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COMMONWEALTH OF MASSACHUSETTS
ESSEX, ss SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO. 1677CV1587A
PHILIP J. MAZZOLA, as
TRUSTEE OF THE SEVENTEEN
WINGAERSHEEK REALTY TRUST
Plaintiff,
Vv.
JOHN F. O’BRIEN and
BONITA J. O’BRIEN
Defendants.
DEFENDANTS’ REQUEST FOR JURY INSTRUCTIONS
NOW COME the Defendants, John F. O’Brien and Bonita J. O’Brien, by and through
their counsel, and respectfully request that the jury be instructed in accordance with the proposed
instructions below. The Defendants reserve the right to supplement these proposed instructions
based on evidence and testimony introduced at the trial.
Instruction No. 1: Standard of proof for civil cases
This is not a criminal case where the state must prove its case beyond a reasonable doubt. In a
civil case such as this, Mr. Mazzola must prove his complaint by a preponderance of the
evidence. The phrase “preponderance of the evidence” means it is more likely than not that Mr.
Mazzola has proven the actual truth of what he is asserting. It is not enough for Mr. Mazzolato
show that something is merely possible.
Mr. Mazzola has made three claims in this case. To prevail on each claim, Mr. Mazzola must
prove to you by a preponderance ofthe evidence each element of each claim. The O’Briens are
not required to disprove Mr. Mazzola’s claims.
A proposition is proved by a preponderance of the evidence if, after the jury has weighed the
evidence, there exists in the jury’s mind an actual belief in the truth of that proposition derived
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ftom the evidence, notwithstanding any doubts that may still linger.
Sargent v. Massachusetts Ace. Co., 307 Mass. 246, 250 (1940)
Be nal v. Weitz, 54 Mass.App.Ct. 394, 396 (2002).
Walpole Country Club v. Thurston (2008 WL 8157103 (Superior Court, Norfolk County) (2008)
Eng. v. Ng, 2009 WL 7185350 (Superior Court, Middlesex County) (2009)
Instruction No. 2: Definition of Evidence
Evidence is the sworn statement of the witnesses, either in the courtroom or during their
depositions. A deposition is testimony that was given prior to this trial by a witness under oath
in response to questions asked by either of the attorneys. The jury is to treat a deposition in the
same way as if the testimony had been given here in court. Evidence is also the exhibits that are
admitted. Opening and closing arguments are not evidence. Jury instructions are not evidence.
Questions and objections by the lawyers are not evidence and the judge’s responses to those
objections are not evidence. The jury’s notes are not evidence, The only things that are evidence
are testimony and exhibits.
There are two kinds of evidence: Direct evidence and circumstantial evidence. Direct evidence is
testimony that the witness claims to have experienced firsthand. Circumstantial evidence is
where the witness did not directly hear or see something but they inferred something from what
they did witness. For example, if your cat is on the kitchen countertop, and you turn your back,
and you hear a glass fall on the floor, you can reasonably infer that the cat knocked over the
glass.
“There are two rules to keep in mind about circumstantial evidence. The first rule is that you may
draw inferences and conclusions only from facts that have been proved to you. The second rule
is that any inferences or conclusions that you draw must be reasonable and natural based on your
common sense and experience of life.”
Nelligan v. Radzicki, 2008 WL 8167376 (Superior Court, Hampden County)(2008)
Eng. v. Ng, 2009 WL 7185350 (Superior Court, Middlesex County) (2009)
Instruction No. 3: Credibility of Witnesses
It is the jury’s duty to decide any disputed questions of fact. The jury will have to determine
which witnesses to believe and how much weight to give their testimony. The jury is the sole
judge of the credibility of witnesses, and if there are any conflicts in the testimony, it is the jury’s
function to resolve those conflicts and determine where the truth lies. The jury may believe
everything a witness says, or only part of it, or none of it.
In deciding whether to believe a witness and how much importance to give a witness’ testimony,
the jury must look at all the evidence, drawing on its own common sense and experience of life.
Jurors may consider a witness’s character, their appearance on the witness stand, their frankness
or lack of frankness in testifying, the quality of their memory, whether the witness has any bias
or prejudice, whether the witness was contradicted by anything the witness said or wrote before
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trial or by other evidence, whether their testimony is reasonable or unreasonable, probable or
improbable, well founded or not.
Commonweaith v. Bishop, 9 Mass.App.Ct. 468, 471, (1980).
Commonwealth y. Clary, 388 Mass. 583, 589, (1983).
Instruction No. 4: The Attorneys’ Role
The attorneys’ job is to advocate for their clients and to follow the many rules that apply to
Superior Court trials. When the attorneys make an objection or ask for a conference with the
judge outside the hearing of the jury, the jury should not hold that against the attorneys. The
attorneys are making sure that all the rules are being properly followed and that their clients’
tights are being protected.
Nelligan v. Radzicki, 2008 WL 8167376 (Superior Court, Hampden County}(2008)
Instruction No. 5: Burden of Proof for Easements
A party seeking to limit the use of an easement has the burden of proving that the easement is
being used improperly. In this case, the O’Briens and some of their neighbors have the right to
use a path over the Mazzola property to get to the beach they share in Gloucester. Mr. Mazzola
must prove that Mr. and Mrs, O’Brien and their children do not have the right to use motorized
vehicles over the easement.
Lane vy. Zoni Bd, of A als of Falmouth, 65 Mass.App.Ct. 434, 440 (2006)
Instruction No. 6: Overburdening an easement
‘When easement language is general, every reasonable use related to the purpose of the easement
is allowed, To understand the allowed uses over an easement, it is essential to understand the
intent of the person who originally created the easement, as shown by the actual words used in
the deed and the circumstances existing at the time the easement was created.
An easement can be overburdened when it is used for purposes different from what was intended
or the use creates a nuisance. However, people with easement rights are allowed to make certain
changes to the easement, such as clearing brush or repairing damage, so that the easement can be
used for its original purpose. In addition, a person does not lose his or her casement rights if the
dimensions of the easement change over time, as long as the easement continues to be used for
its original purpose.
Swensen v. Marino, 306 Mass. 582, 586 (1940).
Mahon v. Tully, 245 Mass. 571, 577 (1923).
Perry v. Nemira, 91 Mass.App.Ct. 12, 17 (2017).
Shajii y. McDade 13 Land Court Misc. 480146, at 9-10 (2017\(Unreported)(Cutler, Chief
Justice).
Guillet v. Livernoise, 297 Mass. 337, 340 (1937).
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G.L.c. 183 §15.
Instruction No. 7 : Private nuisance
A nuisance is created when a condition or activity causes a substantial and unreasonable
interference with the use and enjoyment of the property of another._The conduct in question must
be intentional; in other words, you must find that the O’Briens purposely interfered with Mr.
Mazzola’s use of his property or knew that their conduct would probably result in the
interference.
To find that the O’Briens’ conduct was unreasonable, you must find that the severity of the harm
to Mr. Mazzola was greater than the O’Briens’ use of the easement; the conduct was done solely
for the purpose of causing harm to Mr. Mazzola; the harm could be avoided without undue
hardship; or the O’ Briens” use of the easement was out of character for the neighborhood.
To find that the harm was significant, you must find that the interference was more than
inconvenient or annoying, The disputed acts must substantially interfere with Mr. Mazzola’s
enjoyment of his property or must substantially diminish the reasonable use or value of his
property.
Restatement of Torts §822(a), 825, 826(a). 829(a), 830 and 831.
Raltigan v. Wile, 44 5 Mass. 850, 855-856 (2006).
Instruction No. 8: Trespas:
A person commits a trespass when he intentionally enters the land of another without permission.
The word “intentional” means that Mr. Mazzola must prove the O’ Briens affirmatively and
voluntarily entered onto his private property.
Marengo v, Roy, 318 Mass. 719, 721 (1945).
Respectfully submitted,
THE DEFENDANTS
Join F. O’Brien and
Bonita J. O° Brien
Meredith A. Fine, Esq.
BBO No. 669248
46 Middle Street Suite 2
Gloucester, MA 01930
978-515-7224
meredith@attorneymeredithfine.com
Date: January 20, 2020
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COMMONWEALTH OF MASSACHUSETTS ESSEX, ss SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO. 1677CV1587A PHILIP J. MAZZOLA, as TRUSTEE OF THE SEVENTEEN WINGAERSHEEK REALTY TRUST Plaintiff, Vv. JOHN F. O’BRIEN and BONITA J. O’BRIEN Defendants. DEFENDANTS’ REQUEST FOR JURY INSTRUCTIONS NOW COME the Defendants, John F. O’Brien and Bonita J. O’Brien, by and through their counsel, and respectfully request that the jury be instructed in accordance with the proposed instructions below. The Defendants reserve the right to supplement these proposed instructions based on evidence and testimony introduced at the trial. Instruction No. 1: Standard of proof for civil cases This is not a criminal case where the state must prove its case beyond a reasonable doubt. In a civil case such as this, Mr. Mazzola must prove his complaint by a preponderance of the evidence. The phrase “preponderance of the evidence” means it is more likely than not that Mr. Mazzola has proven the actual truth of what he is asserting. It is not enough for Mr. Mazzolato show that something is merely possible. Mr. Mazzola has made three claims in this case. To prevail on each claim, Mr. Mazzola must prove to you by a preponderance ofthe evidence each element of each claim. The O’Briens are not required to disprove Mr. Mazzola’s claims. A proposition is proved by a preponderance of the evidence if, after the jury has weighed the evidence, there exists in the jury’s mind an actual belief in the truth of that proposition derived Page 1 of 4 ftom the evidence, notwithstanding any doubts that may still linger. Sargent v. Massachusetts Ace. Co., 307 Mass. 246, 250 (1940) Be nal v. Weitz, 54 Mass.App.Ct. 394, 396 (2002). Walpole Country Club v. Thurston (2008 WL 8157103 (Superior Court, Norfolk County) (2008) Eng. v. Ng, 2009 WL 7185350 (Superior Court, Middlesex County) (2009) Instruction No. 2: Definition of Evidence Evidence is the sworn statement of the witnesses, either in the courtroom or during their depositions. A deposition is testimony that was given prior to this trial by a witness under oath in response to questions asked by either of the attorneys. The jury is to treat a deposition in the same way as if the testimony had been given here in court. Evidence is also the exhibits that are admitted. Opening and closing arguments are not evidence. Jury instructions are not evidence. Questions and objections by the lawyers are not evidence and the judge’s responses to those objections are not evidence. The jury’s notes are not evidence, The only things that are evidence are testimony and exhibits. There are two kinds of evidence: Direct evidence and circumstantial evidence. Direct evidence is testimony that the witness claims to have experienced firsthand. Circumstantial evidence is where the witness did not directly hear or see something but they inferred something from what they did witness. For example, if your cat is on the kitchen countertop, and you turn your back, and you hear a glass fall on the floor, you can reasonably infer that the cat knocked over the glass. “There are two rules to keep in mind about circumstantial evidence. The first rule is that you may draw inferences and conclusions only from facts that have been proved to you. The second rule is that any inferences or conclusions that you draw must be reasonable and natural based on your common sense and experience of life.” Nelligan v. Radzicki, 2008 WL 8167376 (Superior Court, Hampden County)(2008) Eng. v. Ng, 2009 WL 7185350 (Superior Court, Middlesex County) (2009) Instruction No. 3: Credibility of Witnesses It is the jury’s duty to decide any disputed questions of fact. The jury will have to determine which witnesses to believe and how much weight to give their testimony. The jury is the sole judge of the credibility of witnesses, and if there are any conflicts in the testimony, it is the jury’s function to resolve those conflicts and determine where the truth lies. The jury may believe everything a witness says, or only part of it, or none of it. In deciding whether to believe a witness and how much importance to give a witness’ testimony, the jury must look at all the evidence, drawing on its own common sense and experience of life. Jurors may consider a witness’s character, their appearance on the witness stand, their frankness or lack of frankness in testifying, the quality of their memory, whether the witness has any bias or prejudice, whether the witness was contradicted by anything the witness said or wrote before Page 2 of 4 trial or by other evidence, whether their testimony is reasonable or unreasonable, probable or improbable, well founded or not. Commonweaith v. Bishop, 9 Mass.App.Ct. 468, 471, (1980). Commonwealth y. Clary, 388 Mass. 583, 589, (1983). Instruction No. 4: The Attorneys’ Role The attorneys’ job is to advocate for their clients and to follow the many rules that apply to Superior Court trials. When the attorneys make an objection or ask for a conference with the judge outside the hearing of the jury, the jury should not hold that against the attorneys. The attorneys are making sure that all the rules are being properly followed and that their clients’ tights are being protected. Nelligan v. Radzicki, 2008 WL 8167376 (Superior Court, Hampden County}(2008) Instruction No. 5: Burden of Proof for Easements A party seeking to limit the use of an easement has the burden of proving that the easement is being used improperly. In this case, the O’Briens and some of their neighbors have the right to use a path over the Mazzola property to get to the beach they share in Gloucester. Mr. Mazzola must prove that Mr. and Mrs, O’Brien and their children do not have the right to use motorized vehicles over the easement. Lane vy. Zoni Bd, of A als of Falmouth, 65 Mass.App.Ct. 434, 440 (2006) Instruction No. 6: Overburdening an easement ‘When easement language is general, every reasonable use related to the purpose of the easement is allowed, To understand the allowed uses over an easement, it is essential to understand the intent of the person who originally created the easement, as shown by the actual words used in the deed and the circumstances existing at the time the easement was created. An easement can be overburdened when it is used for purposes different from what was intended or the use creates a nuisance. However, people with easement rights are allowed to make certain changes to the easement, such as clearing brush or repairing damage, so that the easement can be used for its original purpose. In addition, a person does not lose his or her casement rights if the dimensions of the easement change over time, as long as the easement continues to be used for its original purpose. Swensen v. Marino, 306 Mass. 582, 586 (1940). Mahon v. Tully, 245 Mass. 571, 577 (1923). Perry v. Nemira, 91 Mass.App.Ct. 12, 17 (2017). Shajii y. McDade 13 Land Court Misc. 480146, at 9-10 (2017\(Unreported)(Cutler, Chief Justice). Guillet v. Livernoise, 297 Mass. 337, 340 (1937). Page 3 of 4 G.L.c. 183 §15. Instruction No. 7 : Private nuisance A nuisance is created when a condition or activity causes a substantial and unreasonable interference with the use and enjoyment of the property of another._The conduct in question must be intentional; in other words, you must find that the O’Briens purposely interfered with Mr. Mazzola’s use of his property or knew that their conduct would probably result in the interference. To find that the O’Briens’ conduct was unreasonable, you must find that the severity of the harm to Mr. Mazzola was greater than the O’Briens’ use of the easement; the conduct was done solely for the purpose of causing harm to Mr. Mazzola; the harm could be avoided without undue hardship; or the O’ Briens” use of the easement was out of character for the neighborhood. To find that the harm was significant, you must find that the interference was more than inconvenient or annoying, The disputed acts must substantially interfere with Mr. Mazzola’s enjoyment of his property or must substantially diminish the reasonable use or value of his property. Restatement of Torts §822(a), 825, 826(a). 829(a), 830 and 831. Raltigan v. Wile, 44 5 Mass. 850, 855-856 (2006). Instruction No. 8: Trespas: A person commits a trespass when he intentionally enters the land of another without permission. The word “intentional” means that Mr. Mazzola must prove the O’ Briens affirmatively and voluntarily entered onto his private property. Marengo v, Roy, 318 Mass. 719, 721 (1945). Respectfully submitted, THE DEFENDANTS Join F. O’Brien and Bonita J. O° Brien Meredith A. Fine, Esq. BBO No. 669248 46 Middle Street Suite 2 Gloucester, MA 01930 978-515-7224 meredith@attorneymeredithfine.com Date: January 20, 2020 Page 4 of 4