Clairmont, et al. v. Amer Sports Winter & Outdoor Company, et al. (Lawyers Weekly No. 09-039-17)

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COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, ss. SUPERIOR COURT
CIVIL ACTION
NO. 14-00505
FRANCIS CLAIRMONT AND GEORGE CLAIRMONT
vs.
AMER SPORTS WINTER & OUTDOOR COMPANY & another1
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT, AMER SPORTS WINTER & OUTDOOR COMPANY’S, MOTION FOR SUMMARY JUDGMENT
This action arises out of a January 15, 2011 incident in which the plaintiff, Francis Clairmont (“Clairmont’), tripped and fell while wearing a pair of boots manufactured by defendant Amer Sports Winter & Outdoor Company (“Amer Sports”). Clairmont’s Complaint against Amer Sports alleges negligence (Count I), defective design (Count II), breach of warranty (Count III), and failure to warn (Count IV) in connection her accident. Clairmont’s husband and co-plaintiff, George Clairmont, also asserts a claim for loss of consortium in the Complaint (Count IX).
This matter is before the Court on Amer Sports’ motion for summary judgment on all of the Plaintiffs’ claims. For the following reasons, Amer Sports’ motion is ALLOWED.
BACKGROUND
The following relevant facts are either undisputed or presented in the light most favorable to the non-moving party, in accordance with the dictates of Mass. R. Civ. P. 56.
On or about January 15, 2011, Plaintiff Francis Clairmont (“Francis”) was shopping at the Derby Street Shoppes in Hingham. She was wearing a pair of Solomon Gore-tex Contragrip
1 Eastern Mountain Sports, Inc.
2
ankle high hiking boots (“the Boots”) at the time. Amer Sports manufactured the Boots. The Boots have a “speed lacing” design, which includes a rigid J-shaped hook comprised of a curved neck and a fastening tail, through which the laces pass to tie each of the Boots. As Francis exited the store, the lace of the left boot caught on the hook of her right boot. She fell forward as her legs became entangled and was injured.
Plaintiffs present no expert testimony on the design of the speed laces, and have adduced no evidence that Amer Sports knew, or had reason to know, of any similar accidents or occurrences caused by the speed laces.
Amer Sports contends that manufacturers have used the patented speed lacing design for more than one-hundred years, and that this design is popular on hiking boots, work boots, and ice skates.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate when the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c); see also DuPont v. Commissioner of Corr., 448 Mass. 389, 397 (2007). The moving party bears the initial burden of demonstrating that there is no triable issue and he or she is entitled to judgment. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his or her favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trs. of the Coll.
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of the Holy Cross, 388 Mass. 16 (1983); see also Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999).
II. Negligence, Defective Design, and Breach of Warranty Claims (Counts I, II, and III)
While styled as three different theories of liability, Counts I, II, and III alleging negligence, defective design and breach of warranty, respectively, all turn on the same core contention that the speed laces on the Boots were defectively designed and that such defect caused plaintiff Francis’ accident.
To establish a claim for defective design, a plaintiff must show that the manufacturer “failed to exercise reasonable care to eliminate avoidable or foreseeable dangers to the user of the product.” Morrell v. Precise Engineering, Inc., 36 Mass. App. Ct. 935, 936 (1994) (Rule 1:28 Opinion), citing Uloth v. City Tank Corp., 376 Mass. 874, 880-881 (1978). A defective design claim requires proof that the product is not reasonably safe for its intended purposes and for reasonably foreseeable uses, considering the customer’s ordinary expectations about the product. See Back v. Wickes Corp., 375 Mass. 633, 640–641 (1978); see also Haglund v. Philip Morris, Inc., 446 Mass. 741, 748 (2006) (in design defect case, “jury must weigh multiple factors, including ‘the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.’”) (citations omitted). Further, “[i]n claims alleging negligence in the design of a product, as with claims of a design defect in breach of the implied warranty of merchantability, the plaintiff must show an available design modification which would reduce the risk without undue cost or interference with the performance of the [product], and the jury must consider whether a safer alternative design was available in deciding whether
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the defendant was negligent for failing to adopt that design. … a reasonable alternative design must be shown before a defendant may be found liable for breach of the implied warranty of merchantability based on a design defect, and [a] defendant cannot be found to have been negligent without having breached the warranty of merchantability.” Evans v. Lorillard Tobacco Co., 465 Mass. 411, 443-444 (2013) (citations, internal punctuation omitted).
In this case, Plaintiffs present no expert testimony on whether the design of the speed laces was defective or whether there was an available appropriate design modification that would have reduced such risk without undue cost or interference with the product’s performance. Plaintiffs contend they do not need an expert; Amer Sports argues that they do. The parties appear to agree, however, that the requirement of expert testimony poses a purely legal question for the Court to resolve. Expert testimony is generally required where an issue the jury must decide “is beyond the common knowledge or understanding of the lay juror.” Commonwealth v. Sands, 424 Mass. 184, 186 (1997). Accordingly, Massachusetts courts have routinely held that expert testimony in design defect cases is required. See, e.g., Enrich v. Windmere Corp., 416 Mass. 83, 87 (1993) (alleged defect in an electric cooling fan required expert testimony); Morrell, 36 Mass. App. Ct. at 936 (determination of proper scaffolding brackets required expert testimony); Wiska v. St. Stanislaus Social Club, Inc., 7 Mass. App. Ct. 813, 821 (1979) (alleged defective design of an automobile’s windshield required expert testimony). It is only in rare cases, where the jurors can simply apply their own lay knowledge to determine liability because the “design defect claimed is so simple or obvious that the need for technical assistance is eliminated,” that such expert testimony is unnecessary. Esturban v. Massachusetts Bay Transp. Auth., 68 Mass. App. Ct. 911, 912 n. 7 (2007); Smith v. Ariens Co., 375 Mass. 620, 625 (1978) (a jury could infer without expert testimony that metal protrusions on the handlebars of a
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snowmobile, which cut the plaintiff’s face when she was propelled forward in a collision, amounted to an obvious design defect); doCanto v. Ametek, 367 Mass. 776, 782 (1975) (no expert testimony needed where plaintiff introduced the defendant’s subsequent remedial measures to the machine that caused the injury and the opinion of the designer of the machine that the product was unsafe).2
While the speed laces in this case are of a simple design, and the facts of the accident are straightforward, the analysis of the alleged design defect in the speed laces is neither simple nor straightforward. The jury would have to consider the biomechanics of a person walking in the Boots, the design and location of the speed laces on the Boots, and the appropriateness of an alternative design, all issues which are not sufficiently obvious that they are within the average juror’s common knowledge. See Esturban, 68 Mass. App. Ct. at 912 (“Without the aid of an expert in the field, jurors would also be left to speculate about whether alternatively engineered designs might have prevented the accident”) (citation omitted). This Court thus finds expert testimony is required in this case to prove a design defect in the Boots, and that speed laces – which haves been widely used in a variety of footwear for a century – do not present a gross or obvious defect.
Moreover, aside from Plaintiffs’ post-accident claim that the Boots posed an obvious trip hazard, Plaintiffs failed to elicit any evidence concerning similar incidents related to the speed lacing design or that Amer was aware of any such risks associated with the speed laces.
2 The rule is similar in professional negligence cases. In them, a plaintiff can prove professional negligence without an expert “[o]nly where professional negligence is so gross or obvious that jurors can rely on their common knowledge to recognize or infer negligence.” Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 403 (2003). Examples of such “gross or obvious” malpractice in the professional context includes a failure to meet deadlines, lack of compliance with client’s instructions, and unexcused failures to defend a client, particularly when such actions are compounded by misrepresentations and false statements to the client. See, e.g. Global Naps, Inc. v. Awiszus, 457 Mass. 489, 501 (2010); Wagerman v. Adams, 829 F.2d 196, 218-220 (1st Cir. 1987); Glidden v. Terranova, 12 Mass. App. Ct. 597, 598-601 (1981).
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Plaintiffs thus therefore failed to demonstrate that the speed laces on the Boots created a reasonably foreseeable risk of accident. Two other courts have come to similar conclusions. In a case addressing a similar claim involving shoes with a speed lacing design, the United States District Court for the Southern District of Ohio granted summary judgment against the plaintiff’s claim, finding that the plaintiff had “fail[ed] to raise genuine issues of material fact regarding the breach of duty, foreseeability, and causation elements of his negligence claim related to speed-lace hooks. Plaintiff did not demonstrate how a reasonable jury could find that Defendant was on actual or constructive notice of the alleged danger of speed-lace hooks nor did Plaintiff show that an accident from the use of speed-lace hooks was reasonably foreseeable.” Barger v. CSX Transp., Inc., 110 F. Supp. 2d 648, 653-654 (S.D. Ohio 2000). Similarly, the First Circuit affirmed a grant of summary judgment in a similar case to a manufacturer of resin sandals, called “Crocs,” in part because the plaintiff “failed to put forward an expert to accredit” a government report on potential dangers of the product. Geshke v. Crocs, Inc., 740 F.3d 74, 79 (1st Cir. 2014).
Plaintiffs failed to adduce evidence, expert or factual, to support their contention that the Boots posed an obvious design defect or that a reasonable alternative design was available. Amer Sports is thus entitled to judgment as to Counts I, II, and III of the Complaint.
III. Failure to Warn (Count IV)
Count IV of the Complaint alleges Amer Sports had a duty to warn Plaintiff Francis Clairmont that the Boots posed a tripping hazard.
A manufacturer has a duty to warn against a foreseeable use of its product involving a hazard not apparent to the user. Fegan v. Lynn Ladder Co., Inc., 3 Mass. App. Ct. 60, 63-64 (1975). However, a manufacturer has no duty to warn of “risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing
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prior to marketing the product.” Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 23 (1998). “A warning is not required unless ‘the person on whom the duty rests has some reason to suppose a warning is needed.’” Killeen v. Harmon Grain Prod., Inc., 11 Mass. App. Ct. 20, 24 (1980) (quoting Carney v. Bereault, 348 Mass. 502, 506 (1965)). Further, “where the danger presented by a given product is obvious, no duty to warn [exists] because a warning will not reduce the likelihood of injury.” Bavuso v. Caterpillar Indus., Inc., 408 Mass. 694, 699 (1990), quoted in Evans, 465 Mass. at 439.
Francis’ argument that the speed laces were obviously defectively designed undermines her failure to warn claim. Even leaving that aside, Francis failed to establish that the speed laces posed a reasonably foreseeable risk or that such risk could have been discovered through additional product testing. Accordingly, based upon the facts before this Court, Amer Sports had no reason to believe a warning was required and is entitled to summary judgment as to Count IV of the Complaint.
IV. Loss of Consortium (Count IX)
Recovery for loss of consortium generally requires proof of a tortious act which caused injury to one’s spouse. Sena v. Commonwealth, 417 Mass. 250, 264 (1994) (citations omitted); Mouradian v. General Elec., 23 Mass. App. Ct. 538, 544 (1987) (citations omitted). As discussed above, as the substantive counts brought by Francis against Amer Sports must be dismissed, the claims of her husband, George, for loss of consortium arising from Francis’ claims must also be dismissed. Short v. Town of Burlington, 11 Mass. App. Ct. 909, 910 (1981) (claim of wife for loss of consortium failed as entirely derivative of failed personal injury claim by husband). Amer Sports is therefore entitled to summary judgment on Count IX.
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ORDER
For the foregoing reasons, Amer Sports Winter & Outdoor Company’s motion for summary judgment on Counts I-IV and IX is ALLOWED.
______________________________
Michael D. Ricciuti
Justice of the Superior Court
DATED: October 30, 2017 read more

Posted by Stephen Sandberg - November 13, 2017 at 9:29 pm

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Moses v. Mitchell, et al. (Lawyers Weekly No. 09-040-17)

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COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, ss. SUPERIOR COURT
CIVIL ACTION
NO. 16-0823
MOONIE MOSES1
vs.
LISA MITCHELL, REBECCA DONAHUE, JOHN P. FREITAS, CHRISTOPHER ANDERSON, ANDREW DEVALLES, AND BRIAN SCHWENK
MEMORANDUM OF DECISION AND ORDER
ON CROSS-MOTIONS FOR JUDGMENT ON THE PLEADINGS
Plaintiff Moonie Moses, an inmate at Old Colony Correctional Center (“OCCC”), brings this case in the nature of certiorari under G.L. c. 249, §4, against Lisa Mitchell, Rebecca Donahue, John P. Freitas, Christopher Anderson, Andrew DeValles, and Brian Schwenk (“Defendants”), officials and employees of OCCC, alleging violations of Department of Correction regulations governing discipline he received as the result of a disciplinary report (or D-Report).
Before the Court is Moses’ motion for judgment on the pleadings. The Defendants oppose and cross-move for judgment on the pleadings. After hearing, and in consideration of the parties’ memoranda of law and oral arguments, the Court ALLOWS Plaintiff’s motion for judgment on the pleadings and DENIES Defendants’ motion.
FACTS
In D-Report 345786, Correctional Officer John Freitas alleged that on August 24, 2015, Moses insulted and threatened him. Specifically, Freitas alleged that Moses “called this officer ‘a piece of shit and then continued to say if you were in my neighborhood in Dorchester I wish
1 The case file, identifying plaintiff as “Moses Moonie,” reverses Mr. Moses’ first and last names.
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you would take a bullet to the head.’” Moses was charged with four offenses – threatening another with bodily harm, in violation of Disciplinary Code Section 3-04; use of obscene, abusive or insolent language or gesture, in violation of Disciplinary Code Section 3-26; conduct which disrupts the normal operation of the facility of unit, in violation of Disciplinary Code Section 3-27; and violation of any departmental rule or regulation, in violation of Disciplinary Code Section 4-11.
Although the D-Report reads as if Moses’ alleged statement was made directly to Freitas, it is undisputed that it was not. Instead, whatever statement Moses made was heard by Correctional Officer Oana T. Farese, who reported it to Freitas. Indeed, the record of the disciplinary hearing reflects Freitas’ statement that “[s]he [Farese] told me she heard the statements. I don’t recall when she told me. … I asked Moses did he say it. He said it was misinterpreted. I’m going to go with what the CO tells me.” Freitas’ statement makes clear that Moses’ position was that what he said had been misunderstood, which is his position before this Court.
Farese’s testimony, which Freitas credited, was thus critical in deciding whether any offense had occurred and any discipline was appropriate. Moses thus requested, pursuant to the regulations that governed the proceeding, that Farese be produced as a witness at the disciplinary hearing, proffering that she could testify that Freitas “lied about [the] statement.”
The hearing was originally scheduled for September 9, 2015. Moses asked for a continuance to request Farese be produced and to review the videotapes taken in the cell block at the time, proffering that they, too, “will show that the officer lied in his statement and nothing he said was true.” The OCCC continued the hearing at Moses’ request, but then continued it five more times at their behest. The hearing was not held until April 1, 2016, a total delay of six
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months. Two of the extensions reflect that they were occasioned because the reporting officer, Freitas, was unavailable. The other four bear no explanation.
Moses’ request for Farese to be produced was denied by Rebecca Donohue, a Disciplinary Hearing Officer. The record of the disciplinary hearing required that “[i]f any [witness] request is denied, a written explanation of the reasons must be included as part of the record.” All that the record reflected as a “written explanation” of Farese’s exclusion were three words: “irrelevant testimony expected.” No further explanation was provided anywhere in the record as to when, how or why Farese’s testimony was deemed to be irrelevant. Moses was also informed that the video tapes he requested were “unavailable,” again without explanation. At the hearing, neither Farese nor any videotapes were produced.
After the hearing, Donohue issued her decision. In it, she concluded that, based on Freitas’ report and testimony, the evidence “clearly established that inmate Moonie used obscene, insolent language to staff” and that, even considering Moses’ testimony, “it appears more likely than not that the proponent’s contention is true.” However, despite finding that Freitas’ allegations were supported, she dismissed the threatening charge as “not supported by the report.” She thus found Moses guilty of offense 3-26, use of obscene, abusive or insolent language or gesture, and imposed 10 days of disciplinary detention. She dismissed charges 3-27 and 4-11 as duplicative.
Moses appealed, arguing that (1) the hearing was not held within a reasonable time; (2) the testimony did not support a guilty finding; (3) he was denied a witness, Farese, who “would have shown that said words were never said”; and (4) that he was denied video evidence “that would have shown that any conversation with the reporting staff and this inmate did not occur.” On April 29, 2016, the Superintendent Lisa Mitchell denied the appeal.
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DISCUSSION
The Defendants correctly argue that Moses does not allege a cognizable federal due process claim. “An inmate is entitled to the protection of procedural due process under the Federal and State Constitutions only if there is an existing liberty or property interest at stake. Sandin v. Conner, 515 U.S. 472, 484 (1995) … Under the Fourteenth Amendment, a liberty interest is ‘generally limited to freedom from restraint which . . . imposes atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life.’ Sandin v. Conner, 515 U.S. at 484. … [S]anctions [such as thirty days in isolation, loss of visitation privileges for one year, and transfer to a higher security prison] did not create a liberty interest and, thus, the defendant was not deprived of the protections of due process to which he was entitled under both the Federal and State Constitutions.” Drayton v. Commissioner of Correction, 52 Mass. App. Ct. 135, 138 (2001).
That federal liberty interests are not at stake does not end the matter, however. Sandin recognized that inmates like Moses “may invoke the First and Eighth Amendments and the Equal Protection Clause of the Fourteenth Amendment where appropriate, and may draw upon internal prison grievance procedures and state judicial review where available.” Sandin, 515 U.S. at 487-488 n.11. In this case, Moses properly invoked judicial review in the nature of certiorari because of the alleged failure of the Defendants to follow Department of Correction regulations. See Ford v. Commissioner of Correction, 27 Mass. App. Ct. 1127, 1129 (1989). “’The purpose of the certiorari procedure is to provide a remedy, where none would otherwise exist, if necessary to avoid manifest injustice,’ or, as otherwise stated, to correct substantial errors of law on the record that adversely affect material rights. We do not believe that it was the intention of the Supreme Court in Sandin to divest an inmate of the ability to challenge the use of alleged improper
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procedures in the conduct of a disciplinary proceeding because the sanctions did not implicate a liberty interest. To permit this would allow the department carte blanche to conduct a disciplinary hearing in any manner it saw fit as long as the sanction imposed was minor or did not implicate a liberty interest.” Drayton, 52 Mass. App. Ct. at 140 (citation omitted).
Accordingly, in a certiorari action such as this, an inmate may challenge the validity of the disciplinary proceeding to determine whether there is “substantial evidence” in the record to support the disciplinary action imposed. See Cepulonis v. Commissioner of Correction, 15 Mass. App. Ct. 292, 295 (1983). Disciplinary findings must be supported by a preponderance of the evidence. 103 CMR 430.16(1) (2017). Judicial review of such findings is not de novo. Hill v. Superintendent, Massachusetts Correctional Institution, 392 Mass. 198, 202 (1984), reversed on other grounds, 472 U.S. 445 (1985). Instead, the court may “correct only a substantial error of law, evidenced by the record, which adversely affects a material right of the plaintiff,” Sheriff of Plymouth County v. Plymouth County Personnel Bd., 440 Mass. 708, 710 (2004) (citation omitted), or a finding that is not supported by substantial evidence in the record. Beryl v. Superintendent, Souza-Baranowski Corr. Cir., 55 Mass. App. Ct. 906, 907 (2002). “Substantial evidence is evidence that ‘a reasonable mind might accept as adequate to support a conclusion … taking into account whatever in the record fairly detracts from the weight of the evidence.’” Jordan v. Superintendent, 53 Mass. App. Ct. 584, 587 (2002), quoting Cepulonis, 15 Mass. App. Ct. at 296. The court may not displace the hearing officer’s “exclusive function to weigh the credibility of the witnesses and to resolve factual disputes” in the testimony. Jordan, 53 Mass. App. Ct. at 588. However, while “great deference” is owed to the hearing officer’s decision, the court need not defer to it “where the evidence is so limited and problematic” that it cannot support the decision. Jordan, 53 Mass. App. Ct. at 589-90.
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In this case, the Hearing Officer made a substantial error of law and her decision was not supported by substantial evidence in the record. Moses had a right under the applicable regulations to call witnesses unless doing so would be irrelevant, cumulative, repetitive, or hazardous. See 103 CMR 430.14(4) (2017). Correctional Officer Farese was the sole witness who heard the statement attributed to Moses and on which Freitas relied. Yet the Hearing Officer inexplicably denied Moses request to call this critical witness by baldy stating that her testimony would be irrelevant. Nothing in the record supports the conclusion that this was the case. While prison officials have discretion to keep the disciplinary hearing within reasonable limits consistent with the regulations, “there must be some support in the administrative record to justify a decision not to call witnesses in order to ensure that the hearing is not a charade.” Real v. Superintendent, Massachusetts Correctional Institution, Walpole, 390 Mass. 399, 404-07 (1983), vacated, Ponte v. Real, 471 U.S. 491 (1985), on remand, 396 Mass. 1001 (1985). Here there is no such support, and the Court rejects the claim that a three-word notation, “irrelevant testimony expected,” suffices, as the Defendants argue.2
In addition to its being unsupported by the record, the Hearing Officer’s conclusion that Farese’s testimony would be irrelevant is illogical. Indeed, the record shows that Farese was the only witness who had any relevant testimony at all; Freitas’ testimony was entirely derivative of what she allegedly told him, and Freitas acknowledged that Moses contested the interpretation of what he allegedly said. The Court thus rejects the Defendants’ argument that they had no obligation to turn over exculpatory evidence, a claim which misses the point. Moses did not
2 The Defendants accorded themselves an overly-long six-month delay in deciding this case, good cause for which was not adequately justified in writing, as required under the regulations. See 103 CMR 430.23 (2017) (“The procedural time limits set forth in 103 CMR 430.00 are directory and may be waived by the Superintendent, Commissioner or their designees for good cause and in writing”). Even leaving this failure aside, the delay shows that the Defendants had more than adequate time to provide appropriate support in the record to justify the decision to exclude Farese’s testimony.
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request that the Defendants turn over “exculpatory” evidence. Instead, he simply requested, pursuant to the regulations, that a specific witness be produced. The Defendants’ argument about the disclosure of exculpatory evidence strongly suggests that Farese would have offered testimony in support of Moses’ claims, precisely why her testimony was relevant and hence not excludable as irrelevant under 103 CMR 430.14(4).3
During the argument on this motion, the defendants’ attorney provided a plausible explanation for how Farese’s testimony could have been found irrelevant. But she could provide no explanation in the record for how it was found to be irrelevant. This Court concludes that excluding Farese as a witness constituted a substantial error of law and concludes that there was no substantial evidence to support the disciplinary decision in this case.
ORDER
For the reasons detailed above, the defendants’ motion for judgment on the pleadings is DENIED and the plaintiff’s motion for judgment on the pleading is ALLOWED. This Court ORDERS that the guilty finding entered against Moses be dismissed and removed from Moses’ prison record.
SO ORDERED.
MICHAEL D. RICCIUTI
Justice of the Superior Court
Date: October 23, 2017
3 The Court also concludes that the Defendants did not adequately explain why there was no video available of the encounter; it is unclear whether that was because no video was taken or that the Defendants chose not to produce it because it was deemed to be excludable under the regulation. read more

Posted by Stephen Sandberg - November 13, 2017 at 5:54 pm

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Care and Protection of a Minor (Lawyers Weekly No. 10-182-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-12403

CARE AND PROTECTION OF A MINOR.

November 10, 2017.

Supreme Judicial Court, Superintendence of inferior courts.  Practice, Civil, Notice of appeal.  Notice, Timeliness.

The father of a child who is the subject of a care and protection proceeding in the Norfolk County Division of the Juvenile Court Department filed a petition pursuant to G. L. c. 211, § 3, with a single justice of this court seeking relief pursuant to the court’s general superintendence power.  The father is an attorney who is representing himself.  The record of material he has put before us is confusing, to say the least.  It appears that the child has been removed from his parents’ custody and that the father contests the removal.  In his G. L. c. 211, § 3, petition he sought, among other things, a jury trial in the care and protection proceeding.  He also claimed that the Department of Children and Families has violated his due process rights and that “non-party participants” in the care and protection proceeding should have been sequestered during certain motion hearings in the Juvenile Court. read more

Posted by Stephen Sandberg - November 10, 2017 at 9:56 pm

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Commonwealth v. Shipps (Lawyers Weekly No. 10-183-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-12168

COMMONWEALTH  vs.  WILLIAM M. SHIPPS, JR.

November 10, 2017.

Practice, Criminal, Postconviction relief, Stay of proceedings.

William M. Shipps, Jr., was convicted of murder in the first degree, armed assault in a dwelling house, and armed robbery in 1984.  This court affirmed the convictions.  Commonwealth v. Shipps, 399 Mass. 820, 840 (1987).  Shipps has since filed, in the Superior Court, several motions for postconviction relief, including, most recently, a motion for “post-verdict juror inquiries. ”  A judge other than the trial judge (who had retired) denied the motion after a nonevidentiary hearing.  Shipps then filed, in the county court, a gatekeeper application seeking leave to appeal pursuant to G. L. c. 278, § 33E.  At the same time, he also filed a motion to stay action on the application pending completion of a transcript of the nonevidentiary hearing on the underlying motion.  He claimed that staying action pending completion of the transcript would allow him to file a more comprehensive application. read more

Posted by Stephen Sandberg - November 10, 2017 at 6:22 pm

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Deal, et al. v. Commissioner of Correction (Lawyers Weekly No. 10-180-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-12246

TIMOTHY DEAL & another[1]  vs.  COMMISSIONER OF CORRECTION.

Suffolk.     April 3, 2017. – November 9, 2017.

Present:  Gants, C.J., Lenk, Hines, Lowy, Budd, & Cypher, JJ.[2]

Commissioner of Correction.  Due Process of Law, Prison classification proceedings.  Imprisonment, Reclassification of prisoner.  Youthful Offender Act.

Civil action commenced in the Supreme Judicial Court for the county of Suffolk on October 26, 2016.

The case was reported by Botsford, J. read more

Posted by Stephen Sandberg - November 10, 2017 at 4:03 am

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Benjamin B., a juvenile v. Commonwealth (Lawyers Weekly No. 10-181-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-12341

Benjamin B., a juvenile  vs.  COMMONWEALTH.

November 9, 2017.

Supreme Judicial Court, Superintendence of inferior courts, Appeal from order of single justice.  Juvenile Court, Delinquent child.  Practice, Criminal, Juvenile delinquency proceeding, Complaint, Dismissal.

The juvenile appeals from a judgment of the county court denying, without a hearing, his petition for relief under G. L. c. 211, § 3.  The juvenile has been charged by a delinquency complaint with making a bomb threat.[1]  A judge in the Juvenile Court, apparently believing that she lacked authority to dismiss the complaint prior to arraignment, arraigned the juvenile.[2]  But see Commonwealth v. Humberto H., 466 Mass. 562, 575-576 (2013) (Juvenile Court judge has discretion to dismiss complaint prior to arraignment where complaint is not supported by probable cause).  See also Commonwealth v. Mogelinski, 473 Mass. 164, 166-167 (2015) (authority to dismiss before arraignment where judge determines that Juvenile Court lacks jurisdiction).  The following day, the judge reconsidered that decision, determined she did have authority to consider a motion to dismiss before arraignment, and entered an order vacating the arraignment of the juvenile and directing the probation department to expunge the juvenile’s court activity record information (CARI).  The probation department moved for reconsideration, arguing that it was obligated to maintain CARI records and could not expunge them.  After further briefing and argument, the judge again reversed herself, reinstating the juvenile’s arraignment and vacating the expungement order.  The juvenile’s G. L. c. 211, § 3, petition sought relief from this interlocutory ruling.  We affirm the judgment. read more

Posted by Stephen Sandberg - November 10, 2017 at 12:28 am

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Mac’s Homeowners Association, et al. v. Gebo, et al. (Lawyers Weekly No. 11-141-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

16-P-451                                        Appeals Court

MAC’S HOMEOWNERS ASSOCIATION & another[1]  vs.  JAMES GEBO

& others.[2]

 

 

No. 16-P-451.

Essex.     February 2, 2017. – November 9, 2017.

Present:  Green, Meade, & Agnes, JJ.

Practice, Civil, Motion to dismiss, Consumer protection case.  Manufactured Housing Community.  Cooperative Housing.  Consumer Protection Act, Standing, Unfair or deceptive act.

Civil actions commenced in the Northeast Division of the Housing Court Department on June 24 and July 1, 2014. read more

Posted by Stephen Sandberg - November 9, 2017 at 8:53 pm

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Commonwealth v. Arias (Lawyers Weekly No. 11-142-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

16-P-362                                        Appeals Court

COMMONWEALTH  vs.  JOSE L. ARIAS.

No. 16-P-362.

Essex.     January 13, 2017. – November 9, 2017.

Present:  Green, Trainor, Meade, Hanlon, & Desmond, JJ.[1]

 

 

Constitutional Law, Search and seizure, Probable cause.  Search and Seizure, Probable cause, Exigent circumstances, Emergency, Multiple occupancy building, Protective sweep, Plain view.  Probable Cause.  Practice, Criminal, Motion to suppress, Interlocutory appeal, Appeal by Commonwealth.  Evidence, Informer.  Witness, Police informer.  Controlled Substances. read more

Posted by Stephen Sandberg - November 9, 2017 at 5:19 pm

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SCVNGR, Inc. v. Punchh, Inc. (Lawyers Weekly No. 10-179-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-12297

SCVNGR, INC.[1]  vs.  PUNCHH, INC.

Suffolk.     September 6, 2017. – November   , 2017.

Present:  Gants, C.J., Lenk, Gaziano, Budd, Cypher, & Kafker, JJ.

Practice, Civil, Motion to dismiss.  Jurisdiction, Personal, Nonresident, Long-arm statute.  Due Process of Law, Jurisdiction over nonresident.

Civil action commenced in the Superior Court Department on February 19, 2016.

A motion to dismiss was heard by Mitchell H. Kaplan, J.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. read more

Posted by Stephen Sandberg - November 8, 2017 at 4:16 pm

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Guardianship of Duku Lado (Lawyers Weekly No. 10-178-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-12143

GUARDIANSHIP OF DUKU LADO.

November 7, 2017.

Supreme Judicial Court, Superintendence of inferior courts.  Probate Court, Guardian.  Practice, Civil, Guardianship proceeding.  Guardian.

The petitioner, Betty Hinds, appeals from a judgment of a single justice of this court denying her petition pursuant to G. L. c. 211, § 3.  We affirm.

In her petition, Hinds asked the court to stay an order of the Suffolk Probate and Family Court appointing a temporary guardian for her adult son, Duku Lado.  In denying the petition, the single justice noted that Hinds had already sought the same relief in the Appeals Court and that a single justice of that court had denied the request without prejudice to Hinds first seeking a stay in the trial court.  Hinds instead filed her G. L. c. 211, § 3, petition.  Relief pursuant to G. L. c. 211, § 3, is available only in exceptional circumstances and when no other remedy is available.  Here, the single justice denied the petition essentially on the basis that Hinds did have an adequate alternative remedy — that is, to seek a stay in the trial court and then, if the request were denied, to challenge  that denial, or perhaps make a fresh request for a stay, in the Appeals Court. read more

Posted by Stephen Sandberg - November 7, 2017 at 6:48 pm

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