DocketNumber: 16–P–1688
Citation Numbers: 95 N.E.3d 298, 92 Mass. App. Ct. 1116
Filed Date: 12/4/2017
Status: Precedential
Modified Date: 7/24/2022
After a trial in Superior Court, a jury found that the defendant was not negligent in connection with a motor vehicle accident in which the defendant's vehicle detached from atop a flatbed trailer and struck the plaintiff's vehicle. On appeal, the plaintiff argues that the judge should have: (1) allowed the plaintiff's motion for a mistrial based on defense counsel's opening statement; (2) given a res ipsa loquitur instruction; and (3) allowed the plaintiff's motion for a new trial. We affirm.
Background. On July 10, 2011, the plaintiff was driving on the Massachusetts Turnpike when a 1966 vehicle slid off the flatbed trailer on which it was being transported and hit the plaintiff's vehicle. The defendant, who was accompanied on the trip by Daniel and Kenneth Murray, had bought the 1966 vehicle, a vintage "muscle" car, earlier that day. The vehicle was rusted and substantially worn. The defendant and the Murrays loaded the car onto the defendant's trailer and secured it at four points, using chains and "come alongs." The trailer was attached to a pick-up truck owned and operated by Daniel Murray.
Discussion. 1. Defense counsel's opening statement. The plaintiff first argues that the judge abused his discretion by denying his motion for a mistrial. He contends he was incurably prejudiced when defense counsel stated in his opening that (a) the plaintiff waited nineteen months after the accident to file suit, and (b) the plaintiff only produced his medical records after being ordered to do so.
The judge did not abuse his discretion in denying the plaintiff's motion for a mistrial. See Evans v. Lorillard Tobacco Co.,
2. Res ipsa loquitur instruction. The plaintiff next argues that the judge erred in denying his request for a res ipsa loquitur instruction. Such an instruction is appropriate "when an accident is of the kind that does not ordinarily happen unless the defendant was negligent in some respect and other responsible causes including conduct of the plaintiff are sufficiently eliminated by the evidence." Enrich v. Windmere Corp.,
3. Motion for a new trial. Finally, the plaintiff argues that the judge should have allowed his motion for a new trial because the verdict was against the weight of the evidence. The argument fails. The trial judge may set aside the jury verdict and order a new trial only when "the verdict is against the clear weight of the evidence." J. Edmund & Co. v. Rosen,
Judgment affirmed.
Order denying motion for a new trial affirmed.
The plaintiff also argues that a new trial was warranted due to errors in defense counsel's opening statement and closing argument. As to the opening statement, for the reasons that the judge did not abuse his discretion in denying a motion for a mistrial, the denial of the motion for new trial was also not an abuse of discretion. As to the closing argument, the plaintiff's counsel did not object at the trial and the issue was waived. See Carey v. New England Organ Bank,