This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
Fecteau, Agnes & Sullivan, JJ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This appeal arises out of a motor vehicle tort case in which the plaintiff, Daniel Hannon, appeals from a jury verdict in favor of the defendant, Jaclyn Calleva, and from the denial of his motion for new trial. For the reasons that follow, we affirm.
On April 7, 2007, Hannon was the driver of a large commercial van stopped at a red light on Main Street in Watertown. Calleva, who was driving a Toyota Corolla, pulled to a stop behind him. Calleva testified that while stopped at the light, she heard the beeping sound of a truck backing up and looked around to find the source of the sound. As she did so, her vehicle came into contact with the rear bumper of Hannon's van. Calleva hypothesized that Hannon may have backed up into her or that her foot may have slipped off the brake and her vehicle rolled into the van. The responding police officer testified that Calleva informed him " she was traveling eastbound on Main Street, was distracted, looked down, and struck the vehicle in front of her, the van." There was conflicting testimony as to the damage to either vehicle.
Three days after the accident, Hannon sought medical attention, complaining of neck pain. At trial, Hannon claimed that this accident caused his now-chronic neck pain. Hannon testified about his past work and medical conditions that could have contributed to his neck pain, including treatment for a shoulder injury four months before the motor vehicle accident. Hannon testified that after the accident he struggled to return to work, but could not perform his duties, and that neither physical therapy nor trigger point injections helped his recovery.
At the conclusion of closing arguments, the judge instructed the jury that Hannon's claim was comprised of three elements: whether Calleva owed him a duty of care, whether she breached that duty of care, i.e., was negligent, and whether Calleva's negligence " was [a] substantial contributing factor in causing injury or harm to the plaintiff." After explaining the first two elements, the judge elaborated on the meaning of " proximate cause."  Hannon objected to the judge's instruction on causation. The judge had previously declined to use Hannon's proposed instruction on that issue. The jury answered special questions and found that Calleva was negligent in allowing her vehicle to come into contact with Hannon's van, but that her negligence did not cause Hannon's neck pain.
1. Jury instruction.
" An error in jury instructions is not grounds for setting aside a verdict unless the error was prejudicial -- that is, unless the result might have differed absent the error."  Blackstone v. Cashman, 448 Mass. 255, 270, 860 N.E.2d 7 (2007). Hannon objected to the judge's instruction regarding causation, specifically the references to " substantial contributing factor." Hannon maintained that the instruction confused the jury. In addition to renewing that assertion on appeal, Hannon asks us to adopt the recommendation made in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 26 (2010), to eliminate any reference to " substantial contributing cause" in the instruction on causation because such language is potentially confusing. In this case, it is unnecessary to decide whether use of the " substantial contributing factor" formulation of legal cause in a case in which there is no evidence of multiple causes or tortfeasers is inappropriate because there was evidence that the plaintiff's injuries may have been the result of more than one cause.
The substantial contributing factor instruction is normally given when there are multiple causes or tortfeasors. In Matsuyama v. Birnbaum, 452 Mass. 1, 30, 890 N.E.2d 819 (2008), the Supreme Judicial Court stated that " [t]he 'substantial contributing factor' test is useful in cases in which damage has multiple causes, including but not limited to cases with multiple tortfeasors in which it may be impossible to say for certain that any individual defendant's conduct was a but-for cause of the harm, even though it can be shown that the defendants, in the aggregate, caused the harm." In the present case, the " substantial contributing factor" instruction was appropriate and helpful to the jury because there was evidence from which the jury could find that an event or events prior to the motor vehicle accident may have been the cause of Hannon's neck injury. The judge's instruction properly differentiated between a substantial factor that could give rise to liability and a negligible factor that could not. See O'Connor v. Raymark Indus., Inc., 401 Mass. 586, 592, 518 N.E.2d 510 (1988).
2. Motion for new trial.
A denial of a motion for new trial is within the sound discretion of the trial judge and " will be reversed only for a clear abuse of [that] discretion." Galvin v.Welsh Mfg. Co., 382 Mass. 340, 343, 416 N.E.2d 183 (1981). See Robertson v.Gaston Snow & Ely Bartlett, 404 Mass. 515, 520, 536 N.E.2d 344 (1989). Hannon asserts that his motion for a new trial was improperly denied because the jury verdict was " markedly" against the weight of the evidence. We disagree. In his ...