the past to burn brush. At the end of the day, the defendants attempted to put out the fire, dousing it with water, and raking and tilling the coals. Later that night, Kinchala left his house for approximately two and one-half hours to inspect a property that he managed. As he drove up his driveway, he saw a red ember glowing from the fire pit, so he again hosed the area, tilled the soil, and raked the area.
The next day the defendants left for a visit to Connecticut. Prior to leaving, Pennoyer hosed and raked the fire pit. When the defendants returned from Connecticut on April 18, 2005, they found that approximately two acres of the wooded area owned by the plaintiffs, which separated the homes of the parties, had burned. The plaintiffs then commenced this action seeking damages for trees and brush destroyed on their property.
At trial, the plaintiffs alleged that the defendants were negligent in two different ways: failing properly to extinguish the fire and failing to take steps to prevent the fire from spreading. In support of their second theory, the plaintiffs requested an additional charge on “duty” as follows: “If an actor ‘does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.’ Section 321(1) of the Restatement (Second) of Torts. See Commonwealth v. Levesque, 436 Mass. 443, 766 N.E.2d 50 (2002).”
Levesque involved manslaughter charges against two homeless people who had accidently started a fire at a warehouse and then fled the scene without notifying any authorities. By the time firefighters responded, the fire was out of control and six firefighters died in the building. The court in Levesque cited the above quoted Restatement section favorably and adopted it for use in the criminal context. It noted that “[a]lthough we have yet to recognize explicitly § 321 as a basis for civil negligence, see Panagakos v. Walsh, 434 Mass. 353, 356, 749 N.E.2d 670 (2001), we have expressed agreement with its underlying principle.” Id. at 449–450, 749 N.E.2d 670.
The judge declined to give the requested instruction, using instead the Superior Court's model jury instruction on negligence, including duty. At trial, the plaintiffs objected to the judge's refusal to give the requested charge. The jury, in answer to special questions, found that the individual defendants were not negligent. The plaintiffs filed a timely motion for a new trial alleging the verdict was against the weight of the evidence and that the judge erred in denying their request for the additional instruction on duty.
The motion judge, who was also the trial judge, denied the motion. We find no error. Levesque was a criminal case concerning the crime of involuntary manslaughter and the Restatement concerned harm to persons, not property. We agree with the judge's determination that the evidence at trial was that the defendants believed the fire was extinguished before they left for Connecticut and could not have any obligation to report anything to authorities. Accordingly, there was no basis in the evidence to support the requested charge. Since we conclude that the evidence did not support the requested charge, we need not reach the question whether to adopt section 321 of the Restatement in the civil contest. See Global Investors Agent Corp. v. National Fire Ins. Co. of Hartford, 76 Mass.App.Ct. 812, 826, 927 N.E.2d 480 (2010), quoting from Mishara Constr. Co. v. Transit–Mixed Concrete Corp., 365 Mass. 122, 126, 310 N.E.2d 363 (1974) (“When determining the appropriateness of delivering an instruction, ‘[a] request correct in law but not appropriate to the conditions of a case is properly refused’ ”).
The plaintiffs argue, in essence, that, prior to leaving for Connecticut, the individual defendants should have notified authorities, neighbors, or friends of their prior unsuccessful attempts to extinguish the fire.
We also reject the plaintiffs' argument that the judge abused his discretion in denying the motion for a new trial, grounded on a claim that the jury's verdict was against the weight of the evidence. The jury could have determined that the individual defendants exercised reasonable care in their multiple attempts to put out the fire. “The decision to deny or to grant a new trial based on the weight of the evidence rests in the discretion of the trial judge, ... who is instructed to set aside a verdict if ‘in his judgment it is so greatly against the weight of the evidence [to suggest] that it was the product of a bias, misapprehension or prejudice.’ ... The fact that the jury could have found for the plaintiffs does not make their verdicts against the weight of the evidence or inconsistent with substantial justice....” Jamgochian v. Dierker, 425 Mass. 565, 571, 681 N.E.2d 1180 (1997).
Accordingly, the judgment is affirmed and the order denying the plaintiffs' motion for new trial is affirmed.
So ordered.