Foreign Car Center, Inc. v. Salem Suede, Inc.

• Decision Date: 26 March 1996
• Docket Number: No. 94-P-297,94-P-297
• Citation: 660 N.E.2d 687,40 Mass.App.Ct. 15
• Parties: FOREIGN CAR CENTER, INC., & others 1 v. SALEM SUEDE, INC., & another. 2
• Court: Appeals Court of Massachusetts

Page 687

660 N.E.2d 687

40 Mass.App.Ct. 15

FOREIGN CAR CENTER, INC., & others ¹ v. SALEM SUEDE, INC., & another. ²

No. 94-P-297.

Appeals Court of Massachusetts,

Essex.

Argued Feb. 15, 1995.

Decided Feb. 2, 1996.

Further Appellate Review Denied March 26, 1996.

CIVIL ACTION commenced in the Superior Court Department on March 24, 1983.

The case was tried before Katherine Liacos Izzo, J.

Stephen B. Deutsch, Boston, for defendants.

Albert P. Zabin, Boston, for plaintiffs.

Before WARNER, C.J., and PERRETTA and SMITH, JJ.

SMITH, Justice.

The plaintiffs, Foreign Car Center, Inc. (FCC), FCC owner Stefano Picciotto (Picciotto), his wife Judith Picciotto (Judith), and FCC employees Juan B. Nunez and Jose B. Ferreras brought an action in the Superior Court against Salem Suede, Inc. (Salem Suede), and Salem Suede's president and landlord, Zion Realty Corporation (Zion). FCC claimed that its business had suffered damage as a result of certain odors and emissions from Salem Suede's tannery. The individual plaintiffs claimed that they had personally suffered injuries as a result of the odors and emissions. All of the plaintiffs sought damages on the theories of negligence, nuisance, and strict liability.

At trial, the case was submitted to the jury on the negligence and nuisance theories only. Salem Suede was found liable in nuisance and negligence for odors and emissions from its leather finishing plant. Zion was found liable for failing to prevent a nuisance.

We summarize certain portions of the plaintiffs' evidence as background for our analysis. Later, when we consider an issue, we will recite evidence that is relevant to that particular issue. ³

In 1972, FCC, whose business involves the repair and sale of automobiles, opened on property adjacent to Salem Suede. At least until 1979, FCC and its individual employees did not experience any problems with pollution or emissions from Salem Suede or any other source.

In 1979, however, Picciotto complained to Salem Suede that particulates, which he believed were emissions from Salem Suede's tannery, were falling onto his automobiles at his place of business. These particulates smelled badly and were sticky. They had to be washed from the automobiles promptly or they would stick and ruin the cars' finish. Picciotto also noticed strong lacquer-like odors. The particulates and odors commenced at the time that Salem Suede opened new vents in its building. Picciotto also complained to the Department of Environmental Quality Engineering (DEQE). On December 3, 1979, DEQE issued a notice of violation to Salem Suede. In the ensuing years, Salem Suede and DEQE engaged in a continual dialogue concerning the emissions coming from Salem Suede. Besides the particulates, DEQE was concerned with odors and with volatile organic compounds coming from Salem Suede.

Some time in 1980 or 1981, as a result of continued complaints from Picciotto, Salem Suede installed additional filters. These filters did not change the composition of the particulates but did make them smaller. Further modifications to Salem Suede's operations were approved by DEQE, but the problems persisted. In 1986, DEQE issued an order of noncompliance against Salem Suede. It threatened to fine Salem Suede and to shut it down unless it instituted new programs to reduce the emission of volatile organic compounds. In 1987, Salem Suede installed new equipment that brought an end to the pollution problems, except for a short episode in 1991 caused by lack of adequate maintenance.

1. Claims that judge excluded relevant evidence. At trial, "[t]he plaintiffs had the burden of proving that the alleged nuisance or negligence was the proximate cause of their injuries." Alholm v. Wareham, 371 Mass. 621, 626, 358 N.E.2d 788 (1976). The defendants denied that any odors or emissions that may have come from their factory caused the plaintiffs' injuries. Rather, they claimed at trial that (1) other businesses in the area were responsible for the odors and emissions that caused damage to FCC and to the individual plaintiffs, and (2) solvents, especially lead, which FCC used in the operation of its business, caused the individual plaintiff's injuries. Several of the issues raised on appeal by the defendants are claims that the judge excluded evidence that was relevant on the issue of causation.

When a claim is made that relevant evidence has been excluded, the first inquiry is whether the evidence is in fact relevant. "Relevance is a broad concept, ... and any information which tends to establish or at least shed light on an issue is relevant." Adoption of Carla, 416 Mass. 510, 513, 623 N.E.2d 1118 (1993). See also Green v. Richmond, 369 Mass. 47, 59, 337 N.E.2d 691 (1975). If relevant evidence is erroneously excluded, "the appropriate test [to determine if the exclusion created reversible error] is whether the proponent ... has made a plausible showing that the trier of fact might have reached a different result if the evidence had been before it. Thus the erroneous exclusion of relevant evidence is reversible error unless, on the record, the appellate court can say with substantial confidence that the error would not have made a material difference." DeJesus v. Yogel, 404 Mass. 44, 48-49, 533 N.E.2d 1318 (1989). For instance, "[i]n some instances, an error would not prejudice the case because the improperly excluded evidence would have been 'merely cumulative' of other evidence pointing in the same factual direction." Id. at 49 n. 7, 533 N.E.2d 1318, citing Pina v. McGill Dev. Corp., 388 Mass. 159, 164, 445 N.E.2d 1059 (1983).

a. Exclusion of evidence that other businesses were sources of odors and emissions. The defendants claim that the judge committed error by excluding evidence that other businesses were the source of odors and emissions. The defendants attempted to offer evidence that Picciotto wrote two letters to DEQE, dated October 29, 1986, which stated in part that, during 1982 and 1983, two leather factories (not Salem Suede) were "emitting maximum odors and particulates that were effecting [sic ] the neighbors." The judge sustained the plaintiffs' objection, ruling that such evidence was "too far afield."

The evidence was clearly relevant because the author of the letters was one of the plaintiffs (Picciotto), and the letters were offered to show that, during the relevant period, Picciotto had complained that two other leather factories were emitting odors and emissions. The plaintiffs argue that the letters only show that the odors and emissions were affecting "the neighbors" and not FCC. This argument is strained. Whether FCC was one of the "neighbors" goes to the weight of the evidence and not its admissibility. However, although the evidence was relevant, its exclusion was harmless error. There was considerable testimony from Picciotto on cross-examination that the neighborhood contained several factories that emitted odors; that more than once Picciotto had blamed odors on Salem Suede which later turned out to be from other sources; and that FCC was downwind from a factory that cleaned barrels and emitted odors. ⁴ b. Exclusion of evidence that the defendants did not receive any complaints from either its employees or other nearby businesses. The defendants claim that the judge committed error by excluding evidence that neither their employees nor owners of other nearby businesses had complained of symptoms caused by odors or emissions from Salem Suede.

Zion, one of the defendants, was not permitted to testify that, over the entire period he had been operating Salem Suede, none of his more than 200 employees had ever complained to him about any symptoms caused by odors or emissions. In addition, Zion was not allowed to testify that, over the same period, he had received only one complaint from a neighbor, other than Picciotto, concerning Salem Suede's emissions, and after investigation, it was determined that those emissions came from another company. Furthermore, other owners of nearby businesses were not permitted to testify that they had not received any complaints from their employees regarding odor-related symptoms.

In Silver v. New York Cent. R.R. Co., 329 Mass. 14, 19-21, 105 N.E.2d 923 (1952), a plaintiff brought an action against the railroad for injuries she sustained as a result of the cold temperature in the railroad car in which she was a passenger. The court held that testimony by the porter of the plaintiff's railroad car that eleven other passengers in that car made no complaint to him would be admissible if the other passengers were in substantially the same situation concerning the cold as the plaintiff; if the porter's duties were shown to include the receipt of such complaints; if he was shown to have been present and available to be spoken to; and if it were shown to be unlikely that the other passengers complained to some other employee of the defendant.

As can be readily seen, there are a number of conditions that must be met before evidence of a lack of complaints may be received in evidence. Here, on this record, the judge properly could have found that the conditions were not met. ⁵ There was no error in the exclusion of the evidence. ⁶

c. Exclusion of testimony that the presence of lead on FCC premises constituted a health hazard to individual plaintiffs. A defense expert, an environmental consultant, was not allowed to give his opinion that the presence of lead on FCC's property constituted a health hazard to the individual plaintiffs or whether FCC posed a greater health hazard than Salem Suede to the individual plaintiffs. Even if we assume the evidence was relevant, its exclusion did not prejudice the defendants.

There was ample testimony that there was a considerable amount of lead and other harmful solvents found on FCC's premises. In addition, another expert for the defendants testified about the high concentration of lead found in the blood of the most seriously...