Pierce v. Hansen Engineering & Machinery Co., Inc.

          Heard: May 6, 2019.

         Civil action commenced in the Superior Court Department on June 16, 2014.

         The case was tried before Timothy Q. Feeley, J.; motions for a new trial or remittitur and to extend the time for filing an appeal were considered by him.

          John A. Kiernan (Robert E. Koosa also present) for the defendants.

          John P. Wilton for the plaintiff.

          Present: Agnes, Shin, & Wendlandt, JJ.

          WENDLANDT, J.

         In this appeal, we reaffirm that garden variety miscommunication between a party's lawyers, each of whom purportedly believed in "good faith" that the other would file the notice of appeal, fails to meet the showing of "excusable neglect" required under Mass. R. A. P. 4 (c), as amended, 378 Mass. 928 (1979), ^[2] to extend the time for filing the notice of appeal. Accordingly, we dismiss the appeal as untimely.

         Background.

         The plaintiff, Edward R. Pierce, fell while maneuvering a pallet jack, on which he was carrying an 800-pound freight, from his delivery truck over a dock plate and onto the loading dock of facilities in Danvers operated by the defendants, Hansen Engineering and Machinery Co., Inc., and Hansen Aerospace Laboratories, Inc. The fall aggravated Pierce's hip osteoarthritis and eventually required him to undergo total hip replacement surgery. Pierce has not regained full use of his hip and was unable to resume work.

         Pierce filed this personal injury action against the defendants, alleging that the defendants' negligent failure to maintain the dock plate -- the mechanism that bridged the gap between a delivery truck's trailer and the loading dock -- caused his injuries. At the jury trial, he presented evidence that the defendants failed to pursue the periodic, regular maintenance schedule that was recommended by the dock plate manufacturer's owner's manual. Instead, the defendants maintained the dock plate only after defects in its operation were reported and required repair. The history of these repairs showed that defects in the dock plate's operation occurred about twice annually and that, on at least one prior occasion, the service call noted the "dock leveler [3] [was] not staying down in below grade position" because of a worn ratchet bar which otherwise functioned to hold down the dock plate. Pierce's technical expert opined that, as a result of the failure to employ the recommended maintenance schedule, components of the dock plate had become worn over time, causing them to fail and allowing the dock plate to spring up as Pierce approached it with the 800-pound freight. Consistent with the expert's opinion, Pierce testified that, after his fall, one of the defendants' employees admitted that there had been problems with the dock plate "for some time."

         The jury found the defendants were liable for Pierce's injuries. Final judgment entered on December 26, 2017. The defendants timely moved for a new trial or alternatively, for a remittitur on December 29, 2017. The judge's denial of the motion was entered on February 12, 2018, which commenced the thirty-day period for filing a notice of appeal pursuant to Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013).

         The defendants did not file the notice of appeal on or before March 14, 2018 -- the deadline for doing so. Instead, on March 22, 2018 (eight days after the deadline), the defendants filed a motion to extend the time to file a notice of appeal, pursuant to Mass. R. A. P. 4 (c). The judge allowed the defendants' motion on March 27, 2018. The defendant subsequently filed a late notice of appeal on April 2, 2018 -- nineteen days after the March 14, 2018 deadline and forty-nine days after the denial of defendants' posttrial motion. On April 12, 2018, Pierce filed a notice of appeal from the judge's order allowing a late notice of appeal.

         On appeal, the defendants allege various errors by the judge, including the judge's denial of their request for a jury instruction on comparative negligence. In his cross appeal, Pierce asserts that the judge abused his discretion in allowing the ...