The Massachusetts Appeals Court’s decision in Hobbs v. TLT Construction Corp., 78 Mass. App. Ct. 178 (2010), serves as a reminder to counsel that any objection to jury instructions, and the grounds therefor, must be stated at the time the instruction is given in order to preserve the right to appeal. In Hobbs, several plaintiffs alleged injury as a result of exposure to three toxic substances during a high school flooring renovation project. Among other things, they alleged that isocyanates in the flooring emitted noxious fumes that caused skin irritation, allergies and respiratory problems. Plaintiffs sued the flooring manufacturer/installer, the architect who designed the renovation project and the general contractor in Massachusetts Superior Court asserting claims of negligence and breach of warranties. After the architect settled before trial, the jury found the contractor liable for negligently creating excessive construction dust which caused some of plaintiffs’ injuries. As to the flooring manufacturer/installer, however, the jury found there was no breach of warranty and, although the manufacturer was negligent in handling the isocyanates, such negligence was not a “substantial contributing factor” in causing the plaintiffs’ injuries.

On appeal, plaintiffs argued that the trial judge erroneously instructed the jury as to causation and damages with respect to joint tortfeasors’ liability by failing to instruct that a substantial contributing factor to plaintiffs’ injuries need not be a necessary or “but for” cause of such injuries. On examination of the trial record, however, the appellate court found that plaintiffs had never requested the “but for” language either before or after the jury instructions were given. Accordingly, the issue was resolved by Mass. R. Civ. P. 51(b), which provides that no party may assign error to a jury instruction unless he objects before the jury retires, stating distinctly the subject of and grounds for the objection. The court thus affirmed the trial court judgment.