Greenleaf v. Massachusetts Bay Transp. Authority

• Decision Date: 23 June 1986
• Citation: 22 Mass.App.Ct. 426,494 N.E.2d 402
• Court: Appeals Court of Massachusetts
• Parties: Jane F. GREENLEAF v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

Page 402

494 N.E.2d 402

22 Mass.App.Ct. 426

Jane F. GREENLEAF v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

Appeals Court of Massachusetts,

Suffolk.

Argued April 11, 1986.

Decided June 23, 1986.

Robert H. Flynn, Boston, for defendant.

Robert T. Harrington, Boston, for plaintiff.

Before GRANT, KASS and WARNER, JJ.

KASS, Justice.

Successor counsel for the defendant Massachusetts Bay Transportation Authority (MBTA) attempts valiantly on appeal to undo an order of a Superior Court judge, acting under Mass.R.Civ.P. 37(b)(2), as amended, 390 Mass. 1208 (1983), that the liability of the MBTA be taken as established, leaving only the damages to be assessed. Another judge found the damages to be $222,811, and a judgment for the plaintiff entered in that amount. We conclude that the order defaulting the MBTA, thereby establishing liability, was within the judge's discretion.

The underlying tort action arose out of a mishap in which the doors of an MBTA train car closed on the plaintiff, the automatic opening device failed, and the plaintiff suffered injuries to her left knee and left leg, as well as aggravation of a previous injury. For purposes of the appeal, the relevant facts are procedural and, more specifically, relate to discovery.

On the same date that she filed her complaint, February 18, 1983, the plaintiff also filed interrogatories and a request for production of documents. All three pleadings were served three days later. Her request for documents specified: documents about the accident; documents which identified witnesses; documents relating to the opening and closing of doors on the train; maintenance records; documents relating to other car door accidents; documents relating to injuries where someone's foot went between a platform and a car; specifications of the particular car door and similar ones; blueprints of the particular cars; and insurance agreements. The MBTA objected to the entire request for documents as overbroad, harassing, and burdensome. That objection was general in nature; it did not differentiate among the categories of papers asked for, and it conceded the availability or relevance of none of them. On September 22, 1983, the plaintiff filed a motion to compel production of the documents requested. That motion was allowed and directed that production be made October 28, 1983.

The due date came and went with neither documents brought forth nor any expression of difficulty by the MBTA about finding the papers sought. On February 13, 1984, almost a year after she had filed her request for production of documents, the plaintiff moved under Mass.R.Civ.P. 37(b)(2)(C) for a judgment by default on the issue of liability. That motion was allowed by a second Superior Court judge. Judgment for the plaintiff on liability entered on February 28, 1984.

Predictably, entry of the default judgment brought the MBTA to life. It moved to vacate the judgment. The response was again general in mode; it pleaded "clerical error, inadvertance or mistake." ¹ A third Superior Court judge allowed the BTA's motion on April 23, 1984, and ordered the following day that the MBTA "shall supply all requested discovery items on the issue of mechanical failure of the doors of the vehicle." The MBTA's first effort to comply with the production orders occurred on May 17, 1984, and consisted of a single training manual for a door system. The plaintiff notified the MBTA that she did not consider that the production order had been complied with and, on June 5, 1984, the MBTA produced additional papers. On June 27, 1984, the plaintiff wrote the MBTA specifying in detail the manner in which she thought the MBTA had failed to respond to elements of the production order. The MBTA responded with neither papers nor a responsive pleading. It awaited events, and they occurred. The plaintiff renewed her motion that liability be taken as established.

A fourth Superior Court judge, after hearing, entered an order on October 12, 1984, that the MBTA produce "copies of all incident reports concerning the doors of the particular car in question or cars of the same model from July, 1981 to the present whether or not suits have been commenced relative to the incidents." The order required that the specified papers be produced by the close of business that day, i.e., October 12th; that within thirty days the MBTA pay $350 to the plaintiff as costs; and that the MBTA by the close of business hours that day file an affidavit demonstrating compliance with the order.

An assistant general counsel of MBTA did file an affidavit on the afternoon of October 12, 1984, apparently attached some incident reports to the affidavit, and, as to reports for the year 1981, the affidavit said, "with the court's indulgence, the records can and will be obtained by Wednesday, October 17, 1984, and delivered to this Court." No papers were delivered to counsel for the plaintiff until October 16, 1984. Missing from the submission were reports regarding the only three accidents which the MBTA, in answers to interrogatories, had acknowledged as involving doors of a car of the same make and model as that involved in the case at bar. Of incident reports submitted, 102 of them, without explanation, lacked the third page. ² It may have been the case, as the record suggests, that one or more items of documentation ordered by the court could not be found, but the MBTA filed no motion asking for relief from a particular element of the October 12th order. The indulgence of the court, mentioned in the affidavit, was assumed, not prayed for. Additional papers were not produced by the MBTA on October 17th.

The judge summoned counsel for both parties. He heard argument on the afternoon of October 26, 1984, and lowered the boom on November 1, 1984, in the form of a second order establishing liability.

We have set out this history in tedious detail because it provides the necessary perspective to the ultimate order complained of, and because it constitutes a case study in self-destructive conduct of litigation.

Entry or, conversely, removal of default judgments has to do with the management of the case and, as such, is committed to the sound discretion of the trial judge. Riley v. Davison Constr. Co., 381 Mass. 432, 441, 409 N.E.2d 1279 (1980). Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 641, 488 N.E.2d 1 (1986). Jerry Martin Co. v. Hyannis Marina, Inc., 3 Mass.App.Ct. 746, 326 N.E.2d 914 (1975). We do not consider that discretion abused unless its exercise has been characterized by arbitrary determination, capricious disposition, whimsical thinking, or idiosyncratic choice. Davis v. Boston Elev. Ry., 235 Mass. 482, 496, 126 N.E. 841 (1920). Berube v. McKesson Wine...