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Or v. Edwards11/19/2004
Suffolk.
December 10, 2003.
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.
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 apa
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