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COMMONWEALTH OF MASSACHUSETTTS
BRISTOL, SS SUPERIOR COURT
CIVIL ACTION
NO. BRCV 1673CV00614
LINDA PAUL
BRISTOL SS SUPERIOR CO
vs. URT
FERN REALTY COMPANY, LLC; MAY — 3 2019
FAXON HEIGHTS REALTY COMPANY, LLC;
BELRIDGE REALTY COMPANY, LLC; MARC J SANTOS, E
IANTOSCA REALTY COMPANY, LLC; CLERK/MAGISTRATE
and D.A.I. PROPERTY MANAGEMENT
COMPANY, INC.
PLAINTIFF’S MOTION FOR NEW TRIAL PURSUANT TO RULE 59
Plaintiff moves pursuant M.R.C.P. 59 for an order granting a new trial as to all issues, on
the ground that the jury verdict is against the evidence, and the weight of the evidence. The
jury’s determination that defendants’, Fern Realty Company, LLC; Faxon Heights Realty
Company, LLC; Belridge Realty Company, LLC; Iantosca Realty Company, LLC; and D.A.I.
Property Management Company, Inc., were not negligent in the maintenance of the shopping
plaza parking is contrary to reason, and to the great weight of the evidence. There was
undisputed factual evidence at trial that the speed bumps were painted inconsistently with respect
to each other, and with respect to raised and flat surfaces, such as the fire lane. Plaintiff's expert,
William Daley’s testimony that the manner of painting the speed bumps was unsafe and
dangerous because it was likely to cause confusion, was unchallenged. Indeed, defendants’ own
expert, Mr. Remmer, acknowledged that the manner of painting speed bumps can cause
confusion so as to make it difficult to recognize an elevated speed bump. This is precisely what
happened to the plaintiff, who testified that although she saw the diagonal markings on the
speedbump, she did not recognize it as a raised surface. The defendants’ operational procedures
created a hazard and a foreseeable injury risk to plaintiff. Apart from the obvious danger of
confusing markings on hazards, there was also abundant evidence that the defendant violated
generally accepted standards, including the Manual for Uniform Traffic Control Devices, which
Massachusetts has adopted.
A motion to set aside a verdict as against the evidence is addressed to the sound
discretion of the trial judge. Solimene v. B. Grauel & Co., K.G., 399 Mass. 790, 802 (1987). “It
is the right and duty of the judge presiding at the trial of the civil case to set aside the verdict of
the jury when in his [her] judgment, it is so greatly against the weight of the evidence as to
induce in his [her] mind the strong belief that it was not due to a careful consideration of the
evidence, but that it was the product of bias, misapprehension or prejudice.” Scannell v. Boston
Elevated Ry. Co., 208 Mass. 513, 514 (1911); Solimene v. B. Grauel & Co., K.G., supra. Here,
in light of the judge’s charge to the jury about operating the defendants’ duty of reasonable care,
and in the context of the greater weight of the factual evidence of defendants’ negligence, the
jury verdict was clearly the product of misapprehension of the evidence and the applicable law.
The jury deliberated Jess than one hour indicating that it did not carefully consider the evidence
in a weeklong trial.
This leads inexorably to the logical conclusion that the jury’s finding of no negligence
was a “misapprehension” of the great weight of the evidence in the context of the trial judge’s
charge on the law. Accordingly, this Court should order a new trial on all issues.
Plaintiff, Linda Paul
By her Attorneys,
Od) cA)
PeterJ. Cerilli, Egg. (B.B.0.1079770)
FOLEYCERILEI, P.C.
56 Pine Steet, Suite 200
Providence} 02903
Tel: (401) 272-7800
Fax: (401) 274-2780
E-mail: peter@foleycerilli.com
CERTIFICATE OF SERVICE
Thereby certify that a true and accurate copy of the following document: Plaintiff's
Motion for New Trial was sent on the 29" day of April, 2019 to the following counsel-of-record:
Martin S. Cosgrove, Esq.
Cosgrove, Eisenberg and Kiley, PC
803 Hancock Street
4 bf
PO Box 189
Quincy, MA 02170-0997
t
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seh COMMONWEALTH OF MASSACHUSETTTS BRISTOL, SS SUPERIOR COURT CIVIL ACTION NO. BRCV 1673CV00614 LINDA PAUL BRISTOL SS SUPERIOR CO vs. URT FERN REALTY COMPANY, LLC; MAY — 3 2019 FAXON HEIGHTS REALTY COMPANY, LLC; BELRIDGE REALTY COMPANY, LLC; MARC J SANTOS, E IANTOSCA REALTY COMPANY, LLC; CLERK/MAGISTRATE and D.A.I. PROPERTY MANAGEMENT COMPANY, INC. PLAINTIFF’S MOTION FOR NEW TRIAL PURSUANT TO RULE 59 Plaintiff moves pursuant M.R.C.P. 59 for an order granting a new trial as to all issues, on the ground that the jury verdict is against the evidence, and the weight of the evidence. The jury’s determination that defendants’, Fern Realty Company, LLC; Faxon Heights Realty Company, LLC; Belridge Realty Company, LLC; Iantosca Realty Company, LLC; and D.A.I. Property Management Company, Inc., were not negligent in the maintenance of the shopping plaza parking is contrary to reason, and to the great weight of the evidence. There was undisputed factual evidence at trial that the speed bumps were painted inconsistently with respect to each other, and with respect to raised and flat surfaces, such as the fire lane. Plaintiff's expert, William Daley’s testimony that the manner of painting the speed bumps was unsafe and dangerous because it was likely to cause confusion, was unchallenged. Indeed, defendants’ own expert, Mr. Remmer, acknowledged that the manner of painting speed bumps can cause confusion so as to make it difficult to recognize an elevated speed bump. This is precisely what happened to the plaintiff, who testified that although she saw the diagonal markings on the speedbump, she did not recognize it as a raised surface. The defendants’ operational procedures created a hazard and a foreseeable injury risk to plaintiff. Apart from the obvious danger of confusing markings on hazards, there was also abundant evidence that the defendant violated generally accepted standards, including the Manual for Uniform Traffic Control Devices, which Massachusetts has adopted. A motion to set aside a verdict as against the evidence is addressed to the sound discretion of the trial judge. Solimene v. B. Grauel & Co., K.G., 399 Mass. 790, 802 (1987). “It is the right and duty of the judge presiding at the trial of the civil case to set aside the verdict of the jury when in his [her] judgment, it is so greatly against the weight of the evidence as to induce in his [her] mind the strong belief that it was not due to a careful consideration of the evidence, but that it was the product of bias, misapprehension or prejudice.” Scannell v. Boston Elevated Ry. Co., 208 Mass. 513, 514 (1911); Solimene v. B. Grauel & Co., K.G., supra. Here, in light of the judge’s charge to the jury about operating the defendants’ duty of reasonable care, and in the context of the greater weight of the factual evidence of defendants’ negligence, the jury verdict was clearly the product of misapprehension of the evidence and the applicable law. The jury deliberated Jess than one hour indicating that it did not carefully consider the evidence in a weeklong trial. This leads inexorably to the logical conclusion that the jury’s finding of no negligence was a “misapprehension” of the great weight of the evidence in the context of the trial judge’s charge on the law. Accordingly, this Court should order a new trial on all issues. Plaintiff, Linda Paul By her Attorneys, Od) cA) PeterJ. Cerilli, Egg. (B.B.0.1079770) FOLEYCERILEI, P.C. 56 Pine Steet, Suite 200 Providence} 02903 Tel: (401) 272-7800 Fax: (401) 274-2780 E-mail: peter@foleycerilli.com CERTIFICATE OF SERVICE Thereby certify that a true and accurate copy of the following document: Plaintiff's Motion for New Trial was sent on the 29" day of April, 2019 to the following counsel-of-record: Martin S. Cosgrove, Esq. Cosgrove, Eisenberg and Kiley, PC 803 Hancock Street 4 bf PO Box 189 Quincy, MA 02170-0997 t \