Home URSULA McKOY v. JOSHUA ROCKWOOD and another [Note 1]

2017 Mass. App. Div. 132

April 28, 2017 - August 28, 2017

Appellate Division Northern District

Court Below: District Court, Lynn Division

Present: Coven, P.J., Singh & Crane, JJ. [Note 2]

Nicole Bluefort for the plaintiff.

Robert A. Marra, Jr. for the defendant.


CRANE, J. This is a claim for personal injury arising from a motor vehicle accident where both parties were the drivers. A jury found that the defendant was negligent but also found that the defendant's conduct was not a substantial contributing factor to the plaintiff's injuries. The plaintiff appeals.

The accident occurred on July 9, 2014 on the Lynnway in Lynn, Massachusetts. The plaintiff claimed that she sustained plantar fasciitis in her right foot as a result of this accident. Initially, the plaintiff felt pain in her back and neck. About a week later, she developed pain in her right foot and received physical therapy for her left leg and pain in her right foot.

The plaintiff had been involved in another accident in December, 2013 that resulted in physical therapy for her back and right knee pain. At the time of the current accident, she had just finished treating for whatever injuries she may have sustained from the first accident. After the current accident, she did not seek any treatment or therapy for any injuries until September 5, 2014, almost two months after the current accident. Not surprisingly, the defendant contested whether the current accident caused the plaintiff any injuries. The jury found for the defendant on causation.

The plaintiff appeals because she asserts that the trial judge committed error by failing to give an instruction on causation of damages when there is evidence of a preexisting condition. The plaintiff calls this the "eggshell skull" rule. The defendant responds that the plaintiff never requested that the court give that instruction and never objected to the trial judge's instructions before the jury retired to deliberate.

The plaintiff did not submit any requests for jury instructions other than a request that the court read 211 Code Mass. Regs. ยง 74.04(3) to the jury, which states, in pertinent part: "The operator of a vehicle . . . shall be presumed to be more than 50% at fault when operating a vehicle which is in a collision with the rear section of another vehicle." The plaintiff did not make any request for instruction concerning damages or causation if the jury found the plaintiff had any preexisting injury and whether the

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defendant's conduct in the current accident may have aggravated such a condition. Finally, the plaintiff did not make any objection to the trial judge's instructions to the jury. Under these circumstances, the plaintiff has failed to preserve these issues for appellate review.

We do not reach this issue because the plaintiff failed to preserve it with a timely objection to the jury instructions before the jury retired to deliberate. In order to raise a trial judge's failure to give a particular instruction as an issue on appeal, the appealing party must object to the instruction before the jury retires to consider its verdict. Mass. R. Civ. P. 51(b). See Composto v. Massachusetts Bay Transp. Auth., 48 Mass. App. Ct. 477 , 480 (2000). In making such an objection, a party must state "distinctly the matter to which he objects and the grounds of his objection." Mass. R. Civ. P. 51(b). See Composto, supra; Miller v. Boston & Maine Corp., 8 Mass. App. Ct. 770 , 773 (1979). The plaintiff made no objection before the jury retired to deliberate. Parties may not appeal from jury instructions if they have remained silent when the trial judge could have corrected any error by a timely objection with a statement of grounds to the trial judge who could have revised instructions before the jury began to deliberate.

At oral argument, for the first time, counsel for the defendant noted for this Division that the trial court had entered judgment for the plaintiff, notwithstanding the jury's verdict on special questions. This was not raised before the trial court or in the briefs of either counsel. Counsel for the defendant asserts that this was a clerical error, and the plaintiff did not contest this assertion at oral argument. The proper route to correct the judgment is to file a motion in the trial court pursuant to Mass. R. Civ. P. 60(a). Intoccia v. Panagopoulos, No. 13-P-1646, at n.7 (Mass. App. Ct., June 12, 2015) (unpublished Rule 1:28 decision); Kelly v. Dubrow, 2001 Mass. App. Div. 42 , 45.

This matter is returned to the trial court for any further proceedings consistent with this opinion.


FOOTNOTES

[Note 1] Michael Rockwood.

[Note 2] The Honorable Sabita Singh participated in the hearing of this case, but was appointed to the Appeals Court prior to the issuance of this opinion.