Stuart v. Town of Brookline

• Decision Date: 16 March 1992
• Citation: 587 N.E.2d 1384,412 Mass. 251
• Parties: Carolyn STUART v. TOWN OF BROOKLINE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1384

587 N.E.2d 1384

412 Mass. 251

Carolyn STUART v. TOWN OF BROOKLINE.

Supreme Judicial Court of Massachusetts Norfolk.

Argued Dec. 4, 1991.

Decided March 16, 1992.

George F. Driscoll, Jr., Asst. Town Counsel, Brookline (David Lee Turner, Town Counsel, with him), for defendant.

Benjamin R. Graybill, Cambridge, for plaintiff.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and GREANEY, JJ.

ABRAMS, Justice.

The town of Brookline (town) appeals from a judgment entered by a Superior Court judge awarding the plaintiff, Carolyn Stuart, $125,000 in damages arising from a motor vehicle collision between a town police cruiser and the vehicle in which Stuart was a passenger. The case was submitted to the trial court on a statement of agreed facts and documentary evidence. On appeal, the town argues that: (1) the statement of agreed facts should be discharged and the case remanded for trial; (2) the facts presented in the statement do not support a finding of negligence against the town; and (3) the damages are unsupported by the evidence, or, in the alternative, must be reduced by $25,000. We transferred the case to this court our own motion. We affirm the Superior Court judgment, and conclude that the town is liable to Stuart in the sum of $100,000.

1. Facts. The facts, as recited in the statement of agreed facts, are as follows. "Stuart was a passenger in a vehicle operated by Brian T. Ketchen on Route 9 in Brookline. At approximately 12:20 A.M. the vehicle operated by Mr. Ketchen collided with a Town of Brookline police cruiser operated by Patrolman Robert W. Smith. The collision between the Ketchen vehicle and the ... police cruiser occurred on the eastbound side of Route 9 (Boylston Street) in the vicinity of 850 Boylston Street. Route 9 (Boylston Street) is a divided highway which has two eastbound travel lanes. At the time of the accident, Patrolman Smith, a Brookline police officer since 1960, was acting in the course of his duties as an employee of the defendant, town of Brookline.

"Prior to the accident, the police cruiser operated by Patrolman Smith, was parked in a driveway at 850 Boylston Street. A second police cruiser, operated by Patrolman William Riley, also was parked in the driveway. Patrolman Smith was operating a hand held radar unit to check the speed of passing motorists, and to apprehend motorists who were exceeding the speed limit in an area known for speeding cars and traffic accidents.

"As Patrolman Smith was operating the radar unit, he observed three vehicles in the eastbound lanes of Route 9. When Patrolman Smith first observed these vehicles, they were approximately 200 yards from him. Two of the vehicles were travelling abreast in the right and left lanes of Route 9; the left lane being the one nearest the center guard rail. The third vehicle, which was operated by Mr. Ketchen, was travelling in the left lane, approximately 50-75 yards behind the first two vehicles and was operating without headlights. Patrolman Smith determined by radar that all three vehicles were exceeding the posted speed limit of forty miles per hour by travelling at a speed of 57 m.p.h. As the vehicles approached Patrolman Smith's location, Patrolman Smith observed that the distance between the front vehicle in the left lane and Mr. Ketchen's vehicle narrowed.

"As the vehicles neared the location of the two police cruisers, Patrolman Riley pulled out, with his blue overhead lights on, in order to stop the first vehicle travelling in the left lane. Patrolman Smith waited for the vehicle travelling in the right lane to pass him, activated his blue overhead lights, and then pulled out onto the right lane of Route 9 in order to stop that vehicle.

"The third car, operated by Mr. Ketchen, was traveling in the left lane and to the rear of Patrolman Smith as Patrolman Smith pulled out onto the right lane of Route 9. After entering Route 9, Patrolman Smith travelled some four to five car lengths in the right lane before his cruiser was struck in the left rear quarter panel by the right front bumper area of Mr. Ketchen's vehicle. At the time of impact, Patrolman Smith was operating his cruiser within the right traffic lane of Route 9's eastbound lanes at a speed of approximately twenty miles per hour. Following the collision between the two vehicles, Mr. Ketchen's vehicle crashed into the center guard rail adjacent to the left lane while Patrolman Smith's vehicle came to a stop in the right lane.

"At the time of the accident the weather conditions were rain and fog. The road surface was wet. After the accident, Mr. Ketchen was issued a traffic citation at the scene for driving without his headlights on and for speeding. Carolyn Stuart did not cause or contribute to the accident in any way.

"Following this accident, Carolyn Stuart was treated for personal injuries (two years prior to the date of the accident, Carolyn Stuart was treated for temporal lobe epilepsy; subsequent to the date of the accident, Ms. Stuart continued to suffer from and was treated for temporal lobe epilepsy). In addition, as a result of the accident, Ms. Stuart incurred medical bills in the amount of $12,823.86. At the time of the accident, Ms. Stuart was a jewelry salesperson working thirty hours per week at a salary of $8.00 per hour. She was absent from work from September 27, 1987 through March 1, 1988. As a result of this accident, therefore, Ms. Stuart incurred lost wages in the amount of $4,800.00."

2. Vacating the statement of agreed facts. The town asks us to vacate the statement of agreed facts because it would be "conducive to justice" to do so. See Henry F. Michell Co. v. Fitzgerald, 353 Mass. 318, 322, 231 N.E.2d 373 (1967), citing Loring v. Mercier, 318 Mass. 599, 601, 63 N.E.2d 466 (1945). We conclude that it is not unjust to hold the town to the statement of facts to which it agreed.

Obviously, at the time it entered into the agreement, the town did not view the statement of facts as inimical to its interests or unjust. ¹ Prior to this appeal, the town never asked for modification or rescission of any part of the statement of agreed facts. Having lost the case, the town now complains that the stipulation is unjust because (1) the town's liability, in its opinion, is questionable; (2) medical opinions and bills were admitted without cross-examination; and (3) "[t]he amount of the judgment ... poses a serious threat to the fiscal welfare of the Town of Brookline and the citizens who depend on its services and programs." The town has not, however, shown that facts were omitted, misstated or inadvertently included in the statement of agreed facts. Cf. Huard v. Forest St. Hous., Inc., 366 Mass. 203, 208, 316 N.E.2d 505 (1974) (stipulation set aside because it omitted "seemingly significant information"); Houghton v. Rizzo, 361 Mass. 635, 637 n. 1, 281 N.E.2d 577 (1972) (party relieved from portion of stipulation that was clearly inadvertent). In this case, the town gambled that the judge would determine that the town had no liability based on the statement of facts which it agreed to submit. The town lost its gamble. That, however, is no reason to vacate the statement of agreed facts. In hindsight, the stipulation may have been, from the town's point of view, unwise. It was not, however, unjust.

3. Liability. The town argues that the stipulated facts do not permit a determination that the town's police officer was negligent. We do not agree.

Smith, in the course of performing his duties as a police officer for the town, had a duty to exercise reasonable care in operating his police vehicle so as not to endanger other motorists and their passengers. Neil v. Holyoke St. Ry. Co., 329 Mass. 578, 583, 109 N.E.2d 831 (1952). Smith was obligated to "exercise a degree of care commensurate with the serious consequences that might follow [his] failure to do so." Id. Smith acted negligently in pulling out in front of the vehicle in which Stuart was a passenger and which, at the time, was travelling without lights and accelerating from its already high rate of speed, on a rainy, foggy night. Cf. McGaffee v. P.B. Mutrie Motor Transp., Inc., 311 Mass. 730, 735, 42 N.E.2d 841 (1942) ("jury had warrant for finding that the weather conditions prevailing and the consequent lack of visibility were such that [the driver's] dealing with the truck as he did was negligent"), and cases cited. The fact that the driver of the vehicle in which Stuart was a passenger also was negligent does not absolve Smith of liability. The accident, and concomitant risk of injury, were foreseeable by Smith as a natural and probable consequence of Ketchen's negligence and the other dangerous conditions that existed at the time of the accident. Cf. Wilborg v. Denzell, 359 Mass. 279, 285, 268 N.E.2d 855 (1971) (...