22 Mass. App. Ct. 989 | Mass. App. Ct. | 1986
On the defendants’ appeal there is no contention that there was insufficient evidence to permit a Superior Court jury to find the defendants negligent
1. The measure of damages. The jury were asked only two questions with respect to damages.
The defendants agreed to the form of the special questions given to the jury. On the question of the reduction in value of the properties, the judge instructed the jury that they were to arrive at damage amounts by considering the fair market value of the properties before and after the contamination. He did not instruct that the jury were to consider the fair market value on the assumption that the properties had been provided a drinkable water supply. There was no objection to the judge’s instructions on damages on account of diminution in fair market value. These instructions then became the law of the case. See Sluskonis v. Boston & Me. R.R., 299 Mass. 413, 415 (1938); Markus v. Boston Edison Co., 317 Mass. 1, 7 (1944). Before judgments entered, the defendants made explicit objection to the entry of judgments which would include damages both for the diminution in market value and for the cost of providing drinkable water, arguing that this would result in duplicative damages. Indeed, the defendants’ counsel contended that the proper measure of damages in each case was the amount which the jury found to be the diminution in value of each property.
In answer to the special question and in accordance with the judge’s instructions, the jury determined the diminution in fair market value for each property in full, that is, without regard to the effect on fair market value of the provision of a potable water supply. The award of damages in that amount precluded an additional award for the cost of providing potable water.
2. Evidentiary issues.
(b) Any error in allowing a lengthy hypothetical question of the plaintiffs’ real estate expert (because it assumed facts not put in evidence) was harmless. The witness gave the same response to a valid hypothetical question, and on cross-examination she admitted she had not taken into account the questioned assumed facts.
There was no error in the admission of testimony from the expert as to her opinion of the fair market values of the plaintiffs’ properties in early 1984 on the assumption that there had been no contamination. The defendants argue that the jury could not properly have determined the diminution in the fair market values of the properties without evidence as to those values before any contamination whatsoever or at a time just prior to the discovery of the contamination by each plaintiff. There was no evidence of the dates of the incipient stages of infiltration; as a practical matter it does not appear that there could have been. The harm to the plaintiffs’ properties was ongoing. The plaintiffs are entitled to the full measure of their damages. In the circumstances, it was within the discretion of the judge to admit testimony as to fair market values at a time when the extent of those damages had been substantially established and was no longer speculative. One question to be decided by the jury was the probable current value of each of the properties free of contamination. The expert’s opinions were clearly relevant to that question. The weight of those opinions was for the jury. The special verdicts on damages for diminution in fair market values
3. Closing argument. On appeal, the defendants argue that plaintiffs’ counsel made inflammatory and prejudicial remarks during closing arguments by referring to the possible deleterious health effects resulting from use of the contaminated water. As the defendants did not object to these portions of the arguments, we decline to review the matter. See Rice v. James Hanrahan & Sons, 20 Mass. App. Ct. 701, 712 (1985), and cases cited.
The defendants did object to a rhetorical question posed to the jury concerning whether a young family would buy a house which had a well contaminated with a teratogen — “an element that can cause birth defects, abnormalities.” The defendants contend that the argument was improper because there was no evidence that these houses had been offered for sale to families. The argument was fair comment on the issue of the values of the properties, and the judge recognized it as such.
4. Conclusion. The judgments are vacated, and new judgments are to be entered awarding each set of plaintiffs the amount found by the jury to constitute the diminution in value of their respective properties. The denial of the defendants’ motions for judgment n.o.v. or, in the alternative, for a new trial (Mass.R.Civ.P. 50[b], 365 Mass. 814 [1974]), are affirmed. No party is to have costs of this appeal.
So ordered.
The jury were not asked to determine damages for the loss of the use of the plaintiffs’ properties or for any discomfort or annoyance to them. See Restatement (Second) of Torts § 929(1) (1979).
Although it is not necessary to our disposition of the case, we note that there was no direct or circumstantial evidence which would have permitted the jury to find that the plaintiffs would be responsible for all of the costs which the jury concluded would be necessary to provide drinkable water to their respective properties. Indeed, such evidence as there was tended to show the contrary.
The testimony of Pasqual J. Bianchi and Gerard D. Blais, Jr, related to the cost of supplying potable water to the plaintiffs’ properties. In view of our disposition of the issue of the appropriate measure of damages, we need not consider the defendants ’ arguments as to error in the admission of testimony of these witnesses.