Summary
distinguishing commercial lease for real property from indemnification contract and noting, "Perry and Butler apply the general principle that the exculpatory language must be expressed in clear and unequivocal terms. In contracts of indemnity, this principle is applied with a force that requires the parties to state in express terms that the active negligence of the indemnitee will be assumed by the indemnitor."
Summary of this case from S.D. Warren Company v. Eastern Electrical Corp.Opinion
No. 92-274-Appeal.
February 25, 1993.
Edward Gnys, R. Kelly Sheridan, Providence.
E. Martin Stutchfield, Providence.
ORDER
This matter was before a panel of the Supreme Court pursuant to an order issued to the plaintiff to appear and show cause why her appeal should not be denied and dismissed. In this case, the plaintiff appeals from the granting of defendants motion for directed verdict.
After reviewing the memoranda submitted by the parties and after hearing their counsel in oral argument, it is the conclusion of this court that cause has not been shown. The court is of the opinion that two medical witnesses who had testified did not establish a causal relationship between the plaintiff decedent's hearing loss and the machinery in question.
The court is further of the opinion that the trial justice did not abuse his discretion in allowing defendant's medical witness to testify out of time, before plaintiff had rested. Finally the court is of the opinion that plaintiff's failure to have the out-of-state expert witness available to testify either personally or by deposition fully justified the trial justice's granting of the motion for directed verdict.
Therefore, the plaintiff's appeal is denied and dismissed, the judgment appealed from is affirmed and the papers of the case are remanded to the Superior Court.
WEISBERGER, J., did not participate.