Dubuque v. Cumberland Farms, Inc.

Citations: 101 N.E.3d 317; 93 Mass. App. Ct. 332Docket: No. 17–P–266

Court: Massachusetts Appeals Court; June 6, 2018; Massachusetts; State Appellate Court

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On November 28, 2010, Kimmy Dubuque was fatally struck by a speeding SUV while entering a Cumberland Farms convenience store in Chicopee. Her husband, Albert Dubuque, acting as executor of her estate, filed a lawsuit against Cumberland Farms under G. L. c. 229, claiming negligence and gross negligence due to the company's awareness of numerous prior vehicle incidents at its stores. Albert argued that the company could have prevented the accident by installing protective barriers and closing off the entrance used by the SUV. Cumberland Farms defended itself by stating that there were no previous incidents at the Chicopee location, the accident was unforeseeable, and reasonable precautions could not have prevented it.

After a nine-day trial, the jury found Cumberland Farms negligent and awarded $32,369,024.30 in compensatory damages, along with $10 in punitive damages, which the plaintiff waived due to it being below the statutory minimum. Cumberland Farms then filed motions for judgment notwithstanding the verdict, a new trial, and remittitur. The trial judge denied the first motion but deemed the compensatory award excessive and ordered a new trial on damages unless the plaintiff accepted a reduced amount of $20 million, which he did.

Cumberland Farms appealed, arguing that the trial judge improperly admitted an internal report of prior vehicle strikes without thorough similarity review and claimed it owed no duty of care due to the randomness of the event. The company also contended a new trial was warranted because the jury's decision was influenced by passion or prejudice. Conversely, the plaintiff sought to reinstate the original damage award, asserting that the judge abused his discretion in allowing remittitur. The court ultimately affirmed the amended judgment.

On November 28, 2010, Kimmy Dubuque was fatally injured in an accident at the Chicopee store while Christmas shopping with her husband, Albert. After Kimmy was dropped off at the store, she held the door open for employee Amy Gladu, who was taking out trash. At that moment, 81-year-old Edwin Skowyra lost control of his Ford Explorer SUV while driving down Front Street. The SUV, which had come to a stop before moving forward, accelerated uncontrollably, crossing the intersection and crashing through the store's facade at approximately 57 miles per hour, striking Kimmy and pushing her into the store, resulting in her death. Gladu also sustained injuries but survived.

Kimmy, 43 at the time of her death, was married to Albert for 16 years, and they shared a strong bond with their 14-year-old daughter, Jillian. Kimmy had been a supportive figure during Jillian's leukemia treatment and maintained a close family relationship. She worked full-time as the director of finance at the Springfield Civic Center, earning about $79,000 annually, with an estimated economic value of $1.6 million based on her work life expectancy.

Cumberland Farms, a family-owned convenience store chain with nearly 600 locations and approximately 6,500 employees, operated the Chicopee store, which had been established in 1974. The store featured a small, crowded lot, a facade with large glass windows, and a concrete walkway separating parking spaces from the entrance. There were no protective barriers along the walkway, leaving pedestrians vulnerable to vehicle accidents.

A fueling station and a tall sign were positioned in front of the Chicopee store, adjacent to a skewed intersection where Grove Street bisected Grove Avenue and Front Street. All roads featured one lane in each direction with a speed limit of 25 mph and were controlled by traffic lights. The intersection's angles resulted in the Chicopee store's lot forming an apex, impacting vehicle approaches, particularly from Front Street, which directed traffic directly toward the store.

The store had three vehicle entrances: one each on Grove Street and Grove Avenue, designed to require a slow, 90-degree turn for entry, and a third apex entrance at the intersection, allowing high-speed access. Despite the potential dangers recognized by the Massachusetts Department of Transportation (DOT) and a local ordinance banning such entrances, the apex entrance was "grandfathered" in and remained open. In 2009, both the DOT and the city requested closure of this entrance, which Cumberland Farms refused, opting not to install safety measures despite knowledge of the impending road project.

From 1990 to 2010, numerous incidents of vehicles striking buildings at Cumberland Farms stores had been documented, with concerns raised about safety, particularly by employee Matthew Peterson in 1988. He noted an increase in car strikes, warning that they could lead to injuries, yet his concerns went unaddressed, and incidents continued without occurrence at the Chicopee location.

In the 1990s, a man was fatally injured by a vehicle at a Cumberland Farms store, and in 2001, another customer suffered severe injuries when a pickup truck, driven by a woman who accidentally accelerated, struck him as he exited a store. Claims were filed against Cumberland Farms for failing to install protective barriers. After settling the South Deerfield case in 2004, Thomas Masiello, the director of risk management, proposed a bollard program to prevent such incidents. Bollards are reinforced posts designed to protect against vehicle impacts. Masiello gathered data from Peterson indicating at least 268 car strikes from 1990 to 2004, but no legal requirements existed for bollard installation, and his proposal lacked internal support. Car strikes persisted, with notable incidents in 2009 and 2010, resulting in injuries and significant property damage. In response to ongoing concerns, including a request from an employee's spouse for barrier installation, Masiello updated the strike data, revealing 485 incidents from 2000 to January 2010, totaling approximately $1.63 million in property damage and $2.2 million in personal injury claims. This report was reviewed by CEO Ari Haseotes as he considered the bollard program proposal.

In the summer of 2010, Haseotes approved a $2 million budget for installing bollards at 200 Cumberland Farms stores, aimed at protecting against low-speed car strikes. Stores were eligible for bollard installation if they had experienced two or more car strikes or were among the highest revenue generators; however, the Chicopee store did not meet these criteria, and no plans existed for its bollard installation as of November 28, 2010. Cumberland Farms had only installed bollards to protect its property, with minimal installation for customer safety, as evidenced by the single bollard at the Chicopee store designed to protect its sign.

At trial, the plaintiff presented three expert witnesses, including a retired state trooper, a traffic engineer, and a mechanical engineer, who supported the claim that effective protective barriers could have been installed to prevent a vehicle from reaching the store. The plaintiff's mechanical engineer indicated that a system of bollards or alternative barriers could have been designed for under $20,000, which would have stopped the SUV traveling at speeds relevant to the incident.

Cumberland Farms contested the trial's fairness, claiming prejudice from the admission of a 2010 internal report detailing 485 prior car strikes. While evidence of past accidents is generally viewed with caution, the court maintains discretion to admit such evidence if the circumstances are substantially similar and the risk of unfairness is minimal.

The trial judge has significant discretion in admitting evidence, which is granted great deference on appeal, deemed an abuse of discretion only if there is a clear error in judgment. In this case, Cumberland Farms sought to exclude evidence of prior car strikes referenced in a 2010 internal report, arguing the incidents were not substantially similar to the Dubuque accident and would unfairly prejudice the jury. After a hearing, the judge denied the motion, stating the plaintiff met the burden of showing that the risk involved uncontrolled vehicles hitting near Cumberland Farms stores. The judge determined that differences in incidents could be weighed by the jury. 

When the plaintiff sought to admit the 2010 report, the judge ruled the prior strikes could be considered substantially similar to the Dubuque accident. He encouraged Cumberland Farms to request a limiting instruction, which they did not initially propose but later approved a version provided by the judge. The jury was instructed to consider prior car strikes only as notice to Cumberland Farms, not as evidence of negligence, unless they found substantial similarity to the current case. This instruction was reiterated when further evidence of a car strike was admitted. Cumberland Farms argued that the limiting instruction improperly shifted the judge's gatekeeping responsibilities to the jury. However, the judge maintained his gatekeeping role by determining the threshold of substantial similarity, leaving the ultimate finding to the jurors, and the instruction did not imply otherwise.

Cumberland Farms argues that the trial judge did not apply a sufficiently strict test for assessing substantial similarity regarding prior car strikes in relation to the Dubuque accident. The defendant insists that only car strikes involving specific criteria—such as vehicles crashing into Cumberland Farms stores in residential areas at legal highway speeds and due to driver incapacitation—should have been considered. However, this stringent test would exclude all relevant incidents not identical to the Dubuque case. The legal standards referenced indicate no significant difference between "substantial identity" and "substantial similarity," which focus on the relevance of circumstances rather than exact replication. The judge appropriately defined the relevant risk as uncontrolled vehicles striking store entrances, endangering pedestrians due to inadequate protective barriers, affirming that absolute identity was unnecessary and that the jury could weigh differences in circumstances.

Cumberland Farms also claims that the judge erred by not analyzing individual driver behavior in the 485 car strikes for similarity to Skowyra's behavior. However, the court determined that for foreseeability assessments, the reasons behind a driver losing control were not critical. The 2010 internal report indicated various causes for loss of control, including mechanical failures and driver errors. The key issue was Cumberland Farms' awareness of the risk of such incidents affecting customer safety. The judge's decision to focus on the occurrence of uncontrolled strikes rather than their specific causes was deemed appropriate and within his discretion.

Lastly, Cumberland Farms contended that the 2010 report lacked sufficient detail to evaluate the similarity of the 485 car strikes to the Dubuque accident. Nevertheless, the judge found adequate detail indicating that most strikes involved uncontrolled vehicles hitting the storefronts, supporting the decision to present the report to the jury.

Cumberland Farms argues that even if the 2010 internal report on car strikes is considered relevant, it should be deemed unduly prejudicial due to the high number of incidents—485, which the defendant claims is significantly more than in any other negligence case. However, the court finds this concern insufficient to grant the relief sought. Evidence revealed that Cumberland Farms experienced an average of one car strike per week across multiple stores and had taken protective measures, such as signage at the Chicopee store. The presentation of the 485 incidents was consolidated into a single document, minimizing trial disruption, and the jury was instructed to consider prior incidents only if they were substantially similar to the case at hand.

Furthermore, Cumberland Farms contends that the Dubuque accident was random and unforeseeable since the driver encroached onto the property at a high speed. The court clarifies that while a property owner is not a guarantor of safety, they must guard against foreseeable risks. Evidence presented at trial indicated that the design of the entrance posed a danger, and expert testimony suggested that safety measures like guardrails could have mitigated the impact. The court emphasizes that foreseeability is generally a jury question and can only be resolved as a matter of law if no rational view of the evidence supports a finding of foreseeability. The court distinguishes the case from Glick, where liability was denied due to the absence of prior incidents and the unpredictable nature of the accident. In the current case, the evidence supports the possibility that the Dubuque accident was foreseeable.

Cumberland Farms argues that its case and another involve similar facts, particularly regarding uncontrolled vehicles traveling off public ways at high speeds. However, the current case is distinguishable due to Cumberland Farms' operation of a convenience store and gasoline station, which inherently carries a greater risk of motor vehicle incidents compared to the restaurant in the referenced case. Cumberland Farms has faced multiple car strikes and was aware of the dangers posed by its apex entrance, where vehicles have entered at high speeds. The plaintiff provided adequate evidence to suggest that Cumberland Farms could have implemented reasonable preventive measures to mitigate these risks, leading to a conclusion that foreseeability cannot be dismissed as a matter of law.

Regarding the duty of care, Cumberland Farms contends that it did not owe a duty to a patron, Kimmy. As a business open to the public, it has a legal obligation to exercise reasonable care to prevent injuries from third parties. The court determined that there is a factual question concerning what constitutes reasonable care and diligence, given the presented evidence. Therefore, it cannot be concluded that Cumberland Farms had no legal duty, nor that it did not breach that duty.

In a cross-appeal, the plaintiff contests a remittitur that reduced the jury's verdict from $32 million to $20 million. The judge has broad discretion in remitting damages deemed excessive, aiming to align awards with evidence-supported verdicts. Assessing damages is typically a factual matter for the jury, particularly in complex cases where damages are hard to quantify. A jury's damage award stands unless it represents an abuse of discretion by the court. While judges may reduce awards that are disproportionate to proven injuries or suggest jury bias, overturning a remittitur on appeal is uncommon, and this case does not present such an exception.

Cumberland Farms was found liable for wrongful death and ordered to compensate for the fair monetary value of Kimmy's loss to her family, including various forms of support and companionship. The plaintiff argued that the judge incorrectly determined that the jury's decision was influenced by passion or prejudice, leading to an inappropriate remittitur. During closing arguments, a compensation formula proposed by the plaintiff suggested a total loss of $8 million, while the jury ultimately awarded $32,369,024.30, without clarification on how this amount was calculated. After the jury's verdict was announced, a statement they wished to present was discovered, expressing hope that Cumberland Farms would invest in safety improvements—this statement was later deemed irrelevant to liability or damages. Cumberland Farms filed a motion for remittitur, claiming the award was excessive and influenced by bias. The judge recognized the jury's reasonable negligence finding but concluded the damages were disproportionately high and partly motivated by passion. He reduced the award to $20 million, allowing the plaintiff thirty days to accept or opt for a new trial. The plaintiff accepted the reduced amount but contested the judge's assessment of jury bias. The judge also noted concerns about the jury's punitive damage award of ten dollars, contrary to statutory requirements.

The judge did not emphasize a specific requirement regarding punitive damages during his later instructions, nor was it noted on the special verdict form. The record indicates that the jury did not disregard the judge's instructions despite the complexity of the case. Concerns about an "inconsistent" verdict were raised, as ten jurors found Cumberland Farms negligent while eleven agreed its negligence was a substantial factor in Kimmy's death and that it was grossly negligent. This was not deemed inconsistent, as jurors are not required to vote affirmatively on each question. The judge also expressed concern that the jury left a statement in the envelope with the verdict slip, which he believed violated his instruction against submitting such statements for open court reading. However, there is no evidence suggesting the foreperson had the opportunity to remove this statement. The content of the statement aligned with the jury's verdicts and did not imply juror bias.

Regarding the remittitur, the judge found the jury's award of $32,369,024.30 excessive and not proportionate to the proven injury, asserting that it lacked a solid evidentiary basis. The plaintiff argued that the judge failed to consider similar appellate rulings upholding larger awards in wrongful death cases, but the court declined to compare awards across different cases. The judge's decision was based on the specific evidence presented in this case, and he did not abuse his discretion in affirming the remittitur.

Cumberland Farms requested a new trial based on the judge's finding of jury influence by passion or partiality. However, this finding lacked strong support in the record. The judge specified that any influence pertained to damage calculations rather than liability, affirming the sufficiency of the evidence supporting the jury's findings of negligence and gross negligence. Consequently, the judge was justified in limiting relief to damages alone. The amended judgment dated January 9, 2017, is affirmed.

Skowyra, the decedent, had passed away prior to the trial. Evidence regarding the events leading to the accident primarily came from the SUV's "black box," which recorded data on speed, accelerator pressure, and brake application every two-tenths of a second. Skowyra was hospitalized post-accident, with medical records indicating a stroke diagnosis, though the stroke's timing and its relation to the accident were unclear. Security footage from a Chicopee store captured Kimmy exiting a vehicle and interacting with Gladu, but failed to record the SUV's approach as it struck the store. By trial time, Cumberland Farms had closed the Chicopee location. 

The excerpt noted that vehicles exiting a public way at a right angle typically travel at 8-10 mph, and that accidents commonly occur at intersections due to vehicle conflicts. The presence of an apex entrance increases these risks. Incidents where vehicles penetrated store buildings, termed "drive-throughs," were documented, including a prior incident that injured an employee. Evidence was presented regarding the presence of bollards at various retail locations, but no industry standard was established. 

Cumberland Farms had received numerous employee reports suggesting preventative measures after accidents, with 32 reports filed between 1997 and 2010 recommending barriers to prevent car strikes. An internal report from 2010 outlined at least 337 incidents involving vehicles striking the store, resulting in various damages and injuries, including instances where drivers mistakenly accelerated instead of braking or were under the influence.

A customer drove a van through the front of a Cumberland Farms store, causing significant damage. An internal report from 2010 indicated that 59 stores had some bollards installed to prevent such incidents. Bollards were added at the South Deerfield and Hopkinton locations following previous vehicle strikes. Experts testified that appropriate bollards could have potentially prevented the accident, detailing various designs and costs. Cumberland Farms contended that the plaintiff's evidence lacked sufficient testing to demonstrate causation, focusing on the weight of the testimony rather than its admissibility. The jury could find the experts credible based on their experience. An expert for Cumberland Farms claimed he could have designed effective bollards to prevent the accident. The plaintiff's engineer proposed stronger bollards than those Cumberland Farms intended to use.

Cumberland Farms also argued that the judge erred by not including specific factors for the jury to consider regarding the similarity of prior car strikes. However, the judge permitted the parties to discuss these factors, and the circumstances of past strikes did not need to match the plaintiff's accident exactly. The 2010 report was relevant for assessing gross negligence and punitive damages, suggesting that Cumberland Farms knowingly took risks and acted negligently over time. The judge's jury instructions, based on relevant case law, allowed for a reevaluation of substantial similarity but were not contested on appeal. The issues of foreseeability pertained to duty of care and proximate cause.

Jurisdictions assess the existence of a duty based on prior incidents, traffic patterns, and parking lot design. In Shoop's Restaurant v. Hardy, no prior incidents led to a finding that the accident was unforeseeable. Conversely, in Munford, Inc. v. Grier, the defendant was found liable due to awareness of similar accidents. Ray v. Cock Robin, Inc. emphasized the importance of prior accident evidence in evaluating foreseeability. In Skubovious v. Clough, a lack of prior incidents rendered the accident unforeseeable. Zippy Properties, Inc. v. Boyd found relevance in numerous past accidents for establishing duty and negligence, while Hendricks v. Todora also ruled the accident unforeseeable due to no prior incidents.

Cumberland Farms argued that the incident was unique due to a combination of high speed and a medical emergency. However, expert testimony indicated that a fully loaded tractor trailer at speed would produce the same impact as the SUV involved. Thus, while the specific event was unforeseen, the potential for such an impact was not. The judge instructed that Cumberland Farms did not need to foresee the exact circumstances of the incident, only that a real danger to patrons existed. Cumberland Farms' failure to object to this jury instruction resulted in a waiver of their argument regarding its clarity.

The absence of prior car strikes at the Chicopee store did not negate the foreseeability of risk. Legal precedents indicate that foreseeability cannot be conclusively determined solely by prior occurrences, and courts often assess the modification of duty based on factual circumstances to ensure a breach of duty is not overlooked.

The plaintiff contends that the judge should have accounted for the compensatory damage award in *Evans v. Lorillard Tobacco Co.*, where a thirty-one-year-old son received $10 million for his mother's lung cancer death. However, the judge noted that the plaintiff ignored less favorable rulings, such as in *Aleo v. SLB Toys USA, Inc.*, which awarded $2.64 million for a defective pool slide death, and *Williamson-Green v. Equipment 4 Rent, Inc.*, which awarded approximately $3.7 million for an accident involving a boom lift. This highlights the inconsistency in comparing damage awards, as one party may cite favorable awards while the other finds less favorable ones. The plaintiff argues the judge erred by determining that a $20 million award was within the range of justified verdicts, implying it was below the maximum. The judge clarified that he only reduced the excessive portion of the original $32,369,024.30 award. Other arguments presented by the parties were acknowledged but deemed unnecessary for discussion, as they did not warrant further examination.