Irwin v. Town of Ware

Decision Date15 August 1984
Citation467 N.E.2d 1292,392 Mass. 745
Parties, 48 A.L.R.4th 287 Debbie L. IRWIN & others 1 v. TOWN OF WARE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

David A. Wojcik, Worcester, (John A. Mavricos, Worcester, with him), for defendant.

Alan R. Goodman, Springfield, and Joseph Glannon, Boston, for plaintiffs.

Peter A. Donovan, David S. Shrager, Philadelphia, Pa., Thomas F. Lambert, Jr., Camille F. Sarrouf and Frederick N. Halstrom, Boston, for Assn. of Trial Lawyers of America, amicus curiae, submitted a brief.

Demitrios M. Moschos, Worcester, for Massachusetts Municipal Assn., amicus curiae, submitted a brief.

Michael F. Magistrali, Dorchester, Asst. Corp. Counsel, and Crespin Birnbaum, Legal Intern, for the city of Boston, amicus curiae, submitted a brief.

Philip W. Bouchard, Wilbraham, for Mothers Against Drunk Drivers, amicus curiae, submitted a brief.


HENNESSEY, Chief Justice.

The plaintiffs commenced this action against the defendant town of Ware (town), under G.L. c. 258. They charge that police officers of the town negligently failed to take into protective custody a motor vehicle operator who was under the influence of intoxicating liquor and who subsequently caused an accident resulting in harm to the plaintiffs. The jury returned special verdicts for the plaintiffs in the amount of $873,697. The town filed motions for judgments notwithstanding the verdicts, or, in the alternative, for a reduction of the jury's award. The trial judge denied the town's motion for judgments notwithstanding the verdicts, and reported the motion for a reduction of the jury's award to the Appeals Court. The town then filed a notice of appeal from the denial of the motion for judgments notwithstanding the verdicts by the trial judge, as well as on several evidentiary matters. The plaintiffs filed a motion for a new trial as to damages only for count four of their complaint. 2 The trial judge took no action on the motion and further reported the denial of the town's motions for judgments notwithstanding the verdicts, and summarized his reported questions. We allowed the plaintiffs' application for direct appellate review. 3

We conclude that there must be a new trial because of the improper admission in evidence of the blood alcohol levels of the two motor vehicle operators.

The trial judge reported the following three questions: "1. Is the Defendant, Town of Ware, liable for acts of its police officer employees in the circumstances of this case? 2. If the answer to question 1 is in the affirmative, then does the limitation clause of G.L.c. 258, § 2 apply to the damages awarded by the jury? 3. If the answer to question 2 is in the affirmative, then does the limitation apply a. to each cause of action; or b. to each individual plaintiff or c. to all plaintiffs collectively for injuries sustained in the same 'incident.' " By answering the reported questions, we shall address many of the issues raised in the town's appeal from the trial judge's denial of its various motions. 4 Those not reached in that context will be addressed separately.

1. Evidence of Blood Tests.

The town's major evidentiary challenge to the jury's verdicts focuses on the admission of evidence relating to the alcohol content level of the blood of Donald Fuller, the vehicle operator who was detained briefly by the police and released. The town made a timely objection to admission of the evidence at trial and argues on appeal that its admission was prejudicial error requiring a new trial.

The evidence at issue is the representations made in a letter purporting to record the results of a test done on blood drawn from Fuller immediately after the accident. The letter was sent by Dr. Patrick Foley, as chief of the Clinical Chemistry Department of Laboratory Medicine at the University of Massachusetts Medical Center, to Dr. Benjamin Schneider, medical examiner in Ware at that time. It stated in relevant part the following: "Dr. Schneider: We have carried out blood alcohol analysis on the two specimens submitted to us by the Ware Police Department. The results are as follows: Donald Fuller 202 mg/100 ml blood. Mark Irwin 19 mg/100 ml blood." The town argues this letter is inadmissible under the business records exception to the hearsay rule. See G.L.c. 233, § 78. It first claims that the letter was not a record kept in the ordinary course of business. Second, it asserts that even if the letter is admissible as a business record kept in the ordinary course of business, the test results included in the letter are not admissible. According to the town, the test results are "second level hearsay." It argues that, because the plaintiffs presented no evidence regarding the procedures followed or persons involved in extracting and labeling the tested blood samples from Fuller and Irwin, the test results cannot be said to have been recorded in the ordinary course of business and that they are, therefore, not admissible under the business records exception. Finally, the town states that the test results are inadmissible as the chain of custody of the blood has not been established. We agree that the letter should not have been admitted in evidence.

"General Laws c. 233, § 78, states that a record made in the regular course of business 'shall not be inadmissible because ... it is hearsay.' Such a record is presumed to be reliable and therefore admissible because entries in these records are routinely made by those charged with the responsibility of making accurate entries and are relied on in the course of doing business." Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406, 432 N.E.2d 474 (1982). Clearly, the letter admitted here was not a record made in the regular course of business within the meaning of the statute. The letter, far from being a routine and regular recording, was a summation of expert opinion. The letter also fails to qualify under the statute because the writer clearly relied upon information from other persons and it was not shown that those persons had reported that information as business routine.

We have said that the preparer of a business record need not have personal knowledge of a fact being recorded, but the preparer may not "rely on statements that are not themselves a part of the regular course of business record-keeping." Wingate v. Emery Air Freight Corp., supra. "The preparer's hearsay sources must carry the same indicia of reliability, arising from the regularity and business motives, that bring his own act of recording the information within the statutory exception. Thus, unless statements on which the preparer relies fall within some other exception to the hearsay rule, the proponent must show that all persons in the chain of communication, from the observer to the preparer, reported the information as a matter of business duty or business routine." Id. See Bouchie v. Murray, 376 Mass. 524, 528-529, 381 N.E.2d 1295 (1978). The plaintiffs made no such showing. There is no evidence regarding who drew and labeled the tested blood samples, how they were drawn, when they were drawn, or where they were drawn. 5 Accordingly, the results of the blood tests are inadmissible under the business records exception to the hearsay rule.

We focus the issue of the admissibility of the blood tests more accurately, however, by stating that the evidence in the form it was offered was inadmissible on materiality or relevance grounds, for lack of proper foundation in establishing a chain of custody. See, e.g., Nesci v. Angelo, 249 Mass. 508, 510, 144 N.E. 287 (1924); Bauer v. Veith, 374 Mich. 1, 4, 130 N.W.2d 897 (1964)("[A blood] test and its results are inadmissible in the absence of proof that the blood specimen analyzed was actually taken from the person in scrutiny or the body of that person"); Amaro v. City of N.Y., 40 N.Y.2d 30, 35-36, 386 N.Y.S.2d 19, 351 N.E.2d 665 (1976)("The chain of custody of any blood sample must be established ... and the failure to do so may be excused only where the circumstances provide reasonable assurances of the identity and unchanged condition of the sample ..."); Robinson v. Life & Casualty Ins. Co., 255 N.C. 669, 672, 122 S.E.2d 801 (1961)("[W]hether or not a blood alcohol test is admissible depends upon a showing of compliance with conditions as to relevancy ..., tracing and identification of specimen ... [A] foundation must be laid before this type of evidence is admissible"). This is not a case where some specific evidence linking the blood sample to Fuller has been introduced and, therefore, any "weaknesses in the chain of custody ... would go to the weight of the evidence rather than to its admissibility." Commonwealth v. Hogg, 365 Mass. 290, 294-295, 311 N.E.2d 63 (1974). Insufficient evidence was introduced to make the necessary link between Fuller and the blood tested. See generally Commonwealth v. Rodriquez, 364 Mass. 87, 94-95, 300 N.E.2d 192 (1973).

The plaintiffs argue that, even if the blood tests were improperly admitted in evidence, the error is harmless. We disagree. The letter stated that the alcohol content of blood extracted from Fuller immediately after the accident was "202 mg/100 ml blood." 6 Testimony was presented to the jury that a person whose blood alcohol content was at this level would stagger, have double vision, have difficulty estimating speed and distances, have slurred speech, have impaired judgment, and probably could not stand up with closed eyes without holding on to something. We think that such testimony fairly viewed would have been significant to the jury in their determination whether the town's police officers were negligent in failing to remove Fuller from the roadway. Thus, the town's substantive rights clearly were impaired by erroneous admission of the blood test results. See G.L.c. 231, § 119; Wingate v....

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