BERNICE PROCTOR vs. NORTH SHORE COMMUNITY ARTS FOUNDATION & others [Note 1]

BROWN, J. This appeal amply demonstrates the old maxim "Whatever can go wrong, will go wrong." The question for this court thus becomes what ought to be done after excising the errors, which traverse a wide range of the civil procedure spectrum.

Bernice Proctor brought this action against the North Shore Community Arts Foundation (North Shore), Apex Products, Inc. (Apex), and Gold Star Wholesale Nursery, Inc. (Gold Star), and EMU, Inc., for personal injuries she suffered in July, 1987, prior to a concert at the North Shore Music Theatre while seated at a table with an umbrella when a sudden gust of wind caught the umbrella and overturned the table. The theater was owned and operated by North Shore which was chartered by the Commonwealth as a charitable, nonprofit organization pursuant to G. L. c. 231, s. 85K. North Shore also had on site a restaurant operated by a separate entity (which held a liquor license).

The plaintiff had come to the premises to attend a concert and to eat dinner at the restaurant. After eating dinner, the plaintiff moved to an open air picnic or courtyard area on the theater grounds to await the concert. The table, chairs, and umbrellas had been set up in this picnic area. North Shore provided this area to its patrons to sit and enjoy refreshments while waiting for a concert to begin. North Shore leased or contracted the outside picnic area to profit-making companies: North Shore Theatre Concessions, Inc. (Concessions), a Wholly owned subsidiary of North Shore, and Hospitality Consultants, separate entities that sold food and beverages to interested patrons who were on the premises for the purpose of attending North Shore concerts. On the date of the incident, Hospitality Consultants was selling alcoholic beverages in the picnic area where the accident occurred.

On the evening when the plaintiff was injured, the weather was fair initially. After Proctor had been sitting for a little over five minutes, the weather became cloudy and suddenly very

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gusty. The plaintiff and her companion considered whether they should go inside, but decided to remain outdoors.

The plaintiff sought damages for negligence against all the defendants. Proctor claimed that North Shore was negligent in the placement and maintenance of the umbrella and for failing to warn and remove patrons from the area when the wind increased. She also sought damages for breach of express and implied warranties against Apex and Gold Star [Note 2].

In a special jury verdict, the jury found that Gold Star had not sold the umbrella which injured Proctor to North Shore, was not negligent, and had not committed a breach of any warranty. Similarly, the jury found that Apex had not sold the umbrella which injured Proctor to Gold Star, nor was it negligent, or in breach of any warranty [Note 3].

The jury found that North Shore was negligent, that $150,000 would compensate Proctor for her injuries, and that its negligence proximately caused Proctor's injuries. In addition, the jury determined that Proctor was comparatively negligent, thus reducing her award by fifty percent which was further reduced by the cap on charitable immunity to $20,000, pursuant to G. L. c. 23 1, s. 85K [Note 4].

The jury's verdict as first rendered contained a glaring inconsistency: they found North Shore negligent but answered "no" to the question whether such negligence had caused injury to the plaintiff and then proceeded to determine damages in answer to the special question presented to them. The trial judge determined that the jury's failure to find proximate cause was not consistent with the jury's assessment of $150,000 in

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damages. The judge instructed the jury that they should either find that North Shore's negligence was the proximate cause of Proctor's injuries or should rescind their assessment of damages. The jury changed their initial verdict and found that North Shore's negligence was the proximate cause of the plaintiff's injury.

Proctor filed several posttrial motions [Note 5]. The judge denied Proctor's motions for new trials against Gold Star and Apex. Proctor and North Shore filed cross appeals from the judgment and from the denial of their posttrial motions. After a hearing, a different Superior Court judge denied Proctor's motion to vacate summary judgment.

The major thrust of Proctor's claims on appeal are that North Shore (1) evaded discovery of the existence of Concessions, the profit-making corporation licensed to serve liquor at the picnic area where she was injured, (2) engaged in a pattern of deliberate fraud and deception during the discovery process to prevent her from establishing the connection between the codefendants, Apex and Gold Star, the manufacturer and seller of the umbrella that injured her, and North Shore, and (3) mischaracterized the picnic area as an area open for all patrons to enjoy in an attempt to maintain the charitable cap on damages afforded to nonprofit corporations under G. L. c. 231, s. 85K, instead of properly characterizing the picnic area as an area used to support commercial, noncharitable activity.

1. Denial of Proctor's motion for a new trial against Gold Star and Apex. Proctor's motions for a new trial against Apex and Gold Star were denied [Note 6]. Proctor contends that a new trial should have been granted because she was hindered in presenting her case due to those two codefendants' abuse of the

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discovery process [Note 7]. On review of a denial of a motion for a new trial, we apply familiar principles. See, e.g., Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515 , 520, cert. denied, 493 U.S. 894 (1989). See also Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56 , 60 (1948). "The judge should set aside the verdict 'only if he is satisfied that the jury have failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.' " Bolton v. Massachusetts Bay Transp. Authy., 32 Mass. App. Ct. 654 , 658 (1992) (citation omitted).

Former Superior Court "rule 26, adopted in 1974, reads . . . as follows: 'A motion for a new trial shall specify the grounds thereof. Unless within ten days after the filing of a motion for a new trial application is made to the presiding justice for a hearing, he may act thereon without a hearing.' "EW. Webb Co. v. Averett, 422 Mass. 625 , 627 (1996) [Note 8]. Pursuant to rule 26, Proctor was entitled to a hearing on the motions for a new trial since her request for a hearing was made timely and did "specify grounds thereof" The arguments of the two defendants to the contrary are not persuasive. Even if we were to accept their argument that the strictures of the F W. Webb Co. case are inapplicable in the absence of a showing of harm, we are confident in these particular circumstances that the presentation of the plaintiff's case was adversely affected or at least made more difficult.

2. Additur. A trial judge is "to use the additur process only when he concludes that the verdict is sound except for inadequacy of the amount and the inadequacy is such as to descend to the level of unreasonableness. An unduly slim verdict, however, may signal the existence of other defects in the work of the jury, or mistakes by the judge. In such a case additur would not be appropriate, and a simple new trial would be called for. All this is for consideration in the first place by the trial judge." Freeman v. Wood, 170 Mass. 777 , 793-796 (1980). See Mass.R.Civ.P. 59(a), 365 Mass. 827 (1974). In

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the case at bar, we discern no abuse of discretion where the trial judge denied the plaintiffs motion for additur.

3. North Shore's summary judgment motion. The allowance of North Shore's motion for summary judgment was appropriate. The plaintiffs argument in opposition to North Shore's motion was off the mark, as she merely relied on the existence of the restaurant and North Shore's leasing of space for Concessions. In that context, on our examination of the record, we reach the same conclusion, as did the Superior Court judge, that "the maintenance of a picnic area, at no additional cost to patrons, and the sale of refreshments by another entity at the picnic area were incidental to North Shore's primary activities . . . [and further that] [t]he picnic area was not formed with the intent to raise revenue for the theater." See Missett v. Cardinal Cushing High Sch., 43 Mass. App. Ct. 5 , 11 (1997) [Note 9]. See also Boxer v. Boston Symphony Orchestra, Inc., 342 Mass. 537 (1961); Mason v. Southern New England Conference Assn., 696 F.2d 135, 138-140 (1st Cir. 1982) (charitable immunity prevented recovery for the "reckless, wilful or wanton misconduct" of an employee of a charity).

4. North Shore's cross appeal. In its cross appeal, North Shore argues, based upon Footit v. Monsees, 26 Mass. App. Ct. 173 (1988), that it was entitled to judgment entered in its favor [Note 10]. Here, in response to a special question, the jury, contrary to the judge's instructions, awarded damages despite finding, in answer to a prior special question, that North Shore did not proximately cause the plaintiff's injuries. We think that the judge appropriately could explain to the jury that two of their answers were inconsistent and that they should reconsider those answers in such manner as to rectify the apparent confusion. Nothing in Footit is to the contrary [Note 11]. In the circumstances, the judge did

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not err in denying North Shore's motion for judgment notwithstanding the verdict.

5. Proctor's request to add a party defendant. "Massachusetts has long had a liberal policy allowing amendments which add or substitute parties after the statute of limitations has expired." Bengar v. Clark Equip. Co., 401 Mass. 554 , 556 (1988) [Note 12]. "Our cases have not . . . permitted an amendment to relate back to the date of the commencement of the action when . . . the amendment seeks to add a new defendant after the statute of limitations has run and to allege against that new defendant a theory of liability wholly different from the theory of liability of the original complaint." Id. at 556-557. "We look to see whether an amendment would enable a plaintiff to maintain the action which he originally intended to bring." Id. at 557.

Here, Proctor submitted an emergency motion to the judge on the eve of the trial to amend the complaint and add as a defendant its wholly-owned for-profit subsidiary Concessions, which held both a common victualer license and a liquor license. It is clear that Proctor intended to bring an action against the parties liable for her injuries. Proctor objected to North Shore being allowed to raise the issue of charitable immunity after evading discovery of the existence of Concessions. In these circumstances, it was error for the judge to deny Proctor's motion to add Concessions as a defendant.

North Shore claims that Proctor does not appear to argue that Concessions was an "agent" of North Shore for the purpose of rendering North Shore vicariously liable for Concessions's alleged negligence. It claims that even if Concessions, as an agent of North Shore, committed a negligent act in the placement and maintenance of the umbrella that this would not deprive North Shore, as the principal, of the protection of the charitable cap on damages as long as the acts of the alleged agent (Concessions) were consistent with North Shore's charitable purpose.

The general rule is that an agent is not entitled to the protection of his principal's immunity even if the agent is acting on behalf of his principal. Restatement (Second) of Agency s. 347(1) (1958). "In 1971, the Legislature abolished entirely the defense of charitable immunity from tort liability 'if the tort was committed in the course of activities primarily commercial

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in character even though carried on to obtain revenue to be used for charitable purposes.' G. L. c. 231, s. 85K, inserted by St. 1971, c. 785, s.1." Mullins v. Pine Manor College, 389 Mass. 47 , 63 (1983).

It is conceivable that Proctor would have a claim against Concessions for liability for her injuries if she had been allowed to add Concessions as a defendant. We vacate the judge's order denying Proctor's motion to add Concessions as a defendant.

6. Comparative negligence. "When considering a judge's denial of a motion for judgment notwithstanding the verdict, this court's task is 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 [nonmoving party]. " ' . . . 'We do not weigh the evidence or consider the credibility of the witnesses.' . . . 'Evidence that contradicts the testimony of the nonmoving party is to be ignored.' " Moose v. Massachusetts Inst. of Technology, 43 Mass. App. Ct. 420 , 421 (1997) (citations omitted).

In the instant case, viewing the evidence in the light most favorable to the defendant, who had the burden of proving the plaintiff's comparative negligence at trial, G. L. c. 231, s. 85, the jury properly could have found that Proctor was fifty percent responsible. Compare Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct. 153 , 166 (1999). Proctor was in the same position as North Shore to assess the worsening weather conditions. Moreover, Proctor actually discussed the change in the weather with her companion, and they decided to remain under the umbrella rather than to go indoors. The judge did not err in denying Proctor's motion for judgment notwithstanding the verdict.

7. Conclusion. Proctor is entitled to a hearing to reconsider her motions for a new trial against Apex and Gold Star. North Shore's motion for summary judgment was properly allowed. We vacate the denial of Proctor's motion to add Concessions as a defendant. We affirm the judge's order denying Proctor's judgment notwithstanding the verdict and the judge's order denying North Shore's similar motion. This matter is accordingly remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.