Heng Or v. Edwards, No. 02-P-1304 (MA 11/19/2004)

• Decision Date: 19 November 2004
• Docket Number: No. 02-P-1304.,02-P-1304.
• Citation: 62 Mass. App. Ct. 475
• Parties: HENG OR, administrator, 1 vs . LAWRENCE C. EDWARDS, individually and as trustee, & another. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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HENG OR, administrator,¹ vs. LAWRENCE C. EDWARDS, individually and as trustee, & another.²

No. 02-P-1304.

Court of Appeals of Massachusetts.

Suffolk.

December 10, 2003.

November 19, 2004.

Negligence, Employer, Entrustment, Causation, Proximate cause, Foreseeability of harm, Wrongful death. Jury and Jurors. Conscious Pain and Suffering.

Civil action commenced in the Superior Court Department on July 21, 1992.

The case was tried before Catherine A. White, J., and a motion for a new trial was heard by her.

Paul L. Lees (Jacqueline V. Lees with him) for the plaintiff.

Michael P. Sams (Christopher A. Kenney with him) for the defendants.

Present: Gelinas, Kaplan, & Cohen, JJ.

KAPLAN, J.

The plaintiff Heng Or, administrator of the estate of his young daughter Anmorian Or, seeks damages for her wrongful death, G. L. c. 229, § 2, and for her related conscious pain and suffering, G. L. c. 229, § 6, claiming these harms were brought about through the defendant landlords' negligence in hiring or retaining an unfit person for a custodial entrustment. After trial, the jury found for the plaintiff for the wrongful death in the amount of $ 1.6 million and $2.75 million for conscious pain and suffering. Upon the defendants' motions for judgment n.o.v. or a new trial, a judge of the Superior Court denied the motions as applied to the verdict for the wrongful death (remittitur being also denied), but allowed the motion for judgment as to conscious pain and suffering. The defendants appeal from the judgment entered upon the jury's verdict for the plaintiff for wrongful death. The plaintiff appeals from the judgment for the defendants as to conscious pain and suffering.

WRONGFUL DEATH

The theme of the action is that the defendant landlords, charged with exercising reasonable care for the protection of occupants of the premises, acted negligently in selecting an unfit person (Vao Sok) for custodial duty and entrusting him indiscriminately with the keys to apartments, thereby initiating a foreseeable likelihood of harm to others. In the event, this negligent conduct on the defendants' part resulted in harm (murder of the child Anmorian) corresponding in a general sense with one or more of the foreseeable harms. For such injury, the defendants were fairly found by the jury to be accountable.

Narrative. 1. Eng Ros lived with her husband, Heng Or, and their three children, Anthony, aged six, Anmorian, five, and Jimmy, three, in apartment no. 2 on the first floor of the twelve-apartment building at 146 Shirley Avenue, in a blighted neighborhood of Revere. About 5:30 A.M., Friday, May 15, 1992, Eng Ros arose to care for the children, then drove the two older children to the Garfield School in Revere. Around 11:00 A.M. she retrieved them and, returning home, reclothed and fed all three children. She took a nap, entrusting the children to her mother, Nay Tuch, who lived in apartment no. 4 on the second floor. When Eng Ros awoke, around 2 P.M., Anmorian was not on hand. Eng Ros told her mother to look for Anmorian; at that point Eng Ros had to prepare and drive to her job on a 3:00-11:00 P.M. shift in Salem.

While at work, about 4:00-5:00 P.M., Eng Ros received a telephone call from her friend Soy May — Anmorian was still missing. Alarmed, Eng Ros left work and drove to Heng Or's workplace in Lynn (he was on a day shift). They returned in their separate cars to 146 Shirley Avenue and began a search inside and outside the building. Heng Or found a police officer on the avenue, and, after producing at the officer's request a picture of Anmorian, he entered the officer's car and they cruised the nearby streets without result.

Sometime between 6:00 and 8:00 P.M. Heng Or made a canvass of most of the apartments in the building, knocking on the doors and inquiring of any who answered, and trying the handles of doors where there was no response. The account we have of this search is not complete, but it is reported that Heng Or found apartments no. 3 and 3A on the first floor — no. 3A being opposite no. 2 — unresponsive to knocks and unyielding at the door handles. Toward evening, Heng Or called Lawrence Edwards at his business office on Hichborn Street³ and left a message on the answering machine. In one version of the message Heng Or asked Edwards' help to gain entry to the locked apartments.

After little or no sleep, Heng Or on Saturday morning resumed search and worry without any specific plan.⁴ On Shirley Avenue he ran into relatives, Hun Hoy and Buon Men. After conversation about the futile search so far, the relatives suggested that Heng Or try the apartments again. About 1:00-2:00 P.M. Heng Or was rechecking the doors of apartments 3 and 3A. Unexpectedly the door of no. 3A opened. The apartment appeared used in part at least for storage. Heng Or entered the bedroom. Anmorian was lying on the floor, on her back, clothed, with her legs bent at the knees. As Heng Or clasped her, he saw her eyes rolling without a sign of recognition. She was making a "tiny" sound. She was taken to the Massachusetts General Hospital, where she died on May 19, a brain death from asphyxiation.⁵

2. It is likely, though we are not told, that Vao Sok, twenty-three years old, used by Lawrence Edwards to do handyman's work about the building, came first under suspicion for homicide because he possessed a key to apartment no. 3A. On May 21, he told the police what he had done, recorded in a statement in the Khmer language signed by him, of which we have a translation, and again in questions and answers in English, a translation from the Khmer. According to his confession, Vao Sok on the morning of May 15 went to Syria Market where he was given a cup of wine and bought two forty-ounce bottles of beer. Then he bought one hundred dollars' worth of cocaine and smoked it to the end with his friend Mey in the vacant apartment no. 9 upstairs on the third floor. He bought $200 more, and resumed smoking with Mey. All that morning, Vao Sok said, he drank wine and a great deal of beer and smoked cocaine and marijuana. He met the little girl in the hallway of the entrance to 146 Shirley. He was mad because (like others he solicited) she wouldn't give him money for cocaine. Asked by police why he first hit the girl, Vao Sok said, "Because I said I need money to buy cocaine to smoke. Even though the adult people I would hit too." Complaining of drink-blurred memory, he said he hit her unconscious, he squeezed her mouth and throat, he dragged her into no. 3A, which he opened with his key to a lock in the door handle. He dropped her near the wall. He was so drunk he didn't remember whether he raped her (the doctors later confirmed that he had done so). He left no. 3A in a hurry, and just slammed the door shut, he wanted to get outside and drink beer with the other young men.⁶

3. Lawrence Edwards, owner and landlord (with his wife Florence Edwards) of 146 Shirley Avenue, took care himself of repair and maintenance tasks there. A tenant, Map Sem, occupying no. 7 on the second floor, introduced Vao Sok to Edwards as "my friend Van" and suggested Vao Sok could help him in his work. According to the best guess of Edwards and Map Sem, this was in July, 1991, some ten months before the fatal incident. Edwards learned after meeting Vao Sok that he was staying as a nonpaying boarder on the kitchen floor of Map Sem's apartment.⁷ Edwards would see Vao Sok around the place "almost daily" and would communicate with him in English. Edwards would not arrange with Vao Sok in advance to do given jobs, but if Vao Sok was on the premises when a need arose, Edwards might call on him and would pay him five or ten dollars for his help. Thus Vao Sok helped from time to time with painting and cleaning, moving barrels, etc.

In the early months of 1992, 146 Shirley was being "deleaded" as required by law. To allow the deleaders to come in and do their work, tenants moved from their regular apartments to vacant (untenanted) apartments; Edwards would clean and perhaps redecorate as the deleaders completed their work and before the tenants moved back to their own apartments. Edwards thought six out of twelve apartments were vacant on May 15; these would be in various conditions and contain supplies of sundry sorts.

Edwards was anxious that no vacant apartment should be left unlocked and open. Especially as entry into the building was not guarded, to leave a vacant apartment open invited theft of the contents or other illicit uses. To assure that no vacant apartment would be left in this naked condition, Edwards gave the keys to these apartments (including the keys to nos. 3A and 9) to Vao Sok, evidently with instructions about keeping the apartments locked when not being utilized for the deleading routine. (There is no indication that Vao Sok was paid anything for this particular duty.) Vao Sok kept the keys in his possession over a period of time without being asked to surrender them. As far as appears, Edwards kept no account of the keys. It should not be overlooked that the keys to vacant apartments also gave entry to the apartments after they were reoccupied by tenants following the deleading.

Edwards testified he worked at 146 Shirley until about noon on May 15, left for lunch and returned at 1:00 or 1:30, and left for good around 4:00 P.M. In the morning he worked in apartments nos. 3 and 9; he does not recall any unusual smell in no. 9, but he says he has no acquaintance with the odor of smoked cocaine. Edwards worked in no. 3 (adjacent to no. 3A) in the afternoon but heard nothing exceptional. Leaving the building, he passed Vao Sok and some two to five other men outside drinking beer. Edwards told Vao Sok not to drink beer in public. Vao Sok answered (paraphrased), "I'm drinking."⁸

Heng Or's telephone call in the evening of May 15 would have sounded at the Edwards home as well as the office, but was recorded only at the office. The Edwards couple were at their son's...