Carvalho v. Fitzgerald (188 F. Supp. 2d 132, 2002)

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR A NEW TRIAL AND THIRD PARTY DEFENDANTS MOTION FOR JUDGMENT AS A MATTER OF LAW OR IN THE ALTERNATIVE FOR A NEW TRIAL

STEARNS, District Judge.

This diversity action arose from a collision between a car driven by third party defendant Russell Machado and a City of East Providence fire truck driven by defendant firefighter Roderick Davol. Plaintiffs Beverly Correia and John Carvalho were injured in the accident. The jury found Davol negligent, but also ruled that his negligence was not the proximate cause of the accident. In a cross-action brought by the City of East Providence, the jury, answering a comparative negligence question, found Russell Machado ninety-nine percent hable for the damage to the fire truck and Davol one percent liable. Plaintiffs (and third party defendant Machado) now move for a new trial, arguing that the verdict was against the weight of the evidence, and in plaintiffs’ case, inconsistent with the jury’s finding in the cross-action against Machado.

Under Massachusetts law, the decision whether to grant of a new trial is committed to the discretion of the trial judge. “The judge, however,