Gardner v. Simpson Fin. Ltd.

• Decision Date: 09 August 2013
• Docket Number: Civil Action No. 09–11806–FDS.
• Citation: 963 F.Supp.2d 72
• Parties: Gayle GARDNER, Tanya Pulisciano, Crystal Caissie, and Louise Felteau, Plaintiffs, v. SIMPSON FINANCING LIMITED PARTNERSHIP, Defendant.
• Court: U.S. District Court — District of Massachusetts

963 F.Supp.2d 72

Gayle GARDNER, Tanya Pulisciano, Crystal Caissie, and Louise Felteau, Plaintiffs,

v.SIMPSON FINANCING LIMITED PARTNERSHIP, Defendant.

Civil Action No. 09–11806–FDS.

United States District Court, D. Massachusetts.

Aug. 9, 2013.

Amelia–Lyn Warchal, Neil J. Judd, D'Angelo & Hashem, LLC, North Andover, MA, Stephen L. D'Angelo, D'Angelo & Hashem LLC, North Andover, MA, for Plaintiffs.

Damon M. Seligson, John W. Dinicola, II, Dinicola Seligson & Upton LLP, Scott McConchie, Sherin and Lodgen LLP, Thomas F. Maffei, Griesinger, Tighe & Maffei, LLP, Boston, MA, Dawn M. Piccirilli, Boyle, Shaughnessy & Campo, P.C., Edward W. Waystack, Robert W. Healy, Cogavin & Waystack, Gordon P. Katz, Timothy J. McLaughlin, Holland & Knight, LLP, Boston, MA, for Defendant.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR NEW TRIAL

SAYLOR, District Judge.

In May 2008, the apartment building in which plaintiffs lived was destroyed by fire. Plaintiffs Gayle Gardner, Tanya Pulisciano, Crystal Caissie, and Louise Felteau brought an action for negligence against defendant Simpson Financing Limited Partnership, the entity that owned and operated the apartment complex. The case was tried to a jury in April 2013; the jury found that Simpson was negligent in maintaining the premises and awarded each plaintiff compensatory damages for loss of property and emotional distress. ¹

Pending before the Court is Simpson's motion for judgment as a matter of law, or, in the alternative, a remittitur or new trial. For the reasons set forth below, the motion will be granted in part and denied in part.

I. Procedural Background

Plaintiffs brought separate actions in the Massachusetts Housing Court, Northeast Division, against Simpson, as well as First American Property & Casualty Insurance Company and Multifamily Community Insurance Agency, Inc., alleging negligence, negligent infliction of emotional distress, intentional and negligent misrepresentation, breach of contract, breach of the covenant of quiet enjoyment, nuisance, and violation of Mass. Gen. Laws ch. 93A. On October 26, 2009, defendants removed the actions to this Court on the basis of diversity of citizenship. The actions were then consolidated.

On March 30, 2012, 2012 WL 1109104, this Court granted summary judgment in favor of the insurance company defendants. The Court also granted partial summary judgment in favor of Simpson with only the claims for negligence, negligent infliction of emotional distress, and breach of the covenant of quiet enjoyment surviving.

A jury trial was held from April 1 through April 5, 2013. The evidence at trial consisted of, among other things, testimony from the plaintiffs, employees of Simpson, and representatives of the Peabody Fire Department. The testimony indicated that there had been multiple fires in the landscaping mulch at the apartment complex prior to the one that burned down plaintiffs' building. During the testimony of Peabody Fire Inspector Joseph DiFranco, Peabody Fire Department reports were offered into evidence that described the department's response to mulch fires at the Highlands at Dearborn on May 19, 21, and 25, 2008. ( See Tr. Day 2 at 69, 75–76, 78–79). Inspector DiFranco also testified that he suggested to Simpson employees that they could address the fire risk by pulling the mulch away from the buildings, as well as better controlling the disposal of cigarette butts. ( Id. at 73, 81). Andrew Filippone, who was employed by Simpson as the maintenance supervisor for the Highlands at Dearborn, testified that while he was at the scene of one of the smaller mulch fires on the property, someone from the Peabody Fire Department “recommended bringing the mulch back away from the building a little bit.” ( Id. at 56). He further testified that he passed this recommendation on to Simpson property manager Victoria Jackman and that the mulch was never in fact pulled away from the buildings before the fire that destroyed Building 8 on May 29, 2008. ( Id. at 57).

Also in evidence were two notices, one from the Peabody Fire Department and one issued by the property manager. The notice from the fire department, which was dated May 27, 2008, acknowledged the repeated mulch fires and instructed the property manager to address improper disposal of cigarette butts and matches; it did not, however, mention moving the mulch away from the buildings. ( Id. at 82). The notice issued by the property manager was dated March 29, 2008, months before the mulch fires occurred, and asked residents not to throw cigarette butts on the ground. ( Id. at 30; Tr. Day 4 at 80). There was no evidence of any other notices having been issued to residents prior to the May 29 fire.

Victoria Jackman testified that the mulch was pulled back from the buildings some time after the May 29 fire. (Tr. Day 4 at 110). Jackman gave this testimony in response to questions from plaintiffs' counsel on cross-examination. Because the Court did not immediately realize that the question sought to elicit testimony as to subsequent remedial measures, it overruled a defense objection to the question, but then gave an immediate curative instruction after it heard the answer. The exchange transpired as follows:

MR. D'ANGELO: ... what I'd like to ask you is, at some point a decision was made to pull the bark mulch back. Do you recall when that was?

MR. SELIGSON: Objection.

THE COURT: Overruled.

MS. JACKMAN: A decision was made to pull the mulch back, and it was actually recommended by—

MR. D'ANGELO: That's not my question, I'm sorry, I just want to know when.

MS. JACKMAN: Oh, it was following the fire.

MR. D'ANGELO: Do you know was it the next day, a week, a month?

MS. JACKMAN: I don't recall specifically. It was early.

THE COURT: Let me caution the jury. Obviously everyone is encouraged to make things safer after something has happened, and you cannot use evidence that something was done after the fact to make something safer as proof it wasn't safe before the incident happened. We expect and want everyone to learn from incidents and to improve things as time goes on.

( Id.) (emphasis added).

David Homan, a regional manager at Simpson, was the next witness. He testified on direct—in response to a question by defense counsel—that the mulch was pulled back from the buildings a few days after the fire, in consultation with the fire department. ( Id. at 133).²

Plaintiffs also testified in support of their case. They each provided a list of items lost in the fire and attributed values to those items; those lists were admitted into evidence without objection. ( See Tr. Day 3 at 5–6; see, e.g., id. at 32–38). They also testified extensively about the mental and physical effects of the fire on their persons. ( See, e.g., id. at 42–50). They each testified that they saw Building 8, which was the building wherein their apartments were located, burning from Route 1, the entrance to the apartment complex, and/or a nearby parking lot. ( See id. at 21, 65–66, 79–80; Tr. Day 4 at 26–27). Plaintiffs Caissie, Gardner, and Felteau all testified about the loss of their pets in the fire. ( See Tr. Day 3 at 79–84, 29, 37–38; Tr. Day 4 at 26–27).³

Defendant moved for a directed verdict, which the Court denied. The jury then found in favor of plaintiffs on all counts and awarded compensatory damages for loss of property to plaintiff Gardner in the amount $74,128.00; to plaintiff Pulisciano in the amount of $41,355.57; to plaintiff Caissie in the amount of $47,331.43; and to plaintiff Felteau in the amount of $188,992.02. The jury also awarded emotional distress damages to each plaintiff in the amount of $450,000. Defendant has moved for an order of judgment as a matter of law, or in the alternative, for an order of remittitur or new trial.

II. Standard of Review

Judgment as a matter of law may be granted when the evidence, considered in the light most hospitable to the verdict, “is so one-sided that [the moving party] is plainly entitled to judgment, for reasonable minds could not differ as to the outcome.” Colasanto v. Life Ins. Co. of N. Am., 100 F.3d 203, 208 (1st Cir.1996) (citation omitted); accord Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 75 (1st Cir.2001) (“[T]he jury's verdict must stand unless the evidence, taken in the light most favorable to the prevailing party, points unerringly to an opposite conclusion.”).

Similarly, a court may grant a new trial when “the outcome is against the clear weight of the evidence such that upholding the verdict will result in a miscarriage of justice.” Goulet v. New Penn Motor Express, Inc., 512 F.3d 34, 44 (1st Cir.2008) (quoting Ramos v. Davis & Geck, Inc., 167 F.3d 727, 731 (1st Cir.1999)); see also Sheek v. Asia Badger, Inc., 235 F.3d 687, 700 (1st Cir.2000) (“We will uphold the jury's verdict unless the evidence points ‘to one conclusion and one conclusion only: that the losing party was entitled to win.’ ” (citations omitted)). “[A] trial judge may order a new trial ‘even where the verdict is supported by substantial evidence.’ ” Jennings v. Jones, 587 F.3d 430, 439 (1st Cir.2009) (quoting Lama v. Borras, 16 F.3d 473, 477 (1st Cir.1994)).

As an alternative to ordering a new trial, a court may order a remittitur of damages in certain rare circumstances. The First Circuit has held that a district court is “obligated ... to grant a remittitur or a new trial on damages only when the award ‘exceeds any rational appraisal or estimate of the damages that could be based upon the evidence before it.’ ” Eastern Mountain Platform Tennis, Inc. v. Sherwin–Williams Company, Inc., 40 F.3d 492, 502 (1st Cir.1994) (quoting Milone v. Moceri Family, Inc., 847 F.2d 35, 36 (1st Cir.1988)); see also Anthony v. G.M.D. Airline Services, Inc., 17 F.3d 490, 493 (1st Cir.1994) (applying the same standard). Courts have interpreted...