Rose, et al. v. Highway Equipment Company v. Splaine (Lawyers Weekly No. 11-105-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1215 Appeals Court ROBERT ROSE & another[1] vs. HIGHWAY EQUIPMENT COMPANY; JAY SPLAINE,[2] third-party defendant. No. 13-P-1215. Suffolk. May 9, 2014. – August 27, 2014. Present: Green, Meade, & Sullivan, JJ. Negligence, Comparative. Warranty. Practice, Civil, Affirmative defense, Instructions to jury. Words, “Unreasonable use.” Civil action commenced in the Superior Court Department on July 13, 2009. The case was tried before D. Lloyd Macdonald, J. Deborah M. Santello for the plaintiffs. Christopher J. Sullivan (Jonathan Klein with him) for Highway Equipment Company. J. Michael Conley & Thomas R. Murphy, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. MEADE, J. Plaintiff Robert Rose sued Highway Equipment Company (HECO), the manufacturer of a broadcast spreader, after Rose severely injured his hand while oiling the spreader’s chain.[3] Rose’s suit asserted causes of action for negligence and breach of the implied warranty of merchantability. On the negligence count, the jury found Rose seventy-three percent negligent and HECO twenty-seven percent negligent, which foreclosed recovery. See G. L. c. 231, § 85. On the breach of warranty claim, the jury answered “yes” to the special question of whether Rose’s use of the spreader was unreasonable, barring Rose from recovery on that claim. See Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 355 (1983) (Correia). On appeal, Rose claims that certain jury instructions created reversible error. We affirm.[4] The jury heard various accounts of how Rose’s hand became caught in the spreader. It was uncontested that the spreader needed to be running in order for its chain to be effectively oiled. Rose explained that, before the accident, he was kneeling or crouching between the cab of the truck and the spreader, using something akin to a Windex bottle to spray oil on the chain. Rose testified that he suddenly felt a tug at the sleeve of his sweatshirt and was unable to extricate himself from the grip of the spreader before his right hand and forearm were pulled into the mechanism.[5] After the accident, Rose told his boss, who is also his father-in-law, that he was injured when reaching backwards for the bottle of oil. In contrast, it was HECO’s theory that Rose, after drinking beer earlier that afternoon, lost his balance while on a ladder on the operator’s side of the truck and fell into the […]