Stuckey, supra, 586 P.2d at 730; Barnhart, supra, 441 P.2d at 996. The closest case to these Oklahoma cases is the Appeals Court decision in Rosado v. Boston Gas Company, 27 Mass. App. Ct. 675, 542 N.E.2d 304 (1989). In that case, a serviceman for Boston Gas Company was called by Ms. Rosado to turn on the gas in her apartment.
Certainly, where multiple theories were before a jury, at least one of which was improper, a new trial would be necessary if there is “no way of knowing on which basis the jury reached its verdict.” Rosado v. Boston Gas Co., 27 Mass.App.Ct. 675, 678, 542 N.E.2d 304 (1989). See Slate v. Bethlehem Steel Corp., 400 Mass. 378, 384, 510 N.E.2d 249 (1987).
See also Slate v. Bethlehem Steel Corp., 400 Mass. 378, 382 (1987) ('plaintiffs failed to present evidence that [repairer] knew of a danger that [employee] did not appreciate'); Ramcharran v. Carint, S.R.L., 823 F. Supp. 63, 66 (D. Mass. 1993). Contrast Rosado v. Boston Gas Co., 27 Mass. App. Ct. 675, 679-680 (1989) ('When the gas company is on notice of a defect with potential for carbon monoxide poisoning it has a duty to call the defect to the customer's attention, to describe the consequences, and to turn off the gas until the appliance is fixed'). The plaintiff presented an affidavit from Joseph E. Morrissey, an elevator consultant and past president of the Massachusetts Elevator Safety Association, with over forty years of experience in the industry, who stated:
When a gas company has knowledge of a hazardous defect in a customer's appliance, "the question whether on the particular facts that gas company acted diligently to avert the ensuing . . . asphyxiation goes to the jury." Rosado v. Boston Gas Co., 27 Mass App. Ct. 675, 678, 542 N.E.2d 304, 306 (1989). Thus, the Company's argument for a JML must be rejected if there is substantial evidence indicating that the Company, armed with its knowledge of the circumstances and the condition of the CHU, breached the standard of care in installing a meter at the residence and providing natural-gas service before the known danger posed by the CHU had been eliminated.
Since the trial court did not have jurisdiction to try Count II, the jury's entire breach-of-contract award must be set aside because we cannot determine which theory was the basis for the jury's verdict. Rosado v. Boston Gas Company, 27 Mass. App. Ct. 675, 542 N.E.2d 304, 306 (1989). It would appear that the jury relied at least in part upon Count II because the award was for $336,117.23 and the penalty issue involved only $40,000.
September 26, 1989Further appellate review denied: Reported below: 27 Mass. App. Ct. 675 (1989).