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COMMONWEALTH OF MASSACHUSETTS
HAMPDEN, SS SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO: 1679CV00677
STEPHANIE NASCIMENTO, AS ) HAMPDEN COUNTY
THE ADMINISTRATRIX OF THE ) SUPERIOR COURT
ESTATE OF DAVIDE NASCIMENTO) FILED
J 1
Plaintiff ) SEP 2°7 2019
)
vs. )
) CLERK UATS
TOWN OF LONGMEADOW )
Defendant )
DEFENDANT, TOWN OF LONGMEADOW’S,
MOTION TO BIFURCATE
Now comes the defendant, Town of Longmeadow (“defendant” or “Town”), and
respectfully moves to bifurcate trial on the issues of liability and damages.
BACKGROUND
In or around 2015, A. Martins & Sons Construction, Inc. (“Martins”) was the successful
bidder on a sanitary sewer replacement project in the Town of Longmeadow (the “Town”).
Martins and the Town entered into an Agreement which incorporated by reference, amongst
other “Contract Documents,” the “General Conditions of the Construction Contract” and
“Supplementary Conditions” contained in the Town’s Invitation for Bid. The Contract places all
responsibility for the “Work” to be performed and all responsibility for safety on Martins. The
Contract explicitly prohibits the Town from exercising control over the “Work” and related
safety programs and precautions. The Contract designates the Town Engineer as the “Engineer”
for the project. The Contract strictly limits the Engineer’s authority and responsibilities.
Page 1 of 6
635361
AlOn July 31, 2015, Martins was working at or near the intersection of Hazardville Road
and Tedford Drive in Longmeadow, Massachusetts. The previous day, Martins’ employees had
exposed a water main that crossed a trench that they dug and they were aware of the water
main’s location. A “trench box” was not installed in the trench. The water main crossing the
open trench broke. The cause of the water main break is unknown.
Mr. Nascimento was trapped in the trench close to where the water main was broken.
What trapped Mr. Nascimento is unknown. Mr. Nascimento’s co-workers attempted to rescue
him from the trench and/or to divert the water flowing from the water main, without success.
Mr. Nascimento drowned.
STANDARD OF REVIEW
Massachusetts Rule of Civil Procedure 42(b) provides:
The court, in furtherance of convenience or to avoid prejudice, or when separate
trials will be conducive to expedition and economy, may order a separate trial in
the county where the action is pending or in a different county of any claim,
cross-claim, counterclaim, or third-party claim, or of any separate issue or of any
number of claims, cross-claims, counterclaims, third-party claims, or issues,
always preserving inviolate the right of trial by jury as declared by the
constitution of this Commonwealth or as set forth in a statute.
Mass. R. Civ. P. 42(b) (emphasis added). The decision to bifurcate a trial in liability and
damages phases “is one within the sound discretion of the trial judge.” Dobos v. Driscoll, 404
Mass. 634, 645 (1989).
Numerous courts have recognized two key benefits to bifurcation: (1) avoidance of
prejudice, and (2) judicial efficiency/economy. See, e.g., McKellar v. Clark Equip, Co., 101
F.R.D. 93, 94 (D. Me. 1984) (bifurcating liability and damages where adjudication of highly
contested liability would likely avert prolonged trial on damages, trial on damages would likely
prejudice Defendants as to liability, and comparative negligence law would not be frustrated);
Page 2 of 6
635361Warner y. Rossignol, 513 F.2d 678, 684 (ist Cir. 1975) (noting that bifurcation should be
conducive to expedition and economy); Franklin Music Co. v. American Broadcasting Cos., Inc.,
616 F.2d 528, 538 (3d Cir. 1979) (finding the separation of liability and damages phases
appropriate in complex case involving numerous theories of liability and where economy could
be achieved by deciding liability first); Beauchamp v. Russell, 547 F. Supp. 1191, 1199-1200 (D.
Ga. 1982) (bifurcation appropriately allowed jury to concentrate on complicated issue of liability
without considering extent of injuries or damages sought and avoided prejudice to the
defendant); Kushner v. Hendon Constr., Inc., 81 F.R.D. 93, 99 (D. Pa.), aff'd, 609 F.2d 502 (3d
Cir. 1979) (bifurcation appropriate when damage testimony was unrelated to liability testimony
and to avoid prejudice, as to negligence, from the jury’s consideration of the nature and severity
of plaintiff's injuries).
ARGUMENT
Bifurcation is appropriate here to avoid prejudice to the Town and to promote judicial
economy because plaintiffs damages are unrelated to the discrete issue(s) to be tried on liability
and while plaintiff's evidence of damages is likely to be relatively extensive, plaintiff's damages
are capped at $100,000 by M.G.L. c. 258, § 2.
1. Plaintiff's Damages are Capped at $100,000.00.
This is a wrongful death action pursuant to M.G.L. c. 229, § 2. In Hallet v. Wrentham,
398 Mass. 550 (1986), attached hereto as Exhibit 1, the Supreme Judicial Court held that:
the wrongful death act, G. L. c. 229, § 2, provides the exclusive action for the
recovery of the damages it encompasses by the designated beneficiaries. The
plaintiffs may not maintain a separate action for loss of consortium. In addition,
the $ 100,000 limitation on recovery from a governmental entity, G. L. c. 258. §
2, applies to the total recovery by the executor or administrator in the wrongful
death action, and not separately to each beneficiary's damages.
Page 3 of 6
635361Id. at 556 (emphasis added). Therefore, in this action, plaintiff cannot recover in excess of
$100,000. See Jd. at 553-556, 560. See also, M.G.L. ¢. 258, § 2 (“public employers shall not be
liable . . . for any amount in excess of $100,000”).
2. Defendant Will Be Prejudiced if Trial Is Not Bifurcated.
Defendant submits that absent bifurcation extensive evidence of plaintiffs alleged
damages will unfairly prejudice defendant. The sole issue for trial in this action as alleged is
whether the Town retained sufficient control over the work of its contractor, Martins, to be held
liable. See generally, Corsetti v. Stone Co., 396 Mass. 1, 10 (1985) ("One who entrusts work to
an independent contractor, but who retains the control of any part of the work, is subject to
liability for physical harm to others for whose safety the employer owes a duty to exercise
reasonable care, which is caused by his failure to exercise his control with reasonable care”).
The Town denies that it controlled the means and methods of construction or safety for the
project, which were the sole responsibilities of Mr. Nascimento’s employer. Plaintiffs damages
are irrelevant to the issue of whether the Town retained sufficient control to be liable. See Mass.
Guide Evid. § 401.
In the Joint Pre-Trial Memorandum, attached hereto as Exhibit 2, the plaintiff stated that
she “is alleging funeral expenses totaling approximately $17,420.00, lost earnings totaling
$1,579,628.42, and loss of consortium of Stephanie, Christiano, and Savanna Nascimento.” See
Exhibit 2 at 14. Plaintiff's evidence of damages is likely to be relatively extensive in light of the
limited issues presented on liability. See Jd. at 4-6 (outlining alleged evidence of damages). Mr.
Nascimento is survived by his wife and two young children. Additionally, he was trapped in the
bottom of the trench as it flooded. Evidence of loss of consortium and conscious pain and
suffering is likely to engender a great deal of sympathy in the jury. At the same time, as set forth
Page 4 of 6
635361above, plaintiff's damages are capped at $100,000.00 and are subject to an approximately $1.4
million workers’ compensation lien. Bifurcation of the issues of liability and damages is
necessary to avoid undue prejudice to defendant.
3. Bifurcation Will Promote Judicial Economy.
As set forth above, while the plaintiffs damages are in excess of $100,000, the plaintiff’s
total recovery against the Town in this case is capped at $100,000 pursuant to M.G.L. c. 258, § 2.
Therefore, bifurcation will promote judicial economy by significantly reducing the length of trial
in that a trial on damages, should a jury rule adversely to the Town on liability, is unlikely.
CONCLUSION
For the foregoing reasons, defendant respectfully requests that the Court bifurcate trial on
the issues of liability and damages.
Respectfully Submitted,
THE DEFENDANT,
TOWN OF LONGMEADOW
By.
Nancy Frankel Pelletier, Esq.
David-&. Lawless, Esq., both of
Robinson Donovan, P.C.
1500 Main Street, Suite 1600
Springfield, Massachusetts 01115-5609
npelletier@robinsondonovan,cin
dlawless@robinsondonovan.com
Phone (413) 732-2301 Fax (413) 452-0342
NFP BBO No.: 544402
DSL BBO No.: 664754
Page 5 of 6
635361CERTIFICATE OF SERVICE
I, David S. Lawless, Esq., hereby certify that on this Nay of September2019, I served a
copy of the above upon the parties in the action by mailing, postage prepaid, to counsel/parties:
Brian C. Dever, Esq.
Keches Law Group, P.C.
122 Dean Street
Taunton, MA 02780
Subscribed under the penalties of perjury.
Page 6 of 6
6353612. Caution
As of: September 17, 2019 7:16 PM Z
Hallett v. Wrentham
Supreme Judicial Court of Massachusetts
September.11, 1986, Argued ; November 13, 1986, Decided
No. N-4102
Reporter
398 Mass. 550 *; 499 N.E.2d 1189 **; 1986 Mass. LEXIS 1512 ***
Karen J. Hallett, administratrix, & others 1 v. Town of
Wrentham
Prior History: [***1] Norfolk.
Civil action commenced in Court
Department on March 20, 1980.
the Superior
The case was tried before George N. Hurd, Jr., J.
The Supreme Judicial Court granted a request for direct
appellate review.
Disposition: So ordered.
Syllabus
The wrongful death statute, GL. c. 229. § 2, provides
the exclusive action for recovery of the damages it
encompasses by the designated beneficiaries, and
separate claims may not be maintained for the benefit of
a decedent's wife and minor children seeking recoveries
for loss of consortium and loss of parental society.
[552-556]
The $ 100,000 limitation on recovery from a
governmental entity prescribed by[***2] the
Massachusetts Tort Claims Act, G. L. ¢. 258, § 2, was to
be applied to the total recovery by an administratrix in a
wrongful death action against a town, rather than
separately to the damages awarded to the decedent's
wife and children. [556]
Article 11 of the Massachusetts Declaration of Rights
creates no fundamental right to recover unlimited
damages. [557]
‘Lisa Marie Hallett, William Robert Hallett and Jacqueline
Diane Hallett, by their mother and next friend, Karen Hallett.
The $ 100,000 limitation on recovery from a
governmental entity prescribed by the Massachusetts
Tart Claims Act, G. L. c. 258, § 2, is rationally related to
a legitimate State purpose, the protection of public
funds, and thus infringed no equal protection rights of
plaintiffs in a wrengful death action against a town.
[558]
Where, at the trial of a negligence action arising out of a
collision of two motor vehicles, the judge correctly
instructed the jury as to the applicable standard of care
("how a person of ordinary prudence would act in similar
circumstances"), he was not required to instruct them
that an emergency condition is a factor in determining
the reasonableness of the defendant's choice of action.
[558-559]
At the trial of a negligence action, where the judge
initially permitted [***3] a police officer, testifying as an
expert in accident investigation, to give his opinion that
a certain skid mark was caused by the right front tire of
the decedent's vehicle, the judge did not err in thereafter
instructing the jury, in substance, that they "have as
much knowledge as [the witness] does" as to what
caused the skid mark since the facts were
uncomplicated and the comparison which was called for
required no particular expertise or special skill. [559]
Gounsel: Leonard F. Zandrow, Jr. (Robert L. Farrell &
Richard L. Neumeier with him) for the defendant.
Anthony C. Adamopoulos for the plaintiffs.
Judges: Hennessey, C.J., Wilkins, Abrams, &
O'Connor, JJ.
Opinion by: HENNESSEY
OpinionPage 2 of 5
398 Mass. 550, *550; 499 N.E.2d 1189, **1189; 1986 Mass. LEXIS 1512, **3
[551] [**1190] William Hallett was killed on February
22, 1980, when the car he was driving collided with a
town of Wrentham sanding truck driven by Robert A.
Correia, a town employee. 2 Karen Hallett, the
deceased's widow and administratrix, filed a wrongful
death action against the town, and subsequently
amended her complaint to add the three children of the
deceased as separate plaintiffs seeking damages for
loss of their father's society. Over the defendant town's
objections, [***4] 3 a judge of the Superior Court
permitted the separate claims to proceed before a jury.
The jury found Correia seventy per cent negligent, and
Hallett thirty per cent negligent, and awarded damages
of $ 575,000 for the loss of the decedent's reasonably
expected net income, $ 25,000 for Karen Hallett's loss
of her husband's consortium, and $ 50,000 for each of
the three children’s loss of parental society. The town
moved that [*552] judgment be entered in the amount
of $ 100,000, the maximum recovery under G. L. ¢. 258.
§ 2, and that the three children's $ 50,000 awards be
dismissed on the ground that there is no separate
recovery for the children outside the wrongful death
statute, GL. c. 229. § 2, The judge combined Karen
Hallett's $ 25,000 consortium award with the $ 575,000
for loss of income, and reduced it to $ 100,000. The
judge ordered judgment in the amount of $ 50,000 for
each child. Both parties appealed, and this court
granted direct appellate review.
[**5] The town raises three issues on appeal. First,
the town argues that the judge erred in permitting
separate recoveries outside the wrongful death statute
for the children’s loss of parental society. Second, the
town contends that the judge committed reversible error
when, after the town's expert on accident investigation
testified, over objection by the plaintiffs, that skid marks
at the accident site were caused by Hallett's car, the
judge said to the jury that his opinion involved "an area
in which you as lay people, | believe, have as much
knowledge as he does." Finally, the town appeals the
judge's refusal to give an “emergency” instruction as
?A directed verdict was entered in favor of Correia.
3The town asserted its position seasonably at various times in
the proceedings by a motion to dismiss or motion for partial
summary judgment, a motion in limine, motions for a directed
verdict at the close of the plaintiffs‘ evidence and at the close
of all the evidence, a motion for entry of judgment in the
amount of $ 100,000 after the jury's verdict, and a motion for
judgment notwithstanding the verdict.
part of his charge on negligence.
[1191] The plaintiffs also appealed, arguing that the
$ 100,000 cap is unconstitutional, or in the alternative
that each consortium award under the wrongful death
act should be subject to a separate $ 100,000 cap.
There was evidence that the Hallett vehicle was
proceeding westbound on West Street and the town
truck was proceeding eastbound on West Street when
the two vehicles collided, causing Hallett's death. A
principal issue for the jury was to determine which
vehicle was proceeding on its wrong [***6] side of the
highway.
1. The town's first contention is that the judge erred in
entering separate judgments for loss of parental society
far each of the victim's three children in addition to the
wrongful death and loss of consortium claims brought by
Karen Hallett, the wife and administratrix of the
deceased. The town argues that the children's claims for
parental society should have been joined with Karen
Hallett's claims for loss of consortium and [*553]
wrongful death for the purpose of applying the $
100,000 cap on recoveries from the government under
G. Lc. 258 § 2. The plaintiffs, on the other hand,
argue that the deceased's children have independent
claims for loss of society. Therefore, they argue, under
the “per plaintiff’ construction of the $ 100,000 cap
announced in Irwin v. Ware, 392 Mass. 745 (194), the
children's recoveries for loss of society should each be
separately considered in applying the cap.
We conclude that the $ 100,000 limitation imposed by
GL. ¢. 258, § 2, applies to all claims comprised by the
wrongful death statute, G. L. c. 229, § 2. 4 The cap
4 General Laws ¢. 229, § 2, provides in pertinent part: “A
person who . . . by his negligence causes the death of a
person .. . shall be liable in damages in the amount of: (1) the
fair monetary value of the decedent fo the persons entitled to
receive the damages recovered, as provided in section one,
including but not limited to compensation for the loss of the
Teasonably expected net income, services, protection, care,
assistance, society, companionship, comfort, guidance,
counsel, and advice of the decedent to the persons entitled to
the damages recovered; (2) the reasonable funeral and burial
expenses of the decedent... . Damages under this section
shail be recovered in an action of tort by the executor or
administrator of the deceased. An action ta recover damages
under this section shall be commenced within three years from
the date of death or within such time thereafter as is provided
by section four, four B, nine or ten of chapter two hundred and,Page 3 of 5
398 Mass. 550, *553; 499 N.E.2d 1189, **1194; 1986 Mass. LEXIS 1512, ***6
should be applied to the sum of recoveries for which the
wrongful death statute provides. [*"*7] See Doyon v.
Travelers Indem. Co., 22 Mass. App. Ct 336, 338-339
(1986).
(**8] The plaintiffs contend that claims for loss of
society stand independent of G. L. c. 229. § 2, and the
plaintiffs have the option of recovery either under the
statute or independently. Thus, the plaintiffs argue that
each beneficiary's claim for society must be treated as a
separate "plaintiff' under fnwin v. Ware, even if nominally
brought in a single action by the executor or
administrator of the deceased. 5
[*554] The origin of ["*9] the wrongful death statute
and its relationship to the common law were discussed
at length in Gaudette v. Webb, 362 Mass. 60 (1972).
Prior to Gaudette, it was generally asserted "that there
is no common law basis for a cause of action for death,
and that such a cause of action in this Commonwealth is
wholly a creature of our death statutes." id at 66.
Consequently, it was argued that the limitations period
for commencing an action under the death statute
limited the rights as well as the remedy, rendering the
tolling provisions of the general statute of limitations of
G. L. c. 260. § 7, inapplicable to a wrongful death action
under G. Lc. 229, § 2. [**1192] id. af 66-67. In
rejecting that contention we stated that "the law in this
Commonwealth has also evolved to the point where it
may now be heid that the right to recovery for wrongful
death is of common law origin. ... Consequently, our
wrongful death statutes will no longer be regarded as
‘creating the right’ to recovery for wrongful death. They
will be viewed rather as: (a) requiring that damages
recoverable for wrongful death be based upon the
degree of the defendant's culpability; (b)
prescribing [***10] the range of the damages
recoverable against each defendant; (c) requiring that
any action for wrongful death be brought by a personal
representative on behaif of the designated categories of
beneficiaries; and (d) requiring that the action be
sixty.”
5 Identifying the “plaintiff” is a problem only when the wrongful
death action is brought against a governmental entity covered
by G. £. e. 258. § 2. There is no limit to the liability of private
defendants. In a purely private action, the executor or
administrator presents the damages of the designated
beneficiaries, and the recovery is distributed to the
beneficiaries. In an action against a governmental entity, on
the other hand, G. L. ¢ 258, § 2, provides "public employers
shall not be liable . . . for any amount in excess of one
hundred thousand dollars,”
commenced within the specified period of time, as a
limitation on the remedy and not upon the right"
(emphasis added). Id. at 77.
Based on the holding that the actions for wrangful death
are of common law origin, the plaintiffs in this case
reason that they had the option of collecting under the
death statute, or of waiving recovery under it and
proceeding with independent claims for loss of parental
society. The plaintiffs seek support for their position in
this court's recognition that the spouse and children of
an injured person may be entitled to recover for loss of
consortium and seciety. Ferriter v. Daniel O'Connell's
Sons, 381 Mass. 507, 516 (1980) (children may assert
claim for loss of society of injured parent). Diaz y. Eli
Lilly & Co., 364 Mass. 153, 167-168 (1973) (holding that
either spouse may assert consortium claim arising from
negligent injury [*555] to other spouse). See Feltch v.
General [***11] Rental _Co., 383 Mass. 603, 608
(1984) (consortium claim independent of injured
spouse's claim for damages, thus recovery not reduced
by injured spouse's comparative negligence). The
plaintiffs have misinterpreted our holding in Gaudette.
Although in that case we held that the statute did not
create the right to recovery for wrongful death, we also
held that the statute would be viewed as “requiring that
any action for wrongful death be brought by a personal
representative on behalf of the designated categories of
beneficiaries." Jd. at 71. Gaudette does not stand for
the proposition that the requirements of the statute may
be disregarded. Instead, that case held that the right
underlying a wrongful death action was of common law
origin, and the death statute specifies the procedure and
recovery.
Neither do Djaz and Ferriter create an independent right
of recovery for lost consortium where the victim suffers
death rather than injury. Prior to Diaz and Ferriter,
wives and children could recover for loss of consortium
under the death statute, but not under common law.
Diaz, supra at 167-168. Ferriter, supra at 515-516. This
court reasoned in [***12] Ferviter. "We think it entirely
appropriate to protect the child's reasonable expectation
of parental scciety when the parent suffers negligent
injury rather than death,” /d. The plaintiffs now seek to
use Ferrier to establish a right to recovery apart from
the death statute for loss of society resulting from a
wrongful death. The statute, however, provides for such
a recovery, and determines the procedure for bringing
an action.
The wrongful death statute provides for a single action
brought by the decedent's executor or administrator.Page 4 of 5
398 Mass. 550, *555; 499 N.E.2d 1189, **1192; 1986 Mass. LEXIS 1512, ***12
The executor or administrator presents all claims by the
designated beneficiaries for damages flowing from the
wrongful death. See Gaudette v. Webb, supra at 72
("administratrix . . . acts merely as a representative or
conduit for the children's recovery"). General Laws c.
229. § 2, provides, "Damages under this section shall be
recovered in an action of tort by the executor or
administrator of the deceased. An action to recover
damages under this section shall be commenced within
three years from the date of death . . .” (emphasis
added). Moreover, [*556] the statute provides for the
elements of recovery, including [***13] "services,
protection, care, assistance, society, companionship,
comfort, [**1193] guidance, counsel, and advice of the
decedent . . . ." Thus there can be only one plaintiff in a
wrongful death action who asserts all claims by the
designated category of beneficiaries for damages
resulting from wrongful death. See Minkley v.
McFarland, 371 Mass. 891 (1976) (rejecting claims for
independent common law recovery, but applicable only
to actions governed by wrongful death statute prior to
1974 amendment); Gouras v. Barchi. 5 Mass. App. Ct.
845, 845-846 (1977) (disallowing separate claims for
consortium). See also Owen y. Meserve, 381 Mass.
273, 275 (1980), cert. denied, 449 U.S. 1082 (1981). Cf.
Cimino v. Milford Keg, Inc., 385 Mass, 323, 334 (1982)
(holding that claim for emotional distress is an
independent claim for plaintiffs own damages, and not
"preempted" by G. L. c. 229, § 2).
In Irwin v. Ware, 392 Mass. 745, 766-773 (1984), this
court construed the cap on liability as established in G.
LE. 6. 258, § 2, to apply on a "per plaintiff" basis. The
plaintiffs argue that our reasoning in Irwin is supportive
of their position. We disagree. [**14] The /rwin case
arose from an accident involving an automobile
occupied by Debbie Irwin, her husband Mark, and their
two children, Steven and Misty Jane. Debbie and
Steven were injured in the accident; Mark and Misty
Jane were killed, The complaint asserted claims for
injuries to Debbie and Steven, as well as claims for
wrongful death and loss of consortium. Nothing that we
said in the /rwin case is inconsistent with our reasoning
in the instant case. The issue we confront here was not
raised or argued in frwin.
We conclude that the wrongful death act, G. L. ¢. 229, §
2, provides the exclusive action for the recovery of the
damages it encompasses by the designated
beneficiaries. The plaintiffs may not maintain a separate
action for loss of consortium. In addition, the $ 100,000
limitation on recovery from a governmental entity, G. .
c. 258. § 2, applies to the total recovery by the executor
or administrator in the wrongful death action, and not
separately to each beneficiary's damages.
[*557] 2. The plaintiffs argue that the $ 100,000
limitation on recoveries from governmental entities
denies them the equal protection of the laws. We begin
by noting that [**15] the plaintiffs bear a heavy burden
in overcoming the statute's presumption of
constitutionality. Klein v. Catalano, 386 Mass. 701, 706
(1982), citing El Paso v. Simmons. 379 U.S. 497, 508-
509 (1965). American Mfrs. Mut. ins. Co. v. Comm'r of
Ins.. 374 Mass. 187, 190 (1978). “Where there is no
infringement of fundamental rights or any suspect class,
a Statutory discrimination will be upheld if it is ‘rationally
related to a legitimate State purpose.” Paro v.
Longwood Hosp., 373 Mass. 645, 649 (1977), quoting
Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433
(1977).
The plaintiffs argue that this court should apply strict
scrutiny to the $ 100,000 limitation, requiring that the
classification be necessary to the achievement of a
compelling State interest. The plaintiffs assert that the
cap violates a fundamental right to recover full damages
established by art. 77 of the Massachusetts Deciaration
of Rights. We conclude that art. 11 does not create
such a fundamental right. "The article is clearly directed
toward the preservation of procedural rights and has
been so construed." Pinnick v. Cleary, 360 Mass. 1, 11-
42 (1971). “A limitation [/*16] on the recovery of
damages for wrongful death does not impinge on a
constitutionally protected substantive right and is not
predicated on a constitutionally suspect classification.”
Owen _v. Meserve, 381 Mass. 273, 275 (1980)
(upholding exception from liability for wrongful-death for
operators of railroads negligently killing person not
properly on railroad). See also Ryszkiewicz v. New
Britain. 193 Conn. 589, 598 (1984) (constitutional
provision “granting access to courts for redress
[1194] of grievances . . . cannot be construed as
granting an unqualified right to recover unlimited
damages from government entities”). Stanhope v.
Brown County, 90 Wis. 2d 823, 845 (1979) (State
Constitution's "certain remedies" clause did not require
that the victim of a governmental tortfeasor be allowed
to recover the full amount of damages above and
beyond the statutory $ 25,000 limit). We hold that art.
11 of the Declaration of Rights does not create a
fundamental right to recover unlimited damages.
[558] The proper standard of review of an act of the
Legislature, therefore, is whether the statute is rationally
related to a legitimate State purpose. Pinnick [***17] v.398 Mass. 550, *558; 499 N.E.2d 1189,
Cleary, supra at 27-31. Paro v. Longwood Hosp., 373
Mass. 645. 649 (1977), In Morash & Sons v.
Commonwealth, 363 Mass. 612 (1973), this court stated
that the doctrine of sovereign immunity is "logically
indefensible." /d. at 678-679. At the same time, this
court noted: "Clearly, there should be limits to
governmental liability and exceptions to the rule of
liability, based upon considerations of justice and public
policy.” jd. at 623. "[Wle stress that abrogation of
governmental immunity need not necessarily mean that
governmental entities would be liable for all harm which
results from the conduct of their activities." Whitney v.
Worcester, 373 Mass. 208, 212 (1977).
In enacting the Massachusetts Tort Claims Act, the
Legislature demonstrated "a legislative intent to be
protective of the public funds, reflected in the exclusion
of punitive damages and prejudgment interest [and the
$ 100,000 limitation]," and that the legislative scheme
“ensures that a meaningful recovery will be available to
victims of public employee negligence, while
simultaneously limiting a public employer's exposure to
excessive liability." Invin_v. Ware, 392 ["*18] Mass.
745, 772 (1984), Protecting public funds from unlimited
liability is a legitimate legislative purpose, and the $
100,000 limitation on governmental liability is
teasonably calculated to further that purpose. We
conclude that the $ 100,000 limitation contained in G. L.
c. 258, § 2, does not violate equal protection.
3. We have concluded that the town is correct in its
arguments as to damages. We turn now to dispose of
two contentions of error which the town says entitle it to
a new trial,
The town argues error in that the judge declined to give
an "emergency" instruction requested by the town as.
part of the instructions on the standard of care. The
town asserts that the judge had an "obligation to instruct
specifically that a diminished standard of care may be
applicable when a person is confronted with an
emergency.”
The standard of care in negligence cases is "how a
person of ordinary prudence would act in similar
circumstances.” [*559] LaClair v. Silberline Mig. Co.
379 Mass. 21, 27 (1979), citing Goldstein v. Gontarz,
364 Mass. 800, 805-806 (1974). Restatement (Second)
of Torts §§ 283, 298 (1965). The judge instructed the
jury in accordance with [***19] that standard. Evidence
of an emergency does not require application of a
different standard, as the town urges. instead, the
emergency condition is a factor in determining the
Page 5 of 5
**1194; 1986 Mass. LEXIS 1512, **"17
reasonable character of the defendant's choice of
action. Newman v. Redstone, 354 Mass. 379, 383
(1968). Restatement (Second) of Torts § 296 (1965).
W., Prosser & W. Keeton, Torts § 33 at 196-197 (5th ed.
1984). The cases the town cites in support of its
contention that it was "entitled to a specific jury
instruction" establish only that a judge may instruct the
jury that the emergency conditions are a factor in
determining the reasonableness of the defendant's
actions, not that the judge must give such an instruction.
See Wilborg v. Denzell, 1195] 359 Mass. 279, 286
(1971), Bands v. Cummings,- 357 Mass. 763, 764
(1970); Donovan v. Mutrie, 265 Mass. 472, 476 (1929).
Although the evidence may have warranted the judge in
instructing upon emergency conditions, he was not
Tequired to do se.
The town also claims error in the exclusion of an expert
opinion. At trial, the town examined Wrentham police
officer William MacKenzie as an expert in accident
investigation. [***20] MacKenzie had investigated the
accident, and his testimony included his observations of
skid marks at the accident site. He explained the
difference between “accelerating” and "decelerating" (or
"braking") skid marks, and between "scrub" and "friction"
skid marks. In addition, MacKenzie described his
observations comparing the skid mark on the road to the
tires from the Hallett vehicle. In answer to a question
from the town's attorney as to what caused the skid
mark on the road, MacKenzie replied, over the plaintiffs’
objection, that in his opinion the mark was caused by
the right front tire on the Hallett vehicle. Subsequently,
the judge in effect reversed his ruling, and instructed the
jury in substance that they "have as much knowledge as
[MacKenzie] does" as te what caused the skid mark.
There was no error. The facts were uncomplicated, and
the comparison which was called for required no
particular expertise or special skill.
[*560] 4. Because we hold that the $ 100,000 cap of G.
L. c. 258. § 2, applies to all claims contemplated by the
wrongful death statute, G. L. c. 229, § 2, we remand this
case to the Superior Court for the entry of a single
judgment in the [***21] amount of $ 100,000 in favor of
Mrs. Hallett as administratrix, in satisfaction of all
claims. The complaint is to be dismissed as to the
"independent" claims of the three children.
So ordered.
End of DocumentCOMMONWEALTH OF MASSACHUSETTS
HAMPDEN, SS SUPERIOR COURT DEPARTMENT
OF THE TRIAL COURT
CIVIL ACTION NO: 1679CV00677
STEPHANIE NASCIMENTO, AS
THE ADMINISTRATRIX OF THE
ESTATE OF DAVIDE NASCIMENTO
vs.
)
)
)
)
Plaintiff )
)
)
)
)
TOWN OF LONGMEADOW
Defendant )
JOINT PRE -TRIAL MEMORANDUM
AGREED UPON FACTS
The Plaintiff, Stephanie Nascimento, resides at 50 Yale Street, Ludlow, Hampden
County, MA 01056 and is the duly appointed Administratrix of the Estate of Davide
Nascimento who resided at 50 Yale Street, Ludlow, Hampden County, MA 01056 at the
time of his death on July 31, 2015.
The Defendant, the Town of Longmeadow, is a municipal entity located at 20 Williams
Street Longmeadow, MA 01106.
On July 31, 2015, Davide Nascimento was working as a laborer for A. Martins
Construction, working in a trench in Longmeadow when a water main broke, flooded the
trench, and caused Mr. Nascimento to drown.
The Project
. In or around 2015, A. Martins & Sons Construction, Inc. (“Martins”) was the successful
bidder on a sanitary sewer replacement project in the Town of Longmeadow (the “Town”).
. Martins and the Town entered into an Agreement which incorporated by reference,
amongst other “Contract Documents,” the “General Conditions of the Construction
Contract” and “Supplementary Conditions” contained in the Town’s Invitation for Bid.
: of ql 7.
The Accident
[53. On July 31, 2015, Martins was working at or near the intersection of Hazardville Road
and Tedford Drive in Longmeadow, Massachusetts.
4. The previous day, Martins’ employees had exposed a water main that crossed a trench that
they dug and they were aware of the water main’s location.
5. A “trench box” was not installed in the trench.
6. The water main crossing the open trench broke.
7. Mr. Nascimento was trapped in the trench close to where the water main was broken.
8. Mr. Nascimento’s co-workers attempted to rescue him from the trench and/or to divert the
water flowing from the water main, without success.
9. Mr. Nascimento drowned.
The Town
10. No employee of the Town was present when Mr. Nascimento drowned.
2A. PLAINTIFFS’ POSITION
Facts and Liability.
This wrongful death action stems from an incident that occurred on July 31, 2015 ata
construction site at or near the intersection of Hazardville Road and Tedford Drive in
Longmeadow, Massachusetts. The Plaintiffs decedent was a laborer working in a trench when a
water main broke, flooded the trench, and caused the Plaintiff's decedent to drown. At the time
of his death, Davide Nascimento was employed by A. Martins and Sons Construction, Inc. The
Defendant, Town of Longmeadow, contracted with A. Martins and Sons Construction, Inc. to
replace the subject water main.
The Plaintiff expects the evidence to show that on July 1, 2015, Longmeadow contracted A.
Martins and Sons Construction, Inc. to replace the sewer main running below Hazardville Road
and below Knollwood Circle in Longmeadow, Massachusetts. To replace the sewer main,
Martins Construction dug a trench measuring approximately 5 feet across and 8 feet down on
Hazardville Road. When the Martins Construction crew left the worksite on July 30, 2015, they
covered the trench with steel plates, but did not place a “trench box” inside the trench.
The Plaintiff expects the evidence to show that on July 31, 2015, Mr. Antonio Martins, the owner
of Martins Construction, met three employees, including the deceased Davide Nascimento to theHazardsville job site. The plates were removed from on top of the trench so the trench work
could begin. Mr. Martins was aware that the crew had uncovered/exposed an active water line
while digging the trench, Unfortunately, nothing was done to protect this active water line.
, The Plaintiff expects the evidence to show that at approximately 7:00AM, on July 31, 2015, Mr.
Jon Goldaper, a resident of Hazardville Road, went outside to smoke a cigarette and watch the
construction crew work. Mr. Goldaper testified that he witnessed a man working inside the
trench while an excavator was digging. Mr. Goldaper was “immediately struck” by how close
the excavator bucket was to the man working in the trench. Mr. Goldaper further testified that
these circumstances looked dangerous to him. Approximately 30 minutes later, Mr. Goldaper’s
son came in to his room complaining about the lack of water pressure. By that time, the trench
was flooded and Mr. Nascimento was dead.
Liability of Longmeadow
The Plaintiff expects the evidence to show that although the contract documents between the
Defendant and A. Martins Construction attempt to disclaim control of the work on the part of the
Town, the actual course of the Town’s and A. Martins’s performance of the contract demonstrate
that the Town actually retained sufficient control over the work.
According to the Contract, Mr. Yem Lip, the Defendant’s Town Engineer, was to be the
Defendant’s representative with respect to the work. Mr. Lip’s deposition testimony reveals that
he was much more involved in the decisions regarding the means and methods of the
construction work than the contract documents intend. Specifically, Mr. Lip admitted that the
Town of Longmeadow’s Engineering Department was assigned to “oversee” A. Martins’s work.
Mr. Lip testified that while work was being performed by A. Martins, he would go to the jobsite
to make sure that the general public was safe from any trench collapse. Mr. Lip also testified
that while he did not “micromanage the day-to-day operations,” all work was to be done under
his oversight as Town Engineer.
In fact, Mr. Lip testified as to the specific circumstances that would trigger Longmeadow’s
expectation that A. Martin’s to use a trench box, and whether the Town would allow A. Martins
to use a trench box without backfilling a trench. Mr. Lip testified that he and the contractor
would usually discuss the use of a trench box ahead of time and that he would “allow” the
contractor, in some instances, to not put a trench box in place. Mr. Lip further testified that on
the Hazardville jobsite, he would “require” the use of a trench box if someone was working in
the trench at a depth greater than 2.5 feet. Mr. Lip’s testimony reveals that he and the Town
were making decisions with regard to he and the Town would require a trench box to be used and
when he would be exceptions for its use. Despite any contractual language, Mr. Lip,
Longmeadow’s Town Engineer, assumed control over when A. Martins was to use a trench box.Accordingly, the Plaintiff expects the evidence to show that Mr. Lip, on behalf of the Town of
Longmeadow, retained sufficient control over the work and the use a trench box. The Plaintiff
further expects the evidence to show that had Mr. Lip and Longmeadow exercised that control
and ensured that a trench box was installed before A. Martins began working on the jobsite on
the moming of July 31, 2015, the trench would not have caved in Nascimento when the water
main broke and Mr. Nascimento would have been able to escape.
The Plaintiff also expects the evidence to show that if a trench box was installed at the time of
the accident, Mr. Nascimento would have been protected by the trench box when the water main
broke, allowing Mr. Nascimento to escape without drowning.
Damages
On July 31, 2015 at 07:39, Longmeadow Fire Department was dispatched to a “man in a hole
which was flooding on Tedford Drive” for a report of a construction accident that involved a
trench and a construction worker in the water who was reported as “drowning.” Upon arrival,
Captain DeFord observed a water filled trench and several construction workers attempting to
locate and rescue the construction worker. At that time, Mr. Nascimento was reported to have
been under water approximately 4-5 minutes. His coworkers had attempted to rescue him by
attempting to pull him out, both by hand and with the excavator.
Captain DeFord noticed additional workers vigorously attempting to locate Mr. Nascimento in
the trench with hand held poles. The Fire Department immediately requested a technical rescue ‘
team fora trench collapse that had flooded. The Enfield Technical Rescue team was notified.
Engine 1 Officer reported that on their arrival, one of the construction workers was crawling out
of the water and reported that one of the workers was stuck in the hole underwater. It was noted
that it was difficult to determine the exact extent of the excavation (hole) due to the muddy
water, flooded road and the surrounding area was flooded as well. Engine 1 Crew used poles
and a ladder to attempt to locate the victim in the muddy water but were unable to do so. The
water Dept. had to secure three valves to turn the water off. Once the water was turned off, the
trench was pumped out.
The trench was pumped out and Mr. Nascimento body’s was located in the south east corner of
the hole. He was partially buried. Technical rescue teams placed sheeting around the perimeter
of the trench. Two soil piles estimated to be approximately six tons were hand shoveled from the
edge of the collapse. Shoring was built and placed to shore the cast wall of the excavation. A
precast concrete manhole structure on the south west corner was tied back with heavy strapping
to keep it from falling into the excavation. Air bags were used to fill the void behind the
sheeting. Tents were put up on the west side to provide a screen during the recovery of Mr.
Nascimento’s body. Mr. Nascimento’s body was turned over to the Mass. State Police and
ultimately the Medical Examiner took possession.
4Mr. Nascimento’s body was taken to the Office of the Chief Medical Examiner in Holyoke for
an autopsy. The Medical Examiner noted the cause of death was accidental drowning.
At approximately 10:45AM-11:00AM on July 31, 2015, the family of Davide Nascimento;
Stephanie Nascimento (wife), Maria Nascimento (mother), and Hector Nascimento (father)
arrived at the Longmeadow police station. Officer Danielle Rex informed them that Davide
Nascimento had passed away at the age of 28, leaving his wife, Stephanie; his children,
Christiano (age 4 at the time of his father’s death) and Savanna (age 1 at the time of her father’s
* death); his parents, Hector and Maria; his brothers, Victor and Mario; as well as several
nephews, cousins, and friends throughout the community.
Funeral Expenses
Mr. Nascimento’s funeral expenses total $17,420.00.
Lost Wages
Peseaals
Mr. Marhefiea was 28 years old when the incident occurred. He had worked as a Laborer for
approximately 6 years prior to the incident, and was making an average of approximately
$42,692.66 per year at the time of his death. According to the National Vital Statistics Reports, a
28 year old male like Mr. Nascimento would be expected to live for an additional 49.8 years.
Thus, Mr. Nascimento would be expected to live to the age of 78. However, Mr. Nascimento
would likely have retired at the age of 65. Therefore, while would have been expected to live for
an additional 49.8 years, had the incident not occurred, he would only have been expected to
work for an additional 37 years. Accordingly, 37 years of potential income were taken from Mr.
Nascimento, equating to approximately $1,579,628.42 based on his past earnings.
- Loss of Consortium
Davide Nascimento passed away at the age of 28, leaving his wife, Stephanie; his children,
Christiano (age 4 at the time of his father’s death) and Savanna (age 1 at the time of her father’s
death); his parents, Hector and Maria; his brothers, Victor and Mario; as well as several
nephews, cousins, and friends throughout the community.
Asa result of the subject incident, Mr, Nascimeno’s wife has lost her husband’s consortium and
society and his two young children have lost their father’s consortium and society.
Mr. and Mrs. Nascimento were married on June 30, 2012. At the time of his death, the young
couple were starting to build a family together. Mr. and Mrs, Nascimento’s son, Christiano, wasthe eldest of the couple’s two children and was only four years old at the time of his father’s
death. Meanwhile, their younger child, Savanna, was only one year of age.
Christiano is now eight and Savanna is five. As a result of this incident, both young children, as
well as Mrs. Nascimento, have to bear to loss of Mr. Nascimento every day. The two children
will have to grow up without their father know that all three will have to live without his Iove,
affection, and support for the rest of their lives.
2B. STATEMENTS OF THE DEFENDANT, THE TOWN OF LONGMEADOW
The Town expects the evidence to show that in or around 2015, A. Martins & Sons Construction,
Inc. (“Martins”) was the successful bidder on a sanitary sewer replacement project in the Town of
Longmeadow (the “Town”). Martins and the Town entered into an Agreement which incorporated
by reference, amongst other “Contract Documents,” the “General Conditions of the Construction
Contract” and “Supplementary Conditions” contained in the Town’s Invitation for Bid.
The Contract places all responsibility for the “Work” to be performed and all responsibility for
safety on Martins. The Contract explicitly prohibits the Town from exercising control over the
“Work” and related safety programs and precautions. The Contract designates the Town Engineer
as the “Engineer” for the project. The Contract strictly limits the Engineer’s authority and
responsibilities,
On July 31, 2015, Martins was working at or near the intersection of Hazardville Road and Tedford
Drive in Longmeadow, Massachusetts. The previous day, Martins’ employees had exposed a water
main that crossed a trench that they dug and they were aware of the water main’s location. A
“trench box” was not installed in the trench. The water main crossing the open trench broke. The
cause of the water main break is unknown.
Mr. Nascimento was trapped in the trench close to where the water main was broken. What trapped
Mr. Nascimento is unknown. Mr. Nascimento’s co-workers attempted to rescue him from the
trench and/or to divert the water flowing from the water main, without success, Mr. Nascimento
drowned.
The Town did not exercise any control over Martins’ means and methods of construction or job
site safety. No employee of the Town was present when Mr, Nascimento drowned.
3. AGREED SUGGESTED DESCRIPTION OF THE CASE TO BE READ TO THE
JURY .
The parties are unable to agree on a description of the case to be read to the jury at present.4.
STATEMENT OF SIGNIFICANT LEGAL ISSUES
a) Plaintiffs Statement,
Plaintiff states that the usual principles of Massachusetts law regarding premises
liability/negligence apply.
b) Defendant’s Statement.
1. Whether the Town owed plaintiff's decedent a duty of care. It did not. See Corsertt
y, Stone Co., 396 Mass. 1, 10-11 (1985); Restatement (Second) of Torts § 414, comment c
(1965); St. Germaine v. Pendergast, 411 Mass. 615, 623 (1992); Lyon v. Morphew, 424
Mass. 828, 835 (1997); Foley v. Rust, 901 F.2d 183, 185 (1% Cir. 1990).
2. Whether the Town Engineer had the authority to supervise Martins’ work to an
extent that could give rise to liability, the authority to amend the Contract, or the authority
to bind the Town in a manner contrary to the terms of the Contract. He did not, SeeM.G.L.
c. 30, § 39M; Dagastino v. Commissioner of Correction, 52 Mass. App. Ct. 456, 458-459
(2001).
3. Whether plaintiff can meet her burden of proof on the element of causation in the
absence of evidence, as opposed to speculation, as to how the water main broke, She
cannot. See Correa v. Schoeck, 479 Mass. 686, 693 (2018); Glidden v. Maglio, 430 Mass.
694, 696 (2000); Corsetti v. Stone Co., 396 Mass. 1, 10-11, 23-24 (1985); Colantoni v.
Bertoldi, 91 Mass. App. Ct. 1117, 2017 Mass. Unpub. LEXIS 414, *4-5 (April 24, 2017)
(Rule 1:28 decision); Goin v. Anna Realty Corp., 2007 Mass. App. Unpub. LEXIS 38, *3-
4 Quly 3, 2007) (Rule 1:28 decision) (summary judgment proper where plaintiff “assumed”
that nail sticking up from stair tread caused her fall).4, The Town anticipates moving in limine to preclude plaintiff from presenting, as
fact, the inaccuracies, unsupported assertions and speculation relied on by plaintiff in
opposing the Town's motion for summary judgment. ,
5. Upon information and belief, plaintiff's claim is subject to an approximately $1.4
million workers’ compensation lien.
6. M.G.L. c. 258 limits plaintiff's potential recovery to $100,000.00.
7. Whether plaintiffs decedent’s alleged conduct of knowingly entering a trench
despite the absence of a trench box or other safety measures limits plaintiff's recovery.
. 8. Defendant anticipates serving a Daubert-Lanigan motion challenging the
admissibility of plaintiff's late disclosed expert. Because plaintiff disclosed her expert for
the first time at 2:39 on April 3, 2019, defendant reserves it right base the motion on any
ava
Preview
COMMONWEALTH OF MASSACHUSETTS HAMPDEN, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO: 1679CV00677 STEPHANIE NASCIMENTO, AS ) HAMPDEN COUNTY THE ADMINISTRATRIX OF THE ) SUPERIOR COURT ESTATE OF DAVIDE NASCIMENTO) FILED J 1 Plaintiff ) SEP 2°7 2019 ) vs. ) ) CLERK UATS TOWN OF LONGMEADOW ) Defendant ) DEFENDANT, TOWN OF LONGMEADOW’S, MOTION TO BIFURCATE Now comes the defendant, Town of Longmeadow (“defendant” or “Town”), and respectfully moves to bifurcate trial on the issues of liability and damages. BACKGROUND In or around 2015, A. Martins & Sons Construction, Inc. (“Martins”) was the successful bidder on a sanitary sewer replacement project in the Town of Longmeadow (the “Town”). Martins and the Town entered into an Agreement which incorporated by reference, amongst other “Contract Documents,” the “General Conditions of the Construction Contract” and “Supplementary Conditions” contained in the Town’s Invitation for Bid. The Contract places all responsibility for the “Work” to be performed and all responsibility for safety on Martins. The Contract explicitly prohibits the Town from exercising control over the “Work” and related safety programs and precautions. The Contract designates the Town Engineer as the “Engineer” for the project. The Contract strictly limits the Engineer’s authority and responsibilities. Page 1 of 6 635361 AlOn July 31, 2015, Martins was working at or near the intersection of Hazardville Road and Tedford Drive in Longmeadow, Massachusetts. The previous day, Martins’ employees had exposed a water main that crossed a trench that they dug and they were aware of the water main’s location. A “trench box” was not installed in the trench. The water main crossing the open trench broke. The cause of the water main break is unknown. Mr. Nascimento was trapped in the trench close to where the water main was broken. What trapped Mr. Nascimento is unknown. Mr. Nascimento’s co-workers attempted to rescue him from the trench and/or to divert the water flowing from the water main, without success. Mr. Nascimento drowned. STANDARD OF REVIEW Massachusetts Rule of Civil Procedure 42(b) provides: The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial in the county where the action is pending or in a different county of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues, always preserving inviolate the right of trial by jury as declared by the constitution of this Commonwealth or as set forth in a statute. Mass. R. Civ. P. 42(b) (emphasis added). The decision to bifurcate a trial in liability and damages phases “is one within the sound discretion of the trial judge.” Dobos v. Driscoll, 404 Mass. 634, 645 (1989). Numerous courts have recognized two key benefits to bifurcation: (1) avoidance of prejudice, and (2) judicial efficiency/economy. See, e.g., McKellar v. Clark Equip, Co., 101 F.R.D. 93, 94 (D. Me. 1984) (bifurcating liability and damages where adjudication of highly contested liability would likely avert prolonged trial on damages, trial on damages would likely prejudice Defendants as to liability, and comparative negligence law would not be frustrated); Page 2 of 6 635361Warner y. Rossignol, 513 F.2d 678, 684 (ist Cir. 1975) (noting that bifurcation should be conducive to expedition and economy); Franklin Music Co. v. American Broadcasting Cos., Inc., 616 F.2d 528, 538 (3d Cir. 1979) (finding the separation of liability and damages phases appropriate in complex case involving numerous theories of liability and where economy could be achieved by deciding liability first); Beauchamp v. Russell, 547 F. Supp. 1191, 1199-1200 (D. Ga. 1982) (bifurcation appropriately allowed jury to concentrate on complicated issue of liability without considering extent of injuries or damages sought and avoided prejudice to the defendant); Kushner v. Hendon Constr., Inc., 81 F.R.D. 93, 99 (D. Pa.), aff'd, 609 F.2d 502 (3d Cir. 1979) (bifurcation appropriate when damage testimony was unrelated to liability testimony and to avoid prejudice, as to negligence, from the jury’s consideration of the nature and severity of plaintiff's injuries). ARGUMENT Bifurcation is appropriate here to avoid prejudice to the Town and to promote judicial economy because plaintiffs damages are unrelated to the discrete issue(s) to be tried on liability and while plaintiff's evidence of damages is likely to be relatively extensive, plaintiff's damages are capped at $100,000 by M.G.L. c. 258, § 2. 1. Plaintiff's Damages are Capped at $100,000.00. This is a wrongful death action pursuant to M.G.L. c. 229, § 2. In Hallet v. Wrentham, 398 Mass. 550 (1986), attached hereto as Exhibit 1, the Supreme Judicial Court held that: the wrongful death act, G. L. c. 229, § 2, provides the exclusive action for the recovery of the damages it encompasses by the designated beneficiaries. The plaintiffs may not maintain a separate action for loss of consortium. In addition, the $ 100,000 limitation on recovery from a governmental entity, G. L. c. 258. § 2, applies to the total recovery by the executor or administrator in the wrongful death action, and not separately to each beneficiary's damages. Page 3 of 6 635361Id. at 556 (emphasis added). Therefore, in this action, plaintiff cannot recover in excess of $100,000. See Jd. at 553-556, 560. See also, M.G.L. ¢. 258, § 2 (“public employers shall not be liable . . . for any amount in excess of $100,000”). 2. Defendant Will Be Prejudiced if Trial Is Not Bifurcated. Defendant submits that absent bifurcation extensive evidence of plaintiffs alleged damages will unfairly prejudice defendant. The sole issue for trial in this action as alleged is whether the Town retained sufficient control over the work of its contractor, Martins, to be held liable. See generally, Corsetti v. Stone Co., 396 Mass. 1, 10 (1985) ("One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care”). The Town denies that it controlled the means and methods of construction or safety for the project, which were the sole responsibilities of Mr. Nascimento’s employer. Plaintiffs damages are irrelevant to the issue of whether the Town retained sufficient control to be liable. See Mass. Guide Evid. § 401. In the Joint Pre-Trial Memorandum, attached hereto as Exhibit 2, the plaintiff stated that she “is alleging funeral expenses totaling approximately $17,420.00, lost earnings totaling $1,579,628.42, and loss of consortium of Stephanie, Christiano, and Savanna Nascimento.” See Exhibit 2 at 14. Plaintiff's evidence of damages is likely to be relatively extensive in light of the limited issues presented on liability. See Jd. at 4-6 (outlining alleged evidence of damages). Mr. Nascimento is survived by his wife and two young children. Additionally, he was trapped in the bottom of the trench as it flooded. Evidence of loss of consortium and conscious pain and suffering is likely to engender a great deal of sympathy in the jury. At the same time, as set forth Page 4 of 6 635361above, plaintiff's damages are capped at $100,000.00 and are subject to an approximately $1.4 million workers’ compensation lien. Bifurcation of the issues of liability and damages is necessary to avoid undue prejudice to defendant. 3. Bifurcation Will Promote Judicial Economy. As set forth above, while the plaintiffs damages are in excess of $100,000, the plaintiff’s total recovery against the Town in this case is capped at $100,000 pursuant to M.G.L. c. 258, § 2. Therefore, bifurcation will promote judicial economy by significantly reducing the length of trial in that a trial on damages, should a jury rule adversely to the Town on liability, is unlikely. CONCLUSION For the foregoing reasons, defendant respectfully requests that the Court bifurcate trial on the issues of liability and damages. Respectfully Submitted, THE DEFENDANT, TOWN OF LONGMEADOW By. Nancy Frankel Pelletier, Esq. David-&. Lawless, Esq., both of Robinson Donovan, P.C. 1500 Main Street, Suite 1600 Springfield, Massachusetts 01115-5609 npelletier@robinsondonovan,cin dlawless@robinsondonovan.com Phone (413) 732-2301 Fax (413) 452-0342 NFP BBO No.: 544402 DSL BBO No.: 664754 Page 5 of 6 635361CERTIFICATE OF SERVICE I, David S. Lawless, Esq., hereby certify that on this Nay of September2019, I served a copy of the above upon the parties in the action by mailing, postage prepaid, to counsel/parties: Brian C. Dever, Esq. Keches Law Group, P.C. 122 Dean Street Taunton, MA 02780 Subscribed under the penalties of perjury. Page 6 of 6 6353612. Caution As of: September 17, 2019 7:16 PM Z Hallett v. Wrentham Supreme Judicial Court of Massachusetts September.11, 1986, Argued ; November 13, 1986, Decided No. N-4102 Reporter 398 Mass. 550 *; 499 N.E.2d 1189 **; 1986 Mass. LEXIS 1512 *** Karen J. Hallett, administratrix, & others 1 v. Town of Wrentham Prior History: [***1] Norfolk. Civil action commenced in Court Department on March 20, 1980. the Superior The case was tried before George N. Hurd, Jr., J. The Supreme Judicial Court granted a request for direct appellate review. Disposition: So ordered. Syllabus The wrongful death statute, GL. c. 229. § 2, provides the exclusive action for recovery of the damages it encompasses by the designated beneficiaries, and separate claims may not be maintained for the benefit of a decedent's wife and minor children seeking recoveries for loss of consortium and loss of parental society. [552-556] The $ 100,000 limitation on recovery from a governmental entity prescribed by[***2] the Massachusetts Tort Claims Act, G. L. ¢. 258, § 2, was to be applied to the total recovery by an administratrix in a wrongful death action against a town, rather than separately to the damages awarded to the decedent's wife and children. [556] Article 11 of the Massachusetts Declaration of Rights creates no fundamental right to recover unlimited damages. [557] ‘Lisa Marie Hallett, William Robert Hallett and Jacqueline Diane Hallett, by their mother and next friend, Karen Hallett. The $ 100,000 limitation on recovery from a governmental entity prescribed by the Massachusetts Tart Claims Act, G. L. c. 258, § 2, is rationally related to a legitimate State purpose, the protection of public funds, and thus infringed no equal protection rights of plaintiffs in a wrengful death action against a town. [558] Where, at the trial of a negligence action arising out of a collision of two motor vehicles, the judge correctly instructed the jury as to the applicable standard of care ("how a person of ordinary prudence would act in similar circumstances"), he was not required to instruct them that an emergency condition is a factor in determining the reasonableness of the defendant's choice of action. [558-559] At the trial of a negligence action, where the judge initially permitted [***3] a police officer, testifying as an expert in accident investigation, to give his opinion that a certain skid mark was caused by the right front tire of the decedent's vehicle, the judge did not err in thereafter instructing the jury, in substance, that they "have as much knowledge as [the witness] does" as to what caused the skid mark since the facts were uncomplicated and the comparison which was called for required no particular expertise or special skill. [559] Gounsel: Leonard F. Zandrow, Jr. (Robert L. Farrell & Richard L. Neumeier with him) for the defendant. Anthony C. Adamopoulos for the plaintiffs. Judges: Hennessey, C.J., Wilkins, Abrams, & O'Connor, JJ. Opinion by: HENNESSEY OpinionPage 2 of 5 398 Mass. 550, *550; 499 N.E.2d 1189, **1189; 1986 Mass. LEXIS 1512, **3 [551] [**1190] William Hallett was killed on February 22, 1980, when the car he was driving collided with a town of Wrentham sanding truck driven by Robert A. Correia, a town employee. 2 Karen Hallett, the deceased's widow and administratrix, filed a wrongful death action against the town, and subsequently amended her complaint to add the three children of the deceased as separate plaintiffs seeking damages for loss of their father's society. Over the defendant town's objections, [***4] 3 a judge of the Superior Court permitted the separate claims to proceed before a jury. The jury found Correia seventy per cent negligent, and Hallett thirty per cent negligent, and awarded damages of $ 575,000 for the loss of the decedent's reasonably expected net income, $ 25,000 for Karen Hallett's loss of her husband's consortium, and $ 50,000 for each of the three children’s loss of parental society. The town moved that [*552] judgment be entered in the amount of $ 100,000, the maximum recovery under G. L. ¢. 258. § 2, and that the three children's $ 50,000 awards be dismissed on the ground that there is no separate recovery for the children outside the wrongful death statute, GL. c. 229. § 2, The judge combined Karen Hallett's $ 25,000 consortium award with the $ 575,000 for loss of income, and reduced it to $ 100,000. The judge ordered judgment in the amount of $ 50,000 for each child. Both parties appealed, and this court granted direct appellate review. [**5] The town raises three issues on appeal. First, the town argues that the judge erred in permitting separate recoveries outside the wrongful death statute for the children’s loss of parental society. Second, the town contends that the judge committed reversible error when, after the town's expert on accident investigation testified, over objection by the plaintiffs, that skid marks at the accident site were caused by Hallett's car, the judge said to the jury that his opinion involved "an area in which you as lay people, | believe, have as much knowledge as he does." Finally, the town appeals the judge's refusal to give an “emergency” instruction as ?A directed verdict was entered in favor of Correia. 3The town asserted its position seasonably at various times in the proceedings by a motion to dismiss or motion for partial summary judgment, a motion in limine, motions for a directed verdict at the close of the plaintiffs‘ evidence and at the close of all the evidence, a motion for entry of judgment in the amount of $ 100,000 after the jury's verdict, and a motion for judgment notwithstanding the verdict. part of his charge on negligence. [1191] The plaintiffs also appealed, arguing that the $ 100,000 cap is unconstitutional, or in the alternative that each consortium award under the wrongful death act should be subject to a separate $ 100,000 cap. There was evidence that the Hallett vehicle was proceeding westbound on West Street and the town truck was proceeding eastbound on West Street when the two vehicles collided, causing Hallett's death. A principal issue for the jury was to determine which vehicle was proceeding on its wrong [***6] side of the highway. 1. The town's first contention is that the judge erred in entering separate judgments for loss of parental society far each of the victim's three children in addition to the wrongful death and loss of consortium claims brought by Karen Hallett, the wife and administratrix of the deceased. The town argues that the children's claims for parental society should have been joined with Karen Hallett's claims for loss of consortium and [*553] wrongful death for the purpose of applying the $ 100,000 cap on recoveries from the government under G. Lc. 258 § 2. The plaintiffs, on the other hand, argue that the deceased's children have independent claims for loss of society. Therefore, they argue, under the “per plaintiff’ construction of the $ 100,000 cap announced in Irwin v. Ware, 392 Mass. 745 (194), the children's recoveries for loss of society should each be separately considered in applying the cap. We conclude that the $ 100,000 limitation imposed by GL. ¢. 258, § 2, applies to all claims comprised by the wrongful death statute, G. L. c. 229, § 2. 4 The cap 4 General Laws ¢. 229, § 2, provides in pertinent part: “A person who . . . by his negligence causes the death of a person .. . shall be liable in damages in the amount of: (1) the fair monetary value of the decedent fo the persons entitled to receive the damages recovered, as provided in section one, including but not limited to compensation for the loss of the Teasonably expected net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice of the decedent to the persons entitled to the damages recovered; (2) the reasonable funeral and burial expenses of the decedent... . Damages under this section shail be recovered in an action of tort by the executor or administrator of the deceased. An action ta recover damages under this section shall be commenced within three years from the date of death or within such time thereafter as is provided by section four, four B, nine or ten of chapter two hundred and,Page 3 of 5 398 Mass. 550, *553; 499 N.E.2d 1189, **1194; 1986 Mass. LEXIS 1512, ***6 should be applied to the sum of recoveries for which the wrongful death statute provides. [*"*7] See Doyon v. Travelers Indem. Co., 22 Mass. App. Ct 336, 338-339 (1986). (**8] The plaintiffs contend that claims for loss of society stand independent of G. L. c. 229. § 2, and the plaintiffs have the option of recovery either under the statute or independently. Thus, the plaintiffs argue that each beneficiary's claim for society must be treated as a separate "plaintiff' under fnwin v. Ware, even if nominally brought in a single action by the executor or administrator of the deceased. 5 [*554] The origin of ["*9] the wrongful death statute and its relationship to the common law were discussed at length in Gaudette v. Webb, 362 Mass. 60 (1972). Prior to Gaudette, it was generally asserted "that there is no common law basis for a cause of action for death, and that such a cause of action in this Commonwealth is wholly a creature of our death statutes." id at 66. Consequently, it was argued that the limitations period for commencing an action under the death statute limited the rights as well as the remedy, rendering the tolling provisions of the general statute of limitations of G. L. c. 260. § 7, inapplicable to a wrongful death action under G. Lc. 229, § 2. [**1192] id. af 66-67. In rejecting that contention we stated that "the law in this Commonwealth has also evolved to the point where it may now be heid that the right to recovery for wrongful death is of common law origin. ... Consequently, our wrongful death statutes will no longer be regarded as ‘creating the right’ to recovery for wrongful death. They will be viewed rather as: (a) requiring that damages recoverable for wrongful death be based upon the degree of the defendant's culpability; (b) prescribing [***10] the range of the damages recoverable against each defendant; (c) requiring that any action for wrongful death be brought by a personal representative on behaif of the designated categories of beneficiaries; and (d) requiring that the action be sixty.” 5 Identifying the “plaintiff” is a problem only when the wrongful death action is brought against a governmental entity covered by G. £. e. 258. § 2. There is no limit to the liability of private defendants. In a purely private action, the executor or administrator presents the damages of the designated beneficiaries, and the recovery is distributed to the beneficiaries. In an action against a governmental entity, on the other hand, G. L. ¢ 258, § 2, provides "public employers shall not be liable . . . for any amount in excess of one hundred thousand dollars,” commenced within the specified period of time, as a limitation on the remedy and not upon the right" (emphasis added). Id. at 77. Based on the holding that the actions for wrangful death are of common law origin, the plaintiffs in this case reason that they had the option of collecting under the death statute, or of waiving recovery under it and proceeding with independent claims for loss of parental society. The plaintiffs seek support for their position in this court's recognition that the spouse and children of an injured person may be entitled to recover for loss of consortium and seciety. Ferriter v. Daniel O'Connell's Sons, 381 Mass. 507, 516 (1980) (children may assert claim for loss of society of injured parent). Diaz y. Eli Lilly & Co., 364 Mass. 153, 167-168 (1973) (holding that either spouse may assert consortium claim arising from negligent injury [*555] to other spouse). See Feltch v. General [***11] Rental _Co., 383 Mass. 603, 608 (1984) (consortium claim independent of injured spouse's claim for damages, thus recovery not reduced by injured spouse's comparative negligence). The plaintiffs have misinterpreted our holding in Gaudette. Although in that case we held that the statute did not create the right to recovery for wrongful death, we also held that the statute would be viewed as “requiring that any action for wrongful death be brought by a personal representative on behalf of the designated categories of beneficiaries." Jd. at 71. Gaudette does not stand for the proposition that the requirements of the statute may be disregarded. Instead, that case held that the right underlying a wrongful death action was of common law origin, and the death statute specifies the procedure and recovery. Neither do Djaz and Ferriter create an independent right of recovery for lost consortium where the victim suffers death rather than injury. Prior to Diaz and Ferriter, wives and children could recover for loss of consortium under the death statute, but not under common law. Diaz, supra at 167-168. Ferriter, supra at 515-516. This court reasoned in [***12] Ferviter. "We think it entirely appropriate to protect the child's reasonable expectation of parental scciety when the parent suffers negligent injury rather than death,” /d. The plaintiffs now seek to use Ferrier to establish a right to recovery apart from the death statute for loss of society resulting from a wrongful death. The statute, however, provides for such a recovery, and determines the procedure for bringing an action. The wrongful death statute provides for a single action brought by the decedent's executor or administrator.Page 4 of 5 398 Mass. 550, *555; 499 N.E.2d 1189, **1192; 1986 Mass. LEXIS 1512, ***12 The executor or administrator presents all claims by the designated beneficiaries for damages flowing from the wrongful death. See Gaudette v. Webb, supra at 72 ("administratrix . . . acts merely as a representative or conduit for the children's recovery"). General Laws c. 229. § 2, provides, "Damages under this section shall be recovered in an action of tort by the executor or administrator of the deceased. An action to recover damages under this section shall be commenced within three years from the date of death . . .” (emphasis added). Moreover, [*556] the statute provides for the elements of recovery, including [***13] "services, protection, care, assistance, society, companionship, comfort, [**1193] guidance, counsel, and advice of the decedent . . . ." Thus there can be only one plaintiff in a wrongful death action who asserts all claims by the designated category of beneficiaries for damages resulting from wrongful death. See Minkley v. McFarland, 371 Mass. 891 (1976) (rejecting claims for independent common law recovery, but applicable only to actions governed by wrongful death statute prior to 1974 amendment); Gouras v. Barchi. 5 Mass. App. Ct. 845, 845-846 (1977) (disallowing separate claims for consortium). See also Owen y. Meserve, 381 Mass. 273, 275 (1980), cert. denied, 449 U.S. 1082 (1981). Cf. Cimino v. Milford Keg, Inc., 385 Mass, 323, 334 (1982) (holding that claim for emotional distress is an independent claim for plaintiffs own damages, and not "preempted" by G. L. c. 229, § 2). In Irwin v. Ware, 392 Mass. 745, 766-773 (1984), this court construed the cap on liability as established in G. LE. 6. 258, § 2, to apply on a "per plaintiff" basis. The plaintiffs argue that our reasoning in Irwin is supportive of their position. We disagree. [**14] The /rwin case arose from an accident involving an automobile occupied by Debbie Irwin, her husband Mark, and their two children, Steven and Misty Jane. Debbie and Steven were injured in the accident; Mark and Misty Jane were killed, The complaint asserted claims for injuries to Debbie and Steven, as well as claims for wrongful death and loss of consortium. Nothing that we said in the /rwin case is inconsistent with our reasoning in the instant case. The issue we confront here was not raised or argued in frwin. We conclude that the wrongful death act, G. L. ¢. 229, § 2, provides the exclusive action for the recovery of the damages it encompasses by the designated beneficiaries. The plaintiffs may not maintain a separate action for loss of consortium. In addition, the $ 100,000 limitation on recovery from a governmental entity, G. . c. 258. § 2, applies to the total recovery by the executor or administrator in the wrongful death action, and not separately to each beneficiary's damages. [*557] 2. The plaintiffs argue that the $ 100,000 limitation on recoveries from governmental entities denies them the equal protection of the laws. We begin by noting that [**15] the plaintiffs bear a heavy burden in overcoming the statute's presumption of constitutionality. Klein v. Catalano, 386 Mass. 701, 706 (1982), citing El Paso v. Simmons. 379 U.S. 497, 508- 509 (1965). American Mfrs. Mut. ins. Co. v. Comm'r of Ins.. 374 Mass. 187, 190 (1978). “Where there is no infringement of fundamental rights or any suspect class, a Statutory discrimination will be upheld if it is ‘rationally related to a legitimate State purpose.” Paro v. Longwood Hosp., 373 Mass. 645, 649 (1977), quoting Zayre Corp. v. Attorney Gen., 372 Mass. 423, 433 (1977). The plaintiffs argue that this court should apply strict scrutiny to the $ 100,000 limitation, requiring that the classification be necessary to the achievement of a compelling State interest. The plaintiffs assert that the cap violates a fundamental right to recover full damages established by art. 77 of the Massachusetts Deciaration of Rights. We conclude that art. 11 does not create such a fundamental right. "The article is clearly directed toward the preservation of procedural rights and has been so construed." Pinnick v. Cleary, 360 Mass. 1, 11- 42 (1971). “A limitation [/*16] on the recovery of damages for wrongful death does not impinge on a constitutionally protected substantive right and is not predicated on a constitutionally suspect classification.” Owen _v. Meserve, 381 Mass. 273, 275 (1980) (upholding exception from liability for wrongful-death for operators of railroads negligently killing person not properly on railroad). See also Ryszkiewicz v. New Britain. 193 Conn. 589, 598 (1984) (constitutional provision “granting access to courts for redress [1194] of grievances . . . cannot be construed as granting an unqualified right to recover unlimited damages from government entities”). Stanhope v. Brown County, 90 Wis. 2d 823, 845 (1979) (State Constitution's "certain remedies" clause did not require that the victim of a governmental tortfeasor be allowed to recover the full amount of damages above and beyond the statutory $ 25,000 limit). We hold that art. 11 of the Declaration of Rights does not create a fundamental right to recover unlimited damages. [558] The proper standard of review of an act of the Legislature, therefore, is whether the statute is rationally related to a legitimate State purpose. Pinnick [***17] v.398 Mass. 550, *558; 499 N.E.2d 1189, Cleary, supra at 27-31. Paro v. Longwood Hosp., 373 Mass. 645. 649 (1977), In Morash & Sons v. Commonwealth, 363 Mass. 612 (1973), this court stated that the doctrine of sovereign immunity is "logically indefensible." /d. at 678-679. At the same time, this court noted: "Clearly, there should be limits to governmental liability and exceptions to the rule of liability, based upon considerations of justice and public policy.” jd. at 623. "[Wle stress that abrogation of governmental immunity need not necessarily mean that governmental entities would be liable for all harm which results from the conduct of their activities." Whitney v. Worcester, 373 Mass. 208, 212 (1977). In enacting the Massachusetts Tort Claims Act, the Legislature demonstrated "a legislative intent to be protective of the public funds, reflected in the exclusion of punitive damages and prejudgment interest [and the $ 100,000 limitation]," and that the legislative scheme “ensures that a meaningful recovery will be available to victims of public employee negligence, while simultaneously limiting a public employer's exposure to excessive liability." Invin_v. Ware, 392 ["*18] Mass. 745, 772 (1984), Protecting public funds from unlimited liability is a legitimate legislative purpose, and the $ 100,000 limitation on governmental liability is teasonably calculated to further that purpose. We conclude that the $ 100,000 limitation contained in G. L. c. 258, § 2, does not violate equal protection. 3. We have concluded that the town is correct in its arguments as to damages. We turn now to dispose of two contentions of error which the town says entitle it to a new trial, The town argues error in that the judge declined to give an "emergency" instruction requested by the town as. part of the instructions on the standard of care. The town asserts that the judge had an "obligation to instruct specifically that a diminished standard of care may be applicable when a person is confronted with an emergency.” The standard of care in negligence cases is "how a person of ordinary prudence would act in similar circumstances.” [*559] LaClair v. Silberline Mig. Co. 379 Mass. 21, 27 (1979), citing Goldstein v. Gontarz, 364 Mass. 800, 805-806 (1974). Restatement (Second) of Torts §§ 283, 298 (1965). The judge instructed the jury in accordance with [***19] that standard. Evidence of an emergency does not require application of a different standard, as the town urges. instead, the emergency condition is a factor in determining the Page 5 of 5 **1194; 1986 Mass. LEXIS 1512, **"17 reasonable character of the defendant's choice of action. Newman v. Redstone, 354 Mass. 379, 383 (1968). Restatement (Second) of Torts § 296 (1965). W., Prosser & W. Keeton, Torts § 33 at 196-197 (5th ed. 1984). The cases the town cites in support of its contention that it was "entitled to a specific jury instruction" establish only that a judge may instruct the jury that the emergency conditions are a factor in determining the reasonableness of the defendant's actions, not that the judge must give such an instruction. See Wilborg v. Denzell, 1195] 359 Mass. 279, 286 (1971), Bands v. Cummings,- 357 Mass. 763, 764 (1970); Donovan v. Mutrie, 265 Mass. 472, 476 (1929). Although the evidence may have warranted the judge in instructing upon emergency conditions, he was not Tequired to do se. The town also claims error in the exclusion of an expert opinion. At trial, the town examined Wrentham police officer William MacKenzie as an expert in accident investigation. [***20] MacKenzie had investigated the accident, and his testimony included his observations of skid marks at the accident site. He explained the difference between “accelerating” and "decelerating" (or "braking") skid marks, and between "scrub" and "friction" skid marks. In addition, MacKenzie described his observations comparing the skid mark on the road to the tires from the Hallett vehicle. In answer to a question from the town's attorney as to what caused the skid mark on the road, MacKenzie replied, over the plaintiffs’ objection, that in his opinion the mark was caused by the right front tire on the Hallett vehicle. Subsequently, the judge in effect reversed his ruling, and instructed the jury in substance that they "have as much knowledge as [MacKenzie] does" as te what caused the skid mark. There was no error. The facts were uncomplicated, and the comparison which was called for required no particular expertise or special skill. [*560] 4. Because we hold that the $ 100,000 cap of G. L. c. 258. § 2, applies to all claims contemplated by the wrongful death statute, G. L. c. 229, § 2, we remand this case to the Superior Court for the entry of a single judgment in the [***21] amount of $ 100,000 in favor of Mrs. Hallett as administratrix, in satisfaction of all claims. The complaint is to be dismissed as to the "independent" claims of the three children. So ordered. End of DocumentCOMMONWEALTH OF MASSACHUSETTS HAMPDEN, SS SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT CIVIL ACTION NO: 1679CV00677 STEPHANIE NASCIMENTO, AS THE ADMINISTRATRIX OF THE ESTATE OF DAVIDE NASCIMENTO vs. ) ) ) ) Plaintiff ) ) ) ) ) TOWN OF LONGMEADOW Defendant ) JOINT PRE -TRIAL MEMORANDUM AGREED UPON FACTS The Plaintiff, Stephanie Nascimento, resides at 50 Yale Street, Ludlow, Hampden County, MA 01056 and is the duly appointed Administratrix of the Estate of Davide Nascimento who resided at 50 Yale Street, Ludlow, Hampden County, MA 01056 at the time of his death on July 31, 2015. The Defendant, the Town of Longmeadow, is a municipal entity located at 20 Williams Street Longmeadow, MA 01106. On July 31, 2015, Davide Nascimento was working as a laborer for A. Martins Construction, working in a trench in Longmeadow when a water main broke, flooded the trench, and caused Mr. Nascimento to drown. The Project . In or around 2015, A. Martins & Sons Construction, Inc. (“Martins”) was the successful bidder on a sanitary sewer replacement project in the Town of Longmeadow (the “Town”). . Martins and the Town entered into an Agreement which incorporated by reference, amongst other “Contract Documents,” the “General Conditions of the Construction Contract” and “Supplementary Conditions” contained in the Town’s Invitation for Bid. : of ql 7. The Accident [53. On July 31, 2015, Martins was working at or near the intersection of Hazardville Road and Tedford Drive in Longmeadow, Massachusetts. 4. The previous day, Martins’ employees had exposed a water main that crossed a trench that they dug and they were aware of the water main’s location. 5. A “trench box” was not installed in the trench. 6. The water main crossing the open trench broke. 7. Mr. Nascimento was trapped in the trench close to where the water main was broken. 8. Mr. Nascimento’s co-workers attempted to rescue him from the trench and/or to divert the water flowing from the water main, without success. 9. Mr. Nascimento drowned. The Town 10. No employee of the Town was present when Mr. Nascimento drowned. 2A. PLAINTIFFS’ POSITION Facts and Liability. This wrongful death action stems from an incident that occurred on July 31, 2015 ata construction site at or near the intersection of Hazardville Road and Tedford Drive in Longmeadow, Massachusetts. The Plaintiffs decedent was a laborer working in a trench when a water main broke, flooded the trench, and caused the Plaintiff's decedent to drown. At the time of his death, Davide Nascimento was employed by A. Martins and Sons Construction, Inc. The Defendant, Town of Longmeadow, contracted with A. Martins and Sons Construction, Inc. to replace the subject water main. The Plaintiff expects the evidence to show that on July 1, 2015, Longmeadow contracted A. Martins and Sons Construction, Inc. to replace the sewer main running below Hazardville Road and below Knollwood Circle in Longmeadow, Massachusetts. To replace the sewer main, Martins Construction dug a trench measuring approximately 5 feet across and 8 feet down on Hazardville Road. When the Martins Construction crew left the worksite on July 30, 2015, they covered the trench with steel plates, but did not place a “trench box” inside the trench. The Plaintiff expects the evidence to show that on July 31, 2015, Mr. Antonio Martins, the owner of Martins Construction, met three employees, including the deceased Davide Nascimento to theHazardsville job site. The plates were removed from on top of the trench so the trench work could begin. Mr. Martins was aware that the crew had uncovered/exposed an active water line while digging the trench, Unfortunately, nothing was done to protect this active water line. , The Plaintiff expects the evidence to show that at approximately 7:00AM, on July 31, 2015, Mr. Jon Goldaper, a resident of Hazardville Road, went outside to smoke a cigarette and watch the construction crew work. Mr. Goldaper testified that he witnessed a man working inside the trench while an excavator was digging. Mr. Goldaper was “immediately struck” by how close the excavator bucket was to the man working in the trench. Mr. Goldaper further testified that these circumstances looked dangerous to him. Approximately 30 minutes later, Mr. Goldaper’s son came in to his room complaining about the lack of water pressure. By that time, the trench was flooded and Mr. Nascimento was dead. Liability of Longmeadow The Plaintiff expects the evidence to show that although the contract documents between the Defendant and A. Martins Construction attempt to disclaim control of the work on the part of the Town, the actual course of the Town’s and A. Martins’s performance of the contract demonstrate that the Town actually retained sufficient control over the work. According to the Contract, Mr. Yem Lip, the Defendant’s Town Engineer, was to be the Defendant’s representative with respect to the work. Mr. Lip’s deposition testimony reveals that he was much more involved in the decisions regarding the means and methods of the construction work than the contract documents intend. Specifically, Mr. Lip admitted that the Town of Longmeadow’s Engineering Department was assigned to “oversee” A. Martins’s work. Mr. Lip testified that while work was being performed by A. Martins, he would go to the jobsite to make sure that the general public was safe from any trench collapse. Mr. Lip also testified that while he did not “micromanage the day-to-day operations,” all work was to be done under his oversight as Town Engineer. In fact, Mr. Lip testified as to the specific circumstances that would trigger Longmeadow’s expectation that A. Martin’s to use a trench box, and whether the Town would allow A. Martins to use a trench box without backfilling a trench. Mr. Lip testified that he and the contractor would usually discuss the use of a trench box ahead of time and that he would “allow” the contractor, in some instances, to not put a trench box in place. Mr. Lip further testified that on the Hazardville jobsite, he would “require” the use of a trench box if someone was working in the trench at a depth greater than 2.5 feet. Mr. Lip’s testimony reveals that he and the Town were making decisions with regard to he and the Town would require a trench box to be used and when he would be exceptions for its use. Despite any contractual language, Mr. Lip, Longmeadow’s Town Engineer, assumed control over when A. Martins was to use a trench box.Accordingly, the Plaintiff expects the evidence to show that Mr. Lip, on behalf of the Town of Longmeadow, retained sufficient control over the work and the use a trench box. The Plaintiff further expects the evidence to show that had Mr. Lip and Longmeadow exercised that control and ensured that a trench box was installed before A. Martins began working on the jobsite on the moming of July 31, 2015, the trench would not have caved in Nascimento when the water main broke and Mr. Nascimento would have been able to escape. The Plaintiff also expects the evidence to show that if a trench box was installed at the time of the accident, Mr. Nascimento would have been protected by the trench box when the water main broke, allowing Mr. Nascimento to escape without drowning. Damages On July 31, 2015 at 07:39, Longmeadow Fire Department was dispatched to a “man in a hole which was flooding on Tedford Drive” for a report of a construction accident that involved a trench and a construction worker in the water who was reported as “drowning.” Upon arrival, Captain DeFord observed a water filled trench and several construction workers attempting to locate and rescue the construction worker. At that time, Mr. Nascimento was reported to have been under water approximately 4-5 minutes. His coworkers had attempted to rescue him by attempting to pull him out, both by hand and with the excavator. Captain DeFord noticed additional workers vigorously attempting to locate Mr. Nascimento in the trench with hand held poles. The Fire Department immediately requested a technical rescue ‘ team fora trench collapse that had flooded. The Enfield Technical Rescue team was notified. Engine 1 Officer reported that on their arrival, one of the construction workers was crawling out of the water and reported that one of the workers was stuck in the hole underwater. It was noted that it was difficult to determine the exact extent of the excavation (hole) due to the muddy water, flooded road and the surrounding area was flooded as well. Engine 1 Crew used poles and a ladder to attempt to locate the victim in the muddy water but were unable to do so. The water Dept. had to secure three valves to turn the water off. Once the water was turned off, the trench was pumped out. The trench was pumped out and Mr. Nascimento body’s was located in the south east corner of the hole. He was partially buried. Technical rescue teams placed sheeting around the perimeter of the trench. Two soil piles estimated to be approximately six tons were hand shoveled from the edge of the collapse. Shoring was built and placed to shore the cast wall of the excavation. A precast concrete manhole structure on the south west corner was tied back with heavy strapping to keep it from falling into the excavation. Air bags were used to fill the void behind the sheeting. Tents were put up on the west side to provide a screen during the recovery of Mr. Nascimento’s body. Mr. Nascimento’s body was turned over to the Mass. State Police and ultimately the Medical Examiner took possession. 4Mr. Nascimento’s body was taken to the Office of the Chief Medical Examiner in Holyoke for an autopsy. The Medical Examiner noted the cause of death was accidental drowning. At approximately 10:45AM-11:00AM on July 31, 2015, the family of Davide Nascimento; Stephanie Nascimento (wife), Maria Nascimento (mother), and Hector Nascimento (father) arrived at the Longmeadow police station. Officer Danielle Rex informed them that Davide Nascimento had passed away at the age of 28, leaving his wife, Stephanie; his children, Christiano (age 4 at the time of his father’s death) and Savanna (age 1 at the time of her father’s * death); his parents, Hector and Maria; his brothers, Victor and Mario; as well as several nephews, cousins, and friends throughout the community. Funeral Expenses Mr. Nascimento’s funeral expenses total $17,420.00. Lost Wages Peseaals Mr. Marhefiea was 28 years old when the incident occurred. He had worked as a Laborer for approximately 6 years prior to the incident, and was making an average of approximately $42,692.66 per year at the time of his death. According to the National Vital Statistics Reports, a 28 year old male like Mr. Nascimento would be expected to live for an additional 49.8 years. Thus, Mr. Nascimento would be expected to live to the age of 78. However, Mr. Nascimento would likely have retired at the age of 65. Therefore, while would have been expected to live for an additional 49.8 years, had the incident not occurred, he would only have been expected to work for an additional 37 years. Accordingly, 37 years of potential income were taken from Mr. Nascimento, equating to approximately $1,579,628.42 based on his past earnings. - Loss of Consortium Davide Nascimento passed away at the age of 28, leaving his wife, Stephanie; his children, Christiano (age 4 at the time of his father’s death) and Savanna (age 1 at the time of her father’s death); his parents, Hector and Maria; his brothers, Victor and Mario; as well as several nephews, cousins, and friends throughout the community. Asa result of the subject incident, Mr, Nascimeno’s wife has lost her husband’s consortium and society and his two young children have lost their father’s consortium and society. Mr. and Mrs. Nascimento were married on June 30, 2012. At the time of his death, the young couple were starting to build a family together. Mr. and Mrs, Nascimento’s son, Christiano, wasthe eldest of the couple’s two children and was only four years old at the time of his father’s death. Meanwhile, their younger child, Savanna, was only one year of age. Christiano is now eight and Savanna is five. As a result of this incident, both young children, as well as Mrs. Nascimento, have to bear to loss of Mr. Nascimento every day. The two children will have to grow up without their father know that all three will have to live without his Iove, affection, and support for the rest of their lives. 2B. STATEMENTS OF THE DEFENDANT, THE TOWN OF LONGMEADOW The Town expects the evidence to show that in or around 2015, A. Martins & Sons Construction, Inc. (“Martins”) was the successful bidder on a sanitary sewer replacement project in the Town of Longmeadow (the “Town”). Martins and the Town entered into an Agreement which incorporated by reference, amongst other “Contract Documents,” the “General Conditions of the Construction Contract” and “Supplementary Conditions” contained in the Town’s Invitation for Bid. The Contract places all responsibility for the “Work” to be performed and all responsibility for safety on Martins. The Contract explicitly prohibits the Town from exercising control over the “Work” and related safety programs and precautions. The Contract designates the Town Engineer as the “Engineer” for the project. The Contract strictly limits the Engineer’s authority and responsibilities, On July 31, 2015, Martins was working at or near the intersection of Hazardville Road and Tedford Drive in Longmeadow, Massachusetts. The previous day, Martins’ employees had exposed a water main that crossed a trench that they dug and they were aware of the water main’s location. A “trench box” was not installed in the trench. The water main crossing the open trench broke. The cause of the water main break is unknown. Mr. Nascimento was trapped in the trench close to where the water main was broken. What trapped Mr. Nascimento is unknown. Mr. Nascimento’s co-workers attempted to rescue him from the trench and/or to divert the water flowing from the water main, without success, Mr. Nascimento drowned. The Town did not exercise any control over Martins’ means and methods of construction or job site safety. No employee of the Town was present when Mr, Nascimento drowned. 3. AGREED SUGGESTED DESCRIPTION OF THE CASE TO BE READ TO THE JURY . The parties are unable to agree on a description of the case to be read to the jury at present.4. STATEMENT OF SIGNIFICANT LEGAL ISSUES a) Plaintiffs Statement, Plaintiff states that the usual principles of Massachusetts law regarding premises liability/negligence apply. b) Defendant’s Statement. 1. Whether the Town owed plaintiff's decedent a duty of care. It did not. See Corsertt y, Stone Co., 396 Mass. 1, 10-11 (1985); Restatement (Second) of Torts § 414, comment c (1965); St. Germaine v. Pendergast, 411 Mass. 615, 623 (1992); Lyon v. Morphew, 424 Mass. 828, 835 (1997); Foley v. Rust, 901 F.2d 183, 185 (1% Cir. 1990). 2. Whether the Town Engineer had the authority to supervise Martins’ work to an extent that could give rise to liability, the authority to amend the Contract, or the authority to bind the Town in a manner contrary to the terms of the Contract. He did not, SeeM.G.L. c. 30, § 39M; Dagastino v. Commissioner of Correction, 52 Mass. App. Ct. 456, 458-459 (2001). 3. Whether plaintiff can meet her burden of proof on the element of causation in the absence of evidence, as opposed to speculation, as to how the water main broke, She cannot. See Correa v. Schoeck, 479 Mass. 686, 693 (2018); Glidden v. Maglio, 430 Mass. 694, 696 (2000); Corsetti v. Stone Co., 396 Mass. 1, 10-11, 23-24 (1985); Colantoni v. Bertoldi, 91 Mass. App. Ct. 1117, 2017 Mass. Unpub. LEXIS 414, *4-5 (April 24, 2017) (Rule 1:28 decision); Goin v. Anna Realty Corp., 2007 Mass. App. Unpub. LEXIS 38, *3- 4 Quly 3, 2007) (Rule 1:28 decision) (summary judgment proper where plaintiff “assumed” that nail sticking up from stair tread caused her fall).4, The Town anticipates moving in limine to preclude plaintiff from presenting, as fact, the inaccuracies, unsupported assertions and speculation relied on by plaintiff in opposing the Town's motion for summary judgment. , 5. Upon information and belief, plaintiff's claim is subject to an approximately $1.4 million workers’ compensation lien. 6. M.G.L. c. 258 limits plaintiff's potential recovery to $100,000.00. 7. Whether plaintiffs decedent’s alleged conduct of knowingly entering a trench despite the absence of a trench box or other safety measures limits plaintiff's recovery. . 8. Defendant anticipates serving a Daubert-Lanigan motion challenging the admissibility of plaintiff's late disclosed expert. Because plaintiff disclosed her expert for the first time at 2:39 on April 3, 2019, defendant reserves it right base the motion on any ava