Posts tagged "Irwin"

Irwin, et al. v. Degtiarov, et al. (Lawyers Weekly No. 11-041-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑450                                        Appeals Court   JOHN IRWIN & another[1]  vs.  ARKADY DEGTIAROV & another.[2] No. 13‑P‑450. Middlesex.     November 7, 2013.  ‑  April 25, 2014. Present:  Wolohojian, Agnes, & Sullivan, JJ. Dog.  Animal.  Damages, Tort.  Practice, Civil, Damages.  Veterinarian.       Civil action commenced in the Newton Division of the District Court Department on December 18, 2008.   The case was heard by Dyanne J. Klein, J.     John G. Neylon for the defendants. Joseph I. Rogers for the plaintiffs.       WOLOHOJIAN, J.  An unprovoked attack by the defendants’ unleashed German shepherd caused the plaintiffs’ Bichon Frisé severe internal injuries, external bruising, and wounds to the head, neck, abdomen, and chest.  Emergency surgery was successful but expensive, with veterinary costs ultimately amounting to over $ 8,000.  After a bench trial, a District Court judge found those costs to be both reasonable and necessary and awarded them in full.  The judgment was affirmed by the Appellate Division.  The sole issue on appeal is whether damages should be capped at the market value of the dog, regardless of the reasonableness of the veterinary costs necessary to treat the dog’s injuries.  We affirm. The plaintiffs sued under G. L. c. 140, § 155, as amended by St. 1934, c. 320, § 18, which since 1791 has imposed strict liability for damage caused by dogs: “If any dog shall do any damage to either the body or property of any person, the owner or keeper . . . shall be liable for such damage, unless such damage shall have been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog.”   The statute has long been recognized to be remedial, not penal, “giving all the damages to the person injured.”  Le Forest v. Tolman, 117 Mass. 109, 110 (1875), citing Mitchell v. Clapp, 12 Cush. 278 (1853).  Its purpose “is to protect all persons, whatever may be their age or condition, who, through no fault of their own, are exposed to attacks from dogs, and to induce their owners and keepers to hold them under proper restraint and control.”  Munn v. Reed, 4 Allen 431, 433 (1862).  See Sherman v. Favour, 1 Allen 191, 192 (1861) (statute “was doubtless intended to provide a remedy co-extensive […]

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Posted by Massachusetts Legal Resources - April 25, 2014 at 2:38 pm

Categories: News   Tags: , , , ,

Irwin v. Commonwealth (Lawyers Weekly No. 101-131-13)

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‑11260   JOHN R. IRWIN  vs.  COMMONWEALTH.     Suffolk.     March 7, 2013.  ‑  July 15, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Governmental Immunity.  Commonwealth, Claim against.  Practice, Civil, Proceeding against Commonwealth, Interlocutory appeal.  Erroneous Conviction.       Civil action commenced in the Superior Court Department on March 14, 2011.   Motions to dismiss and for partial judgment on the pleadings were heard by Raymond J. Brassard, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     David Hartnagel, Assistant Attorney General, for the Commonwealth. Robert S. Sinsheimer (David Scott with him) for the plaintiff. Alex G. Philipson, pro se, amicus curiae, submitted a brief.       LENK, J.  In this case we consider whether the Commonwealth may pursue an interlocutory appeal, under the doctrine of present execution, of the determination that a plaintiff is an eligible claimant as defined under the erroneous convictions statute, G. L. c. 258D.[1]  We consider also whether a conviction that was overturned because the Commonwealth introduced evidence of the plaintiff’s prearrest silence as purportedly establishing consciousness of guilt was overturned “on grounds which tend to establish” his innocence, such that he is eligible to pursue his claim for compensation for an erroneous felony conviction pursuant to G. L. c. 258D, § 1 (B) (ii). Because the erroneous convictions statute provides only a limited waiver of the Commonwealth’s sovereign immunity, we conclude that the doctrine of present execution applies to claims brought under that statute, and thus that interlocutory appeal is appropriate.  While we conclude that “grounds which tend to establish” an individual’s innocence are not necessarily limited to the exclusion of exculpatory evidence at trial, we nonetheless conclude also that the plaintiff, John R. Irwin, is not eligible to pursue his compensation claim, because the grounds on which his conviction was reversed were not “probative of the proposition that [he] did not commit the crime.”  Guzman v. Commonwealth, 458 Mass. 354, 362 (2010) (Guzman), quoting Guzman v. Commonwealth, 74 Mass. App. Ct. 466, 477 (2009). Background and prior proceedings.  We summarize the facts based on the detailed discussion in the Appeals Court’s decision, see Commonwealth v. Irwin, 72 Mass. App. Ct. 643 (2008) (Irwin), reserving some facts for later discussion.  The incident resulting in the overturned conviction occurred […]

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Posted by Massachusetts Legal Resources - July 15, 2013 at 2:57 pm

Categories: News   Tags: , , , ,