Davis v. Allard
| Decision Date | 29 November 1994 |
| Docket Number | No. 93-P-822,93-P-822 |
| Citation | 37 Mass.App.Ct. 508,641 N.E.2d 121 |
| Parties | Rufus DAVIS v. Robert ALLARD & another. 1 |
| Court | Appeals Court of Massachusetts |
Paul M. Moretti (Richard L. Neumeier, with him) for Westwood Group.
Timothy E. Sterritt, for Robert Allard.
Kevin Truland, for plaintiff.
Before SMITH, KAPLAN and LAURENCE, JJ.
In consequence of an accident on Route 1A in Revere, the victim, plaintiff Rufus Davis, recovered a judgment against the defendants Robert Allard and Westwood Group, doing business as Wonderland Greyhound Park (Wonderland). Upon the present appeal by these defendants, we affirm the judgment against Allard, but reverse the judgment against Wonderland for a new trial.
On March 11, 1982, the plaintiff Davis went with a friend, Toni LeMieux, to the dog races at Wonderland Greyhound Park in Revere. They arrived shortly before the first race scheduled for 8 P.M. Davis parked his car in a Wonderland parking lot, and the two walked a short distance to the edge of the parking lot at the location of a painted crosswalk on Route 1A (VFW Parkway) to be traversed to reach the track.
Route 1A at this point had two lanes and a breakdown lane in each direction, northbound (close to the parking lot) and southbound (close to the track), with a median strip separating the traffic. Patrons from the parking lot, often in considerable numbers, would assemble at the crosswalk and would wait until it had been made safe to cross. A police officer on paid detail would walk out from the median strip into the northbound traffic, perhaps thirty feet short of the crosswalk, halt the traffic by hand signal, and the assembled persons would then cross. After they had done so, the officer would direct the traffic to resume and he would return to the median strip. As another group assembled, the process would be repeated. (A second officer dealt similarly with the southbound traffic.)
On the night in question, Revere police officer Sabatino Falzarano, handling the northbound side of Route 1A at the crosswalk location, evidently attempted to carry out the usual routine, but a van driven by the defendant Robert Allard ran past the officer and struck and injured Davis as he, with LeMieux, was walking on the crosswalk toward the median strip.
Davis brought suit which after amendment comprised as defendants Allard, Edward Poulin (Allard's employer and owner of the van who, as it happened, was a passenger in the van at the time), Wonderland, city of Revere (employer of Officer Falzarano), and Trolley's Food and Spirits (a restaurant where Allard had spent time earlier that evening). Apparently the case against Trolley's was discontinued. After trial, a jury responding, as to each of the remaining parties, to questions about negligence, proximate cause, and responsibility found as follows: Allard seventy-eight percent responsible, Wonderland thirteen percent, Davis nine percent (the jury found for Revere and Poulin). Judgment entered accordingly. 2 Allard and Wonderland appeal.
1. Allard's appeal. 3 Allard testified that he was driving within the speed limit in the travel lane and saw the officer, who was standing in the passing lane, make a motion for him to stop. He testified that his sight of the officer had initially been obstructed by cars stopped in the passing lane. By the time he saw the officer, his van was too close to the officer to stop safely. Therefore he kept going. At the last moment, he saw Davis and LeMieux leave a crowd of pedestrians and go onto the road and that is when the accident occurred.
The jury was not obliged to accept Allard's story; it was challenged by other evidence, e.g., the testimony by Officer Falzarano that in his experienced opinion the van was exceeding the speed limit, which might account for Allard's failing to stop in time and in safe position.
Allard also confronts the fact that he was charged with the crimes of operating an automobile under the influence of intoxicating liquor and operating an automobile so as to endanger life and safety, both charges arising from the incident in suit. Allard admitted to sufficient facts to warrant findings of guilty, see Mass.R.Crim.P. 12(a)(3), 378 Mass. 866 (1979), and Commonwealth v. Russell, 37 Mass.App.Ct. 152, 154-156, 638 N.E.2d 37 (1994). Over objections, the rule 12(a)(3) admissions were allowed in evidence and treated as testimonial admissions in the civil action.
This was correct. Had a judge or jury after trial found Allard guilty of these crimes, then Davis, plaintiff in the civil action, could invoke the doctrine of collateral estoppel to preclude the defendant Allard (formerly the criminal defendant) from relitigating the issues decided in the criminal prosecution. See Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 742, 481 N.E.2d 1356 (1985), adopting Restatement (Second) of Judgments §§ 29, 85(2)(a) (1982). But suppose not a trial and conviction but a guilty plea: preclusive effect could not be accorded because the issues would not have been "actually litigated" in the criminal prosecution, but the plea itself would be received as an admission. Aetna Cas. & Sur. Co., supra at 747, 481 N.E.2d 1356; Restatement at § 85 comment b. The same reasoning applies to an admission to sufficient facts. See Commonwealth v. Greene, 400 Mass. 144, 145-146, 508 N.E.2d 93 (1987), noting that an admission to sufficient facts is the "functional equivalent" of a guilty plea; and see Commonwealth v. Mahadeo, 397 Mass. 314, 316, 491 N.E.2d 601 (1986), stating that the failure to take an appeal from an admission to sufficient facts gives a finality to the ensuing judgment of conviction "identical" to that which attaches to a conviction on a plea of guilty. 4 We conclude that Allard's appeal, seeking a new trial, fails. 5
2. Wonderland's appeal. 6 Davis based his case against Wonderland on two theories: that the described system in use in and about the crosswalk for getting the crowd over the highway was intrinsically inadequate and contributed to the accident, and Wonderland should and could have done better; and that the officer on the particular occasion behaved negligently and Wonderland was responsible for the consequences.
a. We may put to one side the question whether Wonderland was under a duty to make provision for safe passage of patrons over the highway, a public facility. The fact is that Wonderland voluntarily undertook the task and was thus cast with a duty to exercise due care in carrying it out. See Thorson v. Mandell, 402 Mass. 744, 748, 525 N.E.2d 375 (1988).
The plaintiff offered James D'Angelo as an expert and he qualified as such. He was an engineer who had served professionally in the Department of Public Works (DPW) and also in private employment. He sized up the problem as "a large movement of people over a short period of time to cross a heavily traveled way" in various conditions of weather, day and night. In the expert's opinion, the method used by Wonderland, consisting largely of the officer's advancing into the traffic and stopping it, was inadequate as a system to solve the problem. In particular, even taking into account the overhead lighting in the parking area and at the other end of the crosswalk, the visibility of the officer during his maneuvers was in question. This difficulty may have had some causal hand in the episode at bar.
D'Angelo testified that the safety situation could have been measurably and feasibly improved by the installation of standard traffic lights operated in standard ways; he also described the alternative of the construction of a pedestrians' bridge or overpass. 7 To carry out either suggestion, Wonderland would have to apply to the DPW and obtain its permission and cooperation. D'Angelo had had experience both from the private and public sides with the process of seeking and obtaining permits for changes in public roads and accomplishing the changes. Basing himself on the criteria established for granting permits and past decisions applying the criteria, D'Angelo was confident that Wonderland would not encounter any material difficulty. There was objection by Wonderland to D'Angelo's testimony on grounds of its being too speculative, but in our view the judge was right to admit it. On the whole, we think the record made presented a question for the jury on the plaintiff's first theory.
b. As to the plaintiff's second theory,...
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