Posts tagged "Rosé"

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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 […]

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Posted by Massachusetts Legal Resources - August 27, 2014 at 3:21 pm

Categories: News   Tags: , , , , , , ,

Commonwealth v. Rose (Lawyers Weekly No. 11-149-13)

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‑347                                        Appeals Court   COMMONWEALTH  vs.  MICHAEL D. ROSE.     No. 13‑P‑347.      December 24, 2013.   Controlled Substances.  Conspiracy.  Constitutional Law, Double jeopardy.  Practice, Criminal, Double jeopardy, Duplicative convictions.       The defendant appeals from an order denying his motion seeking to vacate his conviction on a charge of conspiracy to violate drug laws, entered as part of a plea agreement, based on a claim that it is duplicative of his conviction on a charge of distribution of cocaine.  We affirm the order, as the two charges are neither legally nor, on the recitation of facts supporting the guilty pleas in the present case, factually duplicative.   Duplicative convictions violate the double jeopardy clause of the Fifth Amendment to the United States Constitution.  “The traditional rule in Massachusetts, as embodied in Morey v. Commonwealth, 108 Mass. 433, 434 (1871) (Morey), and its progeny, is that ‘a defendant may properly be punished for two crimes arising out of the same course of conduct provided that each crime requires proof of an element that the other does not.’”  Commonwealth v. Vick, 454 Mass. 418, 431 (2009), quoting from Commonwealth v. Valliere, 437 Mass. 366, 371 (2002).  “It is well settled that, on its face, conspiracy is a separate and distinct crime from the substantive offense.”  Commonwealth v. D’Amour, 428 Mass. 725, 747 (1999).  That is because “[t]he conspiracy charge require[s] proof of an agreement and the substantive charge [does] not,” Commonwealth v. DeCillis, 41 Mass. App. Ct. 312, 314 (1996), quoting from Commonwealth v. Cannavo, 16 Mass. App. Ct. 977, 978 (1983), but the conspiracy charge does not require proof of completion of the substantive crime.     A conspiracy charge nonetheless may be duplicative of the substantive offense if in the circumstances of a particular case both are in actuality the same offense.  See Commonwealth v. D’Amour, 428 Mass. at 747-749 (“entire crime of conspiracy is subsumed by the crime of accessory before the fact to murder on a hiring theory”).  The defendant contends that the present case presents such circumstances, since (he asserts) the recitation of facts furnished by the Commonwealth in support of his guilty pleas described no agreement other than as implied by the defendant’s participation in the sale of cocaine that was the basis for the distribution charge.  In summary form, those facts include […]

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Posted by Massachusetts Legal Resources - December 24, 2013 at 11:09 pm

Categories: News   Tags: , , , ,

Rose Garden Party in Back Bay Fens on Thursday

Coming up later this week in the Fenway neighborhood is the annual Rose Garden Party, a fundraiser for the city’s Parks and Recreation Department.  The event will run from 5:30 to 8 p.m. at the Kelleher Rose Garden in the Back Bay Fens, featuring food and refreshments, musical entertainment, a silent auction, a live art demostration and a hat contest in the garden of more than 1,000 different types of roses.  Frank Costantino and Paul McMahan will paint en plein air, and their “fresh paint” pieces will then be auctioned live. Other highlights of the auction include: A pair of roundtrip tickets on JetBlue for travel  from Boston to any nonstop city An opera evening for two at the Shubert Theatre along with a pre-performance dinner and post-performance cast party at the Four Seasons A two-night stay with American breakfast at Taj Boston An exclusive behind-the-scenes tour of Franklin Park Zoo for up to six people A private skating party for a group of 100 at the historic Boston Common Frog Pond A weekend stay in the Presidential Suite at The Lenox Hotel with Saturday brunch, his and her in-room massages, dinner at the famed Top of The Hub restaurant, Sunday morning breakfast in bed, and a helicopter tour of Boston. There will also be a raffle for a 14-carat rose-gold pendant donated by DePrisco Diamond Jewelers and designed exclusively for the Rose Garden Party with a round full cut diamond center on an 18” rose-gold chain.   All money raised at the event is contributed back towards hosing free events in the parks year round, according to the city, including concerts, arts and crafts for children, puppet shows, painting and photography workshops, children’s festivals, movie nights, and more.  Tickets are on sale for $ 125 each. You can buy them online or by calling (617) 635-4032. Tickets are tax deductible.  SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch

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Posted by Massachusetts Legal Resources - June 10, 2013 at 12:44 pm

Categories: Arrests   Tags: , , , , ,

South End Weekends: Laconia Gallery Fundraiser, Rosé at Urban Grape

South End Patch

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Posted by Massachusetts Legal Resources - May 10, 2013 at 5:28 pm

Categories: Arrests   Tags: , , , , , , ,