 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Westover v. Leiserv7/25/2005
Middlesex.
February 15, 2005.
Present: Greenberg, Smith, & Green, JJ.
Negligence, Spoliation of evidence, Defective product, Design. Practice, Civil, Preservation of evidence, Loss of evidence.
Civil action commenced in the Superior Court Department on December 19, 2000.
The case was heard by Thomas P. Billings, J., on a motion for summary judgment.
In December of 2000, Victoria K. Westover brought a complaint in the Superior Court seeking damages for personal injuries she sustained while using a chair at the Brunswick Lowell Lanes (Brunswick) bowling alley. Brunswick, in turn, brought a third-party action against Regal Manufacturing (Regal), the alleged manufacturer of the chair in question, alleging negligence in the design, manufacturing, testing, inspection, distribution, and marketing of the chair as well as lack of adequate safety features and warnings, and sought contribution and indemnification from Regal.
Brunswick discarded the chair after the incident. Regal brought a motion for summary judgment claiming that the proper sanction for Brunswick disposing of the chair would be the exclusion of any evidence, offered by Brunswick, as to the condition of the chair prior to the accident, and that without such evidence, Brunswick could not make its case against Regal.
In August of 2002, a Superior Court judge denied Regal's motion, stating that " t is not at all clear that defendant/moving party is entitled to the broad exclusion of evidence, on a theory of spoliation, that is the basis for this motion. Unless and until there is a court ruling excluding such evidence (which this Court declines to make at this stage in the litigation and which it doubts that defendant will be successful in obtaining even later in this lawsuit), there are substantial issues of material fact in dispute in this case, such that summary judgment is inappropriate."
After discovery was completed, Regal brought the motion that is the focus of this appeal, which essentially restated its earlier motion for a preclusive sanction against Brunswick and sought summary judgment. By an order dated March 3, 2003, a second Superior Court judge (motion judge) allowed Regal's motion for summary judgment. The motion judge ruled, " n the record before me -- more fully developed than at the time of August 8, 2000 order -- a preclusionary order seems plainly appropriate, prohibiting Brunswick from presenting in its case against Regal any testimony concerning the condition or appearance of the 'accident' chair. From such an order it follows that Brunswick cannot make out a prima facie case, and that summary judgment should follow."
On appeal, Brunswick claims that the motion judge committed error in granting summary judgment under the spoliation doctrine based on the unavailability of the accident chair. In the circumstances of this case, and for the reasons stated herein, we conclude that it was an abuse of discretion to preclude Brunswick from presenting any evidence of the condition and appearance of the accident chair, and therefore conclude that Regal was not entitled to summary judgment.
We first consider whether the sanction order was too severe and then discuss whether summary judgment should have been granted.
Background
The record before the motion judge consisted, among other things, of the depositions of Westover, Brunswick's general manager Michael Gaul, and Regal's president.
On Friday evening, September 29, 2000, having bowled for a while, Westover went to Brunswick's lounge area. There were some forty chairs in the lounge. The chairs had
Page 1 2 3 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|