Fyffe v. Massachusetts Bay Transportation Authority, et al. (Lawyers Weekly No. 11-129-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-186 Appeals Court COLLEEN FYFFE vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another.[1] No. 13-P-186. Suffolk. January 14, 2014. – October 6, 2014. Present: Trainor, Graham, & Agnes, JJ. Massachusetts Bay Transportation Authority. Practice, Civil, Argument by counsel, Conduct of counsel, Opening statement, Instructions to jury, New trial. Damages, Remittitur. Civil action commenced in the Superior Court Department on May 11, 2010. The case was tried before Judith Fabricant, J., and a motion for a new trial or remittitur was heard by her. John J. Bonistalli (Jonathan P. Feltner with him) for the defendants. Thomas R. Murphy for the plaintiff. AGNES, J. As we explain in detail below, this is a case where, contrary to established law and the trial judge’s numerous cautions and rulings, plaintiff’s experienced trial counsel[2] improperly argued (1) facts that were not in evidence, (2) concepts of liability, despite the parties’ stipulation that the only triable issues related to damages, and (3) that the jury were the conscience of the community and had a duty in this case to safeguard users of public transportation in the future. Plaintiff’s counsel also wilfully disregarded the judge’s explicit rulings on a number of issues and, by defiantly challenging her rulings in front of the jury, undermined her attempts to remedy his misconduct. As a result of these numerous transgressions by plaintiff’s trial counsel, the judge was required to “conduct[] the trial under severe and exasperating handicaps.” Stavisky v. Slotnik, 19 Mass. App. Ct. 1028, 1030 (1985). Mindful of the deference we owe the judge’s determination on a motion for a new trial whether such errors were prejudicial, in this case our review of the record of this very brief trial (two full days of testimony) persuades us that the errors committed by plaintiff’s counsel, considered in their totality, “injuriously affected the substantial rights” of the defendants and deprived them of a fair trial. G. L. c. 231, §§ 119, 132. Accordingly, despite the judge’s commendable patience, we vacate the judgment and remand for a new trial. Procedural background. The plaintiff Colleen Fyffe was injured on May 8, 2009, when the Massachusetts Bay Transportation Authority (MBTA) trolley in which she was riding struck another trolley on the MBTA’s Green Line in Boston. She filed suit in Superior Court against the MBTA and […]
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Mayoral Candidates Dish on Environment & Transportation
Article and photos by David Ertischek Nine Boston mayoral candidates opined on carbon emissions, public transportation and how to make the city as environmentally friendly as possible during a Boston Green Mayor forum held at Suffolk South End Patch News
Categories: Arrests Tags: Candidates, Dish, Environment, Mayoral, Transportation
Gov. Patrick Won’t Support Latest Transportation Finance Plan
By: Bret Silverberg Gov. Deval Patrick said he would not support a new transportation finance plan that would create $ 500 million in new taxes.
State House Transportation Plan Increases Gas, Cigarette Taxes
State House and Senate lawmakers have announced a joint transportation plan which would close an estimated five-year, $ 2.3 billion transportation budget gap through tax increases to cigarettes, gas and new taxes on business technologies. The plan, which would create $ 500 million in new revenue, focuses on long-term financing for the state’s regional transit authorities and the state department of transportation, asks the MBTA and MassDOT to continue to hit revenue and savings targets, moves employees off of the capital budget for three years and fully funds the state ice and snow budget. The plan was unveiled at a State House news conference Tuesday led by Massachusetts Speaker of the House Robert A. DeLeo and Senate President Therese Murray. To provide new revenue to close the estimated five-year out gap there would be a 3-cent gas tax increase (which would be indexed to inflation), a $ 1 per-pack increase on cigarettes along with excise tax increases on cigars and smokeless tobacco, a new sales tax for businesses for software purchases, an elimination of the “utility” tax classification and a changing of the sourcing of the state’s sales factor system, which would require out of state companies that sell products in state to pay more in taxes. The proposal eliminates the need for MBTA fare increases and would overshoot the deficit by $ 300 million for the next five years, according to Sen. Stephen Brewer, chair of the Senate Committee on Ways and Means. This plan differs from Gov. Deval Patrick’s 10-year, $ 13 billion transportation investment proposal released in January. Patrick’s plan involves tax increases to gas and income, fees for vehicle registrations along with fare, fee and toll increases and a new tolling mechanism. A reporter asked if the House and Senate joint plan is a “vote of no confidence” for Patrick’s plan. Murray said the group of legislators “considers the governor a partner on this.” “He put out a 10-year vision,” she said. “We’re just saying maybe 10 years is too ambitious right away.” DeLeo and Murrey made no mention of improvements to infrastructure, which Patrick has sought to address through his Accelerated Bridge Program and through his transportation plan. Murray, when asked, insisted the state’s infrastructural needs will be addressed through the joint plan. “I think it’s good that there is attention on the fact that there are infrastructure needs,” she said. “Nobody wants to go over a bridge that’s going to fall down. We want to invest on our infrastructure we just have a different plan on how to do that.” Brewer was a bit harsher when it came to the governor’s plan. […]