Opinion
15-P-1127
05-06-2016
ISSA ABOURIZK v. JORADA, INC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this personal injury action, Issa Abourizk, as parent and next friend of Joseph Abourizk (the plaintiff), appeals from a Superior Court judge's order denying the plaintiff's motion for sanctions for spoliation of evidence, and from the summary judgment entered in favor of the defendant, Jorada, Inc. (Jorada). We affirm the denial of the motion for sanctions, but reverse the judgment.
Background. The following material facts are undisputed. On July 1, 2010, the fifteen-year-old plaintiff was a member of Latitudes, a gym owned and operated by Jorada. On that date, the plaintiff approached a Life Fitness Two Stack Multi-Jungle exercise machine (machine). He adjusted the weight, manipulated the pull pin to adjust the height of the pulley/carriage system, and heard the pin click. However, when he pulled down on the bar, the plaintiff heard the pin fall through. The bar fell, struck him, and cut his head, causing him to bleed.
Prior to the accident, there were no reports of problems with the machine. After the accident, Eric Lever, one of Jorada's coowners, placed the pin in the machine and did a full pull-up without incident. However, Lever noticed that a plastic coupling on the pulley/carriage system was cracked. Pursuant to gym policy, the cracked part was replaced within twenty-four hours. Jorada created an incident report regarding the plaintiff's injury, which states, "Ambulance or 911 contacted."
On July 2, 2010, counsel for the plaintiff sent a letter to Jorada "request[ing] that [Jorada] not dispose of, change the condition of, or repair the double cable pulley machine which injured [the plaintiff]." On June 14, 2012, the plaintiff filed a complaint against Jorada and its liability insurer, alleging that Jorada breached its duty "to maintain its equipment in a safe manner for the operators." Following discovery, Jorada moved for summary judgment on the basis that there was no evidence that it had breached a duty of care to the plaintiff or that any alleged breach caused the plaintiff's injuries. In response, the plaintiff moved to strike Jorada's motion as a sanction for spoliation of evidence. After a hearing, a judge in the Superior Court allowed Jorada's motion and denied the plaintiff's cross motion in a written memorandum of decision and order. Judgment entered dismissing the plaintiff's complaint against Jorada, and the plaintiff appeals.
Discussion. 1. Spoliation. The plaintiff moved for sanctions for spoliation of the cracked plastic coupling and any maintenance logs regarding the machine that may have existed. After a hearing and upon "careful consideration of the summary judgment record," the judge found that there was no spoliation.
We may have come to a different conclusion, based upon evidence that Lever, who coowned the gym, immediately requested replacement of a cracked part, located on the machine that had just injured a minor who was taken away, bleeding, in an ambulance, knowing that the part would be disposed of within twenty-four hours. See Scott v. Garfield, 454 Mass. 790, 798 (2009) ("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"). However, we cannot say that the judge erred, see id. at 797 (reviewing judge's finding regarding spoliation for error), and we will not disturb his factual determination.
2. Jorada's motion for summary judgment. Summary judgment is appropriate where "all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). The "party moving for summary judgment assumes the burden of affirmatively demonstrating that there is no genuine issue of fact on every relevant issue raised by the pleadings[,] . . . even though . . . he would have no burden if the case were to go to trial." Attorney Gen. v. Bailey, 386 Mass. 367, 371, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970 (1982), quoting from Mack v. Cape Elizabeth Sch. Bd., 553 F.2d 720, 722 (1st Cir. 1977). "In reviewing a grant of summary judgment, we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party." Pugsley v. Police Dept. of Boston, 472 Mass. 367, 370-371 (2015) (quotation omitted).
In its motion, Jorada asserts that it inspects its equipment daily and "[c]heck[s] all cables and pulleys in [the] free motion area, [and] if necessary adjust[s] or replace[s] as needed." However, it is undisputed that Lever observed a cracked part on the pulley mechanism of the machine immediately after it fell on and injured the plaintiff. The plaintiff expects his expert to present evidence that, when the plaintiff used the machine on the date in question, "the pull pin did not seat satisfactorily for one or a combination of the following reasons: . . . (e) the crack in the plastic liner that caused misalignment of the adjustable pulley/carriage[,]" and to testify that "[a] sufficient inspection would have avoided [the plaintiff's] injury while using the subject machine." In rejecting this evidence as speculative, "we think [the judge] overlooked the principle that 'inferences to be drawn from the facts contained in the pleadings . . . and other materials must be drawn against the movant and in favor of the party opposing' a motion for summary judgment." O'Hanley v. Ninety-Nine, Inc., 12 Mass. App. Ct. 64, 68 (1981), quoting from Community Natl. Bank v. Dawes, 369 Mass. 550, 559 n.8 (1976). "The question of what [Jorada] did [or did not do to inspect the machine], and whether that conduct was negligent, [is] . . . a jury question[,]" Christopher v. Father's Huddle Café, Inc., 57 Mass. App. Ct. 217, 227 (2003), as is "the question of the proximate cause of the plaintiff's injury." O'Hanley v. Ninety-Nine, Inc., supra. The judge impermissibly "pass[ed] upon the credibility of witnesses [and] the weight of the evidence [to] make [his] own decision of facts" when he allowed Jorada's motion, Attorney Gen. v. Bailey, supra at 370, quoting from Hub Assocs. v. Goode, 357 Mass. 449, 451 (1970), and summary judgment should not have entered.
Conclusion. The judgment dismissing the plaintiff's complaint is reversed. The judge's order denying the plaintiff's motion for sanctions is affirmed. However, the affirmance of the order denying sanctions does not affect or limit the admissibility of the plaintiff's use at trial of evidence concerning the disposal of the cracked coupling or the maintenance logs. These evidentiary decisions remain to be determined in the judge's discretion at trial. See Gath v. M/A-Com, Inc., 440 Mass. 482, 491 (2003).
So ordered.
By the Court (Wolohojian, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 6, 2016.