Heard: February 7, 2019.
action commenced in the Superior Court Department on March
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.
J. Gleason for the plaintiff.
M. Ryan for the defendant.
L. Farrah, Jr., & Louis J. Farrah, II, for Thomas Fuentes
& another, amici curiae, submitted a brief.
Present: Vuono, Wolohojian, & McDonough, JJ.
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.
of the complaint.
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.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
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.
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."
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." 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.
response to the judge's dismissal of count II, the
plaintiff filed a motion for leave to amend the complaint to
expand upon the ...