inference waiver in Massachusetts

2013Once a plaintiff establishes that a warning should have been given, the burden is on “the defendants to come forward with evidence tending to rebut such an inference.” Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 352 (1978).

1989Wolfe v. Ford Motor Co., 6 Mass. App. Ct. 346, 352 (1978).

2013In Massachusetts, “[t]he law permits an inference that a warning, once given, would have been followed.” Harlow v. Chin, 405 Mass. 697, 702-703 (1989).

1992They argue that the instruction as given left the jury to speculate about the impact of a warning, rather than permitting an inference that a warning would have been followed. 2 Harlow v. Chin, 405 Mass. 697, 702 (1989).

1949Nevertheless, the court held that it is settled, and cited the case of Nashua River Paper Co. v. Lindsay, 249 Mass. 365, 369-370, that to hold the seller liable the notice “must refer to particular sales, so far as that is practicable; that it must at least fairly advise the seller of the alleged defects, and that it must be such as to repel the inference of waiver.” The notice must also be such that “it ought to be reasonably inferable therefrom that the buyer is asserting a violation of his legal rights. ’ ’ The court held in the Howard case that “the notice did not make it apparent to the d

1948Neither the statute nor the decisions of this court formulate any precise standard defining the kind of notice required to be given in order to hold the seller liable for any breach of warranty, but it is settled that in order to hold the seller liable “it must refer to particular sales, so far as that is practicable; that it must at least fairly advise the seller of the alleged defects, and that it must be such as to repel the inference of waiver,” and such that “it ought to be reasonably inferable therefrom that the buyer is asserting a violation of his legal rights.” Nashua River Paper Co.

2011See St. 1996, c. 427, § 13 (i); Carey v. New England Organ Bank, 446 Mass. 270, 282-283 (2006) (plaintiffs bear enhanced burden on summary judgment to overcome assertions of qualified immunity).

2003See Commonwealth v. Burnett, 418 Mass. 769, 770-771 (1994); Commonwealth v. Rivera, 50 Mass. App. Ct. 532, 536 (2000). 6.

2003See Commonwealth v. Burnett, 418 Mass. 769, 770-771 (1994); Commonwealth v. Rivera, 50 Mass. App. Ct. 532, 536 (2000). 6.

2002Commonwealth v. Harris, 376 Mass. 201, 208 (1978), and cases cited.” 4 Harrington inquires whether, viewed in the light most favorable to the defendant, the evidence, together with the reasonable inferences, raises a reasonable doubt as to each of the predicates for the use of deadly force in self-defense. 5 See Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 249 (1999) (“meeting the threshold burden merely provides a permissible basis for an inference that the defense in question applies” and a jury instruction is warranted).

2002“In determining whether sufficient evidence of self-defense exists, all reasonable inferences should be resolved in favor of the defendant, and no matter how incred ible his testimony, that testimony must be treated as true.” Commonwealth v. Pike, 428 Mass. 393, 395 (1998). 3.

2002Commonwealth v. Harris, 376 Mass. 201, 208 (1978), and cases cited.” 4 Harrington inquires whether, viewed in the light most favorable to the defendant, the evidence, together with the reasonable inferences, raises a reasonable doubt as to each of the predicates for the use of deadly force in self-defense. 5 See Commonwealth v. Haddock, 46 Mass. App. Ct. 246, 249 (1999) (“meeting the threshold burden merely provides a permissible basis for an inference that the defense in question applies” and a jury instruction is warranted).

1997The misunderstanding arises from a sentence in Commonwealth v. Curtis, 417 Mass. 619 , 625 n.4 (1994), repeated by way of dictum in Commonwealth v. Bart B., 424 Mass. 911, 914 (1997), to the effect that, “if an omission of counsel does not present a substantial risk of a miscarriage of justice in a situation such as this, there is no basis for an ineffective assistance of counsel claim under either the Federal or the State Constitution.” Since we all — majority and dissenters alike — assume that an ineffective assistance of counsel claim is theoretically available to a defendant who, like the

1997In effect the majority treat the Curtis sentence as having vitiated what this court said in Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986) — a formulation seemingly accepted and endorsed in Commonwealth v. Amirault, 424 Mass. 618, 650-651 (1997) — that the first condition for application of the substantial risk of a miscarriage principle is that the case present a genuine question of the guilt or innocence of the defendant.

1997In effect the majority treat the Curtis sentence as having vitiated what this court said in Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986) — a formulation seemingly accepted and endorsed in Commonwealth v. Amirault, 424 Mass. 618, 650-651 (1997) — that the first condition for application of the substantial risk of a miscarriage principle is that the case present a genuine question of the guilt or innocence of the defendant.

1964See Thayer v. Thayer, 101 Mass. 111, 113 ; Colby v. Colby, 337 Mass. 774 .

1947See Jones v. Webb, 320 Mass. 702, 705-706 .