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Caccavale v. Inc. Raymark A. Raymark Industries, vs. Rita Caccavale1 Inc. 13,
Middlesex. October 1988. 1989. February Hennessey, Lynch, & C.J., Wilkins, Lucos, Present: JJ. O’Connor, Practice, Civil, Negligence, Warranty. Manufacturer. jury, Instructions to Verdict, Special questions jury. ’ Where the s special questions against answers to case manufacturer of asbestos products, stating the defendant was negligent but not law, warranty, were inconsistent as matter and where the judge did not then return the jury for further deliberations with additional instructions, the case was remanded for a new trial on all issues. [97-99] J., dissenting. Liacos, commenced in the Court Superior Department Civil action January Morse, Jr., J., case tried before Thomas R. the issue of was retried damages Jr., before James P. J. Lynch, Judicial Court Supreme granted a for direct request review. appellate
RichardL. (Thomas Neumeier P. O’Reilly, Leonard F. Zan- drow, Jr., & L. him) Janet for the defendant. Maloof
Albert P. Zabin for the plaintiff. C.J. The in this case plaintiff product liability
Hennessey, sued sixteen asbestos products manufacturers for aris- husband, from the ing wrongful death of her N. Cac- Joseph cavale, trial, from asbestos related diseases. Prior to the plain- tiff either dismissed or settled her claims all against Industries, defendants Raymark Inc. except trial, At Court submitted the case to a Superior questions. found the defendant negligent, but found no breach of and awarded the $170,000 in damages.
1Individually as Joseph administratrix of the estate of Caccavale. N. *2 moved for a new trial on the issue of
The plaintiff this motion and moved for alone. defendant opposed the motion. new trial on all issues. judge granted plaintiff’s issue, returned At retrial on the damages jury judgment $637,999.90 In conclu- the defendant. of our light against case, retrial is a nullity. sions in this mistrial, refusal to The defendant grant appealed issues, on all and his refusal to to a new trial grant his refusal deliberations, as the further as well back for send to the damages. interest rate judge applied We allowed the defend- on the interest rate issue. cross appealed review. for direct ant’s appellate application the relevant trial chronicles following proceed- synopsis case, as well as It also illustrates complexity ings. labored. under which the jury confusion instructed After all the evidence had been presented, law, issues, and warranty on many including negligence the jury case to the questions: and submitted the Was the defendant I. negligent? affirmative, did defendant’s No. 1 in the
II. If answered you Caccavale’s causing Joseph contribute death? If the defendant? your
III. there a breach Was If further. your answer to No. is ‘No’ do go any on to No. go answer to No. is ‘Yes’ affirmative, did defendant’s No. 3 in the IV. If answered you death? Caccavale’s contribute Joseph defendant grossly negligent? V. Was the for the loss award as sum do you compensation VI. What suffered by: Caccavale, administratrix:
A. Mrs. Rita widow and suffering. 1. Conscious pain 2. Loss of consortium. Caccavale to earning capacity Joseph
3. Damage his life. medical bills and 4. Reasonable expenses; Caccavale; the death Joseph Mrs. Rita Caccavale for B. 404 Mass. Caccavale; Caccavale
C. for death of Mary Joseph Caccavale; for D. Carol Ferris the death of Joseph Question VII. If answered No. 5 what amount do ‘yes’ you assess the defendant for you against punitive damages? (not $5,000). less than hours,
After for two asked two deliberating ques- tell, form, tions: “Could written or for you Judge, [define] the word as read it us court you and, “Was the Massachusetts law that men- today?” Judge tioned today regarding corporate responsibility warnings *3 in effect in to The 1939 1944?” the judge gave jury copy on his and instructed the charge that the law jury to 1944 was the 1939 same as that at the time of trial. deliberations,
Later the asked the court: jury “May we have the re: on judge’s comments breach transcript The warranty?” reinstructed the judge liabil jury warranty and the ity, gave of the jury instruction and transcript written Included in the instructions was the state supplement. ment that the had to answer jury breach of “yes” warranty if answered the questions they to “yes” negligence questions.2 later, two hours the Approximately returned with another jury did the question: “Why that 4 Judge Questions & stipulate must be warranty] Questions answered if [breach 1 & ‘yes’ are answered [negligence] Our ‘yes?’ sheet question’ ‘special seems to indicate that a to 1 & 2 still positive response provides room for (We a ‘no’ are #3. deadlocked response Question #2.)” The instructed the the judge that breach jury was the warranty question independent negligence ques tion, that were two different stating they theories liability.3 2The suggests defendant that an additional an instruction discussed at unrecorded conference erroneously jury was submitted to the the and was source of jury’s the confusion. Hayes v. Ariens (1984), 3Under Mass. 407 the had to jury conclude that there had been a warranty breach of if concluded there had been negligence. did original not contradict the correct regarding instruction the consistency He verdicts. answered question, stating: 3 dealing warranty doesn’t “Question depend you at all on how have be may dealt with 1 and 2. It Questions the defendant was negligent and also that there was a breach of later, returned with a verdict. "About fifteen minutes jury a casual but not found negligence, relationship, jury that their jury a breach of warranty. judge explained did not answer the verdict was because incomplete, jury re- Defense counsel gross negligence questions. verdict instructed that the remained that the jury quested all issues were until final decision and that open open, to dismiss voluntarily made. The counsel offered plaintiff’s count, did not that the argued the breach of warranty and counsel understand the breach of issue. instructions correct decided write supplemental confusion. filed defense counsel
At the of the next court day, beginning including a motion for a mistrial numerous grounds, returned the jury questions. inconsistent answers alternative, filed, a motion to return also Defense counsel deliberations. At a bench conference for further counsel discussed jury’s incomplete morning, Defense courses to resolve verdicts and the various problem. confused,” and that stated that “the is terribly counsel in that room.” Defense counsel “there is total confusion *4 and the of finding stressed that “with respect . . incon- they’re of no of finding warranty,. hopelessly breach stating, reinstructed the jury, sistent.” The then judge “It may their answers question: reference to It not be con- may of the evidence. consistent with view your I’m not for you view of the evidence. asking sistent with your is the same frequency. verdict if everyone change your [to] verdicts. The jury returned with A few hours later the jury found that the defendant’s found negligence, death, found but the cause of Caccavale’s Joseph contributed to The nor negligence. neither a breach of warranty gross $18,500 $18,500 and suffering, for conscious pain awarded consortium, $100,000 Cae- damage Joseph for loss of negligent the defendant was possible the defendant. It is also that these are warranty because finding and there could still be a of breach Co., supra at Hayes v. Ariens liability.” See two different theories case, opinion. in infra, and see the discussion of Raymark lifetime, $13,000 cavale’s his earning capacity during bills, $20,000 reasonable medical to Rita Caccavale for the Caccavale, death of no damages daughters Joseph Caccavale, and no Joseph The thanked punitive damages. judge for their service jurors and excused them. Defense counsel moved that the not be excused and that return to their deliberations with instructions on the net issue. earning capacity stated: “We are not to take this going hardworking back now further. I couldn’t do it if I wanted report to. trial, The verdict has been recorded. If there is to be a new you make a motion.” may Defense counsel renewed the defend- ant’s motion for mistrial based on the inconsistent verdicts. denied the motion. moved for a new trial on alone. damages defendant the motion and moved for new trial on opposed all the issues. The ordered a new trial on the issue of damages, excepting damages sustained Cac- by Joseph cavale’s two daughters. at retrial on the Subsequently, issue, $637,999.90 awarded a total of in damages. Both That parties appealed. is a proceeding light of nullity our decision in this and therefore irrelevant. appeal,
We conclude that the judgment below must be reversed. The jury’s answers to special questions stating but not in breach of negligent, were inconsistent as a matter of law. Hayes Ariens
(1984). “A defendant in a case in this Com- products liability monwealth be found to have breached its may without been merchantability but the reverse having negligent, is not true. A defendant cannot be found to have been negligent without breached the having Id. warranty merchantability.” n.3, See No supra. theory Massachusetts law reconciles the inconsistent in this findings case. It is true that certain *5 circumstances in a case might neg- permit finding ligence without finding of a breach of but those circumstances are not (dis- in this case. See id. at 413 present failure to cussing negligent give warning). post-sale The plaintiff argues that the defendant failed to object instructions on jury which the inconsistent verdict was based.
Caccavale Raymark clear at sufficiently We made its position disagree. Raymark told the trial to have its right Raymark preserved appeal. of no and the finding that “the finding negligence inconsistent,” . and breach of . warranty hopelessly [are]. negligence.” can’t have no breach of “they mistrial, of the inconsis moved for a because part answers to special questions, tency jury’s preliminary returned with an incon that motion when the jury renewed “the incon sistent Defense counsel verdict. argued answers indicate a fundamental misunderstanding sistent law, or both.” jury either law or warranty in verdicts were of inconsistent instructions and question defendant’s position, termingled interdependent. judge, and confusing dialogue among clear in reasonably along counsel, instructions jury jury, applied warranty.4 and breach of confusion, as to the cause of the
We can only speculate defense Although verdicts cannot but the inconsistent stand. the final stage have more counsel should explicitly requested because of out further deliberations that the sent for verdicts, that the record shows clearly the inconsistent inconsis legal defendant reiterated its regarding position continuing during of the verdicts colloquy tency with verdicts trial. “Since the special last few days and breached was negligent to whether the defendant respect inconsistent, further deliberations its were been would have the judge after instructions by appropriate did not Because the judge at 414. Hayes, supra appropriate.” deliberations, instruc additional with return the for further J., (Liacos, dissenting), concludes post dissenting opinion, 4The 99-100 warranty were too that the instructions product users the asbestos did not make clear that foreseeable narrow and danger- unreasonably warranty if the product recover for breach of could product stating: “A jury, instructed the disagree. properly ous. We long use ... so its normal and foreseeable defective if it’s for isn’t safe , added). . reasonably (emphasis its intended . purpose as was safe case, which evaluating jury, that the is unrealistic conclude It in terms of safety issue strictly injury, considered personal deals pipes. for wrapping fitness *6 99 Industries, v. Inc. Caccavale Raymark tians, he for a should have allowed motion mistrial Raymark’s or its motion for a new trial on all issues.5 subsequent is reversed the case is remanded to judgment Court for a new trial on all issues. Superior
So ordered. J. I not do the defendant is (dissenting). agree Liacos, to entitled a new trial are liability. reasons twofold. My First, the defendant failed to its preserve rights adequately not because did make to the objection timely judge’s charge. Second, the defendant has demonstrated no prejudice flowing from the inconsistent allegedly responses Therefore, to them. I dissent. special questions put that, 1. It is well established there determining whether “[i]n answers, is an the answers inconsistency are circumstances, be viewed in the of the attendant light including submitted, issues pleadings, instructions” Co., added). KG, Solimene B. (emphasis v. Grauel & 399 case, In (1987). 800 the instruc- considering tions given to actually verdict was not jury, inconsistent.
Although some definition gave points proper of breach of in his charge he also an gave unduly restrictive definition of the same Most concept. importantly, the crucial clarification an jury, judge gave unduly narrow definition of in- warranty liability. structed the determine whether “the product [was] or so reasonably intended was it defective purposes fit for that it was not reasonably (em- intended purposes fit for In phasis Hayes v. supplied). Ariens 391 Mass. (1984), 412-413 we stated that a the uses warranty “include[s] 5 parties also dispute postjudgment proper interest rate to applied suffering, for the pain impaired decedent’s trial, earning capacity, and bills. do hospital Because we order a new we Volkswagenwerk A.G., address this issue. See MacCuish v. 400 Mass. (1987), affirming (1986). 22 Mass. Ct. App. 404 Mass.
Caccavaie *7 are reasonably and those which intended the manufacturer The restrictive (emphasis supplied). foreseeable” left the with the mistaken impression have may charge had that, show a of warranty, in order to breach for which was not fit for the to show that the purpose product not make did it The judge’s charge was sold. supplementary i.e., foreseeable it clear that position, people plaintiff’s material, recover under a may warranty users of the asbestos At the if the sold was unreasonably dangerous. claim product least, must be viewed as confusing very charge warranty to the jury. warranty judge
When the jury liability, instructing of Restatement should have tracked more closely language v. Wickes (Second) (1965). § See Back Corp., Torts 402A Co., “Rec- (1978); v. Ariens Hayes supra. 375 Mass. 640 is in the to ensure product that the seller best position ognizing on the seller a duty the law of strict liability safety, imposes in a defective condition release of ‘any product prevent consumer,’ into the to the user or dangerous unreasonably § (Second) of Torts 402A Restatement stream of commerce. and in the law of (1) (1965). negligence This is unknown duty all reasonable measures even if the seller takes is not fulfilled whether safe. The issue liability to make his product focuses unreasonably dangerous was product defective or the seller” supplied). on the conduct the user not (emphasis Co., 355 Tire & Rubber 388 v. Firestone Correia not Co., at did (1983). judge v. Ariens Hayes supra to the jury. these principles explain adequately relation- as to the instructed the jury erroneously judge liability. liability negligence between warranty ship find the could that they judge strongly implied had the defendant that without finding defendant negligent stated, merchantability. breached the warranty doesn’t depend with the breach of “Question dealing Questions 1 [Negligence] with all on have dealt how you dealing 1 and Questions .... But and 2 [Causation] there was or not do with whether have nothing instruc- . .” The . judge’s supplementary breach warranty. Mass. 93 v. Caccavale was of the holding
tian misleading light Hayes highly Co., Ariens When ask for clarification supra. regarding between warranty liability, relationship trial should that a “defendant cannot be found explain been have without breached the negligent having v. Ariens at 410. As merchantability. Hayes supra states, did do court itself this but instead “instructed the breach of warranty question independent were negligence question, stating two different theories of Ante at 95. liability.”
However, the fact that such errors were made does mean that the defendant is entitled to a new trial. Nowhere does the it defendant that made argue timely to this objection improper instruction.1 The record does not show an to the objection Thus, on this the charge issue was not point. preserved appeal. the Additionally, defendant was not the prejudiced by 61, 365
judge’s errors. See Mass. R. Civ. P. 829(1974). The judge a correct gave instruction on the law of negligence.2 The judge’s erroneous instructions on warranty liability on the between relationship negligence liability had no effect on the validity of or verdict. charge If anything, defendant was benefited by judge’s charge for, as the warranty liability, actual verdict dem jury’s onstrated, it was less that the defendant likely would be found liable given restrictive judge’s definition of the warranty of circumstances, In such merchantability. can be hardly 1The court’s reliance on the objection defendant’s the jury returned after their responses, namely, “Raymark told finding neg- that ‘the ligence finding and the of no breach of warranty . . . hopelessly [are] inconsistent,’ ‘they have negli- can’t no breach gence,’ is misplaced. objection This clearly given was charge not to the but only related answers. 2On appeal, defendant challenge validity does not the judge’s most, negligence. instructions on At defendant claims that the issue, should have reinstructed the jury including on all the law law of negligence. The requested defendant’s additional instructions on negligence did not materially differ from instructions which the given had previously. Industries, Inc. v. Raymark
Caccavale errone the defendant prejudiced argued violation trial because of the a new To charge. ous require to which were never prop as they legal principles, abstract in wait to lie informed, me to encourage parties seems to erly technicalities. legal a lost cause if can salvage to see finding has been mounted challenge no viable Where to subject I it unconscionable think negligence, trial. another yet stand, and the judgment should verdict be affirmed. should