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Calderon v. Royal Park, LLC

Appeals Court of Massachusetts, Essex

September 10, 2019

KIANDRA CALDERON[1]
v.
ROYAL PARK, LLC.

          Heard: February 7, 2019.

         Civil action commenced in the Superior Court Department on March 28, 2016.

         A motion to dismiss was heard by Richard E. Welch, III, J., and entry of judgment as to one count was ordered by him; a motion for leave to amend the complaint was considered by Elizabeth M. Fahey, J.; and a second motion to dismiss was heard by James F. Lang, J., and entry of judgment as to the remaining count was ordered by him.

          Thomas J. Gleason for the plaintiff.

          Gail M. Ryan for the defendant.

          Albert L. Farrah, Jr., & Louis J. Farrah, II, for Thomas Fuentes & another, amici curiae, submitted a brief.

          Present: Vuono, Wolohojian, & McDonough, JJ.

          WOLOHOJIAN, J.

         It is alleged that, because of holes and gaps in a fence owned and negligently maintained by the defendant, thirteen year old Kiandra Calderson found herself in harm's way on adjacent railroad tracks. The questions presented here are whether the plaintiff's claim under G. L. c. 231, § 85Q (the child trespasser statute), and her claim for negligent infliction of emotional distress were properly dismissed. We conclude that the complaint sufficiently stated both claims.

         Allegations of the complaint.[2]

         The defendant owns a multi-building apartment complex located at 8 Inman Street in Lawrence. The defendant's property abuts railroad tracks owned by the Massachusetts Bay Transportation Authority (MBTA), from which it is separated by the defendant's fence. For most, if not all, of the ten years during which the defendant has owned the property, there have been large holes and gaps in the fence through which adults and children pass on a daily basis in order to reach nearby shopping plazas and the Lawrence High School.[3]The defendant has known that children frequently use the gaps and holes in the fence in order to cross over the railroad tracks, and that the condition of the fence creates a high risk of harm to them. Despite this knowledge, the defendant has failed to take reasonable steps to inspect and maintain its fence, or to prevent or dissuade individuals from using its property to cross onto the railroad tracks.

         Kiandra Calderon was best friends with Jenaira Fuentes, and both girls were thirteen years old as of October 31, 2014. They had crossed back and forth frequently over the railroad tracks, passing through the gaps and holes in the defendant's fence and through the defendant's parking lot. On this particular day, Kiandra and Jenaira crossed the defendant's property and through the fence in order to go to the Plaza 114 Shopping Center to buy Halloween costumes. After shopping, the girls used the same route in reverse in order to return home. But as they were together running across the tracks to reach the defendant's fence, Jenaira was fatally struck by an MBTA train. Kiandra, who was not struck by the train, tried to perform life saving measures on her friend and then remained close by as rescue personnel unsuccessfully tried to save Jenaira's life.

         Kiandra alleges that the defendant's failure to inspect, repair, and maintain the fence caused her "severe physical injury, severe emotional and psychological distress, loss of wages and a diminished earning capacity, a future loss of wages and benefits, [and] expenses for medical treatment and care." Physical manifestations of her harm include "anxiety, depression, sleeplessness, night terrors, nightmares, diminished appetite and food intake, bouts of extreme anger, behavioral problems at home and school, poor educational performance, and self-harm."

         Procedural background.

         Based on the allegations we have set out above, the complaint asserted two causes of action: violation of G. L. c. 231, § 85Q (the child trespasser statute) (count I), and negligent infliction of emotional distress (count II). The defendant moved to dismiss the complaint on three grounds: first, that Kiandra's relationship with Jenaira was not sufficient to entitle her to recover as a bystander to Jenaira's death; second, that the defendant owed no duty to Kiandra because she was trespassing; and third, that the defendant's failure to maintain its fence was not the proximate cause of Kiandra's harm. The motion judge declined to dismiss count I (violation of the child trespasser statute), "given the allegation of physical injury to the plaintiff and this judge's reasoning in the case of Fuentes vs. Royal Park."[4] The parties have not provided any information regarding Jenaira's suit against the defendant or otherwise provided any further explanation of the judge's ruling. In any event, we understand the judge's reference to physical harm as reflecting the judge's view that count I sufficiently stated the elements of a claim resulting in physical injury. As to the negligent infliction of emotional distress claim (count II), the motion judge dismissed it, reasoning that "the minor plaintiff only claims that the 13 year old victim was her 'best friend' .... Allowing anyone who claims to be a 'best friend,' with no further allegations detailing the relationship, would radically expand this theory of tort liability well beyond developed case law. This appears unwise -- although the appellate courts will get the final say on this issue." The plaintiff's appeal from the dismissal of count II is properly before us.[5]

         In response to the judge's dismissal of count II, the plaintiff filed a motion for leave to amend the complaint to expand upon the ...


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