Opinion
No. 11–P–1061.
2012-05-30
Carlos SILVA–LESSA v. Donald CUSANO & others.
By the Court (KATZMANN, RUBIN & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendants appeal from the denial of their motions for judgment notwithstanding the verdict. Only Donald Cusano has filed a brief. , We affirm.
Cusano's motion was for judgment notwithstanding the verdict or for a new trial. He raises no argument on appeal regarding the alternative request for a new trial.
No argument is presented on behalf of appellants SBLC Realty II, LLC, and WSB Realty I, LLC. In Cusano's brief, counsel states that “[t]hose Appellants have ... withdrawn appellate review.” However, there is nothing on the docket that so indicates.
On July 21, 2004, the plaintiff, who was working for a subcontractor on the construction of a house, was found bleeding and unconscious on a concrete pad in the basement directly below openings in the upper floors which were not covered up at the time of the accident. He sustained severe and permanent physical injuries. On February 22, 2005, he filed suit against various parties, including Donald Cusano, licensed construction supervisor and the agent of the general contractor; SBLC Realty II, LLC; and WSB Realty I, LLC.
Cusano did not include the complaint in the record appendix.
Trial was held over five days in May of 2007. The evidence at trial consisted of the testimony of various witnesses and a number of exhibits. In their answers to special questions, the jury found the defendants negligent and awarded the plaintiff $2,750,000 in damages. On June 25, 2007, a judgment entered for the plaintiff under Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974).
In July of 2007, the defendants each filed motions for judgment notwithstanding the verdict or for a new trial. On September 6, 2007, the trial judge denied the motions. On October 4, 2007, the defendants filed their notices of appeal.
The only appeal that is argued before us is Cusano's appeal from the denial of his motion for judgment notwithstanding the verdict. In his appellate brief, Cusano argues that the plaintiff did not present sufficient evidence on the applicable standard of care and on causation. We review the trial judge's denial of a motion for judgment notwithstanding the verdict to determine 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.” Moose v. Massachusetts Inst. of Technology, 43 Mass.App.Ct. 420, 421 (1997), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972).
Cusano does not argue that his appeal from the original judgment is before us. Nor could he properly do so in light of the filing dates of the motion for judgment notwithstanding the verdict and of the notice of appeal.
Although Cusano supports his arguments with numerous references to the trial transcript, he did not include any part of the transcript in the record appendix. “An appellant's obligation to include those parts of the trial transcript ... ‘which are essential for review of the issues raised on appeal ... is a fundamental and long-standing rule of appellate civil practice.’ “ Cameron v. Carelli, 39 Mass.App.Ct. 81, 84 (1995), quoting from Shawmut Community Bank, N.A. v. Zagami, 30 Mass.App.Ct. 371, 372–373 (1991), S. C., 411 Mass. 807 (1992). See Mass.R.A.P. 8(b)(1), as amended, 430 Mass. 1603 (1999); Mass.R.A.P. 18(a) & (b), as amended, 425 Mass. 1602 (1997).
The Superior court docket indicates that the trial transcript was ordered and received.
After Cusano filed his brief and record appendix in this court without including any part of the transcript, the plaintiff and Cusano jointly moved to allow the plaintiff to file a supplemental appendix that would include trial exhibits and portions of the trial transcript cited in the plaintiff's brief. The motion stated that Cusano did not designate those parts of the record which he intended to include in the record appendix and failed to provide the plaintiff with an opportunity to cross-designate those portions of the record which he deemed necessary to our review. The motion was allowed. The plaintiff included select pages culled from the transcript of a five-day trial. Neither the motion nor the plaintiff's filing of the supplemental appendix prompted Cusano to seek leave to expand the appendix. See Mass.R.A.P. 18(b), as amended, 425 Mass. 1602 (1997).
By failing to include the transcript in the record appendix, Cusano failed to meet his “obligation to provide an adequate record for review.” Smith v. Jones, 67 Mass.App.Ct. 129, 134 (2006). See Cameron, 39 Mass.App.Ct. at 83–84 (where question is the sufficiency of the evidence, such a failure renders appellate review impossible).
Even the limited record before us supports the denial of Cusano's motion for judgment notwithstanding a verdict under the applicable standard. See Moose, 43 Mass.App.Ct. at 421. Cusano argues first that there was insufficient evidence to support a reasonable inference that Federal Occupational Safety and Health Administration (OSHA) regulations submitted in evidence to establish the standard of care were actually applicable. Even assuming that these regulations were the only source from which a duty could be found—something we need not and do not decide —the evidence did support an inference that they were applicable. There was evidence the plaintiff was working on ceiling joists above the second floor on the day of the accident. A ladder was set up on the second floor to reach the rafters. A hammer and a nail gun—which were used by the workers along with glue and nails to install the plywood—were found on the rafters above the hole on the second floor through which a jury could reasonably infer he fell. There were beads of wet glue on a joist above the hole, and a measured piece of plywood with glue on it lay beside a dent in the floor next to the hole. Since it was a house being constructed, the jury could infer that there was at least a six-foot drop from the hole to the next floor; Cusano himself testified that the distance from the second floor to the concrete pad in the basement where the plaintiff was found was at least eighteen feet. Contrary to Cusano's argument, this evidence supports a reasonable inference that the plaintiff was actually working adjacent to a hole with a six-foot or more drop at the time of the accident, and that the OSHA regulations therefore were applicable.
Cusano makes no argument that Massachusetts regulations were not applicable.
Cusano also argues that there is insufficient evidence of the manner in which the plaintiff fell. The evidence already described, as well as the evidence of the ladder on the second floor going up to the rafters, suffices to support an inference that the plaintiff's injuries were caused by a lack of fall protection.
The orders denying the motions of Donald Cusano, SBLC Realty II, LLC, and WSB Realty I, LLC, for judgment notwithstanding the verdict or for a new trial are affirmed.
So ordered.