Opinion
16-P-924
04-24-2017
Frank COLANTONI v. Renzo BERTOLDI& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1: 28
In this personal injury action, the plaintiff, Frank Colantoni, appeals from a Superior Court judge's order denying his motion for sanctions for spoliation of evidence, and from the summary judgment entered in favor of the defendants, Renzo and Frances Bertoldi. We affirm.
We refer to the defendants by their first names to avoid confusion.
Background. The following material facts are undisputed. The plaintiff is Frances's step-brother and Renzo's brother-in-law. He is an experienced painter and has done several painting jobs for the defendants. In the summer of 2013, the defendants hired the plaintiff to paint the exterior of their house. The plaintiff was on the defendants' property on multiple occasions while doing this work. They provided the plaintiff with materials, including a six-foot aluminum step ladder. The ladder was bought in the early 1980's. Frances testified at her deposition that the ladder was in fairly good condition and Renzo testified that it was in good condition. The plaintiff never complained about the condition of the ladder, felt that that the ladder was safe to use, and used the ladder without incident prior to the accident.
On August 30, 2013, at the end of the day, the plaintiff was standing on the fourth step of the ladder wiping the spilled paint off the shingles above the garage when the ladder "jolted" and he fell. This was a complete surprise to him. No one else was present at the scene.
The plaintiff did not inspect the ladder after the fall. Renzo testified that after the accident, the only damage to the ladder was the bent paint tray. The defendants stored the ladder in their garage, and did not use the ladder after the accident. Renzo testified that he stored the ladder in the garage because he intended to "show the ladder" in the event there was a lawsuit. The parties agree that it was not until the plaintiff told Renzo that he did not want to sue Renzo and Frances, that Renzo disposed of the ladder. On February 4, 2014, counsel for the plaintiff sent the defendants a letter with respect to the August 30, 2013, accident. The letter did not ask them to preserve the ladder. Renzo testified that the letter was received after he disposed of the ladder.
On November 3, 2014, the plaintiff filed a complaint alleging that the defendants breached their duty to keep their property free from unspecified "unreasonably dangerous conditions" and failed to exercise due care. After the completion of discovery, the defendants filed a motion for summary judgment with a Superior Court Rule 9A statement of undisputed facts and the following supporting materials: deposition of the plaintiff with supporting exhibits; depositions of Frances and Renzo; the plaintiff's counsel's February 4, 2014, letter; and the defendants' response to the plaintiff's request for production of documents. The plaintiff responded by opposing the summary judgment motion and moving for spoliation sanctions on the ground that the defendants intentionally disposed of the ladder. These filings did not include any supporting materials.
The defendants also relied on their accompanying memorandum of law, which is not included in the record appendix.
The judge held a hearing on March 8, 2016. On March 10, 2016, she denied the plaintiff's motion for spoliation sanctions and allowed the defendants' motion for summary judgment. The plaintiff appealed.
Discussion. 1. Spoliation. In denying the plaintiff's motion for spoliation sanctions, the judge wrote:
"Based on the undisputed evidence which includes the sworn testimony of the parties, the Court finds that at the time the ladder was destroyed, the defendants did not know, nor reasonably should have known that the evidence might be relevant to litigation."
"The doctrine of spoliation permits the imposition of sanctions and remedies where a litigant ... negligently or intentionally loses or destroys evidence that the litigant ... knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced." Scott v. Garfield, 454 Mass. 790, 798 (2009). Here, because Renzo disposed of the ladder only after the plaintiff told Renzo that he did not want to sue Renzo and Frances and before they received the letter from his counsel, there was no duty to preserve evidence, and thus we cannot conclude that the judge erred in determining that there was no spoliation. See id. at 798-799. See Mass. G. Evid. § 1102 (2017).
2. Summary judgment. In allowing the defendants' motion for summary judgment, the judge explained that she would "not permit a jury to speculate whether the ladder would have revealed some defect to prove negligence on the part of the defendants as the only evidence for the jury to consider. Plaintiff's own testimony does not assist him." "To prevail on a claim of negligence, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage." Doe v. Boston Med. Center Corp., 88 Mass. App. Ct. 289, 291 (2015) (quotation omitted). A judge may decide the issue of negligence by summary judgment "when no rational view of the evidence permits a finding of negligence." Ibid. (quotation omitted).
Here, the plaintiff offered no evidence of the defendants' breach of duty and of a causal connection between any breach of duty and his injuries. See Glidden v. Maglio, 430 Mass. 694, 696 (2000) (summary judgment was properly granted where workers presented no reason for scaffolding collapse). "The mere fact that the accident happened is of course no evidence of the defendant's negligence." Tamagno v. Conley, 322 Mass. 218, 219 (1948). The plaintiff's failed spoliation claim does not constitute evidence sufficient to withstand the defendants' motion for summary judgment. See Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 548-553 (2002) (there is no independent cause of action for spoliation of evidence).
Judgment affirmed.
Order denying motion for spoliation sanctions affirmed.