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Dubuque v. Cumberland Farms, Inc.

Appeals Court of Massachusetts, Hampden

June 6, 2018

ALBERT R. DUBUQUE, JR., executor, [1]

          Heard: November 8, 2017.

         Civil action commenced in the Superior Court Department on May 25, 2012.

         The case was tried before Mark D. Mason, J.; motions for judgment notwithstanding the verdict, for a new trial, and for remittitur were heard by him; motions for reconsideration were heard by him; and judgment was entered by him.

          John J. Egan (Kevin D. Withers, Michael G. McDonough, & Paul S. Weinberg also present) for the plaintiff.

          Myles W. McDonough (Ryan B. MacDonald also present) for the defendant.

          Present: Sullivan, Neyman, & Lemire, JJ.

          SULLIVAN, J.

         On November 28, 2010, Kimmy Dubuque (Kimmy)[2]was hit by a speeding sport utility vehicle (SUV) while walking into a Cumberland Farms, Inc. (Cumberland Farms), convenience store in Chicopee (Chicopee store). She died instantly. The SUV had traveled at high speed across an intersection, through the "apex" entrance into the Chicopee store's parking lot, and crashed through the facade of the store.

         Kimmy's husband, Albert, as executor of her estate (Albert or the plaintiff), brought this action pursuant to G. L. c. 229, § 2, alleging that her death had been caused by the negligence and gross negligence of Cumberland Farms. Specifically, Albert claimed that Cumberland Farms, which had experienced hundreds of "car strikes" at its convenience stores, was on notice of the risks motor vehicles posed to customers at its stores, including the Chicopee store. Albert claimed that Cumberland Farms could have prevented Kimmy's death by installing bollards or other protective barriers along the walkway and by closing off and erecting barriers at the apex entrance to the parking lot. In its defense, Cumberland Farms argued that it could not be held liable because there had been no prior car strikes at the Chicopee store itself, the accident was completely random and unforeseeable, and there were no reasonable measures that would have prevented the incursion of such a large vehicle traveling at high speed.

         After a nine-day trial, a jury found Cumberland Farms negligent and awarded $32, 369, 024.30 in compensatory damages to the plaintiff, as executor of Kimmy's estate. The jury also found that Cumberland Farms had acted with gross negligence, or had engaged in wilful, wanton, or reckless conduct, and awarded the plaintiff an additional ten dollars in punitive damages.

         The plaintiff waived the punitive damage award because it fell below the $5, 000 statutory minimum. See G. L. c. 229, § 2. Cumberland Farms then filed motions for judgment notwithstanding the verdict, new trial, and remittitur. The trial judge denied the first motion. He then concluded that the $32, 369, 024.30 compensatory damages award was disproportionately high compared to the evidence, and the product of "some degree" of passion, partiality, or prejudice. He therefore ordered a new trial on the issue of damages unless the plaintiff accepted a reduced compensatory damages award of $20 million. The plaintiff accepted the reduced award, and an amended judgment dated January 9, 2017, entered. The parties then filed the present cross appeals.

         Cumberland Farms now seeks a new trial on grounds that the judge improperly admitted an internal report regarding 485 prior car strikes at its other stores without first subjecting each of the prior accidents to a "rigorous" review to ensure that they were substantially similar to the Dubuque accident. In the alternative, Cumberland Farms submits that given what it contends was the entirely random and unforeseeable series of events at issue, it did not owe Kimmy a duty of care as a matter of law. Cumberland Farms further maintains that a new trial is required in light of the judge's finding that the jury acted, to some degree, out of passion, partiality, or prejudice. The plaintiff, in turn, seeks reinstatement of the $32, 369, 024.30 compensatory damages award, claiming that the trial judge committed an abuse of discretion when he allowed the motion for remittitur. For the reasons set forth below, we affirm the amended judgment.


         For the purpose of reviewing the evidence on the motion for judgment notwithstanding the verdict, we review the evidence presented at trial "in the light most favorable to the nonmoving party, " O'Brien v. Pearson, 449 Mass. 377, 383 (2007), reserving other facts and issues for later discussion. The jury could have found the following facts.

         1. The accident.

         On the morning of November 28, 2010, Kimmy and Albert Dubuque went Christmas shopping and stopped at the Chicopee store, which was located on a corner at the four-way intersection of Grove Street, Grove Avenue, and Front Street (intersection), so that Kimmy could buy a cup of coffee. Albert dropped Kimmy off near the front of the store and drove away to park and await her return. Kimmy stepped onto the walkway and opened the front door of the store, whereupon she encountered Amy Gladu, a store employee. Gladu was in the process of taking out a bag of trash. Kimmy held the door open for Gladu while she did this, and the two then started to enter the store.

         At roughly the same time, eighty-one year old Edwin Skowyra was driving his 2004 Ford Explorer SUV down Front Street toward the Chicopee store. A short distance before the intersection, he brought the vehicle to a complete stop, likely at a crosswalk.[3] The SUV then began to move forward. As it did so, Skowyra lost control, and the SUV accelerated rapidly.[4] The SUV raced straight down Front Street, across the intersection, and up a short ramp at the apex entrance to the Chicopee store parking lot. By that time, the SUV was traveling at approximately seventy miles per hour and bouncing; its wheels came off the ground. The SUV passed just to the right of a tall Cumberland Farms sign and a set of fueling pumps, up onto the walkway, and crashed through the front door and facade of the store at the same time that Kimmy was going inside behind Gladu. The SUV, which was traveling approximately fifty-seven miles per hour upon impact with the facade of the store, did not stop until it was completely inside the store. The vehicle struck Kimmy and pushed her deep into the store, killing her. Gladu was also injured in the crash but survived.[5]

         2. The Dubuques.

         On November 28, 2010, Kimmy was forty-three years old. She had a loving and close relationship with her husband of sixteen years, Albert, and their one child, Jillian, who was then fourteen years old. The three lived together in Chicopee. They enjoyed a special bond that dated to their shared experience as Jillian underwent treatment for leukemia at the age of two. Kimmy "was always there" through Jillian's hospitalization and medical treatments, and Albert relied on Kimmy heavily during this time. Even after Jillian's leukemia went into remission, she grew older, and started high school, the three continued to be close. They did many things together, including taking nightly walks, golfing, and going to the trailer they maintained at a campground most weekends. As she had throughout most of her adult life, Kimmy also continued to work full time as the director of finance at the Springfield Civic Center. As of November 28, 2010, her annual salary was approximately $79, 000. Based on her work life expectancy, her then-present economic value to her family was $1.6 million.

         3. Cumberland Farms.

         Cumberland Farms is a third generation, family-owned company that started as a dairy farm in Cumberland, Rhode Island, and grew into a multi-State chain of convenience stores. Along the way, Cumberland Farms also expanded into the sale of gasoline. By November 28, 2010, it employed approximately 6, 500 people and owned and operated nearly 600 convenience stores, many of which included gasoline stations. Cumberland Farms had more than 40 million customer visits per year and generated roughly $17 billion in annual sales revenue.

         a. Chicopee store.

         Since 1974, one of those convenience stores and gasoline stations was located at the intersection in Chicopee. Like many of Cumberland Farms's stores, the Chicopee store sat on a small, crowded lot of land.[6] The store itself, which had a facade consisting of large glass windows, a short brick "knee wall, " and a single glass door, sat in the rear corner of the lot. As at most of Cumberland Farms's stores, there were "nose-in" parking spaces along the front and side of the store, designed to provide quick, in-and-out access. The parking spaces were separated from the store by a four-foot wide concrete walkway, elevated a few inches above the surface of the parking lot. There were no devices or barriers along the walkway to protect pedestrians from motor vehicles. Finally, a set of fueling pumps and a tall sign were situated in front of the store, close to the intersection.

         Grove Street was the primary road that bisected the intersection in front of the Chicopee store. Grove Avenue and Front Street, meanwhile, approached from opposite sides and terminated at the intersection. All three roads had a single travel lane in each direction, divided by solid double yellow lines, and speed limits of twenty-five miles per hour. The intersection, which was controlled by traffic lights, was "skewed" or "cockeyed, " meaning that the roads did not converge at perfect ninety-degree angles. This was significant for two reasons. First, the corner lot occupied by the Chicopee store came to a point, or "apex, " at the intersection as a result of the less-than-ninety-degree angle at which the two abutting roads, Grove Street and Grove Avenue, came together. Second, any vehicle traveling on Front Street towards the intersection would, because of the angle at which that road approached, be headed directly at the Chicopee store.

         b. Apex entrance.

         There were three vehicle entrances at the Chicopee store property. There was one entrance each along Grove Street and Grove Avenue, both distanced from the intersection. Consistent with recommended traffic engineering practices, both of those entrances forced motorists to slow to make a "rational transition[]" as they executed a ninety-degree turn to enter the parking lot.[7] The same was not true of the third entrance, located at the apex, directly on the intersection, across from Front Street. Motorists could drive in through the apex entrance without turning or reducing speed. Over the years, people operating vehicles of all types had been observed doing just that, often entering the parking lot at high rates of speed. One employee had complained to two separate Chicopee store managers that the situation was dangerous, but no action was taken.

         As Cumberland Farms was aware, the use of apex entrances[8]had, for years, been discouraged by the Massachusetts Department of Transportation (DOT) and altogether banned by many municipalities based on the determination that they are dangerous. In the late 1970s, the city of Chicopee (city) enacted its own ordinance prohibiting the use of such entrances. Since the apex entrance at the Chicopee store already existed, however, it was "grandfathered" and was not subject to the ordinance. Nonetheless, in 2009, both the DOT and city approached Cumberland Farms and asked it to close that entrance. Cumberland Farms, aware that the DOT was planning to close the entrance itself as part of a future road project, declined to do so. Nor did it install guardrails or other barriers as an interim measure. As of November 28, 2010, the DOT project was in progress but had yet to reach the intersection, and the apex entrance remained open.

         c. Car strikes; bollards.

         Between 1990 and 2010, there had been hundreds of vehicles striking buildings at Cumberland Farms convenience stores in various locations. In each, a driver, for one reason or another, lost control of a motor vehicle, causing it to strike the building. In some instances these incidents involved customers and employees. Cumberland Farms kept track of these incidents, which were referred to internally as "car strikes."[9] Most of the car strikes involved vehicles traveling at low rates of speed. None had occurred at the Chicopee store.

         Over time, employees of Cumberland Farms had become increasingly aware of these car strikes, and took steps to document them. In 1988, Matthew Peterson, who was responsible for tracking car strikes and pursuing claims to recover the cost of the resulting property damage, became concerned by the frequency with which they were occurring -- at the rate of approximately one per week. Peterson wrote a memorandum to his superior at Cumberland Farms warning that the car strikes were becoming costly and were eventually going to result in bodily injury.[10] There was no response to his memorandum. The car strikes continued.

         In the 1990s, a vehicle pulled into a Cumberland Farms store parking lot, failed to stop, and fatally crushed a man who was using a pay phone mounted to the side of the building. In 2001, another customer was struck by an uncontrolled motor vehicle as he walked out of the front door of a store in South Deerfield. The driver was driving a pickup truck into a nose-in parking space along the walkway in front of that store when she accidentally stepped on the accelerator, propelling the truck forward. The truck struck the man, pushing him through the brick knee-wall and plate glass window facade.[11] One of the victim's legs was amputated as a result of the accident. In both cases, claims were lodged against Cumberland Farms asserting that it could have prevented the harm by installing protective barriers in front of the pay phone and along the walkway, respectively. In 2004, Cumberland Farms settled the South Deerfield claim for an undisclosed sum.

         Prompted by that settlement, Thomas Masiello, director of risk management for Cumberland Farms, advocated for the implementation of a widespread bollard program to protect customers, employees, and property from uncontrolled motor vehicles. Bollards are posts, consisting of steel tubes, which can be designed and manufactured in varying sizes and strengths, filled with concrete and sometimes reinforcing steel plates, one end of which is sunk several feet deep in the ground into a base of concrete or a combination of concrete and steel reinforcing rebar. In furtherance of his effort, Masiello asked Peterson to provide him with data regarding the history of car strikes at Cumberland Farms stores. Peterson reported that there had been at least 268 car strikes between 1990 and 2004 (2004 internal report). There were no statutes, regulations, or ordinances, however, that required the installation of bollards at stores.[12]While Masiello continued to advocate on an annual basis for a bollard program, his proposal failed to gain support within Cumberland Farms.

         The car strikes continued in various locations. For example, in 2009, a car careened through an intersection in Norridgewock, Maine, and ran into the fueling pumps at the Cumberland Farms store there, setting them ablaze and causing bodily injury.[13] The same year, a woman drove a car into the center of a Cumberland Farms store in Hopkinton, causing over $90, 000 in property damage. Then, in 2010, a car drove through the front of a Cumberland Farms store in Cromwell, Connecticut, injuring two employees. The spouse of one of the employees sent an electronic mail message (e-mail) to Masiello, requesting that barriers be installed at the store to prevent a reoccurrence.[14]Masiello, in turn, forwarded the e-mail to Cumberland Farms's chief executive officer, Ari Haseotes, who was still considering the longstanding recommendation for a bollard program.

         Earlier in 2010, Masiello asked Peterson to update the historical car strike data. According to the resulting report, which consisted of a one-page summary and a lengthy supporting spreadsheet, there had been 485 car strikes between January 1, 2000, and January 28, 2010 (2010 internal report). A number of the car strikes were described in the report in brief terms (e.g., "Damage to building"). However, a large majority were described, in one fashion or another, as having involved vehicles striking the front of a Cumberland Farms store, in many cases at or near the door.[15] According to the 2010 internal report, the 485 car strikes resulted in at least $1.63 million in property damage and the payment of approximately $2.2 million in personal injury claims. The report was forwarded to and reviewed by Haseotes as he continued to weigh the request for a bollard program.

         In the summer of 2010, Haseotes approved a preliminary budget of $2 million for the installation of bollards at 200 Cumberland Farms stores during the next fiscal year. The bollards, which were to be placed along the walkways in front of stores, were designed to protect people and property from low impact, low speed car strikes. To qualify for the program, a store had to have had two or more car strikes, or be among the highest revenue generators. The Chicopee store satisfied neither criterion. As of November 28, 2010, therefore, there was no plan to install bollards along the walkway in front of the Chicopee store.

         As of November 28, 2010, Cumberland Farms had yet to install bollards on any significant basis at its stores. To the extent that bollards had been installed at any stores, [16] they were installed primarily to protect Cumberland Farms property, such as structural columns, trash dumpsters, and air and vacuum machines. Only occasionally were bollards installed along walkways in front of stores.[17] To that end, ...

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