§ 85. Comparative negligence; limited effect of contributory negligence as defense
Contributory negligence shall not bar recovery in any action by any person or legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made. In determining by what amount the plaintiff's damages shall be diminished in such a case, the negligence of each plaintiff shall be compared to the total negligence of all persons against whom recovery is sought. The combined total of the plaintiff's negligence taken together with all of the negligence of all defendants shall equal one hundred per cent.
The violation of a criminal statute, ordinance or regulation by a plaintiff which contributed to said injury, death or damage, shall be considered as evidence of negligence of that plaintiff, but the violation of said statute, ordinance or regulation shall not as a matter of law and for that reason alone, serve to bar a plaintiff from recovery.
The defense of assumption of risk is hereby abolished in all actions hereunder.
The burden of alleging and proving negligence which serves to diminish a plaintiff's damages or bar recovery under this section shall be upon the person who seeks to establish such negligence, and the plaintiff shall be presumed to have been in the exercise of due care.
CREDIT(S)
Amended by St.1947, c. 386, § 1; St.1952, c. 533, § 1; St.1969, c. 761, § 1; St.1973, c. 1123, § 1.
HISTORICAL AND STATUTORY NOTES
2000 Main Volume
St.1914, c. 553.
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12 Mass.App.Ct. 382, 425 N.E.2d 376
Appeals Court of Massachusetts, Suffolk.
John FOLEY
v.
Sidney KIBRICK et al.[FN1]
FN1. Edward Berg, third-party defendant.
Argued May 18, 1981.
Decided Aug. 27, 1981.
Action was instituted for injuries sustained by plaintiff when police cruiser in which he was a passenger collided with a motor vehicle operated by defendant. A third-party complaint for contribution was filed against driver of police cruiser. The Superior Court, Suffolk County, Doerfer, J., entered judgment on verdict for plaintiff on main complaint and on verdict for defendant on third-party complaint, and defendant and third-party defendant appealed. The Appeals Court, Rose, J., held that: (1) question of negligence premised on question whether defendant, who testified that he heard siren of police cruiser in which plaintiff was a passenger for two seconds before collision, had sufficient time and warning to stop or divert his vehicle and thereby avoid collision which injured plaintiff was for jury, and (2) defendant, found liable for injuries sustained when police cruiser in which plaintiff was a passenger collided with a motor vehicle operated by defendant, could derivatively enforce liability to plaintiff of driver of police cruiser by alleging in third-party claim for contribution that plaintiff's injuries were caused by driver's negligence.
Affirmed.
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Question of negligence premised on whether defendant, who testified that he heard siren of police cruiser in which plaintiff was a passenger for two seconds before collision, had sufficient time and warning to stop or divert his vehicle and thereby avoid collision which injured plaintiff was for jury.
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Under law in effect at time police cruiser in which plaintiff was a passenger collided with a motor vehicle operated by defendant, plaintiff could not recover if his own negligence contributed to cause injury. M.G.L.A. c. 231, § 85.
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Issue of contributory negligence raised by assertion that injured police officer, assigned duty as a passenger in police cruiser to observe that which driver would not observe in course of his operation of cruiser, failed to observe defendant's vehicle prior to collision and to warn driver of its approach was for jury. M.G.L.A. c. 231, § 85.
**377 *382 Daniel J. Donovan, Danvers, for Sidney Kibrick.
*383 Kevin P. Phillips, Marshfield (Frank J. McGee, Marshfield, with him), for plaintiff.
Howard P. Speicher, Asst. Corp. Counsel, Boston, for Edward Berg.
Before GREANEY, ROSE and DREBEN, JJ.
ROSE, Justice.
The plaintiff, John Foley, a Boston police officer, brought a negligence action against the defendant Kibrick for personal injuries sustained when the police cruiser in which the plaintiff was a passenger collided with a motor vehicle operated by the defendant. Thereafter, the defendant brought a third-party complaint against Officer Edward Berg, the operator of the police cruiser at the time of the accident, claiming that the plaintiff's injuries were caused by Berg's negligence and claiming a right of contribution under G.L. c. 231B, s 1(a), toward part or all of the judgment. At the close of the plaintiff's evidence both the defendant and Berg filed motions for directed verdicts, which were denied. Following a jury verdict in favor of Foley in the amount of $200,000 in the case of Foley v. Kibrick and a verdict in favor of Kibrick in the same amount in the case of Kibrick v. Berg, both Kibrick's and Berg's motions for judgment notwithstanding the verdict and for a new trial were denied. Kibrick and Berg appeal.
The accident occurred at the intersection of Blue Hill Avenue and Morton Street in that part of Boston known as Mattapan at approximately 7:45 P.M. on August 10, 1970. Officers Berg and Foley, responding to an emergency call, were traveling in a northerly direction on Blue Hill Avenue. The cruiser's siren was sounding and its dome lights flashing as it approached the intersection of Morton Street upon which defendant Kibrick was traveling in an easterly direction. According to the officers' testimony, Berg brought the cruiser to a stop at the red traffic light facing them before proceeding through the intersection. They also testified that neither officer saw the Kibrick vehicle until the cruiser collided with its right rear portion. Defendant Kibrick testified that he heard the siren for two seconds before the cruiser, proceeding at a speed of between fifty and sixty *384 miles per hour, collided with his vehicle. Janet MacDonald, a passenger in the Kibrick car, testified similarly.
[1] [2] 1. The defendant Kibrick's appeal. The defendant argues first that since **378 there was no evidence of his negligence, the judge erred in denying his motions for a directed verdict and for judgment notwithstanding the verdict. There was no error. The test to be applied in determining whether the judge should grant a directed verdict in favor of the defendant is whether “upon any reasonable view of the evidence, there is found a combination of facts from which a rational inference may be drawn in favor of the plaintiffs.” Alholm v. Wareham, 371 Mass. 621, 627, 358 N.E.2d 788 (1976), quoting Chase v. Roy, 363 Mass. 402, 404, 294 N.E.2d 336 (1973). There was sufficient evidence for the jury to find in favor of the plaintiff. During the presentation of the plaintiff's case, the defendant testified that he heard the cruiser's siren for two seconds before the collision and that, immediately preceding the collision, he was traveling at approximately twenty miles per hour. The jury could have found that the defendant had sufficient time and warning to stop or divert his vehicle and thereby avoid the collision. Whether such behavior is negligent is a question of fact for the jury. Nestor v. Tewksbury, 280 Mass. 199, 201, 182 N.E. 335 (1932). Perry v. Pianowski, 296 Mass. 314, 316, 5 N.E.2d 424 (1936). Brightman v. Blanchette, 307 Mass. 584, 587, 30 N.E.2d 864 (1940). Feltch v. General Rental Co., --Mass. --, -- [FNa], 421 N.E.2d 67 (1981). See also Aholm v. Wareham, supra at 630-631, 358 N.E.2d 788. The judge, therefore, properly denied the defendant's motion for a directed verdict and, as the same standards apply, the judge properly denied the defendant's motion for judgment notwithstanding the verdict. D'Annolfo v. Stoneham Housing Authy., 375 Mass. 650, 657, 378 N.E.2d 971 (1978). O'Shaughnessy v. Besse, 7 Mass.App. 727, 728-729, 389 N.E.2d 1049 (1979).
FNa. Mass.Adv.Sh. (1981) 1189, 1197.
[3] [4] The defendant also contends that the judge erred in failing to grant his motion for a directed verdict because the plaintiff, in failing to observe the Kibrick vehicle and to warn Berg of its approach, was contributorily negligent as a matter of law. Under G.L. c. 231, s 85, as in effect at the *385 time of the accident, a plaintiff could not recover if his own negligence contributed to cause the injury. The defendant does not argue that the judge improperly charged the jury on the issue of contributory negligence but asserts that because the plaintiff was assigned the duty, as a passenger in the police cruiser, to observe “that which Officer Berg would not observe in the course of his operation of the car,” the plaintiff's failure to observe the Kibrick vehicle was negligent as a matter of law. The judge properly submitted the issue to the jury. Reversing the lower court's entry of a verdict on leave reserved, the court in Neil v. Holyoke St. Ry., 329 Mass. 578, 109 N.E.2d 831 (1952), ruled that the plaintiff's contributory negligence presented an issue for the jury. In that case, the plaintiff police officer, while responding to an emergency call, failed to stop at a red signal light in violation of a statute authorizing a police officer or fire official to proceed with caution through an intersection, contrary to any traffic signal, if he first brings the vehicle to a full stop. Whether Foley's failure to observe the Kibrick vehicle amounted to contributory negligence presents similar factual issues properly resolved by a jury. See also Harlow v. Corcoran, 290 Mass. 289, 293, 195 N.E. 108 (1935); Gaines v. Ratnowsky, 311 Mass. 254, 258-259, 41 N.E.2d 25 (1942).
Judgment affirmed.
Mass.App., 1981.
Foley v. Kibrick
12 Mass.App.Ct. 382, 425 N.E.2d 376
END OF DOCUMENT
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204 F.3d 306
Briefs and Other Related Documents
United States Court of Appeals,
First Circuit.
Stephen C. FITHIAN, Jr., p.p.a. Stephen C. Fithian, Sr., et al., Plaintiffs, Appellants,
v.
Edward REED and Martha Reed, Defendants, Appellees.
No. 99-1898.
Heard Feb. 9, 2000.
Decided Feb. 29, 2000.
Parents, on behalf of minor child, sued homeowners in negligence after snowblower discharged snow and ice against homeowners' dining room window and injured child who was standing inside. The United States District Court for the District of Massachusetts, George A. O'Toole, Jr., J., 1998 WL 151241, entered summary judgment for homeowners. Parents appealed. The Court of Appeals, Selya, Circuit Judge, held that no reasonable jury could have determined that homeowners failed to take any precaution that ordinary prudence demanded, and, thus, they did not breach any duty to child under Massachusetts law.
Affirmed.
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As homeowners and hosts, defendants had duty under Massachusetts law to take into account the extant circumstances, including those known to them and those of which they should have known, and to maintain their property in a reasonably safe condition, and, thus, it was incumbent upon them to act reasonably in regard to factors such as the likelihood of injury to persons foreseeably upon the premises, the seriousness of any potential injury, and the burdens associated with risk avoidance.
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Homeowners did not breach any duty to visiting child, who was injured while inside homeowners' dining room when dining room window was broken by snow and ice discharged from a snowblower being used to clear homeowners' driveway, where homeowner had neither advance notice of neighbor's intent to clear snow from homeowners' driveway, nor any realistic opportunity to stop neighbor from doing so; further, failure to install storm windows, intended to insulate home and not guard against projectiles from snowblower, could not be deemed proximate cause of injury.
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*307 Thomas J. Callahan, with whom James J. McGovern and McGovern & Sullivan were on brief, for appellants.
David M. O'Connor, with whom John E. Matosky and O'Connor & Associates were on brief, for appellees.
Before SELYA, BOUDIN and LYNCH, Circuit Judges.
*308 SELYA, Circuit Judge.
In this case, the district court concluded as a matter of law that the risk of a neighbor's snowblower discharging snow and ice against a dining room window and breaking it, injuring a toddler standing inside, was unforeseeable, and that the homeowners therefore did not breach their duty of reasonable care. The plaintiffs appeal. Finding no evidence of any precaution that either defendant could or should have taken to avoid this unfortunate accident, we affirm.
As the summary judgment standard requires, we recount the facts in the light most hospitable to the non-movants (here, the plaintiffs). See Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). In January 1996, Lisa Fithian and her two young children, Floridians all, were visiting her parents, Edward and Martha Reed, in Hingham, Massachusetts. On an inclement morning, John Zofchak, the Reeds' neighbor, trying to be helpful, undertook to clear their driveway with his snowblower (despite the fact that two cars were parked in the area). Snow was a novelty to the youngsters, so Mrs. Reed (while Mrs. Fithian was upstairs) encouraged them to join her at the family room window and watch the snowblower in operation.
After Mrs. Fithian returned, Mrs. Reed went outside in hopes of thanking Mr. Zofchak for the unsolicited favor. Not wanting to approach the snowblower too closely for fear of injury, Mrs. Reed stood in front of the house for roughly fifteen minutes and vainly attempted to catch Mr. Zofchak's attention. Meanwhile, Mrs. Fithian, desiring to give the fascinated children a better view of the snowblowing activity, brought them into the dining room (where the windows were closer to the driveway).
Mr. Reed entered the dining room shortly thereafter. At that point, Mr. Zofchak had begun to clear a narrow strip of driveway between the parked cars and the residence. Since the presence of the vehicles prevented him from directing the discharge to the left, he angled it to the right (i.e., toward the house). A few seconds later, the dining room window shattered and flying glass struck and severely injured three-year-old Stephen Fithian, Jr.
Invoking diversity jurisdiction, see 28 U.S.C. § 1332(a), Stephen and his parents sued the Reeds in the United States District Court for the District of Massachusetts.FN1 Following pretrial discovery, the defendants moved successfully for summary judgment. This appeal ensued.
FN1. The plaintiffs also sued the operator of the snowblower. That claim has been settled and need not concern us.
[1] [2] We review orders granting or denying summary judgment de novo. See Garside, 895 F.2d at 48. Summary judgment is appropriate if, after marshaling the evidence in the light most favorable to the non-movant, no genuine issue of material fact exists and the record reveals that the movant is entitled to judgment as a matter of law. See Woods-Leber v. Hyatt Hotels of P.R., Inc., 124 F.3d 47, 49-50 (1st Cir.1997); Garside, 895 F.2d at 48; see also Fed.R.Civ.P. 56(c). State law supplies the substantive rules of decision in diversity cases, see Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Woods-Leber, 124 F.3d at 50, and the parties agree that Massachusetts law governs in this instance.
[3] [4] Under Massachusetts law, a tort plaintiff must show that (1) the defendant owed him a duty, (2) the defendant breached that duty, (3) the breach constituted a proximate cause of the ensuing harm, and (4) the breach caused actual injury. See Jorgensen v. Massachusetts Port Auth., 905 F.2d 515, 522 (1st Cir.1990); Swift v. United States, 866 F.2d 507, 508-09 (1st Cir.1989). Although such matters most *309 often comprise grist for the jury's mill, they may be resolved on summary judgment when the facts lead ineluctably to a particular outcome. See Woods-Leber, 124 F.3d at 51; see also Mullins v. Pine Manor College, 389 Mass. 47, 449 N.E.2d 331, 338 (Mass.1983); Roderick v. Brandy Hill Co., 36 Mass.App.Ct. 948, 631 N.E.2d 559, 560 (Mass.App.Ct.1994). This is such a case: as the district court ruled, there is no way in which a rational factfinder, on this record, supportably could conclude that the defendants breached an actionable duty to the plaintiffs. We explain briefly.
[5] As homeowners and hosts, the defendants had a duty to take into account the extant circumstances (including those known to them and those of which they should have known) and to maintain their property in a reasonably safe condition. See Mounsey v. Ellard, 363 Mass. 693, 297 N.E.2d 43, 52 (Mass.1973); Polak v. Whitney, 21 Mass.App.Ct. 349, 487 N.E.2d 213, 215 (Mass.App.Ct.1985). It was, therefore, incumbent upon them to act reasonably in regard to factors such as the likelihood of injury to persons foreseeably upon the premises, the seriousness of any potential injury, and the burdens associated with risk avoidance.
[6] [7] This standard-reasonable care under all the circumstances-is a flexible one. As the plaintiffs suggest, it may at times involve a duty to prevent foreseeable injury caused by a third person who has come upon a defendant's premises. See Flood v. Southland Corp., 416 Mass. 62, 616 N.E.2d 1068, 1075 (Mass.1993); Jesionek v. Massachusetts Port Auth., 376 Mass. 101, 378 N.E.2d 995, 997 (Mass.1978). On other occasions, it may impose an obligation to warn guests of an unreasonable, nonobvious danger of which the host is aware. See Polak, 487 N.E.2d at 215-16. The standard does not, however, bind homeowners to anticipate and guard against “what is unusual and unlikely to happen, or what, as is sometimes said, is only remotely and slightly probable.” Zompanti v. Ferguson, 336 Mass. 167, 142 N.E.2d 903, 904 (Mass.1957) (quoting Falk v. Finkelman, 268 Mass. 524, 168 N.E. 89, 90 (Mass.1929)). In fine, the standard does not make a homeowner an insurer of a guest's safety, nor does it require her to exercise extreme prudence, employ heroic measures, or display utter prescience. See Toubiana v. Priestly, 402 Mass. 84, 520 N.E.2d 1307, 1310 (Mass.1988).
[8] The touchstone, then, is ordinary prudence-and the critical question becomes “whether the jury reasonably could have concluded that, in view of all the circumstances, an ordinarily prudent person in the defendant's position would have taken steps, not taken by the defendant, to prevent the accident that occurred.” Id. In most cases (though not always), this question correlates with the foreseeability of the risk of harm, for the more foreseeable the injury, the higher society's expectations that reasonable people will take precautions. See Whittaker v. Saraceno, 418 Mass. 196, 635 N.E.2d 1185, 1188-89 (Mass.1994) (holding that society should not place the burden of preventing a violent crime on a property owner without proof that the owner knew or should have known of danger and possible preventive steps, even though crime is always possible and to a certain extent foreseeable); Mounsey, 297 N.E.2d at 52 (explaining that the duty of care is defined in part by the likelihood of injury).
[9] In this case, our canvass of the record convinces us that no reasonable jury could have determined that the defendants failed to take any precaution that ordinary prudence demanded. To be sure, the plaintiffs assert conclusorily that Mr. Reed should have monitored the use of a dangerous instrumentality on his property-but the record does not disclose either that Mr. Reed had advance notice of Mr. Zofchak's intentions or that he had any practical opportunity to stop Mr. Zofchak in the act. Even on the plaintiffs' version of the facts, Mr. Reed became aware that *310 snowblowing was in progress only moments before the accident occurred.
Mrs. Reed likewise lacked both notice and any realistic opportunity to alter the course of events. In all events, the record is uncontradicted that she tried without success to hail Mr. Zofchak. Given the swirling snow, the noise made by the machinery, and the danger inherent in approaching the running snowblower, this lack of success is entirely understandable. And the plaintiffs have been unable to suggest any other way that Mrs. Reed rewardingly could have intervened-there is, for example, no evidence to suggest that she had the vocal capacity to be heard from a distance over the noise of the machinery.
In an effort to deflect the force of these points, the plaintiffs argue that the defendants should have removed the cars from the driveway, thus enabling the snowblower to maneuver more freely and to discharge the accumulation away from the house, or that they should have warned the Fithians not to go near the dining room window. These arguments do not withstand scrutiny. In the first place, nothing in the record indicates that either defendant knew that snow was being discharged against the house in time to take any effective action. In the second place, the nisi prius roll is barren of any evidence that the parked vehicles presented a realistic danger.
The fact that the Reeds lacked the opportunity to take precautions pertains here as well. Given Mr. Zofchak's unsolicited appearance, moving the cars necessarily would have entailed approaching a man operating a concededly dangerous instrumentality and asking him to halt work while the vehicles were moved. Mrs. Reed considered making such an approach (albeit for another reason), and nothing in the record serves to cast doubt upon the validity of her conclusion that approaching the running snowblower would have been so perilous as to fall outside the realm of ordinary prudence. Finally, it was Mrs. Fithian, not the Reeds, who brought the children into the dining room, and as the only adult near the side of the house for any length of time, she was in the best position to anticipate any looming danger. The Reeds, therefore, would not be expected to warn her (or those in her charge).FN2 See Polak, 487 N.E.2d at 215-16.
FN2. The defendants attempt to take this point one step further, arguing that their duty toward their grandson was wholy negated when they left him alone with his mother. This argument is no mere makeweight, especially in regard to open and obvious risks. See, e.g., Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146, 147 (Ark.1988). The Massachusetts courts have not passed upon the desirability of such a rule, however, and it is unnecessary for us to vaticinate whether Massachusetts would adopt it.
[10] [11] The case law confirms the appropriateness of brevis disposition here. To overcome summary judgment in a tort suit against an owner or occupant of real property, a plaintiff must put forth evidence of negligence, i.e., evidence of the defendant's failure to exercise due care. See Toubiana, 520 N.E.2d at 1310. Evidence that a precaution feasibly could have been taken to prevent a foreseeable injury sometimes may suffice to create a genuine issue of material fact as to negligence. See, e.g., Collins v. Northwest Airlines, Inc., 875 F.Supp. 64, 67-68 (D.Mass.1995) (holding that airline's ongoing opportunity to enforce a policy against children entering baggage room created genuine issue of material fact as to negligence). Conversely, when an accident happens so quickly that those in the vicinity simply do not have time to react constructively, their failure to prevent the accident is not evidence of negligence. See id. (holding, as a matter of law, that airline employees did not act negligently in failing to prevent an accident occurring seconds after child arrived in restricted area). It follows inexorably that where, as here, a landowner had no feasible opportunity to remove the instrument of injury that was brought into a child's zone of exposure by a third party, *311 she cannot be held liable for an ensuing injury. See Roderick, 631 N.E.2d at 560; see also Bandanza v. Town of Norwood, 360 Mass. 860, 277 N.E.2d 300, 301 (Mass.1971).
If more were needed-and we doubt that it is-we note that the record does not contain a shred of evidence that discharges from snowblowers often break windows. This lacuna renders the case at hand analogous to Ted's Master Service, Inc. v. Farina Bros., 343 Mass. 307, 178 N.E.2d 268, 270 (Mass.1961), in which the Supreme Judicial Court approved a directed verdict in favor of an excavating company whose drilling was alleged to have damaged buildings (by vibration) well outside the radius of a standard survey. There, as here, the defendant had no forewarning, and the injury that occurred simply was not foreseeable.
[12] We need go no further. Once their good-hearted neighbor took it upon himself to start snowblowing, there was nothing the Reeds reasonably could have been expected to do to prevent the broken window. Moreover, absent good reason to know that snowblowers were likely to smash windows, the Reeds had no reason to keep their grandchildren away from the dining room window during the snowblowing operation. Because the plaintiffs have not proposed any feasible precaution, much less any precaution required by ordinary prudence, that would have averted this freak accident,FN3 the district court appropriately entered summary judgment.
FN3. Although the Reeds had not installed storm windows, the plaintiffs concede that storm windows are intended to insulate a home, not to reinforce the windows against projectiles thrown by snowblowers. Hence, the failure to take such a precaution could not be deemed a proximate cause of the bizarre accident that occurred. See Young v. Atlantic Richfield Co., 400 Mass. 837, 512 N.E.2d 272, 275 (Mass.1987).
Affirmed.
C.A.1 (Mass.),2000.
Fithian v. Reed
204 F.3d 306
Briefs and Other Related Documents (Back to top)
• 99-1898 (Docket) (Aug. 12, 1999)Bottom of Form
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