Opinion
11-P-423
12-08-2011
ROBERT BARRON v. JOHN M. PURVES.
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 was an employee of Service Net, Inc., an organization that was renting a house from the defendant. Five days after the defendant did some work on the outside of the house and hung his ladder back in the garage, the plaintiff was injured when he hit his head on the ladder, which subsequently fell on him. The plaintiff sued the defendant for negligence. At the conclusion of the trial, the jury found each party to have been fifty percent negligent. Judgment entered for the plaintiff. He was awarded one-half of the damages found by the jury plus interest and costs. The defendant appealed.
1. The defendant's challenge to the sufficiency of the evidence fails for the reason, if no other, that, having unsuccessfully moved for a directed verdict after the close of the plaintiff's case, he proceeded to present his case but failed to renew his motion for a directed verdict at the close of all the evidence. By failing to do so, the defendant waived his right to appeal the denial of the motion. See Dalrymple v. Winthrop, 50 Mass. App. Ct. 611, 619 (2000) ('[F]ailure to renew a motion for a directed verdict results in a waiver of the right to appeal from the denial of the motion').
The defendant also did not move for a judgment notwithstanding a verdict or for a new trial.
2. The defendant asserts in his statement of the issues that the judge erred in declining to use his requested instruction regarding the duty of care of a commercial landlord. This bare assertion does not constitute acceptable legal argument. Cameron v. Carelli, 39 Mass. App. Ct. 81, 85-86 (1995).
Even if we were to consider this claim, it would not affect the result. 'A party must make a proper objection to a jury instruction before the jury retires in order to preserve the issue for appeal.' Jarry v. Corsaro, 40 Mass. App. Ct. 601, 603 (1996). Here, the defendant waived his right to challenge the jury instructions on appeal when he declared himself satisfied with the judge's charge and the verdict slip.
--------
3. Other legal claims made by the defendant are not before us, as they are being raised for the first time on appeal. See Picciotto v. Chief Justice of the Superior Ct., 446 Mass. 1015, 1016 n.2 (2006). See also M.H. Gordon & Son, Inc. v. Alcoholic
Bevs. Control Commn., 386 Mass. 64, 67 (1982).
Judgment affirmed.
By the Court (Berry, Brown & Grainger, JJ.),