Grand Manor Condominium Association, et al. v. City of Lowell (Lawyers Weekly No. 10-015-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12294 GRAND MANOR CONDOMINIUM ASSOCIATION & others[1] vs. CITY OF LOWELL. Middlesex. October 5, 2017. – January 19, 2018. Present: Gants, C.J., Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Hazardous Materials. Massachusetts Oil and Hazardous Material Release Prevention Act. Real Property, Environmental damage. Limitations, Statute of. Practice, Civil, Statute of limitations. Damages, Hazardous waste contamination. Civil action commenced in the Superior Court Department on October 10, 2012. The case was tried before Kathe M. Tuttman, J. The Supreme Judicial Court granted an application for direct appellate review. Alan B. Rubenstein (Stacie A. Kosinski also present) for the plaintiff. C. Michael Carlson, Assistant City Solicitor (Rachel M. Brown, Assistant City Solicitor, also present) for city of Lowell. KAFKER, J. The owners of condominium units at Grand Manor and the Grand Manor Condominium Association (collectively, plaintiffs) filed suit against the city of Lowell (city) on October 10, 2012, for the release of hazardous materials at the Grand Manor condominium site. The plaintiffs brought claims for response costs under G. L. c. 21E, § 4A, and for damage to the plaintiffs’ property under G. L. c. 21E, § 5 (a) (iii).[2] A jury found that the plaintiffs’ claim under § 5 (a) (iii) was barred by the applicable statute of limitations, G. L. c. 21E, § 11A (4). The plaintiffs appealed, and we granted their application for direct appellate review. On appeal, the plaintiffs argue that (1) the statute of limitations did not begin to run until the plaintiffs knew that the property damage was permanent; and (2) the trial judge erred in instructing the jury that the plaintiffs had the burden of persuasion to show that they filed suit within the statute of limitations. The city contends that the plaintiffs needed to know only that there was environmental damage and that the defendant was the source of the damage, not that the damage was permanent, for the limitations period to begin to run. The city also contends that the jury were properly instructed. We conclude that a plaintiff must be on notice that he or she has a claim under § 5 (a) (iii) before that claim may be time barred, and that such notice is separate from a plaintiff’s notice that environmental contamination has occurred. A plaintiff has notice of a claim under § 5 (a) (iii) once the plaintiff learns whether or not […]
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In the Matter of a Grand Jury Investigation (Lawyers Weekly No. 11-152-17)
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-215 Appeals Court IN THE MATTER OF A GRAND JURY INVESTIGATION. No. 16-P-215. Middlesex. October 5, 2017. – December 11, 2017. Present: Sullivan, Blake, & Singh, JJ. Witness, Compelling giving of evidence, Self-incrimination. Constitutional Law, Self-incrimination. Cellular Telephone. Grand Jury. Privacy. Public Records. Practice, Criminal, Assistance of counsel. Contempt. Motion filed in the Superior Court Department on January 22, 2016. The proceeding was heard by Kimberly S. Budd, J., and entry of a judgment of contempt was ordered by her. Joanne M. Daley, Committee for Public Counsel Services, for the petitioner. Kevin J. Curtin, Assistant District Attorney, for the Commonwealth. BLAKE, J. The petitioner appeals from an order directing him to enter his personal identifying number (PIN) access code (hereinafter PIN code) into his Apple iPhone (a “smart” cellular telephone, hereinafter iPhone), and a subsequent judgment of contempt for refusing to comply. We affirm. Background. A Middlesex County grand jury requested that an assistant district attorney seek an order from a Superior Court judge as part of an ongoing investigation of an assault and battery on two children. The Commonwealth thus moved for an order that the petitioner produce the PIN code and any other electronic key or password required for the iPhone. A search warrant previously issued in the Lowell Division of the District Court Department had authorized a search of the contents of the iPhone. The motion, the proposed order, and two additional documents were filed in court under seal. The motion and the proposed order were served on counsel for the petitioner; the additional documents were not. One of the additional documents was a statement showing the petitioner’s ownership and control of the iPhone and the Commonwealth’s knowledge thereof. The other document was an affidavit of the assistant district attorney, which summarized the evidence before the grand jury; appended to the affidavit was a transcript of the grand jury proceedings. The petitioner filed a reply. After a hearing, in which petitioner’s counsel participated, the Commonwealth’s motion was allowed, and an order entered detailing the protocol by which the petitioner would enter the PIN code so that the search warrant could be executed. The order also prohibited the Commonwealth from introducing evidence of the petitioner’s act of production in any prosecution of him. When the […]
In the Matter of a Grand Jury Investigation (Lawyers Weekly No. 10-086-17)
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-12249 IN THE MATTER OF A GRAND JURY INVESTIGATION. May 25, 2017. Supreme Judicial Court, Superintendence of inferior courts. Moot Question. The petitioner, R.C., appealed from a judgment of the county court denying his petition for relief under G. L. c. 211, § 3. R.C. has been indicted for possessing and distributing child pornography. In his petition, he sought relief from an order of a Superior Court judge authorizing computers and digital storage devices (digital material) seized from his home to be searched for child pornography. R.C., who is an attorney, argued that the digital material may contain privileged data provided to him by his clients and that the Superior Court judge’s order did not adequately protect any such privileged data because it does not conform to the protocol set forth in Preventive Med. Assocs. v. Commonwealth, 465 Mass. 810 (2013). After the single justice denied relief, R.C. moved to stay the Superior Court order pending this appeal. We denied that motion, thereby allowing the search to proceed. The Commonwealth has moved to dismiss this appeal as moot. It represents that the search has taken place pursuant to the protocol set forth in the Superior Court order, that files allegedly containing child pornography were transmitted to R.C.’s counsel, and that R.C. does not claim that any of those files are protected by the attorney-client privilege. R.C. has not disputed these representations or filed any response to the motion within the time set forth in Mass. R. A. P. 15 (a), 365 Mass. 859 (1974). R.C.’s challenge to the Superior Court order has become moot, as that order has been fully carried out. See Lenardis v. Commonwealth, 452 Mass. 1001, 1001 (2008). No effective relief can be provided. Moreover, we see no reason to believe that the issue is capable of repetition, yet evading review, and R.C. has offered none. Appeal dismissed. The case was submitted on the papers filed, accompanied by a memorandum of law. Andrew W. Piltser Cowan for the petitioner. Varsha Kukafka & Anne S. Yas, Assistant District Attorneys, for the Commonwealth. Full-text Opinions
Amaral v. Seekonk Grand Prix Corp. (Lawyers Weekly No. 11-008-16)
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 13-P-1848 Appeals Court SUSAN M. AMARAL vs. SEEKONK GRAND PRIX CORP. No. 13-P-1848. Bristol. October 6, 2014. – January 14, 2016. Present: Cypher, Grainger, & Maldonado, JJ. Negligence, One owning or controlling real estate. Civil action commenced in the Superior Court Department on May 2, 2012. The case was heard by Richard T. Moses, J., on a motion for summary judgment. Melody A. Alger for plaintiff. Jacqueline L. Allen for the defendant. MALDONADO, J. The Massachusetts recreational use statute[1] provides that those who make their land available to the public for “recreational . . . purposes without imposing a charge or fee therefor, . . . shall not be liable for personal injuries . . . sustained by such members of the public . . . in the absence of wilful, wanton, or reckless conduct by [the landowner].” G. L. c. 21, § 17C(a), as appearing in St. 1998, c. 268. In this case, we are asked whether the statute bars a claim of negligence asserted by a mother (the plaintiff) who was injured by an errant “go-cart” while watching her sons drive go-carts at the defendant’s recreational facility. The facility does not charge an admission onto the grounds but sells tickets for its rides, and the plaintiff had purchased tickets for use by her sons. We conclude that the statute does not bar relief for injuries caused by negligence in these circumstances. Background. Seekonk Grand Prix Corp.[2] (Grand Prix) is a Massachusetts corporation that operates a commercial recreational facility offering, among other activities, go-cart races. Grand Prix charges a fee for the go-carts, miniature golf, bumper cars, and other similar activities. It does not charge a fee to watch these activities, nor does it charge a fee to enter the facility. On May 25, 2009, the plaintiff took her two sons, ages eleven and thirteen years of age, to Grand Prix’s facility. She purchased six tickets for her sons’ use. At the time of the injury, she was standing behind a chain link fence as she watched her sons drive the go-carts. After the other drivers had returned to the station, a go-cart driven by a young girl went through the fence and struck the plaintiff, causing a number of injuries, including a pulmonary embolism that resulted from a blood clot in her left leg. The plaintiff filed a negligence action […]
In the Matter of a Grand Jury Investigation (Lawyers Weekly No. 10-004-15)
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-11697 IN THE MATTER OF A GRAND JURY INVESTIGATION. Suffolk. September 4, 2014. – January 12, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Grand Jury. Subpoena. Cellular Telephone. Constitutional Law, Grand jury, Subpoena, Self-incrimination. Practice, Criminal, Grand jury proceedings, Subpoena duces tecum, Warrant. Evidence, Grand jury proceedings. Attorney at Law, Attorney-client relationship. Search and Seizure, Warrant, Probable cause. Probable Cause. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on April 7, 2014. The case was reserved and reported by Botsford, J. Aaron M. Katz (Patrick Welsh with him) for the petitioner. James L. Sultan (Charles W. Rankin with him) for the amicus curiae. Teresa K. Anderson, Assistant District Attorney (Patrick M. Haggan, Assistant District Attorney, with her) for the Commonwealth. LENK, J. This appeal arises from a petition brought under G. L. c. 211, § 3, challenging a Superior Court judge’s order approving the issuance of a grand jury subpoena duces tecum that compels a law firm to produce a cellular telephone. The single justice reserved and reported the matter to this court, and our analysis is confined to the limited record before us. The Commonwealth contends that the telephone belonged to John Doe,[1] the target of a grand jury investigation; that it was transferred from Doe to the law firm to obtain legal advice; and that it contains in the information stored on its memory, particularly in its record of text messages, evidence of a crime under investigation by the grand jury. The Superior Court judge determined that, while a subpoena served on Doe would violate his right against self-incrimination, and a subpoena served on the law firm would violate the attorney-client privilege, a subpoena compelling the law firm to produce the telephone could be served upon an ex parte showing by the Commonwealth of probable cause sufficient for the issuance of a search warrant. We conclude that, on the record before us, the attorney-client privilege protects Doe against compelled production of the telephone by the law firm, and that the protection afforded by the attorney-client privilege may not be set aside based on a showing of probable cause. We therefore reverse the Superior Court judge’s order. 1. Background. The law firm began representing Doe in April, 2013. According to the Commonwealth, in June, 2013, Doe transferred the telephone to the law firm in connection with its provision of legal services to him.[2] In March, 2014, the Commonwealth moved […]
Grand Jury Hammers Marathon Bombing Suspect with 30 Charges
Article written by Roberto Scalese A federal jury returned 30 counts against suspected Boston Marathon bomber Dzhokhar Tsarnaev. The 70-page indictment includes charges for weapons of mass destruction, murder and more. "Seventeen South End Patch News
Things to Know in the South End Today, Feb. 28: Grand Opening at K9strolls Shop and Play
1. Weather: The National Weather Service is a cloudy day with a chance of rain in the morning. Temperatures will hover around 47 degrees. 2. K9strolls Shop and Play Opening: Check out the new space for your four-legged companions at K9strolls Shop and Play (83 Pembroke St.) Daniel and Jim Avila-Batty, the owners, had run their business out of their South End home for several years, and recently opened up on Pembroke Street. Tonight they are holding a grand opening celebration from 6-8 p.m. See here for more information. 3. Live Music at Darryl’s: Elevation Theory, who got their start at Berklee College of Music, will be playing will tonight at 7 p.m. at Darryl’s Corner Bar & Kitchen (604 Columbus Ave.) Their style is described as “definitive tones and sweet, pocketed grooves.” See here for more information. 4. For Middle Schoolers: An “Art Journaling for Fifth-graders and Up” workshop will be held today at the South End branch library between 4 and 5 p.m. It’s free and materials will be provided. See here for more information. 5. Poetry Competition: Happening this weekend in the South End is the Boston edition of the statewide “Poetry Outloud” competition for teens. Poetry Out Loud (POL) is a national recitation competition that celebrates the power of the spoken word and a mastery of public speaking skills while cultivating self-confidence and an appreciation of students’ literary heritage as they take poetry from the page to the stage. You can catch the action at the Boston Center for The Arts 539 Tremont St. starting at 9 a.m. on Saturday. Things you can do every day on South End Patch: Share your news with the rest of the community. Click here to add an announcement. Add your events to our events calendar. Click here to sign up for breaking news updates. Want up-to-the-minute news? Click here to follow us on Facebook or Twitter. Share your thoughts on your community in a blog. Click here to get started. South End Patch