Opinion
11-P-2176
12-06-2012
KIKUKO ZUTRAU MIYAZAKI v. STANLEY WORKS & others.
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
Kikuko Miyazaki brought the present action in Superior Court against defendants The Stanley Works company and Porter Square CVS, Inc., and CVS Pharmacy, Inc., (collectively CVS) for compensatory damages for personal injuries resulting from a fall as she approached the automatic doors at the entrance to the CVS store in the Porter Square section of Cambridge. At the conclusion of an eleven-day trial, the jury returned verdicts for the defendants upon the common law claims of negligence and breach of warranty against Stanley Works and the claim of negligence against CVS. The trial judge reserved the plaintiff's claim of unfair or deceptive conduct within the meaning of G. L. c. 93A, § 2, against Stanley Works, and rejected it. Judgment entered against the plaintiff upon all claims. She has timely appealed. For the following reasons, we now affirm the judgment in favor of the defendants. Background. On the afternoon of June 6, 2003, Kikuko Miyazaki, then seventy-six years old, fell in the entryway to the CVS store. She suffered serious injuries. She filed suit on May 26, 2006. By her amended complaint, she alleged that the automatic bifolding doors at the entrance had 'suddenly and unexpectedly closed upon her' and had 'knock[ed] her to the ground' so as to cause 'a fractured hip and multiple other physical and emotional injuries rendering her permanently disabled.' As causes of action, she alleged (1) that defendant Stanley Works had negligently manufactured and maintained the automatic doors; (2) that Stanley Works had breached its express and implied warranties of merchantability of fitness and safety of the automatic doors; and (3) that those breaches of warranties constituted a violation of G. L. c. 93A, § 2. The plaintiff alleged parallel claims of (1) negligence, (2) breach of express and implied warranties, and (3) violation of G. L. c. 93A, § 2, against CVS. At trial she pursued only the negligence claim against CVS.
The jury answered special verdict questions. As to Stanley Works, they found (a) that the company had acted negligently; but (b) that the negligence had not been a substantial contributing cause of the injuries of the plaintiff; and (c) that Stanley Works had committed no breach of warranty. As to CVS, the jury found (a) that it had acted negligently; but (b) that the negligence had not been a substantial contributing cause of injuries to the plaintiff. We shall refer to additional facts and evidence as we address each of Miyazaki's appellate contentions.
Analysis. 1. Exclusion of the Zutrau video. On the day after the accident, the plaintiff's adult son visited the storefront with his two children. The two children approached the entryway from various angles and speeds and caused the bifolded doors to strike them. At trial, counsel for the plaintiff offered the video as evidence that the automatic doors could strike individuals as they approached the entrance. The judge viewed all or most of the video, and excluded it both in the course of the plaintiff's direct case against both defendants and in the course of plaintiff's counsel's cross- examination of Stanley Works's expert witness. In multiple rulings, the judge excluded the video as an unreliable or misleading reenactment of the accident because he believed that the children were approaching the doors at angles and speeds different from the approach of their grandmother. The judge reasoned, 'Even if offered only for impeachment purposes, the prejudicial effect of the alleged reenactment of the accident by [plaintiff's] grandchildren outweighs any possible relevance for impeachment.'
The plaintiff had testified that she had walked straightforwardly toward the entrance of the CVS store and at a normal pace behind another person. A proposed reenactment or demonstration must rest upon conditions similar to the circumstances surrounding the disputed accident and must not tend to confuse or mislead the jury. Calvanese v. W.W. Babcock Co., 10 Mass. App. Ct. 726, 730 (1980). Read v. Mt. Tom Ski Area, Inc., 37 Mass. App. Ct. 901, 903 (1994). Lally v. Volkswagen Aktiengesellschaft, 45 Mass. App. Ct. 317, 332-333 (1998). The judge's observation of a significant discrepancy between the video and the plaintiff's description of the accident was valid. In light of the governing case law, his exercise of discretion was sound, as well.
2. Chapter 93A claim against Stanley Works. After the delivery of the jury's special verdict answers, the judge dismissed the c. 93A claim against Stanley Works. The plaintiff argues that she was entitled to pursue the claim to the judge by additional postverdict evidence. That position is groundless. The c. 93A claim against Stanley Works derives entirely from her claim of breach of warranty. The jury's rejection of the warranty claim eliminated any ground for the c. 93A claim. In addition, the plaintiff was not entitled to an adjunct, separate, jury-waived trial or evidentiary hearing upon a c. 93A claim without prior permission from the judge. Since the statutory claim rested exclusively upon the common law claims submitted to the jury, the plaintiff should have, and presumably did, submit all relevant evidence for that theory of liability to the jury. The judge correctly disposed of the c. 93A claim.
3. Instructions upon substantial contributing cause. The judge instructed the jury originally upon the concept of substantial contributing cause without objection. During deliberation, the jury asked for additional instruction upon the concept. With the approval of all counsel, the judge reinstructed, and included again the point that a substantial contributing cause can be one of several causes of an accident but that it must be one 'without which [the accident] would not otherwise have occurred.' Plaintiff's counsel requested additional language that 'the plaintiff is not required to prove the exact manner in which our accident occurred. . . .' The judge declined the request.
The judge's instructions satisfied the required definition. His choice not to enlarge upon the definition did not constitute either an error of law or any abuse of discretion. Nor did his refusal, on the following day, to recall the jury to the courtroom and expand substantially upon the meaning of causation to which all counsel had been agreeable at the outset of deliberation.
4. Inconsistency of verdict answers. The plaintiff argues that the jury's finding of negligence on the part of Stanley Works operates incompatibly with its finding of no breach of warranty by the company. She argues that the judge wrongly failed to require further deliberation and consistency on the part of the jury. The plaintiff relies upon the rule that, by definition, negligently defective design of a product constitutes a breach of warranty. Hayes v. Ariens Co., 391 Mass. 407, 410 (1984). See Caccavale v. Raymark Indus., Inc., 404 Mass. 93, 98-99 (1989) (judge must return the jury to further deliberation in the circumstance of inconsistent verdicts, or allow a motion for a mistrial or a new trial). For two reasons, we do not believe that the acceptance of the two special verdicts answers creates reversible error.
First, the answers are not necessarily incompatible. If possible, the appellate court will harmonize any apparent inconsistency between special verdict answers. See Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 800 (1987); Palriwala v. Palriwala Corp., 64 Mass. App. Ct. 663, 670 (2005). In this instance, plaintiff's counsel argued that Stanley Works had committed two forms of negligence: negligent design of the bifolding doors; and negligent maintenance of the sensors of the doors. The jury may well have found that Stanley Works had not committed negligent design of the doors; but that it had committed negligent maintenance of the sensors. Negligent design would require a finding of breach of warranty; but negligent maintenance over the subsequent years would not.
Most fundamentally, any actual inconsistency between the finding of negligence and the finding of no breach of warranty by the jury would not alter its finding of the absence of any substantial contributing causation by either species of breach of duty to the subsequent accident and injuries of the plaintiff. It is axiomatic that liability by reason of negligence or breach of warranty requires the plaintiff to show that the defendant's product proximately caused, or contributed to the proximate cause of, her injury. Swartz v. General Motors Corp., 375 Mass. 628, 633 (1978); Colter v. Barber-Greene Co., 403 Mass. 50, 60-61 (1988). We itemize in detail the evidentiary justifications for the jury's finding of the absence of causation in discussion of the plaintiff's motion for a new trial, below.
5. Denial of the requested instruction of res ipsa loquitur. The judge did not incorrectly deny the plaintiff's request. The res ipsa instruction is appropriate 'when an accident is of the kind that does not ordinarily happen unless the defendant was negligent in some respect and other responsible causes including conduct of the plaintiff are sufficiently eliminated by the evidence.' Enrich v. Windmere Corp., 416 Mass. 83, 88 (1993), citing Restatement (Second) of Torts § 328D(1)(a) (1965). However, in our case, the evidence abundantly left open the question whether a cause independent of negligence on the part of either defendant had generated Mrs. Miyazaki's fall and injuries. As we shall now explain, the evidence permitted the jury to find that the bifolding doors had never struck her.
6. Order denying the motion for a new trial or to alter or amend judgment. Approximately twenty days after entry of final judgment, the plaintiff served and filed a motion for a new trial pursuant to Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974), or for an amendment of judgment pursuant to Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974). Rules 59(a) and 59(e) require service of such motion within ten days of the entry of final judgment. Consequently, the tardiness of the motions would disqualify them from consideration.
Alternatively, if we were to treat the motions as timely, they would not succeed. As to the motion for a new trial, the plaintiff must demonstrate either (1) that the jury acted out of misapprehension of the law or the evidence or out of bias, or (2) that the jury acted in contradiction of the weight of the evidence. See Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60 (1948); Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 520 (1989); O'Brien v. Pearson, 449 Mass. 377, 384 (2007). The motion for a new trial rests in the sound discretion of the judge. Hartmann v. Boston Herald-Traveler Corp., supra, citing Davis v. Boston Elevated Ry. Co., 235 Mass. 482, 502 (1920).
In this instance, abundant evidence permitted the jury to find, and the judge to credit the jury with the finding, that the plaintiff had fallen spontaneously without any contact from the bifolding doors. That finding would negate any causal fault on part of either defendant. The elements of evidence supporting such a finding included the following. (a) No witness observed the accident. (b) The plaintiff suffered from multiple infirmities exposing her to the risk of a spontaneous fall: (i) she had a prior fall in 2003 which had resulted in a fracture of her right hip so that her right leg became shorter than the left, caused problems of balance, and required her to walk with a cane; (ii) she suffered also from Parkinson's disease which resulted in bradykinesia, i.e., slow muscle movement and difficulty in starting and stopping walking; also Parkinson's disease can generate mental confusion or slowness, and falling; (iii) her physician had prescribed the medication sinevet for the illness, but she was not taking the medication at the time of the accident and the omission of that medication for even one day may create problems of cognition and balance.
No independent evidence of the malfunction of the bifolding doors materialized. The doors operated properly for the customer immediately following the plaintiff and coming to her assistance. They functioned properly for the CVS employee who came out of the store immediately after the accident in order to help. Both individuals passed through the bifolding doors. No records of any prior malfunction of the doors since their installation in 1998 materialized. On average, three hundred to three hundred and fifty customers per day passed through the doors.
In sum, the jury were entitled to find that the doors had played no part in the unfortunate fall and resulting injuries to the plaintiff.
Judgment affirmed.
Order denying motion for new trial or to alter or amend judgment pursuant to Mass.R.Civ.P. 59(a) and Mass.R.Civ.P. 59(e) affirmed.
By the Court (Kantrowitz, Sikora & Rubin, JJ.),