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13-P-1215                                               Appeals Court

   ROBERT ROSE & another1 vs. HIGHWAY EQUIPMENT COMPANY; JAY
                 SPLAINE,2 third-party defendant.


                             No. 13-P-1215.

            Suffolk.      May 9, 2014.   -    August 27, 2014.

               Present:   Green, Meade, & Sullivan, JJ.


Negligence, Comparative. Warranty. Practice, Civil,
     Affirmative defense, Instructions to jury. Words,
     "Unreasonable use."



     Civil action commenced in the Superior Court Department on
July 13, 2009.

    The case was tried before D. Lloyd Macdonald, J.


     Deborah M. Santello for the plaintiffs.
     Christopher J. Sullivan (Jonathan Klein with him) for
Highway Equipment Company.

    1
       Erica Rose, the wife of Robert Rose. Erica did not
recover on her claim for loss of consortium.
    2
       Doing business as Splaine Repairs. Splaine was impleaded
by Highway Equipment Company (HECO) as a third-party defendant.
The jury did not reach the question of Splaine's negligence,
which concerned Splaine's role in mounting the spreader with a
twenty-inch setback, as opposed to the required four inches or
less, because the jury returned a verdict in favor of HECO.
                                                                     2


     J. Michael Conley & Thomas R. Murphy, for Massachusetts
Academy of Trial Attorneys, amicus curiae, submitted a brief.


     MEADE, J.    Plaintiff Robert Rose sued Highway Equipment

Company (HECO), the manufacturer of a broadcast spreader, after

Rose severely injured his hand while oiling the spreader's

chain.3   Rose's suit asserted causes of action for negligence and

breach of the implied warranty of merchantability.     On the

negligence count, the jury found Rose seventy-three percent

negligent and HECO twenty-seven percent negligent, which

foreclosed recovery.    See G. L. c. 231, § 85.   On the breach of

warranty claim, the jury answered "yes" to the special question

of whether Rose's use of the spreader was unreasonable, barring

Rose from recovery on that claim.    See Correia v. Firestone Tire

& Rubber Co., 388 Mass. 342, 355 (1983) (Correia).     On appeal,

Rose claims that certain jury instructions created reversible

error.    We affirm.4

     The jury heard various accounts of how Rose's hand became

caught in the spreader.    It was uncontested that the spreader


     3
       Also referred to as a sander, the model E2020XT broadcast
spreader is a "hopper-type" unit that mounts on a truck chassis
in order to disburse abrasives like sand and salt onto road
surfaces. The spreader's rotating spinners, which operate on a
chain and sprocket system, provide the force to broadcast
materials off the truck.
     4
       We acknowledge the amicus brief filed by the Massachusetts
Academy of Trial Attorneys on behalf of the Roses.
                                                                      3


needed to be running in order for its chain to be effectively

oiled.    Rose explained that, before the accident, he was

kneeling or crouching between the cab of the truck and the

spreader, using something akin to a Windex bottle to spray oil

on the chain.    Rose testified that he suddenly felt a tug at the

sleeve of his sweatshirt and was unable to extricate himself

from the grip of the spreader before his right hand and forearm

were pulled into the mechanism.5     After the accident, Rose told

his boss, who is also his father-in-law, that he was injured

when reaching backwards for the bottle of oil.      In contrast, it

was HECO's theory that Rose, after drinking beer earlier that

afternoon, lost his balance while on a ladder on the operator's

side of the truck and fell into the spreader.

     Unlike an action in negligence, a breach of warranty claim

primarily concerns the nature of the product, not the actions of

the user.    Colter v. Barber-Greene Co., 403 Mass. 50, 61-62

(1988).     See Correia, supra.   While a factfinder in a warranty

claim must focus on the characteristics of the product, the duty

"to act reasonably" is imposed on the product's user.      Ibid.

"When a user unreasonably proceeds to use a product which he

knows to be defective and dangerous, he violates that duty and


     5
       Although not described here, counsel for HECO impeached
Rose's trial testimony and deposition testimony in ways that the
jury could have found significant.
                                                                     4


relinquishes the protection of the law."    Ibid.   The

apportionment principles used in negligence claims, which permit

a plaintiff to recover as long as his negligence equates to less

than the negligence attributed to the defendant, are not

applicable to warranty cases.   The defense of unreasonable use

provides a complete bar to recovery.    Ibid.

     Contrary to Rose's claim, the evidence at trial was

sufficient to support the judge's submission of the unreasonable

use defense to the jury, in both the form of a jury instruction

and a special verdict question.    Rose testified that he oiled

the spreader's chain multiple times, from the back of the unit

and the front.   Rose's boss testified that he instructed Rose to

stay away from the front of the spreader when he was oiling it.6

Rose's boss also testified that Rose understood that oiling the

chain was potentially dangerous.    Rose admitted that although he

was instructed to oil the chain from the back of the truck, he

chose to oil the chain from the front because he thought that it

would be easier.   On cross-examination, Rose also admitted that

     6
       The jury heard testimony about "guarding by location," an
engineering concept related to obstructing or discouraging
contact with hazards, based on the way the hazard is located
within a machine or in relation to another object. HECO's
engineers testified that the spreader was not supposed to be
mounted more than four inches from the cab of a truck, so as to
discourage access to the machine's most dangerous nip points.
HECO argued that when Splaine installed the spreader with a
twenty-inch setback, he improperly eliminated the guarding by
location.
                                                                     5


he saw the spreader's warning label, but never read it.

Similarly, Rose testified that he was familiar with the

spreader's safety manual, but had not read it.   Rose testified

that he never thought about whether it was dangerous to oil the

chain, but he was impeached with his deposition testimony that

he understood that "[i]f you put your hand in [the spreader],

you could get hurt."

    While there was conflicting evidence about the amount of

alcohol he consumed on the day of the accident, Rose's decision

to drink beer before oiling the spreader also supported the

judge's decision to instruct the jury on unreasonable use.     Both

parties presented toxicology experts, and the jury were

permitted to credit HECO's expert, who testified that, based on

blood test results taken at two area hospitals, Rose's blood

alcohol level would have been 0.13 or higher at the time of the

accident.   This would have been possible, HECO's expert

explained, only if Rose consumed many more than the two beers he

testified about drinking before the accident.

    Rose claims that HECO failed to prove that he subjectively

knew that the spreader was defective and that he subjectively

knew of the danger and the magnitude of the risk of injury.     In

order to prevail on the Correia defense, a defendant must

"demonstrate that the plaintiff 'subjectively knew that the

product was defective and dangerous, [and] that, despite that
                                                                   6


subjective belief, the plaintiff's use of the product was

objectively unreasonable, and that the plaintiff's conduct was a

cause of the injury.'"   Haglund v. Philip Morris Inc., 446 Mass.

741, 749 (2006), quoting from Cigna Ins. Co. v. Oy Saunatec,

Ltd., 241 F.3d 1, 17 (1st Cir. 2001).   While the burden was on

HECO to show Rose's subjective knowledge, HECO was not required

to prove this solely through a direct admission by Rose.    Rose's

testimony about his familiarity with operating the spreader and

other types of heavy machinery, his inconsistent statements

about his understanding of the spreader's danger, the fact that

Rose's boss instructed him to oil the chain from the back and

testified that he believed Rose understood the dangers that

oiling the spreader presented, along with evidence that Rose

consumed alcohol before the accident, taken together, provided

the judge with a suitable basis to present the unreasonable use

defense to the jury.7


     7
       The judge's jury instruction on the unreasonable use
defense mirrored the model jury instruction used in Superior
Court, save the phrase "the implied warranty version in effect
of the contributory negligence defense," discussed infra. See
Massachusetts Superior Court Civil Practice Jury Instructions
§ 11.3.5 (Mass. Cont. Legal Ed. 2d ed., 1st supp. 2011). The
judge's complete instruction on the unreasonable use defense,
which does not differ in substance from the parallel written
instruction that he provided to the jury, was as follows:

          "Now, there has been reference in counsel's argument
     to unreasonable use defense and warranty claim, and I am
     now going to address that. This in answer to the
     plaintiff's claim that the defendant breached it[s]
                                                                  7


    Rose also claims that the judge improperly explained the

subjective knowledge requirement to the jury.   We disagree.

When a defendant asserts the Correia defense, proof of the

"plaintiff's subjective knowledge of a product's defect need not

be technically specific; 'it is enough to show that the

plaintiff knew the product was defective in some way, rather

than showing that it knew the technical elements of the

defect.'"   Haglund v. Philip Morris Inc., supra, quoting from


    warranty of merchantability with regard to the product,
    HECO alleges the affirmative defense that the plaintiff
    knowingly, voluntarily and unreasonably used a product
    which he knew to be defective and dangerous, and as a
    result that he was injured.

         "The deliberate unreasonable use of a product is a
    complete defense to a claim of negligent design. This is
    the implied warranty version in effect of the contributory
    negligence defense described earlier. And also the
    defendant has the burden of proof on this issue. The
    defendant has the burden of proof by a preponderance of the
    evidence on this issue.

         "This is a defense and will bar recovery by the
    plaintiff for any breach of warranty if, and only if, you
    find that the defendant, number one -- I mean that the
    plaintiff, number one, knew of the product's defect and its
    danger, number two, nevertheless proceeded to use the
    product voluntarily and unreasonably, and third, was
    injured as a result. In other words, prior to the
    accident, the plaintiff must have had knowledge of the
    product's defect, and the danger present, and must have
    proceeded to use the product with an appreciation of this
    known danger.

         "If you find that the defendant has proven each of
    these elements by a preponderance of the elements [sic],
    then the plaintiff cannot recover under the legal theory of
    breach of warranty."
                                                                     8


Cigna Ins. Co. v. Oy Saunatec, Ltd., supra at 19.    Here, the

judge instructed the jury that "HECO alleges the affirmative

defense that the plaintiff knowingly, voluntarily and

unreasonably used a product which he knew to be defective and

dangerous, and as a result that he was injured."    The judge also

stated that it was the defendant's burden of proof to show that

the plaintiff "knew of the product's defect and its danger" and

explained furthermore that "prior to the accident, the plaintiff

must have had knowledge of the product's defect, and the danger

present, and must have proceeded to use the product with an

appreciation of this known danger."   This was a sufficient

explanation of HECO's duty to show Rose's subjective

understanding of the defect and danger.

    Finally, Rose challenges the judge's use of the phrase "the

implied warranty version in effect of the contributory

negligence defense described earlier" to segue between

describing the implied warranty claim and its affirmative

defense of unreasonable use.   When read in context, "the implied

warranty version in effect" language was likely meant to serve

as an introductory signal to the jury, one that indicated that

the unreasonable use defense was an affirmative defense, similar

in general nature to the affirmative defense of comparative

negligence that the judge had just explained following the

negligence charge.   Rose claims that the phrase should be read
                                                                      9


as one that improperly harmonized the absolute defense of

warranty liability with the apportionment liability principles

of negligence.    We disagree.   Indeed, the jury were never

instructed to weigh Rose's conduct in relation to HECO's on the

warranty claim.    Instead, the judge described to the jury what

it must find in order to characterize Rose's use of the spreader

as unreasonable.     A thorough and proper explanation of the

elements of the unreasonable use defense followed the challenged

remarks, minimizing the risk that the jury conflated the two

defenses.   Also relevant is the fact that the judge, multiple

times in his instructions, underscored for the jury that the two

claims, negligence and warranty liability, were distinct.

    Finally, the judge described the unreasonable use defense

as the "version in effect of the contributory negligence defense

described earlier," instead of the comparative negligence

defense.    The judge gave a thorough comparative negligence

instruction, but he also referenced Rose's "contributory

negligence."     While the judge misspoke, the jury were not likely

to improperly rely on contributory negligence principles to

reach its verdict, because the judge never explained the concept

of contributory negligence to the jury.     In this context, the

judge's use of the word "contributory" instead of "comparative,"

which neither party objected to, was unlikely to hinder the

jury's understanding of the unreasonable use defense.
                                                                 10


    When considering the approximately fifty pages of jury

instructions given in this case, including elaborate and

repetitive descriptions of the elements of the two claims and

their affirmative defenses, we conclude that the inclusion of

the challenged phrase does not require reversal of the jury's

verdict.   When read as a whole, we are satisfied that the judge

"clearly, adequately, and correctly explained to the jury the

principles that ought to guide and control" their deliberations.

Torre v. Harris-Seybold Co., 9 Mass. App. Ct. 660, 678 (1980).

                                   Judgment affirmed.
