THE SHANTIGAR FOUNDATION vs. BEAR MOUNTAIN BUILDERS.

SPINA, J. The Shantigar Foundation appeals from a judgment of the Superior Court in favor of Bear Mountain Builders, after a jury found Shantigar sixty per cent negligent and Bear

Page 132

Mountain forty per cent negligent in the destruction by fire of a barn owned by Shantigar. Shantigar claims that the trial judge erroneously refused to permit the jury, when comparing liability pursuant to G. L. c. 231, § 85, to consider the negligence of a second tortfeasor with whom Shantigar had settled prior to trial. Shantigar also claims error in the admission of evidence concerning its decision not to install a sprinkler system in the barn. We affirm.

1. Facts. On the evening of January 26, 2000, a fire destroyed a Nineteenth Century barn owned by the Shantigar Foundation in Rowe. Shantigar, an organization founded by playwright Jean-Claude van Itallie, was in the process of renovating the barn for use as a spiritual learning center where students and visitors could attend workshops and classes. The renovation, which had been ongoing for some two and one-half years at a cost to Shantigar of just under $1 million, was substantially completed at the time of the fire.

Shantigar had contracted with Bear Mountain to perform some of the renovation work. Bear Mountain, a sole proprietorship run by Joseph Kayan, had one employee who worked on the project, Brandon Boucias. Kayan also subcontracted work to Cove Building Company (Cove), a sole proprietorship run by Jeffrey Stone. At the time of the fire, Stone had two employees, including Richard Moran.

Approximately one year before the fire, Shantigar began contracting directly with Cove. Kayan had decided to spend less time at the project site, although Boucias still worked there. Kayan appeared on the site every ten to fourteen days. Van Itallie, as head of Shantigar, was also present and actively involved in the direction and details of the project, but relied on Kayan to supervise construction. The building permit applications for the project listed Kayan as the construction supervisor. [Note 1]

Van Itallie testified that he and the professionals hired to work on the barn discussed the fire safety measures mandated by law. He recognized the fact that the barn was a fire hazard because it was old and "dried out." He further testified that,

Page 133

although he did not "like the look of a sprinkler system in an old barn," he would have installed one had the law required it. The project's architect testified that, in his opinion, the barn was "a tinderbox," and he recommended installing a sprinkler system, but because it was not legally required, van Itallie opted not to install one. [Note 2] Heat detectors and smoke detectors, which were required by law, were to be installed throughout the barn, but at the time of the fire not all of them were in place, and the system was not functioning.

During the renovation van Itallie requested that the contractors use "natural" products, and provided Kayan with a catalogue that advertised BioShield, a linseed oil based product, to be applied to wood surfaces such as floors and stairs. Van Itallie testified that he assumed the product would be applied with rags. He further testified he was familiar with the concept of spontaneous combustion, and knew that "oily rags left around do cause a fire." Kayan and the project's architect recommended using polyurethane on the floors, but van Itallie wanted to use BioShield.

In August, 1999, workers discovered smoke curling from a pile of rags that had been used to apply the linseed oil. The rags were "warm to the touch" and in an initial stage of combustion. The workers talked about the incident on their coffee breaks for some time afterward, and recognized the danger of fire from the use of linseed oil. After the incident, Kayan discussed the hazard

Page 134

with Stone and the workers, and instructed them how to dispose of rags safely. [Note 3]

As the project neared completion, the crew prepared a "punch list" of tasks still to be performed. Stone had the responsibility of oiling and buffing the floors in the barn. At approximately 10 A.M. on January 26, 2000, Boucias applied oil to a small test patch of the floor in the main room using a rag. He then left the rag in an oil pan and departed for a meeting, leaving Stone and Moran to oil the rest of the floor, which covered approximately 2,500 square feet. Between noon and 1 P.M., Boucias returned and buffed a six-by-six-foot area of the floor. Boucias testified he oiled and buffed these small areas mainly because he was "just excited to see what the floor would look like." Afterward, he and Kayan went across the street for a meeting at van Itallie's garage and stayed there until 4 P.M. Boucias then walked back to the barn to retrieve his jacket and left for the day, having done no further work at the barn.

Stone testified that he used a lamb's wool mop to apply the oil to the floor that day, as well as paint brushes to apply it to the edges. He also used two rags, one in his back pocket to wipe his hands, and another he left lying on the floor outside the main room so that he could step on it. He testified he did not use the rags to apply the oil to the floor, and that they had "very little" oil on them. After applying the oil, Stone buffed the floor, finishing his work by approximately 3:30 P.M. Before departing, Stone left the mop wrapped in a plastic bag on the second floor of the barn, and hung the rags over a "cow stanchion" in the hallway on the first floor. He removed the buffer pad and placed it on top of the buffer, which was left in the first floor hallway as well. He did not testify to soaking any of the items in water after using them.

Shantigar's expert testified that the fire started that evening in the hallway where Stone had left the oily rags. He determined the cause to be spontaneous combustion of the linseed oil, rags, and other materials in the hallway. On cross-examination, the

Page 135

expert testified it was possible that fires could have ignited simultaneously on different floors of the barn.

Shantigar filed suit against both Bear Mountain and Cove for negligence and breach of contract. In December, 2001, Shantigar settled with Cove for $300,000. Cove then filed an unopposed motion to dismiss Bear Mountain's cross claim for contribution, and for entry of separate and final judgment, which was allowed. The claims against Bear Mountain proceeded to trial before a jury in May, 2002.

The jury found that Bear Mountain did not breach its contract with Shantigar, and was not negligent in the performance of its work on the project. The jury did find that Bear Mountain was negligent "in the supervision of others on the project," and that its negligence proximately caused the damage to the barn. The jury also found that Shantigar was negligent and that its negligence was a proximate cause of the fire. Having made such a finding, the jurors were instructed to allocate percentages of fault to Shantigar and Bear Mountain that would total one hundred per cent. As previously noted, the jury found Shantigar sixty per cent at fault and Bear Mountain forty per cent.

The judge therefore ordered judgment for Bear Mountain. See G. L. c. 231, § 85. [Note 4] Shantigar then filed a motion to amend the judgment, for judgment notwithstanding the verdict, and for a new trial. The judge denied the motion, and Shantigar appealed from both the judgment and the denial of the motion. We granted Shantigar's application for direct appellate review.

2. G. L. c. 231, § 85. We first address Bear Mountain's claim that Shantigar did not preserve the issue of comparative liability for appellate review. After the judge charged the jurors, but before they retired to deliberate, the following exchange took place at sidebar:

Page 136

THE PLAINTIFF'S COUNSEL: "That means Cove should be listed on the comparative negligence slip."

THE JUDGE: "Cove what?"

THE PLAINTIFF'S COUNSEL: "On the negligence. Because if they are going to consider all the negligence --"

THE JUDGE: "I specifically took Cove off because the jury -- it would so mislead the jury when I tell them they are only to consider those --. So your objection is noted."

Bear Mountain claims that the above statements by counsel fail to comport with Mass. R. Civ. P. 51 (b), 365 Mass. 816 (1974), because he did not make a formal objection to a jury instruction, and did not state the reason underlying his purported objection. See Flood v. Southland Corp., 416 Mass. 62, 66 (1993). More applicable perhaps is Mass. R. Civ. P. 49 (a), 365 Mass. 812 (1974), which governs special verdicts. To preserve rights under rule 49 (a), "a party must lodge an objection to the omission of any issue in the special questions before the jury retires." International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 852 (1983), citing Cote v. Estate of Butler, 518 F.2d 157, 160 (2d Cir. 1975). In our view, however, the requirements of either rule were met. The plaintiff's counsel clearly took issue with the proposed verdict slip and was attempting to explain why he thought Cove should be included. The judge acknowledged an understanding of the issue but nevertheless declined counsel's request. See Flood v. Southland Corp., supra. Moreover, he expressly stated to counsel, "[Y]our objection is noted." See Rotkiewicz v. Sadowsky, 431 Mass. 748, 752 (2000). The matter therefore is properly before us. We now turn to the question whether G. L. c. 231, § 85, compelled the inclusion of Cove in the jury's apportionment of negligence.

Shantigar advances several reasons why the Massachusetts comparative negligence statute requires apportionment of negligence for settling defendants. First, it argues the mandatory language of the statute is clear and unambiguous. It also asserts that the jury's apportionment of negligence was incompatible with their factual finding. It claims that excluding Cove from the jury verdict slip contravenes the legislative intent of the

Page 137

statute. Finally, Shantigar contends that reversing the judge's ruling will promote the public policy of encouraging settlements among the parties.

The comparative negligence statute provides, in relevant part: "Contributory negligence shall not bar recovery in any action . . . to recover damages for negligence . . . 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" [Note 5] (emphasis added). G. L. c. 231, § 85. In the more than thirty years since the Legislature rewrote the statute in 1973, St. 1973, c. 1123, § 1, no Massachusetts case has squarely resolved the question whether a tortfeasor who has settled should be included as a "defendant" under § 85 for purposes of apportioning percentages of liability. See Woods v. O'Neil, 54 Mass. App. Ct. 768, 777 n.13 (2002), quoting Laveck v. Pascoe Pizza, Inc., 29 Mass. App. Ct. 935, 938 n.6 (1990).

Shantigar argues that the judge failed to comply with the clear mandate of G. L. c. 231, § 85, because its negligence was not compared with the negligence of both parties against whom recovery was sought. Bear Mountain contends that the statute requires comparison only with that of active participants at trial, i.e., "persons against whom recovery is sought" or "defendants" (emphasis added). Id. We think that the plain language of § 85 supports the latter interpretation. The statute does not direct the

Page 138

jury to apportion negligence among all tortfeasors who may have caused the injury, only those against whom recovery "is" sought. See Glannon, Liability of Multiple Tortfeasors in Massachusetts: The Related Doctrines of Joint and Several Liability, 85 Mass. L. Rev. 50, 60 (2000) (Glannon) ("only a licentious reading of [§ 85] would assess negligence to all tortfeasors who may have contributed to the injury"). Having settled its claim against Cove, Shantigar was not seeking recovery against Cove at the time the case was submitted to the jury.

Shantigar alternatively argues that omitting Cove from the verdict slip produced an artificial result that is inconsistent with the jury's finding of fact, as well as the plain meaning of the statute. General Laws c. 231, § 85, mandates that the "combined total of the plaintiff's negligence taken together with all of the negligence of all defendants shall equal one hundred per cent" (emphasis added). Shantigar claims that the jury implicitly found Cove negligent, and therefore the combined total of the negligence of Shantigar, Bear Mountain, and Cove exceeded one hundred per cent. This argument assumes, first, that the jury were referring to Cove when they found Bear Mountain negligent in its supervision of "others." [Note 6] Even if we accept this proposition, the argument also assumes that Cove -- which Shantigar had discharged from liability some five months before trial -- was still a "defendant" for purposes of the statute. The clause on which Shantigar relies, however, must be read in conjunction with the clause that directs a comparison of the plaintiff's negligence to that of "all persons against whom recovery is sought." See Commonwealth v. Woods Hole, Martha's Vineyard & Nantucket S.S. Auth., 352 Mass. 617, 618 (1967), quoting Bolster v. Commissioner of Corps. & Taxation, 319 Mass. 81, 84-85 (1946) ("enactment considered as a whole shall constitute a consistent and harmonious statutory

Page 139

provision"). At the time the case was submitted to the jury, Cove was no longer a defendant against whom recovery "is sought." [Note 7] Compare Conn. Gen. Stat. § 52- 572h(b) (2003) (specifying that "persons against whom recovery is sought" includes "settled or released persons"). [Note 8]

Last, Shantigar asserts that if Cove had been included on the verdict slip, the change in the apportionment calculus would have resulted in a verdict in which Shantigar's negligence fell below the total amount of negligence attributable to the negligence of Cove and Bear Mountain, enabling Shantigar to recover damages from Bear Mountain (minus the $300,000 settlement amount with Cove). Not only does Shantigar's proposal run afoul of the plain language of the statute, it also calls for speculation. "We do not know how the jury might have allocated negligence had they been instructed to allocate negligence" among Shantigar, Bear Mountain, and Cove. See Laveck v. Pascoe Pizza, Inc., supra at 936. Given the evidence at trial, we do not assume that including Cove on the verdict slip would have reduced Shantigar's apportioned liability. Moreover, allocating negligence to someone who was not actually litigating the question at trial does not provide a sound basis to make such an allocation. See Composto v. Massachusetts Bay Transp. Auth., 48 Mass. App. Ct. 477, 479 n.4 (2000).

Shantigar next claims that excluding from the jury slip a defendant who has settled with the plaintiff contravenes the

Page 140

Legislature's intent. Shantigar contends that when interpreting a statute, we must consider "the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated," Hanlon v. Rollins, 286 Mass. 444, 447 (1934), and that "[t]he purpose of G. L. c. 231, § 85, was to ameliorate the harsh result of the contributory negligence rule and 'permit recovery by a plaintiff whose negligence was not greater than the negligence of the defendant.' " [Note 9] Zeller v. Cantu, 395 Mass. 76, 79 (1985), quoting Riley v. Davison Constr. Co., 381 Mass. 432, 438 n.5 (1980).

Shantigar relies on Correia v. Firestone Tire & Rubber Co., 388 Mass. 342 (1983), and Graci v. Damon, 376 Mass. 931 (1978), to assert that the court "recognized that the goal of the comparative negligence statute is effectuated by requiring the negligence of the plaintiff be 'compared with the total negligence of all defendants' rather than with each individual defendant." Allowing the jury to compare Shantigar's negligence only to that of Bear Mountain, Shantigar argues, was the same comparison rejected in Graci v. Damon, supra. However, that case did not consider whether to include a settling defendant in the apportionment of liability, see Graci v. Damon, 6 Mass. App. Ct. 160, 161-163, S.C., 376 Mass. 931 (1978), thus Shantigar's reliance is misplaced. [Note 10] Moreover, in Correia v. Firestone Tire & Rubber Co., supra at 350-352, the court held that a negligent employer who is immune from suit by virtue of having paid workers' compensation benefits on the death of injured employee may not be included in the jury's negligence

Page 141

calculus under G. L. c. 231, § 85. See id. at 350 (noting workers' compensation statute "withdraw [s] from the pool of available defendants and contributors any employer who pays compensation benefits"). See also Allen v. Chance Mfg. Co., 873 F.2d 465, 467 (1st Cir. 1989), citing Correia v. Firestone Tire & Rubber Co., supra at 346-352 (under § 85, "a jury must apportion negligence between only the plaintiff and the defendant; the fault of non-parties . . . is not to be taken into account").

Bear Mountain asserts, and we agree, that the removal of absent tortfeasors from the jury's consideration comports with the Legislature's intent and is consistent with the Massachusetts statutory schemes of joint and several liability, and contribution. Under our current system of joint and several liability, a plaintiff injured by more than one tortfeasor may sue any or all of them for her full damages. See Kabatchnick v. Hanover-Elm Bldg. Corp., 331 Mass. 366, 368 (1954); Mitchell v. Hastings & Koch Enters., Inc., 38 Mass. App. Ct. 271, 280 (1995). See also Glannon, supra at 51. The purpose of having the fact finder assign liability percentages is merely "to ascertain the negligence percentage of the plaintiff, so that her award of damages can be reduced to reflect her negligence." Id. at 52. Tortfeasors who pay more than their "pro rata" (equal) share of damages may then seek partial reimbursement, or contribution, from other joint tortfeasors, see G. L. c. 231B, § 1; Glannon, supra at 62, although tortfeasors who settle with the plaintiff prior to entry of judgment are insulated from claims for contribution from the remaining defendants (who are then entitled to a setoff in the judgment equal to the settlement amount). See G. L. c. 231B, § 4. See also Glannon, supra at 65.

By contrast, in jurisdictions that impose several liability, tortfeasors pay according to their percentage of fault. See Glannon, supra at 52 n.12. Such jurisdictions are more likely to include at least some absent tortfeasors in the negligence calculus. See Fabre v. Marin, 623 So. 2d 1182, 1185 (Fla. 1993), rev'd on other grounds, Wells v. Tallahassee Memorial Regional Med. Ctr., Inc., 659 So. 2d 249 (Fla. 1995) (construing Florida comparative negligence statute to allocate fault to all participants to action, based on State Legislature's curtailment of joint and

Page 142

several liability). See also Note, Apportioning Responsibility to Immune Nonparties: An Argument Based on Comparative Responsibility and the Proposed Restatement (Third) of Torts, 82 Iowa L. Rev. 1293, 1305 (1997) ("A majority of states with a pure or modified form of several liability that have addressed the issue allow evidence of nonparty fault generally to be introduced into the distribution calculus" [footnote omitted]). Significantly, Massachusetts has declined previous opportunities to eliminate joint and several liability (a system, we note, that favors plaintiffs because it places the risk of insolvent defendants on codefendants rather than on the injured party) in favor of imposing fault-based liability on all parties. See Zeller v. Cantu, supra at 81; Graci v. Damon, 6 Mass. App. Ct. 160, 168-170 (1978). Moreover, our "modified" comparative negligence rule theoretically could allow a plaintiff who is as much as fifty per cent at fault to recover from a codefendant who is no more than one per cent at fault. See Glannon, supra at 54. Although the omission of a settling tortfeasor from the jury's consideration might work unfavorably for a plaintiff, as it did in this case, it does not violate the principles of joint and several liability, contribution, or comparative negligence, and is indeed consistent with them.

Finally, Shantigar argues that omitting a settling defendant from the verdict slip may discourage plaintiffs from settling with any defendant, because the jury's allocation may not fairly reflect the plaintiff's proportionate fault. See Glannon, supra at 60. Just because the system is imperfect does not mean it is unjust. Indeed, it is no less rational than our previous contributory negligence rule, and it is certainly much less harsh on plaintiffs. See Zeller v. Cantu, supra. Plaintiffs who wish to avoid the potential pitfalls of settling with one tortfeasor need not settle with any. They may always proceed to trial against all tortfeasors not immune from suit.

We recognize that the Uniform Comparative Fault Act [Note 11] and numerous States, including some with comparative negligence

Page 143

statutes that use language similar to ours, require apportionment of negligence to absent tortfeasors. See, e.g., Inland/Riggle Oil Co., 925 P.2d 1083, 1086 (Colo. 1996); Walker v. Kroger Grocery & Baking Co., 214 Wis. 519, 535-536 (1934). Interpreting § 85 in lockstep with those jurisdictions, however, without consideration of the unique statutory schemes of each State could undermine the balance of equities -- some favoring plaintiffs and others favoring defendants -- that is achieved by our own system. [Note 12] See Glannon, supra at 52 ("The [Massachusetts] liability regime as a whole involves the interaction of common law joint and several liability with two statutory schemes -- comparative negligence and contribution"). By requiring the fact finder to apportion one hundred per cent of the negligence among only those who participate in the trial, the parties equally shoulder the burden of persuading the fact finder as to how to allocate fault. Although some commentators have opined that including absent tortfeasors in the negligence calculus results in a more accurate apportionment of liability, see, e.g., Glannon, supra at 60, "we are precluded from 'making any decision in the name of equity which would undercut

Page 144

the legislative scheme.' " Zeller v. Cantu, supra at 83, quoting Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 349 (1983). See Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524, 527 (1978) (denying joint tortfeasor right of contribution or indemnity from negligent employer who paid workers' compensation benefits, based on statutory scheme).

Our reading of the language in G. L. c. 231, § 85, in light of our previous interpretations of the Massachusetts statutory schemes governing liability of multiple tortfeasors, persuades us that the statute applies only to named parties who participate in the trial. See Mills v. Brown, 303 Or. 223, 231 (1987) (relying on interpretations of Oregon statutes to restrict comparative fault analysis to parties still in case when submitted to fact finder). [Note 13] Changes in the law are for the Legislature. See Zeller v. Cantu, supra at 81; Liberty Mut. Ins. Co. v. Westerlind, supra.

3. Admission of evidence. Shantigar also claims the judge improperly admitted evidence of its decision not to install a sprinkler system in the barn. Shantigar had filed a motion in limine seeking to exclude all such evidence at trial. After hearing argument, the judge deferred ruling on the matter. The judge later overruled Shantigar's objection to the offer of such evidence during the cross-examination of van Itallie.

Massachusetts law recognizes that in the absence of a statutory duty to install sprinklers or other specialized fire apparatus, a jury could find such a duty when the owner knows of a "particular danger of fire." Little v. Lynn & Marblehead Real Estate Co., 301 Mass. 156, 161 (1938). See Cigna Ins. Co. v. OY Saunatec, Ltd., 241 F.3d 1, 19-20 (1st Cir. 2001). Shantigar argues it had no knowledge of a particular danger of fire which would have triggered a duty to install a sprinkler system. However, van Itallie acknowledged the ancient wooden barn was a fire hazard, and that his architect had advised him to install sprinklers because the barn was, in his words, a "tinderbox." The jury reasonably could conclude that van Itallie

Page 145

was aware of a particular danger of fire. There was no error in the admission of evidence concerning his decision not to install a fire suppression system.

Judgment affirmed.