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Magl® hyp leds 4, @Hachoe
f issu me
wv
COMMONWEALTH OF MASSACHUSETTS
NORFOLK, ss. SUPERIOR COURT
CIVIL ACTION
1882CV01117
CRAIG M.
} NEWFIELD, as Personal Representative of the Estate of Talia C. Newfield
& others',
Plaintiffs,
YS. REGEIVED & FILED
CLERK OF THE COURTS
Robert W. Berry and others’, “NORFOLK OUNTY.
Defendants.
Me |)
Ix
ORDER ON PLAINTIFFS’ MOTION FOR ATTACHMENT OF REAL ESTATE
By this joint motion, plaintiffs collectively seek attachment of the real estate of the defendant
Robert W. Berry in the amount of $1,000,000.00
A party seeking an attachment as prejudgment security must, by motion and affidavit, establish a
reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an
amount equal to or greater than the amount of the attachment over and above any liability
insurance shown by the defendant to be available to satisfy the judgment. Mass. R. Civ. P. 4.1(c).
More specifically, Rule 4.1(h) provides:
Affidavits required by this rule shall set forth specific facts sufficient to warrant the
required findings and shall be upon the affiant's own knowledge, information or belief,
and, so far as upon information and belief, shall state that he believes this information to
be true
! Pedro Garrido and Blair Manning-Garrido as Co-Personai Representatives of the Estate of Adrienne Garrido
? Dania Antoine-Guiteau and Sandra Picard
In this matter, plaintiffs have proffered two affidavits by their respective counsel, Steven B.
Boris, Esq. and Marianne C. LeBlanc, Esq. Each affidavit contains the attestation that it is made
upon the affiant’s actual knowledge and so far as upon information and belief, the affiant
believes those facts to be true. The court addresses relevant facts set forth in each affidavit
below.
The Boris Affidavit Facts:
1) The defendant was indicted for causing the death of Adrienne Garrido in violation of
G.L. c. 90, § 24G(b) [motor vehicle homicide] and indicted for assault and battery with a
dangerous weapon causing serious bodily injury to both Adrienne Garrido and Talia
Newfield. (The affidavit purports to attach copies of these indictments as “Exhibit 1”, but
they are not attached to the court’s copy of the affidavit, nor are they attached to any
other filing.*)
The Leblanc Affidavit Facts:
1) On February 10, 2018, Plaintiffs’ decedents, Talia Newfield and Adrienne Garrido, were
both struck by a car operated by the defendant, Robert Berry, while they walked in a
crosswalk in front of Needham High School Talia Newfield was thrown to the ground
and subsequently hit by a car operated by the defendant, Dania Antoine-Giteau. Talia
Newfield died as a result of injuries suffered in the incident that night and Adrienne
Garrido died the following day.
3 Exhibit I to the Boris Affidavit is a document purporting to describe the real estate sought to be attached.
2
2) On July 3, 2018, Mr. Berry was indicted for causing the death of Adrienne Garrido in
violation of G.L. c. 90, § 24G(b) [motor vehicle homicide] and indicted for assault and
battery with a dangerous weapon causing serious bodily injury to both Adrienne Garrido
ind Talia Newfield.
Attached to the Plaintiffs’ Motion as Exhibit “B” is the Commonwealth’s Statement of the Case
in the case of Commonwealth v. Robert Berry, Norfolk Superior Court docket no. 1882CR0244.*
This document sets forth in some detail results from the law enforcement investigation into this
fatal accident. While the defendant objects that Exhibit B is not attested to by either of the
Plaintiff's supporting affidavits, the document is a matter of public record and the defendant does
not claim that it is not genuine. Therefore, the court discerns little utility to be gained by
requiring the plaintiffs to re-submit the document by affidavit, attesting that, upon information
and belief, they believe the facts contained therein to be true.°
The Commonwealth’s Statement of the Case, significantly, recounts findings, analysis and
calculationsby Trooper Canavan that the defendant’s speed at initial impact was 38 mph (in a 30
mph zone) and that he could have perceived the crosswalk from a point as far as 272 feet north
of the crosswalk, which would have allowed perception, reaction and a stop in time to avoid the
collision. Further, Trooper Canavan’s reported findings provide no substantial evidence of
4 A Statement of the Case is a filing often made by the prosecution in Superior Court criminal cases. The Rules of
Criminal Procedure do not specifically provide for the filing of this document and, while it contains factual
allegations and assertions, the facts set forth are not verified under oath.
5 Ina different context, motions to dismiss or for judgment on the pleading, a court may consider materials that
matters of public record, and records from related court proceedings. See Jarosz, 436 Mass. 526, 530 (2002); Schaer
v. Brandeis Univ., 432 Mass. 474, 477 (2000). Moreover, in general, “[A] judge may take judicial notice of the
court’s records in a related action.” Jarosz v. Palmer, 436 Mass. 526, 530 (2002); Mass. Guide to Evidence §
201(b)(2). Therefore, the court hereby takes judicial notice of the existence and authenticity of Exhibit B, but not of
its contents.
comparative negligence by the decedents. Based upon this and other investigative information
recounted in the Statement of the Case, and the facts set forth in the LeBlanc Affidavit, the court
concludes that the plaintiffs have met their burden of demonstrating a likelihood of success in
recovering on their complaint.
The defendant has demonstrated the existence of an applicable automobile liability insurance
policy with a per claim limit of $250,000.00 and a per occurrence limit of $500,000.00. The
remaining question for resolution is whether the plaintiffs have demonstrated by their affidavits a
likelihood of success in amounts that exceed the available coverage. Here, the plaintiffs’
showing becomes exceedingly thin. While this case involves a tragic accident and tragic losses,
the legal framework for the recovery of compensatory damages is quite specific and
individualized to both the decedent and the beneficiaries for whom a cause of action for
wrongful death is brought. The cause of action for wrongful death provides for the award of
compensatory damages, presumably to the parents of the two decedents, for the fair monetary
value of the decedent to them, including, but not limited to, compensation for the loss of
reasonably expected "net income, services, protection, care, assistance, society, companionship,
comfort, guidance, counsel and advice of the decedent." G.L. c 229, §2. The affidavits in
support of this motion set forth that Talia Newfield and Adrienne Garrido were age 16 and 17,
respectively, and that each enjoyed close and loving relationships with their parents. While the
court’s over 40 year’s experience in this area of the law, coupled with the conclusory arguments
of plaintiffs’ counsel about case value, could lead the court to observe and opine that wrongful
death verdicts involving teen-aged decedents could be in the six or even seven figure range, that
is an insufficient basis for the court to make a specific finding that the plaintiffs in this case are
entitled to an attachment of $1,000,000.00. The opinions of even highly experienced counsel
such as these on case value cannot substitute for evidence in making that determination.
However, based upon the record before the court, the court finds that the plaintiffs have each
established a reasonable likelihood that each plaintiff will recover judgment, including interest
and costs, in an amount equal to or greater than $500,000.00. Accordingly, taking onto account
the available liability insurance, the courts ALLOWS the representative of the Estate of Talia
Newfield an attachment in the amount of $250,000.00, and the representatives of the Estate of
Adrienne Garrido an attachment in the amount of $250,000.00, in the defendant’s interest in the
property located at 33 Rosalie Road, Needham, MA.
This Order is without prejudice to the plaintiffs or either of them moving to increase the amount
of an attachment, or the defendant moving to decrease the amount of an attachment, based upon
a supplemented record.
SO ORDERED.
Date: Noun: 28, 2018 Maynard M. Kizpalani
Justice of the Superior
daa™
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Magl® hyp leds 4, @Hachoe f issu me wv COMMONWEALTH OF MASSACHUSETTS NORFOLK, ss. SUPERIOR COURT CIVIL ACTION 1882CV01117 CRAIG M. } NEWFIELD, as Personal Representative of the Estate of Talia C. Newfield & others', Plaintiffs, YS. REGEIVED & FILED CLERK OF THE COURTS Robert W. Berry and others’, “NORFOLK OUNTY. Defendants. Me |) Ix ORDER ON PLAINTIFFS’ MOTION FOR ATTACHMENT OF REAL ESTATE By this joint motion, plaintiffs collectively seek attachment of the real estate of the defendant Robert W. Berry in the amount of $1,000,000.00 A party seeking an attachment as prejudgment security must, by motion and affidavit, establish a reasonable likelihood that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the amount of the attachment over and above any liability insurance shown by the defendant to be available to satisfy the judgment. Mass. R. Civ. P. 4.1(c). More specifically, Rule 4.1(h) provides: Affidavits required by this rule shall set forth specific facts sufficient to warrant the required findings and shall be upon the affiant's own knowledge, information or belief, and, so far as upon information and belief, shall state that he believes this information to be true ! Pedro Garrido and Blair Manning-Garrido as Co-Personai Representatives of the Estate of Adrienne Garrido ? Dania Antoine-Guiteau and Sandra Picard In this matter, plaintiffs have proffered two affidavits by their respective counsel, Steven B. Boris, Esq. and Marianne C. LeBlanc, Esq. Each affidavit contains the attestation that it is made upon the affiant’s actual knowledge and so far as upon information and belief, the affiant believes those facts to be true. The court addresses relevant facts set forth in each affidavit below. The Boris Affidavit Facts: 1) The defendant was indicted for causing the death of Adrienne Garrido in violation of G.L. c. 90, § 24G(b) [motor vehicle homicide] and indicted for assault and battery with a dangerous weapon causing serious bodily injury to both Adrienne Garrido and Talia Newfield. (The affidavit purports to attach copies of these indictments as “Exhibit 1”, but they are not attached to the court’s copy of the affidavit, nor are they attached to any other filing.*) The Leblanc Affidavit Facts: 1) On February 10, 2018, Plaintiffs’ decedents, Talia Newfield and Adrienne Garrido, were both struck by a car operated by the defendant, Robert Berry, while they walked in a crosswalk in front of Needham High School Talia Newfield was thrown to the ground and subsequently hit by a car operated by the defendant, Dania Antoine-Giteau. Talia Newfield died as a result of injuries suffered in the incident that night and Adrienne Garrido died the following day. 3 Exhibit I to the Boris Affidavit is a document purporting to describe the real estate sought to be attached. 2 2) On July 3, 2018, Mr. Berry was indicted for causing the death of Adrienne Garrido in violation of G.L. c. 90, § 24G(b) [motor vehicle homicide] and indicted for assault and battery with a dangerous weapon causing serious bodily injury to both Adrienne Garrido ind Talia Newfield. Attached to the Plaintiffs’ Motion as Exhibit “B” is the Commonwealth’s Statement of the Case in the case of Commonwealth v. Robert Berry, Norfolk Superior Court docket no. 1882CR0244.* This document sets forth in some detail results from the law enforcement investigation into this fatal accident. While the defendant objects that Exhibit B is not attested to by either of the Plaintiff's supporting affidavits, the document is a matter of public record and the defendant does not claim that it is not genuine. Therefore, the court discerns little utility to be gained by requiring the plaintiffs to re-submit the document by affidavit, attesting that, upon information and belief, they believe the facts contained therein to be true.° The Commonwealth’s Statement of the Case, significantly, recounts findings, analysis and calculationsby Trooper Canavan that the defendant’s speed at initial impact was 38 mph (in a 30 mph zone) and that he could have perceived the crosswalk from a point as far as 272 feet north of the crosswalk, which would have allowed perception, reaction and a stop in time to avoid the collision. Further, Trooper Canavan’s reported findings provide no substantial evidence of 4 A Statement of the Case is a filing often made by the prosecution in Superior Court criminal cases. The Rules of Criminal Procedure do not specifically provide for the filing of this document and, while it contains factual allegations and assertions, the facts set forth are not verified under oath. 5 Ina different context, motions to dismiss or for judgment on the pleading, a court may consider materials that matters of public record, and records from related court proceedings. See Jarosz, 436 Mass. 526, 530 (2002); Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). Moreover, in general, “[A] judge may take judicial notice of the court’s records in a related action.” Jarosz v. Palmer, 436 Mass. 526, 530 (2002); Mass. Guide to Evidence § 201(b)(2). Therefore, the court hereby takes judicial notice of the existence and authenticity of Exhibit B, but not of its contents. comparative negligence by the decedents. Based upon this and other investigative information recounted in the Statement of the Case, and the facts set forth in the LeBlanc Affidavit, the court concludes that the plaintiffs have met their burden of demonstrating a likelihood of success in recovering on their complaint. The defendant has demonstrated the existence of an applicable automobile liability insurance policy with a per claim limit of $250,000.00 and a per occurrence limit of $500,000.00. The remaining question for resolution is whether the plaintiffs have demonstrated by their affidavits a likelihood of success in amounts that exceed the available coverage. Here, the plaintiffs’ showing becomes exceedingly thin. While this case involves a tragic accident and tragic losses, the legal framework for the recovery of compensatory damages is quite specific and individualized to both the decedent and the beneficiaries for whom a cause of action for wrongful death is brought. The cause of action for wrongful death provides for the award of compensatory damages, presumably to the parents of the two decedents, for the fair monetary value of the decedent to them, including, but not limited to, compensation for the loss of reasonably expected "net income, services, protection, care, assistance, society, companionship, comfort, guidance, counsel and advice of the decedent." G.L. c 229, §2. The affidavits in support of this motion set forth that Talia Newfield and Adrienne Garrido were age 16 and 17, respectively, and that each enjoyed close and loving relationships with their parents. While the court’s over 40 year’s experience in this area of the law, coupled with the conclusory arguments of plaintiffs’ counsel about case value, could lead the court to observe and opine that wrongful death verdicts involving teen-aged decedents could be in the six or even seven figure range, that is an insufficient basis for the court to make a specific finding that the plaintiffs in this case are entitled to an attachment of $1,000,000.00. The opinions of even highly experienced counsel such as these on case value cannot substitute for evidence in making that determination. However, based upon the record before the court, the court finds that the plaintiffs have each established a reasonable likelihood that each plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than $500,000.00. Accordingly, taking onto account the available liability insurance, the courts ALLOWS the representative of the Estate of Talia Newfield an attachment in the amount of $250,000.00, and the representatives of the Estate of Adrienne Garrido an attachment in the amount of $250,000.00, in the defendant’s interest in the property located at 33 Rosalie Road, Needham, MA. This Order is without prejudice to the plaintiffs or either of them moving to increase the amount of an attachment, or the defendant moving to decrease the amount of an attachment, based upon a supplemented record. SO ORDERED. Date: Noun: 28, 2018 Maynard M. Kizpalani Justice of the Superior daa™