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March 27, 1978


Middlesex. Tort. Writ in the Superior Court dated July 6, 1972. The action was tried before J. P. Sullivan, J.

Hale, C.j., Goodman, & Grant, JJ.


Negligence, Electricity, One owning or controlling real estate, Contributory, Comparative. Practice, Civil, New trial. Statute, Construction.

The opinion of the court was delivered by: Goodman

In an action by a tenant in a shopping mall to recover for injuries caused by contact with live electrical terminals as he was attempting to nail shut the doors of a box housing the terminals, evidence was sufficient to warrant a finding that an electrician had been negligent in leaving the box unsecured and that, despite intervening tinkering with the doors by the plaintiff and by an air conditioning contractor, the electrician's negligence was a proximate cause of the plaintiff's injuries. [163-166]

The Judge in a tort action did not abuse his discretion in denying the defendant's motion for a new trial based on an affidavit by the defendant that at the time of trial he had been unaware of separate legal proceedings between one of the plaintiff's witnesses and a codefendant. [166-167]

The action of a tenant in a shopping mall in several times nailing shut a box housing live electrical terminals after it had been left open by an electrician and an air conditioning contractor did not relieve the owner of the shopping mall of his duty to ensure that the electrical box was properly secured. [167]

In determining whether the negligence of a plaintiff in a tort action was as great as the negligence of multiple defendants in accordance with G. L. c. 231, § 85, as appearing in St. 1969, c. 761, the amount of negligence attributable to all defendants must be combined and the total measured against the negligence attributable to the plaintiff. [167-171]

The plaintiff, Gerald Graci, brought this action to recover for injuries received as a result of an accident which took place on June 13, 1972, at the Wilmington Road Shopping Plaza in Burlington. On that date Graci suffered severe burns when he came in contact with live power terminals inside a box-like structure which he was trying to nail shut at the shopping center. Graci at that time operated a dry cleaning establishment in the shopping center. The defendants are Charles R. McCauley, trustee of the Charles Realty Trust, owner of the shopping center, Robert G. Damon, doing business as Damon & Son Heating & Air Conditioning, a contractor engaged by McCauley to install air conditioning for another tenant in the shopping center, and Maynard M. Lind, doing business as Maynard M. Lind Co., hired by Damon to perform electrical work in connection with the air conditioning installation. The case was tried to a jury, who returned a special verdict (as required by G. L. c. 231, § 85, as appearing in St. 1969, c. 761 *fn1), finding Graci's damages to be $16,300, and apportioning the negligence as follows: Graci, 15%; McCauley, 40%; Lind, 40%; and Damon, 5%. The Judge accordingly reduced the damages "in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made" (G. L. c. 231, § 85, as amended through St. 1969, c. 761), and entered separate judgments for the plaintiff for $13,855.00 (85% of $16,300) against each of the defendants. All three defendants appealed.

Lind and McCauley contend that there was not sufficient evidence to warrant submitting the case against them to the jury. Lind also contends that it was error to deny his motion for a new trial. Damon does not contest the finding of negligence against him but argues that, since his negligence was found by the jury to be less than that of the plaintiff, the 1969 statute (see n.1) absolves him from liability. We affirm the judgments.

We summarize the events leading up to the accident as the jury could have found them from the evidence in its aspect most favorable to the plaintiff. Gelinas v. New England Power Co., 359 Mass. 119, 120 (1971). Donovan v. DiPaolo, 4 Mass. App. Ct. 576, 577 (1976). Damon and Lind began work on the installation of the air conditioning equipment late in May of 1972. At that time Graci, as McCauley had requested, gave them keys to a box-like structure (sometimes referred to as the "electrical box") which housed the electrical equipment that it was Lind's job to work on. The structure was approximately eight feet high, eight feet wide, and two feet deep and was attached to the exterior wall of Graci's establishment about two feet off the ground. Access to the equipment in the electrical box was by two doors, each a panel of plywood about eight feet by four feet. When Lind first observed the doors they were locked securely by two padlocks, one at the top and one at the bottom, fitted through hasps and keepers, about two feet from the top of the structure and two feet from the bottom. McCauley had given Graci the keys sometime before he first moved into the shopping center so that they would be easily available.

When Graci gave Lind and Damon the keys to the electrical box, he requested that at the end of the day they lock the box and return the keys to him. He cautioned them that children frequented the area and were destructive and that there was vandalism in the area. That evening the keys were not returned to Graci, and the doors to the electrical box were wide open. Graci nailed them shut. The keys were never returned to him, and the electrical box remained unlocked. In the course of about two and one-half weeks while the air conditioning was being installed, he spoke to Damon and Lind about the matter a number of times. A few days after Lind and Damon began work, Graci called McCauley and told him what had happened, that the electrical box was being left open, and that he had complained to Damon and Lind without any results. He also told McCauley that there were children in the area, that a dangerous situation was being created, and that he was nailing the electrical box shut. McCauley told Graci that he would speak to Damon and that "he would take care of it." However, the matter was never taken care of, though Graci spoke to McCauley about the condition twice more.

Lind left the job unfinished on June 2 because of the press of other work. At that time two live terminals were exposed in the electrical box. Damon continued working on the air conditioning installation but had no occasion to be at the electrical box until the morning of June 13. The previous evening, June 12, Graci had nailed the electrical box shut with three staging nails, one at the top, one in the middle, and one at the bottom. Late in the morning of June 13, he saw Damon at the electrical box, which was then open. At about 2:00 P.M. Graci discovered that the doors to the electrical box were open. There were children in the area, and he proceeded once again to nail the doors. While doing so he slipped; his hammer made contact with the exposed live terminals, and he received a severe shock and burns to his hands and arms.

Lind's liability. The jury could have found on June 2, 1972, when Lind left the unfinished job, he left the electrical box open and did not return the keys to Graci. This obviously created a danger, known to Lind, from the live terminals in the electrical box and was inconsistent with the high degree of care required in dealing with electricity. Gelinas v. New England Power Co., 359 Mass. at 124. Leavitt v. Glick Realty Corp., 362 Mass. 370, 376 (1972). The issue is, therefore, whether Lind's negligence in these respects was an operative factor in causing Graci's injuries. This is a question of proximate cause which was for the jury to determine. We cannot say that it was impermissible as a matter of law for the jury to have found that the danger from the live terminals created by Lind's negligence persisted despite the intervening tinkering with the doors by Graci and Damon, negligent though it was. Burke v. Hodge, 217 Mass. 182, 184-185 (1914). Leahy v. Standard Oil Co., 224 Mass. 352, 359-364 (1916). Robinson v. Weber Duck Inn Co., 294 Mass. 75, 79-80 (1936). Tritsch v. Boston Edison Co., 363 Mass. 179, 181-182 (1973). Compare Lane v. Atlantic Works, 111 ...

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