Opinion
15-P-300
03-18-2016
VICTOR BRUNO, special administrator v. ANTHONY J. ARILLOTTA.
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
This appeal arises from the wrongful death of the plaintiff's father, Adolfo Bruno (Bruno), who was murdered on November 23, 2003. The plaintiff, Victor Bruno, appeals from a Superior Court judgment for the defendant, Anthony J. Arillotta, based on the plaintiff's failure to file his complaint within the applicable statute of limitations period. We affirm.
Discussion. The plaintiff contends that the motion judge erroneously granted the defendant's motion for summary judgment by attributing to the plaintiff constructive knowledge of his claim based on insufficient evidence. We disagree.
"On appeal, we review the motion judge's grant of summary judgment de novo." Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015). "An action to recover damages . . . shall be commenced within three years from the date of death, or within three years from the date when the deceased's executor or administrator knew, or in the exercise of reasonable diligence, should have known of the factual basis for the cause of action." G. L. c. 229, § 2, as amended through St. 1989, c. 215, § 1. Where, as here, there is an issue of tolling the limitations period rooted in the plaintiff's lack of knowledge of the basis for a potential claim, we must determine whether a material question of fact exists as to whether the plaintiff knew or should have known that he was harmed and the cause of such harm. See Riley v. Presnell, 409 Mass. 239, 240 (1991).
Here, the record supports the motion judge's finding that the plaintiff's duty of inquiry was triggered in 2010, when the defendant's arrest for Bruno's murder was highly publicized in the local news. See McIntyre v. United States, 367 F.3d 38, 52 (1st Cir. 2004) (a plaintiff is accorded time to conduct "a reasonably diligent investigation"). The plaintiff's argument that constructive knowledge of who killed his father cannot be attributed to him because he did not read or watch news reports where he lived is unavailing. See id. at 61 (court found constructive knowledge even though plaintiff was unfamiliar with news coverage despite fact that information was published in local and national press). Between February 17, 2010, and March 24, 2010, at least four newspaper articles detailing the defendant's arrest for his participation in Bruno's murder were published in the plaintiff's local newspaper. Even if the plaintiff did not read the articles, "[a]t some point, facts achieve a local notoriety great enough that the only practicable course is to attribute knowledge of them to people in a position to become familiar with them." Rakes v. United States, 442 F.3d 7, 20 (1st Cir. 2006).
Similarly, the record supports the finding that the plaintiff's claim accrued no later than February 13, 2011, when an area newspaper published an article detailing the defendant's guilty plea in connection with Bruno's murder. A claim accrues when the plaintiff "would know enough to permit a reasonable person to believe that [he] had been injured and that there is a causal connection between [the defendant] and [his] injury." McIntyre, supra at 52. Regardless of the plaintiff's actual knowledge, the record provides ample evidence to show the plaintiff's constructive knowledge. The plaintiff contends that he did not know that the defendant was the cause of his injury until March 16, 2011, when he personally heard the defendant's testimony in the trial of another party charged in connection with the murder. However, a reasonable person would have been on notice no later than February 13, 2011, the date on which accounts of the defendant's guilty plea to the murder appeared in news media.
Finally, we discern no error in the motion judge's application of the "reasonable person" standard. Although we are not unsympathetic to the plaintiff's posttraumatic stress disorder, he has failed to provide evidence showing how his condition interfered with his ability to read media reports or to diligently investigate in order to file his complaint within the applicable statute of limitations. See Patterson v. United States, 451 F.3d 268, 271 (1st Cir. 2006). The motion judge properly found that the plaintiff had constructive knowledge of the defendant's involvement in Bruno's murder by no later than February 13, 2011, and, consequently, the plaintiff's complaint, filed on March 11, 2014, was untimely. Because we discern no material facts in dispute, summary judgment was properly granted. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See also Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).
Judgment affirmed.
By the Court (Green, Hanlon & Henry, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 18, 2016.