Williamson-Green v. Equipment 4 Rent, Inc. , 89 Mass. App. Ct. 153 ( 2016 )

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revision and are superseded by the advance sheets and bound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
15-P-114 Appeals Court
MICHELLE WILLIAMSON-GREEN, administratrix,1 vs. EQUIPMENT 4
RENT, INC.
No. 15-P-114.
Suffolk. November 3, 2015. - March 3, 2016.
Present: Kafker, C.J., Vuono, & Hanlon, JJ.
Negligence, Gross negligence. Damages, Punitive. Practice,
Civil, Directed verdict, Judgment notwithstanding verdict.
Civil action commenced in the Superior Court Department on
April 24, 2009.
The case was tried before Janet L. Sanders, J., and a
motion for a new trial or for remittitur was heard by her.
Thomas F. Maffei (Margaret C. Kelty with him) for the
defendant.
Joan A. Lukey for the plaintiff.
1
Of the estate of James W. Williamson IV. The plaintiff,
the decedent's wife, testified that she and her husband had
legally adopted each other's last names to create the hyphenated
last name of "Williamson-Green," but she added that they were
both still known professionally by their pre-marriage last
names. As the operative complaint calls the decedent
"Williamson" -- a practice echoed in the parties' briefs -- we
adopt that usage.
2
KAFKER, C.J. James Williamson was perched more than one
hundred feet high on a boom lift, inspecting the roof of a
university building in Boston, when the machine tipped over and
crashed into a neighboring building, killing him. The boom lift
had been manufactured by Grove U.S., LLC (Grove), and rented
from the defendant Equipment 4 Rent, Inc. (E4R). Williamson's
wife, Michelle Williamson-Green, as administratrix of
Williamson's estate, successfully sued Grove and E4R for damages
associated with her husband's wrongful death. The jury found
that negligence of Grove and of E4R each was "a direct and
substantial factor in causing the death of Mr. Williamson." The
jury also found that "E4R's conduct [was] grossly negligent,
wilful, wanton, or reckless." The jury awarded $3,692,657.40 in
compensatory damages against E4R and Grove, together with
$5,900,000 in punitive damages solely against E4R. The trial
judge denied E4R's motions for a directed verdict and judgment
notwithstanding the verdict,2 judgment entered, and E4R appeals,
claiming only that there was insufficient evidence to support
the jury's award of punitive damages.3 We affirm.
2
The judge also denied E4R's motion for a new trial or for
remittitur.
3
Grove did not appeal, as it settled with the plaintiff.
3
Background. In considering an appeal of "[t]he denial of a
motion for directed verdict or a motion for judgment
notwithstanding the verdict[, we must review the record] under
the same standard used by the trial judge[,] . . . constru[ing]
the evidence in the light most favorable to the nonmoving party
and disregard[ing] that favorable to the moving party." O'Brien
v. Pearson, 449 Mass. 377, 383 (2007). See Christopher v.
Father's Huddle Café, Inc., 57 Mass. App. Ct. 217, 219 (2003).
"Our duty in this regard is to evaluate whether 'anywhere in the
evidence, from whatever source derived, any combination of
circumstances could be found from which a reasonable inference
could be made in favor of the [nonmovant].'" O'Brien, supra,
quoting from Turnpike Motors, Inc. v. Newbury Group, Inc., 413
Mass. 119, 121 (1992). See Christopher, supra, citing Michnik-
Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 7 n.1 (1983).
In light of this standard, we recite the general facts below as
the jury could have found them, reserving some of the more
specific facts for our detailed discussion of the different acts
and omissions constituting evidence of E4R's gross negligence.
1. General overview of the boom lift. The boom lift in
the instant case is a Model A125J articulating boom lift
manufactured by Grove and owned by E4R, a construction equipment
rental company. That model of boom lift is depicted in the
appendix to this opinion. This "[a]erial work platform . . .
4
incorporate[s] multiple arm[ segments] that have articulating
joints between them." The first arm segment, called "the
riser," was a key focus of this litigation. Using hydraulics
that tilt the riser, the angle of the riser can be elevated and
lowered. Because the riser is made up of several nested metal
sections, the riser can also be extended (i.e., telescoped out)
and retracted.4
Boom lift "manufacturers refer to the range of allowable
working positions as the working envelope of the unit." This
lift's riser has a "working envelope" of seventy-two to seventy-
four degrees above the horizontal. Because this boom lift is
very tall, extending as high as 125 feet, "the lift can become
unstable and tip over" if two things coincide: (1) the riser is
in an extended position, and (2) the riser's angle (from the
horizontal) is fifty-five degrees or less (about seventeen
degrees below the working envelope). A set of key boom lift
safety features called the "riser interlock system" normally
prohibits the lift operator from unsafely positioning the riser
4
The lower end of the riser is attached to the wheeled base
of the boom lift, and the upper end is attached to the second
major arm segment, the boom. At the upper end of the boom is a
third small arm segment called the jib, and at the end of the
jib is the railed platform where the lift operator and passenger
stand. Like the riser, the boom can be elevated and lowered, as
well as extended in length and retracted.
5
in this fashion.5 Two integral components of the riser interlock
system are (1) the "proximity sensors" and (2) the "riser
retracted limit switch."
2. Summary of the accident. On February 7, 2009, Gregory
Johnson, an employee of roofing contractor Reliable Roofing and
Sheet Metal, LLC (Reliable Roofing),6 was the operator of the
boom lift, which Reliable Roofing had rented from E4R.
Williamson, who worked for a different contractor involved in
the roof repair job on the university dormitory building, was a
passenger on the boom lift and was inspecting the roof. After
about two hours of operation, Johnson began lowering the boom
lift's riser out of the working envelope while the riser was
still extended -- an operation which should have been prohibited
by the riser interlock system. When the riser angle reached
about fifty-five degrees, the lift tipped over, inflicting fatal
injuries on Williamson. As explained by one of Grove's experts:
"Based on my observations of the videos[7] and the
inspections performed on the lift after the accident, . . .
5
The riser interlock system is meant to ensure that the
riser cannot be telescoped out until it has first been "fully
elevated" into the seventy-two to seventy-four degree working
envelope, and, conversely, that the riser cannot be lowered from
that working envelope until it has first been fully retracted.
6
Reliable Roofing was originally a defendant but was
dismissed out after a pretrial settlement and is not a party to
this appeal.
7
The operation of the boom lift that day was partially
captured on surveillance video of the area, albeit with a
6
the subject lift's riser interlock system was out of
adjustment. One of the riser fully elevated proximity
sensors was out of adjustment to the point that it would
not indicate that the riser was fully elevated. Also, the
mechanical limit switch utilized to determine that the
riser was fully retracted [i.e., the riser retracted limit
switch] was out of adjustment to the point that it would
not indicate if the riser was extended."
3. Summary of E4R's relevant acts and omissions. The jury
could have found that the uncorrected adjustment issues caused
the accident and resulted from the following interrelated
problems with training, maintenance, and inspection by E4R: (1)
E4R failed to properly train the person responsible for
maintaining and inspecting the boom lift, including the riser
interlock system; (2) E4R improperly installed a proximity
sensor in the lift causing it to be out of adjustment; (3) E4R
failed to discover the improper installation for nine months,
even after many inspections; (4) E4R did not properly test the
riser retracted limit switch; and (5) despite the dangers
associated with operating the lift with a malfunctioning riser
interlock system, E4R attached a tag to the lift that stated
both "ready to rent" and "ready to use," and E4R's delivery
driver told Johnson that the boom lift "was all set to go."
Discussion. 1. Standards for determining gross
negligence. The jury awarded punitive damages against E4R
limited field of view. At the time of the accident that view
included the base of the lift and the lower portion of the
riser.
7
pursuant to G. L. c. 229, § 2,8 after finding that "E4R's conduct
[was] grossly negligent, wilful, wanton, or reckless." E4R does
not contest its ordinary negligence,9 but claims on appeal that
there was insufficient evidence to support the jury's award of
punitive damages. Because the plaintiff primarily relied on a
theory of gross negligence in her closing argument at trial, we
proceed to consider the sufficiency of the evidence under that
theory of liability for punitive damages.10
8
The Commonwealth's wrongful death statute, G. L. c. 229,
§ 2, as appearing in St. 1973, c. 699, § 1, provides in relevant
part that
"A person who (1) by his negligence causes the death of a
person, or (2) by willful, wanton or reckless act causes
the death of a person under such circumstances that the
deceased could have recovered damages for personal injuries
if his death had not resulted . . . shall be liable [for]
. . . punitive damages in an amount of not less than five
thousand dollars in such case as the decedent's death was
caused by the malicious, willful, wanton or reckless
conduct of the defendant or by the gross negligence of the
defendant . . . . Damages under this section shall be
recovered in an action of tort by the executor or
administrator of the deceased."
9
Nor has E4R disputed that as a lessor of equipment it owed
Williamson, as a foreseeable plaintiff, a duty of reasonable
care in its acts and omissions concerning the equipment. See,
e.g., Mitchell v. Lonergan, 285 Mass. 266, 268-270 (1934);
Carter v. Yardley & Co. Ltd., 319 Mass. 92, 96 (1946);
McLaughlin v. Bernstein, 356 Mass. 219, 225 (1969); Milham v.
Paul Mitrano, Inc., 3 Mass. App. Ct. 73, 75-76 (1975);
Restatement (Second) of Torts §§ 388, 391-393, 407-408 (1965).
Contrast Kassis v. Lease & Rental Mgmt. Corp., 79 Mass. App. Ct.
784, 788-790 (2011).
10
Plaintiff's counsel argued to the jury that E4R's failure
to properly inspect the boom lift was gross negligence:
8
In Aleo v. SLB Toys USA, Inc., the Supreme Judicial Court
observed that
"Gross negligence is substantially and appreciably higher
in magnitude than ordinary negligence. . . . It is very
great negligence, or the absence of slight diligence, or
the want of even scant care. . . . Gross negligence is a
manifestly smaller amount of watchfulness and
circumspection than the circumstances require of a person
of ordinary prudence."
466 Mass. 398, 410 (2013), quoting from Altman v. Aronson, 231
Mass. 588, 591-592 (1919). See Christopher, 57 Mass. App. Ct.
at 230-231. In making this determination, the finder of fact
must consider the "conduct [of the defendant] . . . as a whole."
Duval v. Duval, 307 Mass. 524, 528 (1940). The fact finder "is
not required to pass separately upon the various elements that
enter into a defendant's [overall] conduct." Ibid. In
evaluating such conduct, however, "persistence in a palpably
negligent course of conduct over an appreciable period of time
[is one] of the more common indicia of gross negligence." Lynch
v. Springfield Safe Deposit & Trust Co., 294 Mass. 170, 172
(1936). See Bruno v. Donahue, 305 Mass. 30, 34 (1940). All
that being said, "[t]he line between gross negligence and
"Frankly ladies and gentlemen if a mistake had been made
one time, maybe two times, maybe even three times, would
that still be ordinary negligence? Probably it would. But
somewhere between the third time and the [seventeenth] time
the inspection for the lift . . . that negligence crossed
the line into gross negligence."
9
ordinary negligence is often difficult to draw." Belina v.
Pelczarski, 333 Mass. 730, 733 (1956). In the instant case,
"[t]he judge's instructions to the jury [on gross negligence]
were consistent with these principles, and we accept the
conclusion of a properly instructed jury on a question within
their province." Christopher, 57 Mass. App. Ct. at 231. We
thus proceed to analyze collectively the multiple acts and
omissions of E4R from which the jury could have found it liable
for gross negligence.
2. E4R's errors and omissions. a. Negligence in
training. The jury could have found that the E4R employee
responsible for inspecting and maintaining the boom lift,
including the riser interlock system, Paul Delorey, was not
properly trained. The jury would have been warranted in finding
that although Delorey had received some training in the
operation of the lift from another E4R employee, that training
was insufficient as to the repair and testing of the lift's
riser interlock system. E4R also had never brought anyone in
from Grove to train Delorey, and he was "[n]ever offered the
opportunity to be trained at the Grove facilities." Delorey
testified at trial that he was not "trained and qualified to
work on the riser interlock system of the [boom lift]." Indeed,
as will be explained in more detail infra, he was not even aware
of the existence of the riser retracted limit switch at the time
10
he was responsible for inspecting and maintaining the lift. He
further conceded "that there is grave danger to people in the
workplace if equipment is rented out when it is not being
maintained by trained and qualified mechanics."
E4R owed a duty to Williamson to ensure that Delorey had
adequate training to maintain and inspect the lift. See
Restatement (Second) of Torts § 307 comment a (1965);
Restatement (Second) of Agency § 213(b) & comments d & e, § 214
& comment c (1958). The failure of E4R to properly train
Delorey to maintain and inspect a dangerous instrumentality like
a boom lift was one factor that the jury could have considered
in reaching their verdict that E4R was grossly negligent. See
Renaud v. New York, N.H. & H.R.R., 206 Mass. 557, 560 (1910)
(breach of duty that will likely result in death or "very
serious" harm may support a finding of gross negligence); Renaud
v. New York, N.H. & H.R.R., 210 Mass. 553, 560 (1912) (same).
b. Negligence in maintenance: E4R improperly replaced a
proximity sensor more than nine months before the accident. On
April 17, 2008, two employees of E4R, Paul Delorey and William
San Soucie, replaced one of the two "riser fully elevated"
proximity sensors after discovering a problem with it.11 This is
11
The purpose of the two "riser fully elevated" proximity
sensors is to detect whether the riser is elevated to its
seventy-two degree working envelope. As Grove's expert
explained, if these two sensors' readings are not in agreement
11
the same sensor that after the accident was found to be out of
adjustment, both by an independent investigator reporting to the
Occupational Safety and Health Administration and by one of
Grove's experts. The jury would have been warranted in finding
that Delorey's faulty installation of the proximity sensor in
2008 had caused it to be out of adjustment and that the sensor
had not become out of adjustment during the delivery of the boom
lift or as a result of the accident.12
on this point, the riser interlock system enters a "fault mode"
that "prevents movement of the riser except movements that will
allow an operator to safely retract the riser and lower the
platform to the ground. . . . [W]hen in [fault mode], a
mechanical limit switch [(the riser retracted limit switch)] is
utilized to confirm that the riser is fully retracted prior to
allowing the riser to be lowered." When the riser interlock
system is in fault mode, it ignores readings from all four
proximity sensors, even properly functioning ones -- including
those from the second pair of sensors, which detect whether the
riser is fully retracted. In fault mode the system relies
instead on the limit switch for the latter purpose.
12
The jury could have credited the plaintiff's expert's
testimony, concluding that the replaced sensor "did not go out
of adjustment by wear and tear" but rather had remained "out of
alignment . . . [since] it was replaced in April of 2008."
Likewise the jury could have credited the expert's testimony
that he "[d]id [not] see any indication that the accident had
caused it to be off." When he was asked at trial whether the
short, four-mile trip that the boom lift took on a flatbed truck
from the pre-rental inspection site in South Boston to the job
site on West Street "could [have] shake[n] loose the sensor," he
responded, "[i]t's virtually -- I -- I never like to use the
word impossible but it's pretty close." He reported that when
he observed the sensor after the accident it did not appear to
be loose. He opined that, because the sensor was held in place
by locknuts, if it "was installed properly it would not have
changed [its position]."
12
Delorey testified at trial that when he "put [the proximity
sensor] on the machine" he did so without first referencing
either the manufacturer's "Operator's, Safety, and Maintenance
Handbook" for the boom lift (the operator's manual) or the
manufacturer's "Repair Manual" (the repair manual). He also
testified that he did "not remember . . . performing any
measurements [after the proximity sensor was replaced] to be
sure it was on exactly the same plane relative to the trip
plate."
The jury would have been warranted in concluding that at
the time of its delivery to Reliable Roofing, the boom lift was
negligently and defectively repaired. See Restatement (Second)
of Torts § 408 comment a (1965) ("If the lessor repairs [the
chattel], he is subject to liability if the repairs are not
carefully made"). Given the likelihood that someone's death
would result from E4R's failing to exercise reasonable care in
repairing the proximity sensor, its failure to exercise such
care, in combination with the absence of training discussed
above, was evidence of "the absence of slight diligence, or the
want of even scant care." Aleo, 466 Mass. at 410, quoting from
Altman, 231 Mass. at 591. See Christopher, 57 Mass. App. Ct. at
230. See also Renaud, 206 Mass. at 560.
c. Negligent testing and inspection of the proximity
sensors and the riser retracted limit switch. As explained in
13
the operator's manual, the procedure to test the riser interlock
system "must be followed exactly[, as the] failure to follow
[the] outlined procedures may result in death or injury to
personnel." Indeed, Delorey, the person responsible for
inspecting the boom lift, testified that "it is crazy not to
properly inspect the [boom lift] before it goes out." The jury
could therefore have considered E4R's lack of reasonable care in
testing and inspection as one factor contributing to a finding
of gross negligence. See Renaud, 206 Mass. at 560 (observing
that a jury may find gross negligence where a defendant's
failure to perform a legal duty is likely to have "a fatal or a
very serious" result). See also Mitchell v. Lonergan, 285 Mass.
266, 270 (1934) ("[T]he defendant[] [lessors] are liable to the
plaintiff as the guest of the hirer of the automobile let by
them . . . for injuries sustained by her by reason of the
defective mechanism of the automobile, which might have been
discovered by the defendants by the exercise of reasonable care
in inspection before the letting"); McLaughlin v. Bernstein, 356
Mass. 219, 222, 225 (1969) ("The minuteness of the inspection
required varies with the danger which will be likely to result
if the chattel is defective . . ."), quoting from Restatement
(Second) of Torts § 408 comment a; Ikeda v. Okada Trucking Co.,
47 Haw. 588, 600 (1964) (lessor of a construction crane has a
duty to "use reasonable care to see that [the crane] is
14
reasonably safe for use, even where there is not actual
knowledge of the presence of a defect, or knowledge of facts
which would indicate a defect exists"), quoting from La Rocca v.
Farrington, 276 A.D. 126, 129 (N.Y. App. Div. 1949), aff'd, 301
N.Y. 247 (1950).
The plaintiff's expert testified that "proper testing of
the lift before it was sent to a lift site would have revealed
the problems in the riser interlock system." Nonetheless,
between the sensor replacement in April of 2008 and the date of
the accident, February 7, 2009, E4R rented the boom lift sixteen
other times, performing pre-rental inspections each time, and
the problem remained.13 Although Delorey testified that he did
not "have actual memories of" the pre-rental inspections
subsequent to the sensor replacement, he testified that he
"never detected a problem with the [proximity] sensor light."
Delorey also testified that "when [he] did [his]
inspections and pre[-]rental inspections on this [boom lift],
including up to the time of the inspection before the accident,
[he] never did a test that was specifically designed to
determine if the mechanical [riser retracted limit] switch was
functioning." Delorey only discovered that the riser interlock
13
See note 12, supra, and accompanying text (jury could
conclude that Delorey's faulty replacement of the proximity
sensor in 2008 had caused it to be out of adjustment during the
2009 accident).
15
system included such a limit switch during a deposition taken in
the instant case. Prior to that, he was not "even aware that
this particular riser interlock system used a riser retracted
limit switch."
The boom lift's repair manual, however, details a test to
perform to verify that the riser retracted limit switch is
correctly indicating that the riser is fully retracted. Delorey
testified that he never had access to the repair manual,
claiming that he had asked E4R for a repair manual for the boom
lift at some point, but E4R had told him that they did not have
one. Delorey claimed that "all the time [he was at E4R] and all
the time [he was] working on this lift, [he] never had a repair
manual." The service manager of E4R testified that the company
did, in fact, have a repair manual, but he was not "aware of"
any time that Delorey had asked for one. Either way, the jury
could have found that the person responsible for inspecting the
riser retracted limit switch never consulted the repair manual
that provided instructions on how to do the test. This was
evidence of "the want of even scant care." Aleo, 466 Mass. at
410, quoting from Altman, 231 Mass. at 591. See Christopher, 57
Mass. App. Ct. at 230.
Although he never referenced the repair manual, Delorey did
testify that he "referred to the operator's manual . . . [i]f
[he] had a question on anything," but he acknowledged at trial
16
that he had never read the operator's manual "[w]ord for word."
He agreed that, if he "had ever taken the trouble to read in the
[operator's] manual, [he] would have learned about the role of
the riser retracted limit switch." The jury would have been
warranted in finding that the operator's manual alone should
have put Delorey on notice of the dangers of an improperly
maintained riser interlock system.
Although Delorey was not aware of the existence of the
riser retracted limit switch or how to test it, he testified
that, during inspections, he typically performed a "function
test" to see whether the riser could be extended (i.e.,
telescoped out) before it was in the fully elevated position and
whether, once the riser was in the fully elevated and extended
position, it could be lowered.14 The jury were, however,
warranted in finding that Delorey had failed to properly conduct
the tests he claimed to have done, because otherwise those tests
would have revealed the problem with the limit switch. See
McLaughlin, 356 Mass. at 225 (liability found where a lessor
"failed to make any inspection of [a critical component of a
14
Elsewhere, Delorey testified that he "[n]ever d[id] any
test that put the [boom lift] into fault [mode] and tried to
lower the riser when it was telescoped." See note 11, supra.
17
dangerous chattel it had leased], a simple task which could be
easily accomplished").15
d. E4R's repeated failure to discover the problem with the
proximity sensor was an indicator of gross negligence. One
indicator of gross negligence is that E4R "persiste[d] in a
palpably negligent course of conduct over an appreciable period
of time." Lynch, 294 Mass. at 172. Dombrowski v. Gedman, 299
Mass. 87, 88-89 (1937). Although "[e]ach [gross negligence]
case must be decided upon its own peculiar facts," Romer v.
Kaplan, 315 Mass. 736, 738 (1944), citing Quinlivan v. Taylor,
298 Mass. 138, 140 (1937), we observe that, in cases where a
jury finds that heightened danger would likely result from a
tortfeasor's continued negligence and that the tortfeasor
reasonably should have apprehended such danger, relatively less
15
The jury would have been warranted in concluding that a
fully functioning riser interlock system normally prevents the
operator from lowering the riser from full elevation while it is
extended. While Delorey was ignorant of the critical role that
the riser retracted limit switch played in keeping the boom lift
safe when a proximity sensor was out of adjustment (see note 11,
supra), there was sufficient evidence for the jury to find that
he knew that if the riser could be lowered while it was
extended, it was a sure sign that the lift was in a dangerous
condition. The evidence was sufficient for the jury to infer
that the proximity sensor and the riser retracted limit switch
were both out of adjustment at the time of E4R's final pre-
rental inspection, and therefore the function test Delorey
claimed to have performed would have revealed that the riser
could be lowered while it was extended. The jury therefore
could have concluded that Delorey either did not do the function
test that he claimed he performed or that he was so inattentive
as to ignore what the critical function test indicated.
18
time must pass for a finding of gross negligence than would be
required absent such reasonable apprehension. See Granger v.
Lovely, 302 Mass. 504, 507 (1939). Cf. Nauss v. Boston & Me.
R.R., 195 Mass. 364, 369 (1907) (acts or omissions may be
evidence that warrants a finding of gross negligence if
circumstances are such that they would "lead to reasonable
apprehension that [the tortfeasor's negligence in those
circumstances] would lead to death or serious injury"); Renaud,
206 Mass. at 560 ("When the injury likely to ensue from failure
to do that which ought to be done is a fatal or a very serious
one, what otherwise would be a lack of ordinary care may be
found to be gross negligence").
In light of these considerations, the jury would have been
warranted in concluding that E4R's failure to discover their
dangerous error after nine months and seventeen pre-rental
inspections displayed "persistence in a palpably negligent
course of conduct over an appreciable period of time." See
Lynch, 294 Mass. at 172. The jury thus could have considered
this as an indicator of gross negligence. See ibid. See also
McGaffigan v. Kennedy, 302 Mass. 12, 14-15 (1938).
e. "[R]eady to rent" and "ready to use" tag. Further
compounding its negligence, E4R delivered a poorly inspected,
dangerously defective boom lift with a single tag attached to it
19
claiming that the lift was "ready to rent" and "ready to use."16
See McLaughlin, 356 Mass. at 220 (negligence found when
defective wallpaper removal machine leased without proper
inspection and lessor's manager stated that "it's already [sic]
for you"); Schaeffer v. General Motors Corp., 372 Mass. 171,
173-177 (1977) (defendant automobile manufacturer could be found
to have violated duty to warn, where owner's manual represented
vehicle component in question as safety device but did not warn
of attendant risks, of which jury could have found defendant
aware). The E4R driver who delivered the boom lift on the day
of the accident also told Johnson that the lift "was all set to
go." Johnson testified that the tag led him to conclude that
"everything was in working condition . . . [and that E4R] had
tested [the lift] out and it was ready to go." E4R's delivery
driver testified at trial that it was his understanding "that
after [he] dropped off [the boom lift] that the customer could
16
The jury were instructed as follows:
"A supplier of a product like [E4R] has a duty to the
foreseeable user to exercise reasonable care to inform the
user or operator of the [boom] lift of any dangerous
condition or of facts which make it likely to be dangerous
if the supplier knows or has reason to know that the
product is or is likely to be dangerous in its foreseeable
use and has reason to believe that the foreseeable user
won't recognize the product's dangerous condition."
See Restatement (Second) of Torts §§ 388, 407, 408 (1965). See
also McLaughlin, 356 Mass. at 225; Schaeffer v. General Motors
Corp., 372 Mass. 171, 174 (1977).
20
simply start operating the machine without performing an
inspection on it." E4R's general manager testified that "the
green ['ready to rent'] tag is to tell the customer that the
lift is ready to use . . . [and that] the safety and performance
of this equipment has been verified" by E4R. E4R's service
manager testified to much the same thing and further
acknowledged that the tag also says "ready to use" in addition
to "ready to rent."
There was also sufficient evidence to support a finding
that, during E4R's final pre-rental inspection of the boom lift,
Delorey "ha[d] reason to know that the [lift was] or [was]
likely to be dangerous for the use for which it [was]
supplied."17 Restatement (Second) of Torts § 388(a) (1965). See
17
The jury could have concluded that the indicator lights
on the boom lift should have been sufficient warning to Delorey
that there was a problem with a proximity sensor. Because we
have concluded (see note 12, supra, and accompanying text) that
the jury would have been warranted in finding that one of the
two riser fully elevated proximity sensors was out of adjustment
at the time of E4R's last inspection, merely raising the riser
to full elevation, as Delorey said he typically did during
inspections, would have caused the lift's indicator lights to
signal that there was a problem with a proximity sensor. Red
and green lights would have been flashing on the upper control
panel, where Delorey said he was stationed during the final pre-
rental inspection. There also was sufficient evidence for the
jury to infer that upon full elevation of the riser, additional
indicator lights that were integrated into a device on the boom
lift's base should have indicated the problem to San Soucie,
Delorey's coworker who assisted from the ground with the final
pre-rental inspection. There was sufficient evidence from
Delorey's testimony to support a finding that, although he was
not trained in adjusting the riser interlock system, he did
21
id. §§ 407, 408. Furthermore, after attaching the "ready to
rent"/"ready to use" tag to the boom lift, E4R would have "no
reason to believe that those for whose use the chattel [was]
supplied [would] realize its dangerous condition." Id.
§ 388(b). See id. § 408. As the jury were warranted in finding
that the riser interlock system had not been properly tested and
was not working, and that E4R had reason to know that the boom
lift was therefore highly dangerous to operate, the inclusion of
the tag saying that the lift was ready to use safely was further
evidence of gross negligence on the part of E4R. See Aleo, 466
Mass. at 410-411; Christopher, 57 Mass. App. Ct. at 230-231.
3. Conclusion. The jury would have been warranted in
concluding that E4R's combined failures in training,
maintenance, and inspection, along with its misinforming the
operator that the dangerously defective boom lift was ready to
rent and use, demonstrated "a manifestly smaller amount of
watchfulness and circumspection than the circumstances
require[d] of a person of ordinary prudence." Aleo, 466 Mass.
at 410, quoting from Altman, 231 Mass. at 592. See Christopher,
57 Mass. App. Ct. at 231. Additionally, at least with regard to
understand how to recognize when there was a problem with a
proximity sensor by observing the indicator lights on the lift.
There was also sufficient evidence, based on Delorey's testimony
about his 2008 repair attempt on the boom lift, to support a
finding that he knew that he should take the lift out of service
if there was a problem with a proximity sensor.
22
the failure to discover the problem with the proximity sensor,
the jury could have found that E4R had "persiste[d] in a
palpably negligent course of conduct over an appreciable period
of time." Lynch, 294 Mass. at 172. See Bruno, 305 Mass. at 34.
The accumulation of all of the foregoing evidence was sufficient
to support the jury's finding of gross negligence and the
punitive damages stemming therefrom. See Duval, 307 Mass. at
528 (defendant's "conduct is to be considered as a whole" to
determine whether it was grossly negligent).
Judgment affirmed.
Appendix.
Diagram of boom lift (from trial exhibit 28, modified to
omit labels from parts not discussed in opinion)
Photograph of boom lift (from trial exhibit 26,
manufacturer's brochure)
2
Illustration of boom lift's "working envelope" (from trial
exhibit 26, manufacturer's brochure)