Opinion
19-P-1658
01-05-2021
VALDETE DEBEM & another v. 2168 CENTRAL STREET REALTY TRUST & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In the early morning hours of January 1, 2015, Antonio Debem, a guest at a rented home in Stoughton, fell down a set of stairs and suffered a debilitating brain injury. Valdete Debem, individually and as guardian of her husband, Antonio, and Sara Debem, the couple's daughter, brought claims against the defendants in the Superior Court alleging negligence, loss of consortium, and, as to Quincy Mutual Group, violations of G. L. c. 93A. The plaintiffs appeal from summary judgments entered in favor of defendants 2168 Central Street Realty Trust (trust), Zahid Durrani, as trustee (trustee), and Quincy Mutual Group. We affirm.
We refer hereafter to Antonio Debem by his first name not out of disrespect, but to avoid confusion with the plaintiffs, with whom he shared a surname.
After summary judgment entered for the trust and the trustee, defendant Quincy Mutual Group moved to dismiss the remaining claim against it; the motion, treated as one for summary judgment, was allowed; judgment entered for Quincy Mutual Group pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974); and all of the plaintiffs' claims were ultimately dismissed. Although the plaintiffs filed timely notices of appeal of entry of judgment in favor of the trust, the trustee, and Quincy Mutual Group, they have not preserved any arguments as to Quincy Mutual Group; the record does not include the substance of their opposition to Quincy Mutual Group's motion to dismiss, and their brief includes no argument as to that entity. Accordingly, the plaintiffs have waived any such argument. See Barkan v. Zoning Bd. of Appeals of Truro, 95 Mass. App. Ct. 378, 389 (2019) (argument waived where appellants failed to raise point in trial court or appellate briefs).
Background. The facts are not disputed. On January 1, 2015, while attending a New Year's Eve party at 2168 Central Street in Stoughton, Antonio fell down the stairs leading to the partially-finished basement of the home. No one saw the fall, and his resulting brain injury left him unable to communicate after the accident. He died on January 8, 2018.
Relying on a joint statement of facts, the trust, as owner of the property, and the trustee (together, the defendants) moved for summary judgment on the plaintiffs' claims for negligence and loss of consortium, arguing that the plaintiffs (1) had failed to demonstrate that the stairs on which Antonio fell were defective, and (2) could not, in any event, prove that any stairway defect caused his fall.
Opposing the defendants' motion, the plaintiffs retained Peter F. DePesa as an expert witness. After review of photographs of the stairs and performing "a diagnostic inspection . . . which consisted of numerous measurements and photographs," DePesa identified a number of unsafe conditions related to the stairs, including conditions that he opined violated the requirements of the Massachusetts State Building Code and other safety standards. In a letter, DePesa opined, to a reasonable degree of professional certainty, that "[t]he accident that happened to Mr. Antonio Debem was entirely preventable if good construction practices and the Massachusetts State Building Code were followed as outlined in this report." DePesa's letter was the only evidence offered by the plaintiffs to show negligence or causation.
DePesa's opinion was based on his "training and experience in the [c]onstruction field that spans over 51 years as a carpenter, superintendent, general contractor, code official, [his] review of all documents, [his] [d]iagnostic [i]nspection, and [his] discussions with [plaintiffs' counsel]." We assume without deciding that DePesa was qualified to provide the opinion at issue.
DePesa noted that the staircase "[was] not original to the house when it was built in the 1950's," and had been rebuilt "without the proper permits"; he also noted "a trip hazard to the stair tread." Among the code violations that DePesa identified were the use of a paint that did not include grit, defects in the placement and configuration of the handrails, and improper riser heights causing excessive forward "angling" of the stairway.
The letter was not signed under the pains and penalties of perjury.
In a written memorandum of decision, the judge assumed that DePesa's letter was properly considered in opposition to the defendants' motion, but concluded that "without witnesses, or statements from the decedent after the fall as to the manner of the happening of the occurrence, the [p]laintiff[s] cannot establish the causal nexus between the alleged building code violation . . . and the decedent's injuries." We agree, and affirm the judgment.
Discussion. 1. Standard of review. "Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). When "the opposing party will have the burden of proof at trial, the moving party must demonstrate, by reference to materials properly in the summary judgment record, unmet by countervailing materials, 'that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case.'" Carey v. New England Organ Bank, 446 Mass. 270, 278 (2006), quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The burden then shifts to the nonmoving party, who must respond by "set[ting] forth specific facts showing that there is a genuine issue for trial." Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974). See Kourouvacilis, supra. We view the evidence in the light most favorable to the nonmovants, and draw all permissible inferences in that party's favor. See Carey, supra at 273, citing Willitts v. Roman Catholic Archbishop of Boston, 411 Mass. 202, 203 (1991). Our review is de novo. See Kiribati Seafood Co. v. Dechert LLP, 478 Mass. 111, 116 (2017).
2. Causation. In order to prove negligence, "the plaintiffs bear the burden of proving that the defendant[s] committed a breach of the duty to use reasonable care, that the plaintiffs suffered actual loss, and that the defendant[s'] negligence caused their loss." Glidden v. Maglio, 430 Mass. 694, 696 (2000), citing Restatement (Second) of Torts § 281 (1965), and J.R. Nolan & L.J. Sartorio, Tort Law § 204 (2d ed. 1989). "Causation is an essential issue of that proof," Glidden, supra, and is the focal point in the instant appeal.
The viability of the plaintiffs' claim for loss of consortium likewise depended upon their ability to show that the defendants had and breached a duty of care to Antonio, and that he was injured as a result. See Short v. Burlington, 11 Mass. App. Ct. 909, 910 (1981) (claim for loss of consortium derivative of negligence claim).
For the purposes of appeal, the defendants do not challenge the plaintiffs' ability to demonstrate the existence of a genuine issue for trial as to the elements of duty or breach; there is likewise no dispute that Antonio was seriously injured in the fall. See Kourouvacilis, 410 Mass. at 714. Because we conclude that the plaintiffs did not -- and on this record, could not -- make out a triable question of causation, however, we affirm summary judgment for the defendants on all claims.
We begin by observing that the plaintiffs' reliance on DePesa's unsworn opinion letter as their sole evidence of both the defective conditions on the stairway and the relationship between those conditions and the accident left the plaintiffs vulnerable to summary judgment on the grounds that they had failed to offer competent evidence of either defect or causation. An opinion that is neither in affidavit form nor sworn to under the pains and penalties of perjury is "ineligible for consideration in a Rule 56 motion." Bardige v. Performance Specialists, Inc., 74 Mass. App. Ct. 99, 103 (2009), citing O'Brion, Russell & Co. v. LeMay, 370 Mass. 243, 245 (1976) (physician's letter). See Ortiz v. Morris, 97 Mass. App. Ct. 358, 362 (2020) (where movant has supported motion for summary judgment by admissible evidence, "nonmoving party may not rest on unsupported allegations; instead, the nonmoving party must come forward with admissible evidence setting forth specific facts showing that there is a genuine issue for trial").
Putting that issue aside, were we to consider DePesa's opinion on causation, we would conclude that it failed to provide even the minimal showing required to avoid summary judgment on the plaintiffs' claims against the defendants. Marr Equip. Co. v. I.T.O. Corp. of New England, 14 Mass. App. Ct. 231, 235 (1982) ("A toehold . . . is enough to survive a motion for summary judgment"). To put the question of causation before a fact finder, a plaintiff must be able to "show 'that there was greater likelihood or probability that the harm complained of was due to causes for which the defendant was responsible than from any other cause.'" Mullins v. Pine Manor College, 389 Mass. 47, 58 (1983), quoting McLaughlin v. Berstein, 356 Mass. 219, 226 (1969). While, as the plaintiffs suggest, an expert's opinion may be enough to establish causation, it can only do so where the opinion "is based on facts in evidence." Mullins, supra. Here, there were no "specific facts" in the record, and, as a practical matter, no source from which those facts could be obtained, about what caused Antonio's fall, or about whether adherence to the building code or other safety standards applicable to the stairs could more probably than not have prevented it. Mass. R. Civ. P. 56 (e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial").
The instant case is distinguishable on that basis from those on which the plaintiffs rely, Mullins, 389 Mass. 47, and Lieberman v. Powers, 70 Mass. App. Ct. 238 (2007).
The plaintiff in Mullins was a student at a women's college who alleged that the college's negligent security permitted a stranger to enter the dormitory room in which the plaintiff was sleeping, and to walk her around the campus to the location in which he ultimately raped her. Mullins, 389 Mass. at 47-50. Although the evidence did not definitively establish that the rapist was a stranger to the college, where there was no evidence of any male overnight guests on campus on the night of the attack, see id. at 59, the court concluded that the expert's opinion was sufficient to permit "reasonable [people] [to] conclude that it [was] more probable that the event was caused by the defendant than that it was not," and thus to be evidence of causation, id. at 58, quoting Carey v. General Motors Corp., 377 Mass. 736, 740 (1979).
Visitors were permitted on campus at night, once registered at a commons building and properly escorted, and male visitors were permitted to stay overnight at the school. See Mullins, 389 Mass. at 48-49.
In Lieberman, 70 Mass. App. Ct. at 239, the plaintiff was injured when attacked at an animal shelter by a cat who leaped, unprovoked, onto the plaintiff's head. This court reversed summary judgment for the defendants where there was evidence that aggression in cats "is accompanied by signs . . . including changes in body language" that, inferentially, would have been observed if the cat had been properly supervised in the room. Id. at 241-242. Although in Lieberman the plaintiff's experts' opinions did not eliminate all causes of the plaintiff's injury other than the defendants' negligence, those opinions were based on facts, and not mere surmise, and permitted a determination that one cause -- the defendants' negligence -- was more likely than any other.
In both Mullins and Lieberman, there was percipient witness testimony about how the plaintiffs sustained their injuries, evidence that is not available in this case. See Mullins, 389 Mass. at 61; Lieberman, 70 Mass. App. Ct. at 239.
Here, the lack of any evidence about how Antonio fell on the stairs or about the likelihood of the defects on the stairs leading to a fall like his deprived the plaintiffs of any means of proving that the defendants' negligence was more likely the cause of the fall than any other reason. Cf. Mullins, 389 Mass. at 58-59. On the evidence here, a jury could not find more probably than not that Antonio fell based on the defects on the stairway identified by the expert. DePesa's statement that "the accident . . . was entirely preventable if good construction practices and the Massachusetts State Building Code were followed," was therefore merely conclusory; accordingly, it lacked any evidentiary value. See Goffredo v. Mercedes-Benz Truck Co., 402 Mass. 97, 103 (1988) (expert's opinion, based in part on assumptions as to force and distance that he could not measure, was speculative and, therefore, without probative value); Carey v. General Motors Corp., 377 Mass. at 741 ("an opinion given by an expert will be disregarded where it amounts to no more than mere speculation or a guess from subordinate facts that do not give adequate support to the conclusion reached"). See also Glidden, 430 Mass. at 697-698 ("unsubstantiated conjectures cannot support any claim that some property defect chargeable to the defendant caused [or even contributed] to the collapse of the scaffolding"; thus, absent evidence of how scaffold collapsed, "[n]o rational jury could find in the plaintiffs' favor" on causation, regardless of whether defendant was "remiss in not obtaining building permit"); Marcus v. Griggs, Inc., 334 Mass. 139, 143 (1956) ("possibility rather than probability . . . is not enough to take the issue [of negligence] to the jury"). As DePesa's letter was the sole evidence offered to demonstrate the existence of a triable question of causation, we conclude that the plaintiffs failed to meet the defendants' challenge on summary judgment. Accordingly, summary judgment properly entered for the defendants on the plaintiffs' negligence and loss of consortium claims.
We recognize the barrier that the plaintiffs in this case face in attempting to demonstrate causation with a lack of witnesses to the fall; the outcome in such cases without witnesses will not always be summary judgment, but given the lack of facts and apparent impossibility on this record of determining by a preponderance of the evidence the cause of Antonio's fall, it is in this case.
3. Remaining arguments. On appeal, the plaintiffs argue that the judge erred in allocating the initial burden of proof on summary judgment to them, rather than to the defendants, and in applying an improper standard of proof to the plaintiffs. Given our de novo review of the record, and our conclusion that the defendants have demonstrated that, on this record, the plaintiffs "ha[d] no reasonable expectation of proving an essential element of [the] case," Carey v. New England Organ Bank, 446 Mass. at 278, quoting Kourouvacilis, 410 Mass. at 716, we need not and do not reach the plaintiffs' remaining arguments.
Judgment affirmed.
By the Court (Rubin, Singh & Hand, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 5, 2021.