2009 Mass.App.Div. 125 (2009), 08-ADMS-40040, Palano v. Bellagio Corp.

Docket Nº:08-ADMS-40040.
Citation:2009 Mass.App.Div. 125
Opinion Judge:WILLIAMS, P.J.
Party Name:Nancy PALANO and another [1] v. BELLAGIO CORPORATION.[2]
Attorney:Stephen J. Fallon, Esq., Law Off. of Stephen J. Fallon, Mansfield, MA, for plaintiff. Michael L. Mahoney, Esq., Mullen & McGourty, Boston, MA, for defendant.
Judge Panel:Present: Williams, P.J., Merrick & Hand, JJ.
Case Date:June 24, 2009
Court:Massachusetts Appellate Division
 
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2009 Mass.App.Div. 125 (2009)

Nancy PALANO and another 1

v.

BELLAGIO CORPORATION. 2

No. 08-ADMS-40040.

Massachusetts Appellate Division, District Court Department, Southern District.

June 24, 2009

Heared March 6, 2009.

In the Attleboro Division, Docket No. 0634-CV-0683, Baylor, J.

Stephen J. Fallon, Esq., Law Off. of Stephen J. Fallon, Mansfield, MA, for plaintiff.

Michael L. Mahoney, Esq., Mullen & McGourty, Boston, MA, for defendant.

Present: Williams, P.J., Merrick & Hand, JJ.

OPINION

WILLIAMS, P.J.

Upon returning from their vacation at the Bellagio, a hotel and casino in Las Vegas, Nevada, the plaintiffs, Nancy and Dominic S. Palano (" Palanos" ), brought suit against Bellagio Corporation (" Bellagio" ), claiming that their stay had degenerated into a " nightmare" after Bellagio mishandled the Palanos' grievance when they discovered apparently illicit drugs in their room. The Palanos' complaint sounded in four counts: negligent infliction of emotional distress, breach of contract, violation of G.L. c. 93A, and breach of the covenant of quiet enjoyment.3 Bellagio counterclaimed for abuse of process, and later moved

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for summary judgment, which it obtained on all counts. Following the Palanos' initial appeal here from that allowance, which we ruled was premature because the counterclaim remained unresolved, Bellagio moved for separate and final judgment and voluntarily dismissed its counterclaim. The Palanos now appeal the allowance of Bellagio's motion for summary judgment. We conclude that summary judgment on the Palanos' claims was error, and return the case to the Attleboro District Court for trial on those issues.

We briefly review the facts in the light most favorable to the Palanos. See, e.g., Kennie v. Natural Resource Dep't of Dennis, 451 Mass. 754, 759 (2008). In February, 2006, the Palanos checked into a room at the Bellagio, where they had stayed on several prior occasions. Nancy 4 had recently undergone surgery. Two days into their stay, Dominic discovered what appeared to be illicit drugs-a white powdery substance in a plastic sandwich bag-and some money on the armoire in their room. He notified hotel staff, who found a dollar bill rolled with a white substance along with a plastic bag containing two pills and another rolled dollar. The Palanos expressed concern that the substance might have fallen onto and contaminated their luggage, and that the owners of the apparent contraband might return to the room in search of it. That latter fear was fueled by Bellagio's employees, who reportedly observed that because the lock was broken, it appeared that someone had tried to enter the room without a key. The Palanos wanted a new room, or at least the thorough cleaning of their room and luggage and the repair of the door lock. The following day, they complained to a manager and were offered a one-night's complementary stay. The Palanos, apparently initially mollified, later argued that their entire stay should be complementary. Although Bellagio did not honor that request, the Palanos stayed four more nights. Once back home in Norton, Nancy wrote to Bellagio, acknowledging that although " [f]ine, I know a lot goes on, it's Vegas," she and Dominic had been rudely treated throughout their week at the Bellagio and that the proffered one-night's-stay credit was insulting. She requested no specific action or relief, and Bellagio made no response. Nancy's second letter, in April, 2006, threatened further action unless Bellagio explained the behavior of its staff within ten days. Bellagio replied with an offer of a complementary stay, which drew a G.L. c. 93A demand letter from the Palanos' counsel that requested a rebate of the hotel room charge ($1,726.46), damages for emotional distress ($5,000.00), attorney's fees of $500.00, and costs of $100.00, for a total of $7,326.46. That demand was unmet, and the Palanos filed this action against Bellagio, which, as noted, successfully moved for summary judgment.

1. Even if it is assumed that Massachusetts may properly exercise personal jurisdiction over Bellagio, the inquiry as to whether Massachusetts or Nevada law controls any aspect of this action was neither addressed on this appeal, nor in the trial court. See Nierman v. Hyatt Corp., 441 Mass. 693, 696 n.7 (2004) (exercise of personal jurisdiction over foreign defendant does not alone suffice to create substantial

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interest required to apply law of forum state).5 On the contrary, both parties have relied solely on Massachusetts authorities throughout the progress of this action. We consider the application of Massachusetts law, therefore, to be the " law of the case." See Karty v. Mid-America Energy, Inc., 74 Mass.App.Ct. 25, 28 n.6 (2009), citing TAL Fin. Corp. v. CSC Consulting, Inc., 446 Mass. 422, 431 (2006).

2. Appellate review of the allowance of a motion for summary judgment is de novo. McGrath v. ACT, Inc., 2008 Mass.App. Div. 257, citing Howell v. Enterprise Publ. Co., LLC, 72 Mass.App.Ct. 739, 741 (2008).6 We must determine " whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Kennie, supra at 759, quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). As discussed below, on each of the Palanos' theories, we find that Bellagio was not, under Massachusetts law, entitled to summary judgment as a matter of law.

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3. Negligent Infliction of Emotional Distress. Recovery for negligent infliction of emotional distress was unavailable in Massachusetts until the Supreme Judicial Court held in 1978 that a plaintiff could prevail under such a theory if she could establish both a " substantial physical injury" and causation. Dziokonski v. Babineau, 375 Mass. 555, 568 (1978).7 By the time of Payton v. Abbott Labs, 386 Mass. 540 (1982), though, the " substantial physical injury" requirement had been refined: a plaintiff must...

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