## Facts

- The Massachusetts Bay Transportation Authority (MBTA) invited Paul G. Ferragamo to bid on eight used P.C.C. trolley cars no longer in service.
- Paul bought the cars under a contract describing them as “scrap” sold “as is” and “where is,” disclaiming warranties and stating the purchaser was responsible for injuries connected with dismantling and removal.
- One car (No. 3298) had been involved in a prior station fire; many individuals were treated for possible exposure to polyvinyl chloride (PVC) fumes, a chemist documented substantial PVC compound in the fire area, and the car bore melted plastic residue.
- About a year after the sale, Paul hired his brother Michael Ferragamo to dismantle the cars at an MBTA yard.
- After dismantling two cars, Michael worked for a week dismantling Car 3298, using an acetylene torch to cut plastic-coated metal in hot weather while wearing a dust mask only intermittently.
- Michael developed respiratory symptoms, was hospitalized, and died of acute respiratory failure.
- The estate alleged MBTA failed to warn of the car’s fire history and latent toxic-fume risks associated with dismantling and torch-cutting.

## Issues

1. Whether the “as is/where is” and warranty-disclaimer language required judgment for MBTA on the breach-of-warranty claims as a matter of law.
2. Whether the evidence was sufficient to support the jury’s negligence verdicts, including MBTA’s duty to warn of latent dangers and causation.

## Decision

- The court affirmed judgment for the plaintiff on the negligence counts.
- The court reversed the judgment notwithstanding the verdict (JNOV) on the breach-of-warranty counts and reinstated the jury’s warranty verdicts for the plaintiff.
- Applying the JNOV standard, the court held that reasonable jurors could find for the plaintiff on both negligence and warranty based on the trial evidence.

## Legal Principles

- JNOV may be granted only when, viewing the evidence most favorably to the nonmoving party, no reasonable jury could reach the verdict returned.
- A seller with knowledge (or reason to know) of non-obvious, latent dangers associated with a product may have a duty to provide reasonable warnings to foreseeable users exposed to the risk.
- Contractual “as is” clauses and warranty disclaimers do not necessarily bar recovery for breach of implied warranty in personal-injury cases where the evidence supports a finding that the product was defective and unreasonably dangerous at sale.
- Evidence of a prior hazardous incident, the seller’s superior knowledge, the absence of warnings, and medically supported inferences of toxic exposure can permit a jury finding of breach of duty, defect, and proximate causation.

## Conclusion

The court held that the jury could reasonably find MBTA liable for negligent failure to warn of latent dangers linked to a previously fire-damaged trolley car and that the jury’s breach-of-warranty verdict was supported despite “as is” contract language; negligence judgments were affirmed and the warranty JNOV was reversed with verdicts reinstated.


Ferragamo v. Mass. Bay Transp. Auth., 395 Mass. 581, 481 N.E.2d 477 (Mass. 1985)