Opinion
No. 11–P–1561.
2012-08-24
Renel ANTOINE, administrator, v. Joseph NICOLORO & another.
A trial judge has great latitude in framing the language of jury instructions. Here, the instruction given correctly conveyed the proper legal standard to the jury even though the judge did not use the language requested by the Nicoloros. Furthermore, question number ten of the special jury verdict specifically covers the element of causation. There was no error.
By the Court (KAFKER, BROWN & VUONO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case arises from a tragic fire at a residential building located at 17 Warren Street in Cambridge. The building is owned by the defendants, Joseph Nicoloro and Idalyn Nicoloro (collectively, Nicoloros or defendants). The fire intentionally was set by Kevin Robinson, an acquaintance of one of the tenants in the building. Benita Antoine, who leased a small three-room apartment on the third floor, and her granddaughter, Regina Antoine (collectively, decedents), perished in the fire.
Robinson subsequently was convicted of murder in connection with the fire.
The plaintiff, Renel Antoine, as administrator of the decedents' estates, brought an action in Superior Court seeking damages for wrongful death, negligence, gross negligence, and conscious pain and suffering. The complaint later was amended to include a claim for breach of the warranty of habitability.
The jury found that the Nicoloros were not negligent but that they had breached the warranty of habitability. The jury awarded damages in the amount of $15,000 for the death of Benita and $160,640 for the death of Regina. The jury also awarded each decedent $25,000 for conscious pain and suffering. The parties filed cross appeals. However, the plaintiff asserts that he will withdraw his appeal in the event that the jury verdict is affirmed. For the reasons that follow, we affirm the judgment on the jury verdict and the denial of the Nicoloros' motions for a directed verdict and for judgment notwithstanding the verdict (n.o.v.) or a new trial. Given our conclusion, we only address the issues raised by the Nicoloros.
We refer to each decedent by her first name to avoid confusion.
1. Plaintiff's expert witness. The principal issues in the case were whether Benita's act of installing an air conditioner in the rear window of her apartment, which blocked egress to the rear fire escape, could be imputed to the defendants as a negligent act, and whether the installation of the air conditioner constituted a breach of the warranty of habitability resulting in the deaths of Benita and Regina. To that end, the plaintiff's expert witness testified that the defendants could have replaced the existing fire escape with a full staircase and enlarged the rear window to provide a door-size opening to the new set of stairs. Counsel for the Nicoloros objected on the grounds that the opinion lacked a reliable foundation and had not been disclosed in advance of trial. The objection was overruled, and the Nicoloros claim that the judge abused his discretion by allowing the testimony. We disagree.
The jury also were required to determine whether the Nicoloros breached the warranty of habitability by failing to provide a second means of egress because of the rear window blockage by the air conditioner. The plaintiff's expert witness offered his opinion that the defendants should have provided a second means of egress on the front of the building.
First, as to whether the expert witness's opinion lacks a sufficient foundation, it suffices to note that the witness testified that he had reviewed pertinent city documents and was familiar with the applicable sanitary and building codes. Second, as to whether the opinion had been disclosed in a timely manner, we agree with the judge, who, at the time he overruled the Nicoloros' objection, noted that it was foreseeable that the expert witness would suggest what could have been done to provide adequate egress. Additionally, because the Nicoloros had deposed the expert witness, they were not deprived of the opportunity to explore the issue prior to trial.
The judge stated: “I think there was adequate disclosure in the report that he said there was not adequate egress and that it was required by the codes. It's not much—didn't take much imagination to foresee that he's gonna be asked what could be done to make—what should've been done to make adequate egress.”
2. Jury instructions. The Nicoloros also argue that the judge erroneously instructed the jury with regard to the breach of the warranty of habitability by failing to include the element of causation. The judge instructed the jury as follows:
“Now here again, it would have to be shown to you more probably than not that the condition that constitutes the breach of habitability, namely the maintenance of the air conditioner in the window, was what resulted in the deaths or injury of the two dead people here, Benita and Regina.”
A trial judge has great latitude in framing the language of jury instructions. Here, the instruction given correctly conveyed the proper legal standard to the jury even though the judge did not use the language requested by the Nicoloros. Furthermore, question number ten of the special jury verdict specifically covers the element of causation. There was no error.
3. Plaintiff's motion to amend complaint. We also reject the Nicoloros' claim that the judge erred in allowing the plaintiff to amend his complaint to add a count alleging breach of the warranty of habitability. As an initial matter, we observe that the amendment did not come as a surprise. The plaintiff first sought to amend the complaint one year before trial. The motion to amend was denied “without prejudice to [the plaintiff] from filing a motion to amend the complaint to conform to the evidence as it pertains to Regina.” The plaintiff renewed his motion to amend just prior to trial. Ultimately, the amendment was allowed so that the complaint would comport with the evidence. We discern no abuse of discretion. The breach of the warranty of habitability was not a new theory, and the evidence presented by the plaintiff's expert supported the claim.
4. Denial of motions for directed verdict and judgment n.o.v. or new trial. Nor did the judge err by denying the Nicoloros' motions for a directed verdict and for judgment n.o.v. or a new trial. Applying the familiar test of “whether ‘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 plaintiff,’ “ Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972), quoting from Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302 (1943), we conclude that sufficient evidence was presented to allow a fact finder to conclude that the Nicoloros breached the warranty of habitability. The jury were entitled to credit the testimony of the plaintiff's expert that the Nicoloros' failure to provide a second means of egress violated the building code, and the warranty of habitability “impose[s] a legal duty on the landlord, in the form of an implied agreement, to ensure that the dwelling complies with the State building and sanitary codes throughout the term of the lease.” Scott v. Garfield, 454 Mass. 790, 794 (2009). As the judge noted, the jury's verdict demonstrates that it “can only have concluded that the defendants' failure to provide some other second means of access, such as a fire escape on the front of the building, was in violation of the Building Code or Sanitary [code] and that this violated the implied warranty of habitability.”
Judgment affirmed.
Order denying motion for judgment notwithstanding the verdict or new trial affirmed.