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Thorell v. ADAP6/13/2003
ence in opposition to a defendant's motion for summary judgment, such evidence sufficed to overcome the defendant's motion and entitled the plaintiffs to proceed to trial, or, at least, to a preliminary hearing to determine the facts relevant to the evidentiary issue).
Even though findings of fact normally are unnecessary to a decision on a motion for summary judgment, where the proper disposition of the motion depends upon the admissibility of evidence, and admissibility depends, in turn, upon the resolution of questions of fact, the judge's decision should reflect that he or she has confronted and resolved these questions. If, upon reviewing the summary judgment decision, we cannot fairly assume that this was done, we must vacate the order granting summary judgment and remand the case for further proceedings. See Nally v. Volkswagon of Am., Inc., 405 Mass. 191, 198-199 (1989).
Here, where there is no indication that the judge confronted the evidentiary issue, we must vacate the summary judgment granted to ADAP, leaving it to the discretion of the Superior Court whether to defer the vicarious admission question until trial or to decide it before trial at a hearing where the facts relevant to the evidentiary issue may be determined. See Gage v. Westfield, supra. If appropriate, ADAP may then renew its request for judgment as matter of law.
Disposition. So much of the judgment as dismisses the plaintiff's claims against S.B. Realty Limited Partnership and Frade's Disposal, Inc., is affirmed. So much of the judgment as dismisses the plaintiff's claim against ADAP, Inc., is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
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