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15-P-114                                               Appeals Court

  MICHELLE WILLIAMSON-GREEN, administratrix,1    vs.    EQUIPMENT 4
                           RENT, INC.


                            No. 15-P-114.

           Suffolk.     November 3, 2015. - March 3, 2016.

            Present:   Kafker, C.J., Vuono, & Hanlon, JJ.


Negligence, Gross negligence. Damages, Punitive. Practice,
     Civil, Directed verdict, Judgment notwithstanding verdict.



     Civil action commenced in the Superior Court Department on
April 24, 2009.

     The case was tried before Janet L. Sanders, J., and a
motion for a new trial or for remittitur was heard by her.


     Thomas F. Maffei (Margaret C. Kelty with him) for the
defendant.
     Joan A. Lukey for the plaintiff.


    1
       Of the estate of James W. Williamson IV. The plaintiff,
the decedent's wife, testified that she and her husband had
legally adopted each other's last names to create the hyphenated
last name of "Williamson-Green," but she added that they were
both still known professionally by their pre-marriage last
names. As the operative complaint calls the decedent
"Williamson" -- a practice echoed in the parties' briefs -- we
adopt that usage.
                                                                       2



     KAFKER, C.J.    James Williamson was perched more than one

hundred feet high on a boom lift, inspecting the roof of a

university building in Boston, when the machine tipped over and

crashed into a neighboring building, killing him.      The boom lift

had been manufactured by Grove U.S., LLC (Grove), and rented

from the defendant Equipment 4 Rent, Inc. (E4R).       Williamson's

wife, Michelle Williamson-Green, as administratrix of

Williamson's estate, successfully sued Grove and E4R for damages

associated with her husband's wrongful death.    The jury found

that negligence of Grove and of E4R each was "a direct and

substantial factor in causing the death of Mr. Williamson."         The

jury also found that "E4R's conduct [was] grossly negligent,

wilful, wanton, or reckless."    The jury awarded $3,692,657.40 in

compensatory damages against E4R and Grove, together with

$5,900,000 in punitive damages solely against E4R.      The trial

judge denied E4R's motions for a directed verdict and judgment

notwithstanding the verdict,2 judgment entered, and E4R appeals,

claiming only that there was insufficient evidence to support

the jury's award of punitive damages.3    We affirm.




     2
       The judge also denied E4R's motion for a new trial or for
remittitur.
     3
         Grove did not appeal, as it settled with the plaintiff.
                                                                   3


    Background.   In considering an appeal of "[t]he denial of a

motion for directed verdict or a motion for judgment

notwithstanding the verdict[, we must review the record] under

the same standard used by the trial judge[,] . . . constru[ing]

the evidence in the light most favorable to the nonmoving party

and disregard[ing] that favorable to the moving party."    O'Brien

v. Pearson, 449 Mass. 377, 383 (2007).   See Christopher v.

Father's Huddle Café, Inc., 57 Mass. App. Ct. 217, 219 (2003).

"Our duty in this regard is to evaluate whether 'anywhere in the

evidence, from whatever source derived, any combination of

circumstances could be found from which a reasonable inference

could be made in favor of the [nonmovant].'"   O'Brien, supra,

quoting from Turnpike Motors, Inc. v. Newbury Group, Inc., 413

Mass. 119, 121 (1992).   See Christopher, supra, citing Michnik-

Zilberman v. Gordon's Liquor, Inc., 390 Mass. 6, 7 n.1 (1983).

In light of this standard, we recite the general facts below as

the jury could have found them, reserving some of the more

specific facts for our detailed discussion of the different acts

and omissions constituting evidence of E4R's gross negligence.

    1.   General overview of the boom lift.    The boom lift in

the instant case is a Model A125J articulating boom lift

manufactured by Grove and owned by E4R, a construction equipment

rental company.   That model of boom lift is depicted in the

appendix to this opinion.   This "[a]erial work platform . . .
                                                                    4


incorporate[s] multiple arm[ segments] that have articulating

joints between them."   The first arm segment, called "the

riser," was a key focus of this litigation.   Using hydraulics

that tilt the riser, the angle of the riser can be elevated and

lowered.   Because the riser is made up of several nested metal

sections, the riser can also be extended (i.e., telescoped out)

and retracted.4

     Boom lift "manufacturers refer to the range of allowable

working positions as the working envelope of the unit."   This

lift's riser has a "working envelope" of seventy-two to seventy-

four degrees above the horizontal.   Because this boom lift is

very tall, extending as high as 125 feet, "the lift can become

unstable and tip over" if two things coincide:   (1) the riser is

in an extended position, and (2) the riser's angle (from the

horizontal) is fifty-five degrees or less (about seventeen

degrees below the working envelope).   A set of key boom lift

safety features called the "riser interlock system" normally

prohibits the lift operator from unsafely positioning the riser




     4
       The lower end of the riser is attached to the wheeled base
of the boom lift, and the upper end is attached to the second
major arm segment, the boom. At the upper end of the boom is a
third small arm segment called the jib, and at the end of the
jib is the railed platform where the lift operator and passenger
stand. Like the riser, the boom can be elevated and lowered, as
well as extended in length and retracted.
                                                                    5


in this fashion.5   Two integral components of the riser interlock

system are (1) the "proximity sensors" and (2) the "riser

retracted limit switch."

     2.   Summary of the accident.   On February 7, 2009, Gregory

Johnson, an employee of roofing contractor Reliable Roofing and

Sheet Metal, LLC (Reliable Roofing),6 was the operator of the

boom lift, which Reliable Roofing had rented from E4R.

Williamson, who worked for a different contractor involved in

the roof repair job on the university dormitory building, was a

passenger on the boom lift and was inspecting the roof.     After

about two hours of operation, Johnson began lowering the boom

lift's riser out of the working envelope while the riser was

still extended -- an operation which should have been prohibited

by the riser interlock system.    When the riser angle reached

about fifty-five degrees, the lift tipped over, inflicting fatal

injuries on Williamson.    As explained by one of Grove's experts:

     "Based on my observations of the videos[7] and the
     inspections performed on the lift after the accident, . . .

     5
       The riser interlock system is meant to ensure that the
riser cannot be telescoped out until it has first been "fully
elevated" into the seventy-two to seventy-four degree working
envelope, and, conversely, that the riser cannot be lowered from
that working envelope until it has first been fully retracted.
     6
       Reliable Roofing was originally a defendant but was
dismissed out after a pretrial settlement and is not a party to
this appeal.
     7
       The operation of the boom lift that day was partially
captured on surveillance video of the area, albeit with a
                                                                 6


    the subject lift's riser interlock system was out of
    adjustment. One of the riser fully elevated proximity
    sensors was out of adjustment to the point that it would
    not indicate that the riser was fully elevated. Also, the
    mechanical limit switch utilized to determine that the
    riser was fully retracted [i.e., the riser retracted limit
    switch] was out of adjustment to the point that it would
    not indicate if the riser was extended."

    3.   Summary of E4R's relevant acts and omissions.    The jury

could have found that the uncorrected adjustment issues caused

the accident and resulted from the following interrelated

problems with training, maintenance, and inspection by E4R:    (1)

E4R failed to properly train the person responsible for

maintaining and inspecting the boom lift, including the riser

interlock system; (2) E4R improperly installed a proximity

sensor in the lift causing it to be out of adjustment; (3) E4R

failed to discover the improper installation for nine months,

even after many inspections; (4) E4R did not properly test the

riser retracted limit switch; and (5) despite the dangers

associated with operating the lift with a malfunctioning riser

interlock system, E4R attached a tag to the lift that stated

both "ready to rent" and "ready to use," and E4R's delivery

driver told Johnson that the boom lift "was all set to go."

    Discussion.    1.   Standards for determining gross

negligence.   The jury awarded punitive damages against E4R


limited field of view. At the time of the accident that view
included the base of the lift and the lower portion of the
riser.
                                                                   7


pursuant to G. L. c. 229, § 2,8 after finding that "E4R's conduct

[was] grossly negligent, wilful, wanton, or reckless."   E4R does

not contest its ordinary negligence,9 but claims on appeal that

there was insufficient evidence to support the jury's award of

punitive damages.   Because the plaintiff primarily relied on a

theory of gross negligence in her closing argument at trial, we

proceed to consider the sufficiency of the evidence under that

theory of liability for punitive damages.10


     8
       The Commonwealth's wrongful death statute, G. L. c. 229,
§ 2, as appearing in St. 1973, c. 699, § 1, provides in relevant
part that

     "A person who (1) by his negligence causes the death of a
     person, or (2) by willful, wanton or reckless act causes
     the death of a person under such circumstances that the
     deceased could have recovered damages for personal injuries
     if his death had not resulted . . . shall be liable [for]
     . . . punitive damages in an amount of not less than five
     thousand dollars in such case as the decedent's death was
     caused by the malicious, willful, wanton or reckless
     conduct of the defendant or by the gross negligence of the
     defendant . . . . Damages under this section shall be
     recovered in an action of tort by the executor or
     administrator of the deceased."
     9
       Nor has E4R disputed that as a lessor of equipment it owed
Williamson, as a foreseeable plaintiff, a duty of reasonable
care in its acts and omissions concerning the equipment. See,
e.g., Mitchell v. Lonergan, 285 Mass. 266, 268-270 (1934);
Carter v. Yardley & Co. Ltd., 319 Mass. 92, 96 (1946);
McLaughlin v. Bernstein, 356 Mass. 219, 225 (1969); Milham v.
Paul Mitrano, Inc., 3 Mass. App. Ct. 73, 75-76 (1975);
Restatement (Second) of Torts §§ 388, 391-393, 407-408 (1965).
Contrast Kassis v. Lease & Rental Mgmt. Corp., 79 Mass. App. Ct.
784, 788-790 (2011).
     10
       Plaintiff's counsel argued to the jury that E4R's failure
to properly inspect the boom lift was gross negligence:
                                                                     8


    In Aleo v. SLB Toys USA, Inc., the Supreme Judicial Court

observed that

    "Gross negligence is substantially and appreciably higher
    in magnitude than ordinary negligence. . . . It is very
    great negligence, or the absence of slight diligence, or
    the want of even scant care. . . . Gross negligence is a
    manifestly smaller amount of watchfulness and
    circumspection than the circumstances require of a person
    of ordinary prudence."

466 Mass. 398, 410 (2013), quoting from Altman v. Aronson, 231

Mass. 588, 591-592 (1919).   See Christopher, 57 Mass. App. Ct.

at 230-231.   In making this determination, the finder of fact

must consider the "conduct [of the defendant] . . . as a whole."

Duval v. Duval, 307 Mass. 524, 528 (1940).     The fact finder "is

not required to pass separately upon the various elements that

enter into a defendant's [overall] conduct."    Ibid.   In

evaluating such conduct, however, "persistence in a palpably

negligent course of conduct over an appreciable period of time

[is one] of the more common indicia of gross negligence."      Lynch

v. Springfield Safe Deposit & Trust Co., 294 Mass. 170, 172

(1936).   See Bruno v. Donahue, 305 Mass. 30, 34 (1940).     All

that being said, "[t]he line between gross negligence and




    "Frankly ladies and gentlemen if a mistake had been made
    one time, maybe two times, maybe even three times, would
    that still be ordinary negligence? Probably it would. But
    somewhere between the third time and the [seventeenth] time
    the inspection for the lift . . . that negligence crossed
    the line into gross negligence."
                                                                      9


ordinary negligence is often difficult to draw."       Belina v.

Pelczarski, 333 Mass. 730, 733 (1956).      In the instant case,

"[t]he judge's instructions to the jury [on gross negligence]

were consistent with these principles, and we accept the

conclusion of a properly instructed jury on a question within

their province."     Christopher, 57 Mass. App. Ct. at 231.    We

thus proceed to analyze collectively the multiple acts and

omissions of E4R from which the jury could have found it liable

for gross negligence.

    2.      E4R's errors and omissions.   a.   Negligence in

training.    The jury could have found that the E4R employee

responsible for inspecting and maintaining the boom lift,

including the riser interlock system, Paul Delorey, was not

properly trained.     The jury would have been warranted in finding

that although Delorey had received some training in the

operation of the lift from another E4R employee, that training

was insufficient as to the repair and testing of the lift's

riser interlock system.    E4R also had never brought anyone in

from Grove to train Delorey, and he was "[n]ever offered the

opportunity to be trained at the Grove facilities."       Delorey

testified at trial that he was not "trained and qualified to

work on the riser interlock system of the [boom lift]."        Indeed,

as will be explained in more detail infra, he was not even aware

of the existence of the riser retracted limit switch at the time
                                                                    10


he was responsible for inspecting and maintaining the lift.     He

further conceded "that there is grave danger to people in the

workplace if equipment is rented out when it is not being

maintained by trained and qualified mechanics."

     E4R owed a duty to Williamson to ensure that Delorey had

adequate training to maintain and inspect the lift.   See

Restatement (Second) of Torts § 307 comment a (1965);

Restatement (Second) of Agency § 213(b) & comments d & e, § 214

& comment c (1958).   The failure of E4R to properly train

Delorey to maintain and inspect a dangerous instrumentality like

a boom lift was one factor that the jury could have considered

in reaching their verdict that E4R was grossly negligent.     See

Renaud v. New York, N.H. & H.R.R., 206 Mass. 557, 560 (1910)

(breach of duty that will likely result in death or "very

serious" harm may support a finding of gross negligence); Renaud

v. New York, N.H. & H.R.R., 210 Mass. 553, 560 (1912) (same).

     b.   Negligence in maintenance:   E4R improperly replaced a

proximity sensor more than nine months before the accident.     On

April 17, 2008, two employees of E4R, Paul Delorey and William

San Soucie, replaced one of the two "riser fully elevated"

proximity sensors after discovering a problem with it.11     This is


     11
       The purpose of the two "riser fully elevated" proximity
sensors is to detect whether the riser is elevated to its
seventy-two degree working envelope. As Grove's expert
explained, if these two sensors' readings are not in agreement
                                                                 11


the same sensor that after the accident was found to be out of

adjustment, both by an independent investigator reporting to the

Occupational Safety and Health Administration and by one of

Grove's experts.   The jury would have been warranted in finding

that Delorey's faulty installation of the proximity sensor in

2008 had caused it to be out of adjustment and that the sensor

had not become out of adjustment during the delivery of the boom

lift or as a result of the accident.12



on this point, the riser interlock system enters a "fault mode"
that "prevents movement of the riser except movements that will
allow an operator to safely retract the riser and lower the
platform to the ground. . . . [W]hen in [fault mode], a
mechanical limit switch [(the riser retracted limit switch)] is
utilized to confirm that the riser is fully retracted prior to
allowing the riser to be lowered." When the riser interlock
system is in fault mode, it ignores readings from all four
proximity sensors, even properly functioning ones -- including
those from the second pair of sensors, which detect whether the
riser is fully retracted. In fault mode the system relies
instead on the limit switch for the latter purpose.
     12
       The jury could have credited the plaintiff's expert's
testimony, concluding that the replaced sensor "did not go out
of adjustment by wear and tear" but rather had remained "out of
alignment . . . [since] it was replaced in April of 2008."
Likewise the jury could have credited the expert's testimony
that he "[d]id [not] see any indication that the accident had
caused it to be off." When he was asked at trial whether the
short, four-mile trip that the boom lift took on a flatbed truck
from the pre-rental inspection site in South Boston to the job
site on West Street "could [have] shake[n] loose the sensor," he
responded, "[i]t's virtually -- I -- I never like to use the
word impossible but it's pretty close." He reported that when
he observed the sensor after the accident it did not appear to
be loose. He opined that, because the sensor was held in place
by locknuts, if it "was installed properly it would not have
changed [its position]."
                                                                     12


       Delorey testified at trial that when he "put [the proximity

sensor] on the machine" he did so without first referencing

either the manufacturer's "Operator's, Safety, and Maintenance

Handbook" for the boom lift (the operator's manual) or the

manufacturer's "Repair Manual" (the repair manual).     He also

testified that he did "not remember . . . performing any

measurements [after the proximity sensor was replaced] to be

sure it was on exactly the same plane relative to the trip

plate."

       The jury would have been warranted in concluding that at

the time of its delivery to Reliable Roofing, the boom lift was

negligently and defectively repaired.     See Restatement (Second)

of Torts § 408 comment a (1965) ("If the lessor repairs [the

chattel], he is subject to liability if the repairs are not

carefully made").    Given the likelihood that someone's death

would result from E4R's failing to exercise reasonable care in

repairing the proximity sensor, its failure to exercise such

care, in combination with the absence of training discussed

above, was evidence of "the absence of slight diligence, or the

want of even scant care."     Aleo, 466 Mass. at 410, quoting from

Altman, 231 Mass. at 591.     See Christopher, 57 Mass. App. Ct. at

230.    See also Renaud, 206 Mass. at 560.

       c.   Negligent testing and inspection of the proximity

sensors and the riser retracted limit switch.     As explained in
                                                                    13


the operator's manual, the procedure to test the riser interlock

system "must be followed exactly[, as the] failure to follow

[the] outlined procedures may result in death or injury to

personnel."   Indeed, Delorey, the person responsible for

inspecting the boom lift, testified that "it is crazy not to

properly inspect the [boom lift] before it goes out."    The jury

could therefore have considered E4R's lack of reasonable care in

testing and inspection as one factor contributing to a finding

of gross negligence.     See Renaud, 206 Mass. at 560 (observing

that a jury may find gross negligence where a defendant's

failure to perform a legal duty is likely to have "a fatal or a

very serious" result).    See also Mitchell v. Lonergan, 285 Mass.

266, 270 (1934) ("[T]he defendant[] [lessors] are liable to the

plaintiff as the guest of the hirer of the automobile let by

them . . . for injuries sustained by her by reason of the

defective mechanism of the automobile, which might have been

discovered by the defendants by the exercise of reasonable care

in inspection before the letting"); McLaughlin v. Bernstein, 356

Mass. 219, 222, 225 (1969) ("The minuteness of the inspection

required varies with the danger which will be likely to result

if the chattel is defective . . ."), quoting from Restatement

(Second) of Torts § 408 comment a; Ikeda v. Okada Trucking Co.,

47 Haw. 588, 600 (1964) (lessor of a construction crane has a

duty to "use reasonable care to see that [the crane] is
                                                                   14


reasonably safe for use, even where there is not actual

knowledge of the presence of a defect, or knowledge of facts

which would indicate a defect exists"), quoting from La Rocca v.

Farrington, 276 A.D. 126, 129 (N.Y. App. Div. 1949), aff'd, 301

N.Y. 247 (1950).

     The plaintiff's expert testified that "proper testing of

the lift before it was sent to a lift site would have revealed

the problems in the riser interlock system."   Nonetheless,

between the sensor replacement in April of 2008 and the date of

the accident, February 7, 2009, E4R rented the boom lift sixteen

other times, performing pre-rental inspections each time, and

the problem remained.13   Although Delorey testified that he did

not "have actual memories of" the pre-rental inspections

subsequent to the sensor replacement, he testified that he

"never detected a problem with the [proximity] sensor light."

     Delorey also testified that "when [he] did [his]

inspections and pre[-]rental inspections on this [boom lift],

including up to the time of the inspection before the accident,

[he] never did a test that was specifically designed to

determine if the mechanical [riser retracted limit] switch was

functioning."   Delorey only discovered that the riser interlock

     13
       See note 12, supra, and accompanying text (jury could
conclude that Delorey's faulty replacement of the proximity
sensor in 2008 had caused it to be out of adjustment during the
2009 accident).
                                                                   15


system included such a limit switch during a deposition taken in

the instant case.   Prior to that, he was not "even aware that

this particular riser interlock system used a riser retracted

limit switch."

       The boom lift's repair manual, however, details a test to

perform to verify that the riser retracted limit switch is

correctly indicating that the riser is fully retracted.    Delorey

testified that he never had access to the repair manual,

claiming that he had asked E4R for a repair manual for the boom

lift at some point, but E4R had told him that they did not have

one.   Delorey claimed that "all the time [he was at E4R] and all

the time [he was] working on this lift, [he] never had a repair

manual."   The service manager of E4R testified that the company

did, in fact, have a repair manual, but he was not "aware of"

any time that Delorey had asked for one.   Either way, the jury

could have found that the person responsible for inspecting the

riser retracted limit switch never consulted the repair manual

that provided instructions on how to do the test.    This was

evidence of "the want of even scant care."    Aleo, 466 Mass. at

410, quoting from Altman, 231 Mass. at 591.    See Christopher, 57

Mass. App. Ct. at 230.

       Although he never referenced the repair manual, Delorey did

testify that he "referred to the operator's manual . . . [i]f

[he] had a question on anything," but he acknowledged at trial
                                                                  16


that he had never read the operator's manual "[w]ord for word."

He agreed that, if he "had ever taken the trouble to read in the

[operator's] manual, [he] would have learned about the role of

the riser retracted limit switch."   The jury would have been

warranted in finding that the operator's manual alone should

have put Delorey on notice of the dangers of an improperly

maintained riser interlock system.

     Although Delorey was not aware of the existence of the

riser retracted limit switch or how to test it, he testified

that, during inspections, he typically performed a "function

test" to see whether the riser could be extended (i.e.,

telescoped out) before it was in the fully elevated position and

whether, once the riser was in the fully elevated and extended

position, it could be lowered.14   The jury were, however,

warranted in finding that Delorey had failed to properly conduct

the tests he claimed to have done, because otherwise those tests

would have revealed the problem with the limit switch.    See

McLaughlin, 356 Mass. at 225 (liability found where a lessor

"failed to make any inspection of [a critical component of a




     14
       Elsewhere, Delorey testified that he "[n]ever d[id] any
test that put the [boom lift] into fault [mode] and tried to
lower the riser when it was telescoped." See note 11, supra.
                                                                   17


dangerous chattel it had leased], a simple task which could be

easily accomplished").15

     d.   E4R's repeated failure to discover the problem with the

proximity sensor was an indicator of gross negligence.    One

indicator of gross negligence is that E4R "persiste[d] in a

palpably negligent course of conduct over an appreciable period

of time."   Lynch, 294 Mass. at 172.   Dombrowski v. Gedman, 299

Mass. 87, 88-89 (1937).    Although "[e]ach [gross negligence]

case must be decided upon its own peculiar facts," Romer v.

Kaplan, 315 Mass. 736, 738 (1944), citing Quinlivan v. Taylor,

298 Mass. 138, 140 (1937), we observe that, in cases where a

jury finds that heightened danger would likely result from a

tortfeasor's continued negligence and that the tortfeasor

reasonably should have apprehended such danger, relatively less

     15
       The jury would have been warranted in concluding that a
fully functioning riser interlock system normally prevents the
operator from lowering the riser from full elevation while it is
extended. While Delorey was ignorant of the critical role that
the riser retracted limit switch played in keeping the boom lift
safe when a proximity sensor was out of adjustment (see note 11,
supra), there was sufficient evidence for the jury to find that
he knew that if the riser could be lowered while it was
extended, it was a sure sign that the lift was in a dangerous
condition. The evidence was sufficient for the jury to infer
that the proximity sensor and the riser retracted limit switch
were both out of adjustment at the time of E4R's final pre-
rental inspection, and therefore the function test Delorey
claimed to have performed would have revealed that the riser
could be lowered while it was extended. The jury therefore
could have concluded that Delorey either did not do the function
test that he claimed he performed or that he was so inattentive
as to ignore what the critical function test indicated.
                                                                    18


time must pass for a finding of gross negligence than would be

required absent such reasonable apprehension.   See Granger v.

Lovely, 302 Mass. 504, 507 (1939).   Cf. Nauss v. Boston & Me.

R.R., 195 Mass. 364, 369 (1907) (acts or omissions may be

evidence that warrants a finding of gross negligence if

circumstances are such that they would "lead to reasonable

apprehension that [the tortfeasor's negligence in those

circumstances] would lead to death or serious injury"); Renaud,

206 Mass. at 560 ("When the injury likely to ensue from failure

to do that which ought to be done is a fatal or a very serious

one, what otherwise would be a lack of ordinary care may be

found to be gross negligence").

    In light of these considerations, the jury would have been

warranted in concluding that E4R's failure to discover their

dangerous error after nine months and seventeen pre-rental

inspections displayed "persistence in a palpably negligent

course of conduct over an appreciable period of time."    See

Lynch, 294 Mass. at 172.   The jury thus could have considered

this as an indicator of gross negligence.   See ibid.    See also

McGaffigan v. Kennedy, 302 Mass. 12, 14-15 (1938).

    e.   "[R]eady to rent" and "ready to use" tag.   Further

compounding its negligence, E4R delivered a poorly inspected,

dangerously defective boom lift with a single tag attached to it
                                                                     19


claiming that the lift was "ready to rent" and "ready to use."16

See McLaughlin, 356 Mass. at 220 (negligence found when

defective wallpaper removal machine leased without proper

inspection and lessor's manager stated that "it's already [sic]

for you"); Schaeffer v. General Motors Corp., 372 Mass. 171,

173-177 (1977) (defendant automobile manufacturer could be found

to have violated duty to warn, where owner's manual represented

vehicle component in question as safety device but did not warn

of attendant risks, of which jury could have found defendant

aware).      The E4R driver who delivered the boom lift on the day

of the accident also told Johnson that the lift "was all set to

go."    Johnson testified that the tag led him to conclude that

"everything was in working condition . . . [and that E4R] had

tested [the lift] out and it was ready to go."     E4R's delivery

driver testified at trial that it was his understanding "that

after [he] dropped off [the boom lift] that the customer could

       16
            The jury were instructed as follows:

       "A supplier of a product like [E4R] has a duty to the
       foreseeable user to exercise reasonable care to inform the
       user or operator of the [boom] lift of any dangerous
       condition or of facts which make it likely to be dangerous
       if the supplier knows or has reason to know that the
       product is or is likely to be dangerous in its foreseeable
       use and has reason to believe that the foreseeable user
       won't recognize the product's dangerous condition."

See Restatement (Second) of Torts §§ 388, 407, 408 (1965). See
also McLaughlin, 356 Mass. at 225; Schaeffer v. General Motors
Corp., 372 Mass. 171, 174 (1977).
                                                                   20


simply start operating the machine without performing an

inspection on it."    E4R's general manager testified that "the

green ['ready to rent'] tag is to tell the customer that the

lift is ready to use . . . [and that] the safety and performance

of this equipment has been verified" by E4R.    E4R's service

manager testified to much the same thing and further

acknowledged that the tag also says "ready to use" in addition

to "ready to rent."

     There was also sufficient evidence to support a finding

that, during E4R's final pre-rental inspection of the boom lift,

Delorey "ha[d] reason to know that the [lift was] or [was]

likely to be dangerous for the use for which it [was]

supplied."17   Restatement (Second) of Torts § 388(a) (1965).     See


     17
       The jury could have concluded that the indicator lights
on the boom lift should have been sufficient warning to Delorey
that there was a problem with a proximity sensor. Because we
have concluded (see note 12, supra, and accompanying text) that
the jury would have been warranted in finding that one of the
two riser fully elevated proximity sensors was out of adjustment
at the time of E4R's last inspection, merely raising the riser
to full elevation, as Delorey said he typically did during
inspections, would have caused the lift's indicator lights to
signal that there was a problem with a proximity sensor. Red
and green lights would have been flashing on the upper control
panel, where Delorey said he was stationed during the final pre-
rental inspection. There also was sufficient evidence for the
jury to infer that upon full elevation of the riser, additional
indicator lights that were integrated into a device on the boom
lift's base should have indicated the problem to San Soucie,
Delorey's coworker who assisted from the ground with the final
pre-rental inspection. There was sufficient evidence from
Delorey's testimony to support a finding that, although he was
not trained in adjusting the riser interlock system, he did
                                                                   21


id. §§ 407, 408.   Furthermore, after attaching the "ready to

rent"/"ready to use" tag to the boom lift, E4R would have "no

reason to believe that those for whose use the chattel [was]

supplied [would] realize its dangerous condition."     Id.

§ 388(b).   See id. § 408.   As the jury were warranted in finding

that the riser interlock system had not been properly tested and

was not working, and that E4R had reason to know that the boom

lift was therefore highly dangerous to operate, the inclusion of

the tag saying that the lift was ready to use safely was further

evidence of gross negligence on the part of E4R.     See Aleo, 466

Mass. at 410-411; Christopher, 57 Mass. App. Ct. at 230-231.

    3.   Conclusion.   The jury would have been warranted in

concluding that E4R's combined failures in training,

maintenance, and inspection, along with its misinforming the

operator that the dangerously defective boom lift was ready to

rent and use, demonstrated "a manifestly smaller amount of

watchfulness and circumspection than the circumstances

require[d] of a person of ordinary prudence."    Aleo, 466 Mass.

at 410, quoting from Altman, 231 Mass. at 592.    See Christopher,

57 Mass. App. Ct. at 231.    Additionally, at least with regard to



understand how to recognize when there was a problem with a
proximity sensor by observing the indicator lights on the lift.
There was also sufficient evidence, based on Delorey's testimony
about his 2008 repair attempt on the boom lift, to support a
finding that he knew that he should take the lift out of service
if there was a problem with a proximity sensor.
                                                                    22


the failure to discover the problem with the proximity sensor,

the jury could have found that E4R had "persiste[d] in a

palpably negligent course of conduct over an appreciable period

of time."   Lynch, 294 Mass. at 172.     See Bruno, 305 Mass. at 34.

The accumulation of all of the foregoing evidence was sufficient

to support the jury's finding of gross negligence and the

punitive damages stemming therefrom.      See Duval, 307 Mass. at

528 (defendant's "conduct is to be considered as a whole" to

determine whether it was grossly negligent).

                                       Judgment affirmed.
                       Appendix.




Diagram of boom lift (from trial exhibit 28, modified to
    omit labels from parts not discussed in opinion)




    Photograph of boom lift (from trial exhibit 26,
                manufacturer's brochure)
                                                             2




Illustration of boom lift's "working envelope" (from trial
           exhibit 26, manufacturer's brochure)
