Magaw v. Massachusetts Bay Transp. Authority

• Decision Date: 22 November 1985
• Parties: Ann W. MAGAW, et al. 1 v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.
• Court: Appeals Court of Massachusetts

Page 695

485 N.E.2d 695

21 Mass.App.Ct. 129

Ann W. MAGAW, et al. ¹ v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY.

Appeals Court of Massachusetts Norfolk.

Argued Oct. 29, 1985.

Decided Nov. 22, 1985.

Gerald M. Coakley, Westwood, for defendant.

Robert E. Dinsmore, Quincy, for plaintiffs.

GREANEY, Chief Justice.

On Tuesday, June 19, 1979, between 8:45 and 9:00 A.M., Ann Magaw parked her car on Beale Street in Dorchester, intending to use the MBTA Ashmont station. As she approached the MBTA Beale Street pedestrian tunnel, she noticed a young man standing at the entrance. The tunnel, which was about twenty to twenty-five feet long, was open on both ends with about nine or ten steps leading into and out of it at either end. Magaw was about three feet into the tunnel when she noticed a tall young man coming toward her. She turned, and the young man she had seen outside was behind her. The two young men shoved her against the wall and to the ground in trying to steal her purse. Magaw attempted to resist, but eventually the muggers succeeded in taking her bag and fleeing the scene. Magaw was taken to the hospital.

Magaw brought an action in negligence against the MBTA seeking damages. Her husband, Charles Magaw, joined in the action seeking to recover for loss of consortium and consequential damages. A Superior Court jury heard the case and, in answer to special questions, found that the MBTA had been negligent, that the MBTA's negligence had proximately caused Magaw's personal injuries, and that she was free of any negligence. The single sum of $60,000 was awarded by the jury to cover the claims of both plaintiffs.

The MBTA has appealed, arguing that the trial judge erred in denying its motion seeking judgment notwithstanding the verdict or, in the alternative, a new trial. ² The MBTA contends that (1) the plaintiffs have failed to show that the MBTA should reasonably have foreseen that any violent crime might be committed at the Beale Street tunnel in the morning hours of June 19, 1979, and thus did not meet their burden of proving causation; and (2) that any possible causal connection between any negligence on the part of the MBTA and the assault was severed by the intervening criminal act of third parties. If these arguments are unsuccessful, the MBTA further claims that public policy requires a judgment in its favor since sustaining the result will impose "an impossible burden on the MBTA to insure the safety of all its passengers at every place and every time." Finally, the MBTA contends that, if liability is upheld, it should have a new trial on damages because the damages awarded were excessive.

1. Liability. We first discuss liability. The MBTA concedes that it owes a duty, consistent with the nature and extent of its powers, to protect its passengers from all dangers that are naturally and ordinarily to be expected. The MBTA further concedes that it is required to use proper precautions to protect its passengers from injuries caused by the misconduct of others that ought reasonably to be anticipated and guarded against. The concessions are proper. The MBTA is not an insurer. Nevertheless, "[it] is the long settled law of this Commonwealth that a common carrier owes to its passengers the highest degree of care in the anticipation and prevention of violence from its employees, other passengers, and even strangers, as is consistent with the nature and operation of its business." Quigley v. Wilson Line of Massachusetts, Inc., 338 Mass. 125, 128, 154 N.E.2d 77 (1958). The test is whether the MBTA could have anticipated, or guarded against, the act of violence committed in this case. Our inquiry, therefore, is directed to the issue of foreseeability. See the Quigley case, supra at 128, 154 N.E.2d 77.

In addition to the evidence summarized above, the plaintiffs' case contained the following evidence. The MBTA conceded that it controlled the tunnel. Ann Magaw testified that on June 15th, the Friday prior to the incident, she had complained to an MBTA starter that the lights in the tunnel were out. The lights had not been repaired four days later on June 19th when Magaw entered the dark tunnel. Because the stairs to the tunnel are outside, a pedestrian like Magaw would actually have to enter the tunnel before realizing that the lights were out.

While she was being assaulted, Ann Magaw screamed for help for two to five minutes. The place of the assault was about thirty yards from a toll booth; four MBTA employees were working at the Ashmont station at the time. ³ Ann Magaw testified that while she was being assaulted in the tunnel she did not hear a train passing over the tunnel. ⁴ Her husband testified that later that day, as well as on the next day, he went to the station and that from the area of the toll booth he could hear people walking through the tunnel.

Officer Michael McDonough of the MBTA police testified from MBTA police records that in the fifty-day period from May 1, 1979, up to the assault on June 19, 1979, there had been thirty-eight incidents at, or in the vicinity of, the Ashmont station. All the incidents were reported to and recorded by, the MBTA police. These incidents included the stoning of buses at the station; the ejection of disorderly persons and drunks from the station on fifteen occasions; two fights; various acts of vandalism; five episodes involving disorderly persons; reports of youths blocking the entrance to the station; the need to tow abandoned motor vehicles; the ejection from the station of three boys carrying axes; trespassing; and a report of a purse lost or stolen at the station. Officer McDonough also testified that he considered most of the occurrences described in the reports as "serious" in nature.

In determining whether the evidence was sufficient to overcome the MBTA's motion for judgment notwithstanding the verdict, we must ascertain whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff. If any such combination of circumstances could be found it is ... immaterial how many other combinations could have been found which would have led to conclusions adverse to the plaintiff." Campbell v. Thornton, 368 Mass. 528, 535, 333 N.E.2d 442 (1975).

Under this standard, we think that the judge properly ruled that the issue of foreseeability was for the jury. First, Officer McDonough corroborated Ann Magaw's testimony that the Beale Street tunnel lights were out on the morning of the robbery. The jury could have found that the MBTA had notice of the need to replace the lights and had done nothing about them. Whether inadequate, indeed nonexisting, lighting in the tunnel was a contributing factor in bringing about the assault was for the jury to resolve. They could reasonably have concluded that the assailants chose to lie in wait at the tunnel for a victim precisely because the tunnel was unlit. As was noted in Kenny v. Southeastern Penn. Transp. Authy., 581 F.2d 351, 355 (3d Cir.1978), a case where a female plaintiff was raped on an unlighted section of the defendant carrier's premises, "The presence of adequate lighting is recognized as a discouragement to violent criminal activity, particularly in an area where members of the public may be expected. Traditionally, adequate street lighting has been advocated as an effective means of reducing crimes against the person, such as robbery, assault and rape."

More directly, the jury could have considered the repeated unsavory, and sometimes violent, activities at or near the subway station, all of which were known to and recorded by the MBTA, as creating a situation that was dangerous to persons using the station. In this regard, the jury could have noted that there had been almost an incident a day at the Ashmont station, including one on each of the two days preceding the date of the attack on Magaw. The jury could have placed particular reliance on the testimony of MBTA Officer McDonough that he considered the incidents as "serious," and noted that the tunnel itself may have been the site of yet another incident within the fifty-day period discussed at trial. ⁵

The MBTA argues that it had no reason to anticipate criminal activity specifically in the Beale Street tunnel since the other incidents occurred, principally, at other locations in or outside of the station. We disagree. Many serious incidents, known to the MBTA police, had occurred throughout the Ashmont complex. These incidents, combined with the absence of lighting at the tunnel, could have been viewed by the jury as creating a climate of danger. The jury could have found that the record known to the MBTA warranted practical measures, including maintenance of adequate lighting and better security, to protect passengers in all parts of the station including the tunnel. The jury could have also found that the station is not so large or laid out in so complex a fashion as to render security patrols throughout it and at the tunnel impractical. So viewed, and given the high duty of care owed by the MBTA to its passengers, see Quigley v. Wilson Line of Massachusetts, Inc., 338 Mass. at 128, 154 N.E.2d 331, the Magaws' proof was sufficient to prevail on the issue of foreseeability. In the circumstances, the governing test for foreseeability is the one stated in West v. Molders Foundry Co., 342 Mass. 8, 12, 171 N.E.2d 860 (1961), as follows: whether "the probable consequence of [the defendant's] acts was that harm of the same general character as that which came to the plaintiff would come to persons who stood in the same general relation to the defendant as the plaintiff." In applying this test, "it is not necessary to make out liability on a defendant's part that the particular series of events which ended in the [plaintiff's] injury ... were the probable consequences of the defendant's acts." Id. at 12-13, 171 N.E.2d...