JANICE KELLY, individually and as executrix, [Note 1] vs. FOXBORO REALTY ASSOCIATES, LLC, & another [Note 2] (and a companion case [Note 3]).

CORDY, J. In this personal injury case we must decide whether it was permissible for a judge to instruct jurors that they could discuss evidence among themselves during the course of the trial, without the agreement of all parties. We do not indorse the practice except in civil trials where all parties agree, but conclude that the defendants suffered no prejudice in this case from the judge's decision to allow the jury to do so. We also must decide whether the judge correctly instructed the jury on the "control" an employer must exercise over an independent contractor to be liable for the contractor's negligence. We conclude that the judge's instruction on "control" was proper. We affirm judgment for the plaintiffs.

1. Facts. This case arises from tragic events on August 29, 2003. Based on the evidence, the jury could have found the following.

Early in the afternoon, a bus carried passengers from a golf tournament in Norton to Gillette Stadium in Foxborough, where the passengers previously had parked their vehicles. As the bus traveled down an access road owned by the defendant Foxboro Realty Associates, LLC (Foxboro), a large security gate arm swung into the road, piercing the side of the bus. A number of passengers suffered serious injuries; one passenger, Thomas Kelly, later died from his injuries. [Note 4] Foxboro owned the property on which the accident occurred, Apollo Security, Inc. (Apollo), provided security guards for the stadium parking lots and surrounding areas, and Standard Parking Corporation (Standard) managed stadium parking operations.

On the second day of what was to be a two and one-half week trial, the judge instructed the jurors that they would be permitted to discuss the evidence among themselves throughout

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the course of the trial. [Note 5] The instruction directed, however, that they could exercise this option only when they were together as a group, [Note 6] and cautioned that they could not "judge" the evidence midtrial. [Note 7] The defendants' objection was overruled.

During the trial, the parties first focused on the condition of the security gate at the time of the accident. The defendants conceded that the gate arm was normally secured in the "open" position by dropping a three-pound pin through a hole in the gate pole and a sleeve in a post on the side of the road. If the pin was twisted, a flange would lock into place, preventing the pin from being lifted out of the sleeve. At the time of the accident, the pin was found in an unsecured, raised position; witnesses were unsure when it had been placed in that position or who had placed it there. There was evidence of strong wind gusts on the day of the accident, and the plaintiffs' expert opined that the wind blew the unsecured gate arm into the bus.

Next, the parties offered evidence with respect to who was responsible for safely securing the gate. It was uncontested that

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Foxboro hired Standard, an independent contractor, to run stadium parking operations for New England Patriots football games, soccer games, and other events; and that Foxboro hired Apollo, also an independent contractor, to handle security operations on the day of the accident. Foxboro and Apollo employees testified that prior to a stadium event, the ten to fifteen security gates would be in the "closed" position, each secured by a padlock. Apollo employees would then unlock the padlocks, but leave the gate arms in the closed position with the unlocked padlocks loosely holding the gate arms together. At a specific time, Standard employees would then remove all the padlocks, open the gates, and begin directing traffic into the parking lots. Foxboro stipulated that it "established the protocol for how the gate was to be opened and how the gate was to be secured in the open position." However, witnesses testified that protocols relating to gate arm safety were never put into writing, and they were unsure whether Foxboro had explained the protocols to Standard or Apollo. The plaintiffs essentially argued that Standard and Apollo were responsible for opening and maintaining the gates in a safe "open" position, and that Foxboro was liable for their negligent performance of that responsibility because of its "control" over Standard's or Apollo's operation of the gate. [Note 8]

The jury found Foxboro, Apollo, and Standard liable for Thomas Kelly's pain and suffering prior to his death and for the Kelly family's loss of consortium, and awarded $4,400,000 in damages. [Note 9] Foxboro and Apollo appealed, and we granted Foxboro's application for direct appellate review, which Apollo had joined.

2. Discussion. On appeal, the defendants argue that the judge improperly (1) instructed the jury that during the trial they could discuss evidence as a group, and (2) failed to instruct the jury that Foxboro could be liable for its contractors' negligence

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only if it exercised a "degree of control" over the contractors' work.

a. Instruction allowing a jury to discuss evidence during the trial. When reviewing jury instructions to which there has been an objection, we conduct a two-part test: "whether the instructions were legally erroneous, and (if so) whether that error was prejudicial." Masingill v. EMC Corp., 449 Mass. 532, 540 n.20 (2007), citing Blackstone v. Cashman, 448 Mass. 255, 270 (2007). This is also the standard for reviewing the use of an "innovative" jury technique over a party's contemporaneous objection. See United States v. Lewis, 716 F.2d 16, 19 (D.C. Cir.), cert. denied sub nom. Motlagh v. United States, 464 U.S. 996 (1983) (standard on appeal from conviction by "dual jury" is "whether there exists evidence indicating that the dual jury caused specific prejudice to someone's defense at trial"). Cf. Commonwealth v. Britto, 433 Mass. 596, 611 (2001) ("defendant has the burden of showing actual prejudice from juror questions").

As to the first part of the test, the defendants argue that the instructions were legally erroneous under Commonwealth v. Benjamin, 369 Mass. 770, 772 & n.2 (1976) (Benjamin). In that case, the court specifically "disapprove[d]" the judge's instructions, given to the jury on the first day of trial, that they were "free to discuss the case in the jury room among themselves and that a married juror could tell his or her spouse what the juror had heard." Id. at 771-772. [Note 10] The court further noted that where there had been no objection to the instruction by trial counsel, the issue was waived, and because there was no showing of prejudice by the defendant, the court would not consider the matter further under G. L. c. 278, § 33E. However, the court took the opportunity to direct trial judges to use "[a]n appropriate instruction for such occasions" which pointedly included an admonition that "[u]ntil this case is submitted to you, you must not discuss it with anyone, even with your fellow jurors." Id. at 772. [Note 11]

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We have not had occasion to consider again the propriety of giving a variant of the type of instruction that we explicitly disapproved in Benjamin. [Note 12] Since that case was decided, however, several States (including Massachusetts) have conducted studies to determine whether certain innovative jury practices would improve the quality of jury deliberation. See, e.g., Diamond, Juror Discussions During Civil Trials: Studying an Arizona Innovation, 45 Ariz. L. Rev. 1, 16-17, 22-32 (2003); Lakamp, Deliberating Juror Predeliberation Discussions: Should California Follow the Arizona Model, 45 U.C.L.A. L. Rev. 845, 850 (1998); Massachusetts Project on Innovative Jury Trial Practices Final Report, National Center for Citizen Participation in the Admin. of Justice at 55-56 (2001) (Massachusetts Report). The Massachusetts study analyzed a wide range of innovative techniques (sixteen in all) during the course of 150 actual trials, including allowing jurors to suggest questions for witnesses, placing time limits on attorneys, giving jurors notebooks to enable them to take notes during the trial, providing jurors with written or recorded instructions, and allowing the jury to discuss evidence as it is entered. Id. at 48, 51, 54. Some of these techniques are minimally intrusive, and others (including the one at issue here) change more fundamentally the jury's deliberative process, as we have traditionally administered it. [Note 13]

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Twenty-four judges, including the trial judge in this case, participated in the Massachusetts study. [Note 14] During the study, only one of the judges employed the innovation at issue here --instructing juries that they were permitted to engage in discussions during trial -- and did so in only six civil trials. The parties in those trials all agreed to the instruction, and before employing the practice in those trials, the judge sought and received permission from a single justice of this court. While some of the innovative techniques used in the study have gained a measure of acceptance in Massachusetts and elsewhere, [Note 15] this one remains controversial. [Note 16]

Massachusetts judges enjoy discretion in using the innovations included in the project, except where the court has specifically disapproved of the proposed innovation. While the judge's instructions to the jury in this case differed from the judge's instructions in Benjamin, and were less objectionable, they still violated our directive in Benjamin not to permit jurors to discuss the case with each other before they commenced deliberations.

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That directive remains unchanged, except as to civil trials with the agreement of all parties. See note 17, infra. Without further study, we are not prepared to indorse a different approach to this issue, which reasonable practitioners and judges conclude may affect the ability of members of a jury to keep an open mind until the entire case has been submitted for their consideration under instructions from the court. See Benjamin, supra at 772 (midtrial jury discussions may cause "a variety of troubles"). See also Winebrenner v. United States, 147 F.2d 322, 328 (8th Cir.), cert. denied, 325 U.S. 863 (1945) ("what one himself publicly declares touching any controversy is much more potent in biasing his judgment and confirming his predilections than similar declarations which he may hear uttered by other persons"); State v. Washington, 182 Conn. 419, 428 (1980) ("distinction between discussion and deliberation is more apparent than real"); Commonwealth v. Kerpan, 508 Pa. 418, 422 (1985) (once jurors state opinions aloud, they may be less willing to change their minds). It was error for the judge to have proceeded in this fashion, without the consent of all parties. [Note 17], [Note 18]

We proceed then to the second part of the test: whether the judge's instruction prejudiced the defendants. Under the well-established standard, the court must determine whether the "result might have differed absent the error." Blackstone v. Cashman, 448 Mass. 255, 270 (2007). We are convinced that it would not.

First, the judge gave repeated, forceful instructions limiting the type of discussions in which the jurors permissibly could engage during the trial. [Note 19] These instructions directly countered

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the defendants' primary concern that the jurors would "prematurely deliberate[] critical issues, even before the defense had begun its case." Additionally, at the close of the evidence the judge instructed jurors to end any predeliberation discussions; this helped confine the jury's discussions to evidentiary issues only. "We presume that the jury followed the judge's instruction." Commonwealth v. Pillai, 445 Mass. 175, 190 (2005).

Second, we reject the defendants' claim that questions (for witnesses) proposed by some of the jurors during the trial demonstrate that the jurors "prematurely deliberated critical issues." Questions highlighted by the defendants are requests only for additional facts, [Note 20] an expert opinion, [Note 21] or a response to a particular piece of evidence. [Note 22] The questions do not demonstrate that the jury had engaged in any preliminary deliberation, and they certainly do not show the preliminary group deliberation that the defendants posit. See Commonwealth v. Urena, 417 Mass. 692, 700 (1994) (even if one juror's suggested question showed improper midtrial deliberation, it did not "support the assertion that other jurors were influenced improperly and prematurely").

Third, in this case much of the evidence was uncontested. Apollo, Standard, and Foxboro agreed that the gate created an unsafe condition when it swung open; that it caused Kelly's death; that the arm was usually secured by a three-pound pin; that the pin was found in an unsecured position after the accident; that Apollo and Standard were responsible for interacting with the gate on the day of an event; that Foxboro had the right to control the gate arm; that Foxboro had created a safety protocol regarding the gates; and that the safety protocol had never been reduced to writing. The stipulated and uncontested evidence against the three defendants was powerful, and, even without the

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contested instruction, we are persuaded that the jury's verdict would not have been different. Blackstone v. Cashman, supra at 270.

Finally, the jury never actually requested time to discuss the evidence in the manner permitted by the judge. [Note 23] The jury may not have exercised their power to discuss evidence at all; at the very least, they spent little time doing so.

b. "Control" instruction. Foxboro argues that the judge improperly instructed the jury on the "control" necessary for an employer to be held liable for the negligence of its independent contractor. Employers are typically not liable for the negligence of their independent contractors unless they have "retained some control over the manner in which the work was performed." Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 407 (2003), citing Lyon v. Morphew, 424 Mass. 828, 834 (1997). Foxboro requested that the judge instruct the jury using language from Restatement (Second) of Torts § 414 comment c (1965). [Note 24] Instead, the judge gave an instruction with language from Corsetti v. Stone Co., 396 Mass. 1, 9-10 (1985). [Note 25] Foxboro argues that the

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judge erroneously instructed the jury that the issue was only " 'control' versus 'no control,' " and that the judge should have stated that Foxboro must have had a sufficient "degree of control necessary for liability."

"A trial judge has wide latitude in framing the language to be used in jury instructions" as long as the instructions adequately explain the applicable law. Jacobs v. Pine Manor College, 399 Mass. 411, 414 (1987). "The judge [is] not bound to instruct in the exact language of the requests"; "[t]he test of the charge is the impression created by it as a whole." Commonwealth v. Kelley, 359 Mass. 77, 92 (1971). In this case, the charge as a whole constituted a proper instruction on the applicable law. The judge correctly stated that an employer can be held liable for an independent contractor's negligence only if the employer "gives direction for the work, furnishes equipment for the work, or retains control over any part of the work" (emphasis added). He also stated that "one who entrusts work to an independent contractor, but who retains control over any part of the work, is subject to liability" (emphasis added). These instructions were almost identical to our rule: "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care" (emphasis added). Restatement (Second) Torts, supra at § 414. See Corsetti v. Stone Co., supra; Dilaveris v. W.T. Rich Co., 424 Mass. 9, 11-12 (1996).

We agree that in some cases it might be helpful to instruct juries that "[t]here must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way." St. Germaine v. Pendergast, 411 Mass. 615, 622-623 & n.11 (1992), quoting Restatement (Second) of Torts, supra at § 414 comment c, and citing Foley v. Rust Int'l, 901 F.2d 183, 184 (1st Cir. 1990). That type of instruction would be particularly important where the facts could support a conclusion that the employer possessed only "a general right to order the work stopped," which is insufficient for liability to be imposed. Lyon v. Morphew, 424 Mass. 828, 835 (1997), quoting Restatement (Second) of Torts, supra. In this case, however, Foxboro

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stipulated that it "established the protocol for how the gate was to be opened and how the gate was to be secured in the open position." This was more than a mere "general right" to control the gate arm; as a result, while the judge could have added the language from § 414 comment c, it was not necessary in this case. The language proposed by the defendant is "more beneficial to the [defendants] than the evidence warranted." St. Germaine v. Pendergast, supra at 623. The instruction was legally accurate, and the precise wording of the charge was not an abuse of discretion. Jacobs v. Pine Manor College, supra. [Note 26]

The judgments in favor of the plaintiffs are affirmed on all counts.

So ordered.