Opinion
14-P-1875
03-30-2016
LISA A. DAHLQUIST v. LYDON MILLWRIGHT SERVICES, INC., & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Lisa A. Dahlquist, alleged that she was injured in a motor vehicle collision resulting from the defendants' negligence. After a trial in the Superior Court, the jury returned a verdict for the defendants. Dahlquist now appeals, arguing that the judge erred in refusing to give jury instructions she had requested. We affirm.
On April 23, 2008, Dahlquist's car was stopped at a stop sign, with a truck driven by defendant Michael Lewis, and owned by defendant Lydon Millwright Services, Inc., stopped behind her. Dahlquist and Lewis gave different accounts of the accident. According to Dahlquist, while she was still stopped at the stop sign, attempting to discern a break in traffic in order to turn right on to Crescent Street, Lewis struck her car from behind. In addition to damage to her car, Dahlquist asserts that she sustained injuries to her head, neck, shoulder, arm, and hand caused by the crash.
According to Lewis, he stopped behind Dahlquist at the stop sign. "She then pulled forward of the stop sign evidently to check for traffic . . . . When [he] observed [her] brake lights go off and traffic . . . clear, he released his brake and pulled forward only to encounter [Dahlquist] having suddenly stopped again between the stop line and Crescent Street. He collided with the rear of her vehicle at a low-impact speed causing very minor damage to the rear of her vehicle."
At trial, Dahlquist filed with the judge three separate requests for jury instructions. She requested an instruction on G. L. c. 231, § 85 (comparative and contributory negligence); 720 Code Mass. Regs. § 9.06(7) (1996) ("Following Too Closely") and § 9.06(13) ("Obedience to Isolated Stop Signs"). She also requested that a Carter v. Yardley, 319 Mass. 92 (1946), instruction be given, which states that a person owes a general human duty not to injure another through disregard of the other's safety.
The judge did provide instructions to the jury on the four elements of negligence, stating specifically that Dahlquist had to prove "that the defendant owed [her] a duty of reasonable care; second, that the defendant breached that duty; third, that damage resulted to [Dahlquist]; and fourth, that the breach of the duty caused the damage." He also instructed that generally "the operator of a motor vehicle has a duty to exercise reasonable care for the safety of others while operating a vehicle." The judge declined to give instructions on "the violation of a safety statute because the regulations cited relate to public highways. There's no evidence that this was a public highway." In addition, because the judge found that no evidence was presented relating to comparative negligence, he declined to give the requested statutory instruction. The judge also stated that he "adequately covered the duty issue," declining to give a Carter v. Yardley instruction. Dahlquist's objection was duly noted. Dahlquist contends that the judge erred in not giving the requested instructions on the specified sections of the regulations, on the safety statute, and in accordance with Carter v. Yardley. We see no error. "The trial judge has wide discretion in framing the language used in jury instructions." Kiely v. Teradyne, Inc., 85 Mass. App. Ct. 431, 441 (2014). "The judge [is] not bound to instruct in the exact language of the requests." Kelly v. Foxboro Realty Assoc., LLC, 454 Mass. 306, 316 (2009), quoting from Commonwealth v. Kelley, 359 Mass. 77, 92 (1971). "[A] good objection to a charge 'will lie only if a critical issue was not dealt with at all or was dealt with erroneously as a matter of law.'" Kiely, supra, quoting from General Dynamics Corp. v. Federal Pac. Elec. Co., 20 Mass. App. Ct. 677, 684 (1985). "[R]eversible error will not be found merely by 'consideration of [a] fragment [of an instruction] which may be open to criticism.'" Lipchitz v. Raytheon Co., 434 Mass. 493, 507 (2001), quoting from Haven v. Brimfield, 345 Mass. 529, 533 (1963). "An appellate court must review the charge as a whole and in the context of the evidence." Kiely, supra.
The judge more thoroughly defined negligence, stating, "Negligence is doing something that a reasonably careful person in the ordinary course of human events would not do or failing to do something that a reasonable person of ordinary care would do. The classic definition in the law of negligence is this: negligence is the failure of a responsible person either by omission or by action to exercise that degree of care, diligence and forethought which, in the discharge of the duty then resting on him, the person of ordinary caution and prudence ought to exercise under the particular circumstances. It is a want of diligence, commencement and requirement of the duty at that moment imposed by the law." The judge further explained, "The standard by which a party's performance is measured is not established by the most careful person conceivable, nor by the least careful but by the person who is thought to be ordinarily careful."
On January 7, 2014, Dahlquist's motion for new trial was denied; the order denying the motion is not part of this appeal.
Here, the judge was correct in noting that Dahlquist had failed to present evidence that Crescent Street was, in fact, a public highway. Dahlquist did testify that she knew that the street was "a major route" but did not know the route number or if the street was a public highway; there appears to be no other testimony contained in this record that addresses that issue. "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.'" Global Investors Agent Corp. v. National Fire Ins. Co. of Hartford, 76 Mass. App. Ct. 812, 826 (2010), quoting from Mishara Constr. Co. v. Transit-Mixed Concrete Corp., 365 Mass. 122, 126 (1974).
Similarly, there was no testimony with regard to the issue of comparative negligence and, therefore, it was appropriate for the judge to refuse to instruct on it and to exclude the question on the special verdict slip. With regard to the Carter v. Yardley instruction, we agree with the judge that he adequately instructed on the element of duty when providing extensive language on the tort law of negligence.
The judge's decision to instruct the jury without the requested language was "soundly within [his] discretion and consistent with the record evidence." Kiely, supra at 442. Viewing the final charge in its entirety, we find no abuse of discretion. See id. at 441.
Judgment affirmed.
By the Court (Katzmann, Milkey & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 30, 2016.