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11/28/77 WILLIAM R. FORTE v. MUZI MOTORS

November 28, 1977

WILLIAM R. FORTE
v.
MUZI MOTORS, INC.



Norfolk. Tort. Writ in the Superior Court dated July 8, 1971. The action was tried before Lynch, J., and motions for a new trial and for relief from judgment were heard by him.

Hale, C.j., Armstrong, & Brown, JJ.

SYLLABUS BY THE COURT

Negligence, Contributory, Comparative, Assumption of risk, Hydraulic automobile lift. Practice, Civil, New trial, Relief from judgment, Waiver. Jury and Jurors. Waiver.

The opinion of the court was delivered by: Hale

At the trial of an action in tort for personal injuries sustained by the plaintiff when his foot was caught beneath a descending hydraulic lift in the defendant's garage, evidence was sufficient to warrant a finding that the plaintiff assumed the risk of his injury. [702-704]

In an action tried under the comparative negligence statute prior to its amendment abolishing the doctrine of assumption of risk, the plaintiff could not complain on appeal that application of the doctrine was contradictory to the scheme created by the statute where he did not raise the issue at trial. [704-705]

This is an action in tort for personal injuries sustained by the plaintiff when his foot was caught beneath a descending hydraulic automobile lift in the defendant's garage on April 22, 1971. The case was tried to a jury in Superior Court in February, 1976. At the close of the evidence the case was submitted to the jury under the comparative negligence statute, *fn1 and the jury were requested to return a special verdict comprised of their answers to eleven specific questions.

In their special verdict the jury found that both the defendant and the plaintiff had been negligent and that their negligence had combined to cause the plaintiff's injury. In assessing the comparative negligence of the parties the jury found that the defendant's causal negligence had exceeded the plaintiff's causal negligence by a ratio of fifty-five percent to forty-five percent. The jury also found that the plaintiff had assumed the risk of his injury, and on the basis of that finding the trial Judge entered a judgment dismissing the plaintiff's action.

After judgment was entered, the plaintiff filed a motion for a new trial *fn2 and a motion for relief from the judgment. *fn3 The Judge denied the motions without making findings of fact. The plaintiff now appeals from the denial of those motions, *fn4 claiming that the Judge's failure to grant him relief from the judgment resulted in a miscarriage of Justice.

A motion for a new trial is ordinarily addressed to the discretion of the trial Judge. Ellingsgard v. Silver, 352 Mass. 34, 39-40 (1967). Delfino v. Torosian, 354 Mass. 395, 399 (1968). The same is true of a motion for relief from judgment. Trustees of Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562, 565 (1976). Alaimo v. Fre -dette, 4 Mass. App. Ct. 866 (1976). Accordingly, we review the Judge's denial of the plaintiff's motions to determine whether there has been an abuse of discretion. McKenna v. Ward Foods, Inc., 360 Mass. 848 (1971).

1. The plaintiff argues first that the Judge abused his discretion in denying the motions because there was no evidence on which the jury could have found that he had assumed the risk of an injury caused in part by the defendant's negligent operation of the automobile lift. The plaintiff concedes that the jury could have found that by entering the working area of the defendant's garage he had assumed a general risk of injury from the dangers typically inherent in that area. Nevertheless, he argues that since he could not have anticipated that the defendant would negligently operate the lift, he could not knowingly have assumed the risk of an injury caused thereby.

There was evidence before the jury from which they could have found the following facts. The plaintiff was a mature and intelligent individual who had been a customer in the defendant's garage on several occasions over a period of years. On the day he was injured the plaintiff brought his automobile to be repaired at the defendant's garage. After arranging for the repairs with an employee at the service desk of the garage, the plaintiff watched from the service desk area as the employee drove the automobile into the working area and onto a fully descended lift. The employee then raised the lift and inspected the underside of the automobile. At that moment the plaintiff walked from the service desk over to the lift upon which his automobile was raised. The plaintiff had not been asked to come into the working area. Two signs requesting that customers remain in the waiting room while their automobiles were being repaired were conspicuously posted within the garage.

After a short conversation between the plaintiff and the employee, the plaintiff returned to the service desk area. The employee went to the lift controls and began to lower the lift. After observing that no one was near the lift, the employee abandoned the lift controls while the automobile was descending. During the lift's descent, the plaintiff returned to the working area in order to retrieve some papers which he had left in his automobile. At some point before the lift was fully descended, the plaintiff opened the door to his automobile and reached into it for his papers. As he did so his foot was caught beneath the lift. The plaintiff made his own determination when to enter the automobile. He neither looked to see if the lift controls were manned, nor did he care whether the controls were manned.

We hold that there was sufficient evidence to support the jury's finding that the plaintiff assumed the risk of his injury. *fn5 The Judge properly directed the jury to consider the plaintiff's entire course of conduct in determining whether he had voluntarily assumed the risk of a known and appreciated danger. *fn6 Shaw v. Boston Am. League Baseball Co., 325 Mass. 419, 424 (1950). Salamoff v. Godfrey, 344 Mass. 750 (1962). The jury could have found that the plaintiff knew and appreciated the ...


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