Smola by Smola v. Higgins, 96-P-600
Decision Date | 28 May 1997 |
Docket Number | No. 96-P-600,96-P-600 |
Citation | 42 Mass.App.Ct. 724,679 N.E.2d 593 |
Parties | Jolene SMOLA 1 v. Daniel HIGGINS & another. 2 |
Court | Appeals Court of Massachusetts |
Gerald T. Anglin, Boston, for defendants.
Chris A. Milne, Concord, NH, for plaintiff.
Milinda Drew; and Jeffrey M. Feuer, Cambridge, for the Massachusetts Tenants Organization & another, amici curiae, submitted a brief.
Before DREBEN, GILLERMAN and FLANNERY, JJ.
In a case involving a six year old child alleged to have been seriously injured by lead paint in the premises at 71 Walnut Street, North Brookfield (property), a judge of the Housing Court entered an interlocutory order allowing the plaintiff's motion for summary judgment as to liability only, and he reported the correctness of his ruling for determination by this court staying any further proceedings in the trial court. See Mass.R.Civ.P. 64(a), 365 Mass. 831 (1974).
In ruling on the plaintiff's motion, the judge reasoned that the defendants, having been ordered by the Department of Public Health (DPH) to delead the property, "neither appealed the order to delead the premises nor challenged the validity of the testing but rather proceeded to have the property deleaded," and that the " 'unchallenged and unappealed' decision of a state sanitary code citation cannot be collaterally attacked in a subsequent proceeding." The judge relied on Lezberg v. Rogers, 27 Mass.App.Ct. 1158, 1159, 539 N.E.2d 89 (1989) ().
In his report of the case to this court, the judge wrote that his We take this brief statement of the judge to mean that the underlying issue reported to us is whether the judge was correct in allowing the plaintiff's motion for summary judgment as to liability on the ground that the plaintiff may invoke the doctrine of offensive collateral estoppel. 3 If that doctrine is available, the defendants are precluded from offering evidence that the deleading order of the DPH was defective because the inspection of the property for the presence of dangerous amounts of lead did not conform to the applicable regulations. 4
The following facts are undisputed. The defendants are the owners of the property, the first floor of which was rented to the Smola family. On October 29, 1990, Joel Hollis of the DPH childhood lead poisoning prevention program (CLP) performed a lead inspection of the property, and he wrote up a "Lead Inspection Report."
On October 31, 1990, CLP issued its order to correct violation (order). The order, as it appears in the record appendix, is also a report of the ; it recites that an inspector had "determined certain portions [of the property] ... to be in violation of" G.L. c. 111, § 197, and the State Sanitary Code, 105 CMR 400.000, (1986), and the lead poisoning prevention and control regulations described in 105 CMR 460.000, (1989). CLP declared an emergency, see G.L. c. 111, § 198, and ordered the defendants "to remedy [the] ... violation within 10(ten) days of receipt" of the order. 5 The order warned of criminal prosecution and civil punitive damages in the event of noncompliance. The defendants complied with the order.
Section 460.900 of title 150 of the State Sanitary Code (1989) provides for hearings as follows:
The defendants did not request a hearing.
Discussion. Collateral estoppel is "known as issue preclusion...." 6 Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. 737, 742, 481 N.E.2d 1356 (1985) ( ). Its use offensively is "generally accepted." Bar Counsel v. Board of Bar Overseers, 420 Mass. 6, 9, 647 N.E.2d 1182 (1995). However, "[b]efore the doctrine of collateral estoppel can be used offensively, the fact finder should be afforded wide discretion in determining whether to do so would be fair to the defendant." Id. at 11, 647 N.E.2d 1182. "Fairness is the decisive consideration" in the use of offensive collateral estoppel. Aetna Cas. & Sur. Co., supra at 745, 481 N.E.2d 1356. The Massachusetts rule is that "absent mutuality of estoppel and technical privity ... [the court] would rarely allow collateral estoppel to be applied to a prior judgment offensively...." Whitehall Co. v. Barletta, 404 Mass. 497, 502, 536 N.E.2d 333 (1989). 7
Whether it would be appropriate, or fair, to permit the plaintiff to invoke the doctrine of offensive collateral estoppel in this case is, however, an issue we need not decide for the pertinent statute determines the result.
General Laws c. 111, § 195, as inserted by St.1973, c. 149, provides, in part, that a certified copy of any report of the State laboratory for lead and lead poisoning detection, "shall be admissible in any judicial proceeding without further authentication ... and shall be prima facie evidence of the facts stated therein " (emphasis added).
Liacos, Massachusetts Evidence § 5.8.5, at 236-237 (6th ed.) (citations omitted).
The judge's ruling that an order to delead premises based on a qualified laboratory report precludes the introduction of rebuttal evidence challenging that report in a subsequent civil action solely because the order is unchallenged and unappealed, defeats the express legislative intent to make the report merely prima facie evidence, thereby permitting the introduction of rebuttal evidence. Contrast the clearly expressed legislative intent regarding the conclusiveness of certain evidence in G.L. c. 140D, § 33 ( ); G.L. c. 201B, § 5 ( ). Lezberg v. Rogers, 27 Mass.App.Ct. 1158, 539 N.E.2d 89, cited by the judge, arises in a different factual and statutory context, and is inapposite.
Indeed, the plaintiff's brief abandons the judge's reasoning. The plaintiff acknowledges that the laboratory report is admissible as prima facie evidence, and makes no argument that in this case the report is conclusive evidence of the facts stated therein. Instead the plaintiff argues that the defendants' proffered evidence is substantively inadequate...
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