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Wednesday, August 21, 2019

Widower’s $20 million award affirmed by Mass. court; Car drove through convenience store, killing woman


By Elizabeth Alt | Jun 26, 2018

BOSTON (Legal Newsline) – On June 6, the Massachusetts Court of Appeals affirmed an amended award of $20 million to the spouse of a woman instantly killed when a car crashed into a Cumberland Farms convenience store and struck her.

Justice Mary T. Sullivan, sitting on the panel for the Court of Appeals with Justices Eric Neyman and James Lemire, wrote the court opinion, affirming the remitter that decreased the compensatory damages award by more than $12 million. 

The court order dismissed Cumberland Farms’ claims that the trial judge abused his discretion and request for a new trial, noting that evidence showed Cumberland Farms held some liability after documents confirmed the store had over 400 similar incidents.

“...The evidence showed that Cumberland Farms was aware of the risk of the uncontrolled car strikes at its stores,” the ruling states.

Kimmy Dubuque was killed in November 2010 as an SUV crashed into the front of the Chicopee Cumberland Farms store she was entering. The SUV was traveling close to 60 miles per hour when it sped across the intersection and crashed into the store entrance located at an apex of the intersection. Kimmy’s spouse, Albert Dubuque, filed a complaint against Cumberland Farms for multiple claims, among them wrongful death and negligence.

The trial jury awarded $32.3 million to the plaintiff in compensatory damages. During the hearing for Cumberland’s motion for summary judgment, the trial judge found that the original award was “disproportionately high” and reduced the award to $20 million, which Albert accepted.

Cumberland appealed, claiming it should be given a new trial because the trial judge found “that the jury acted, to some degree, out of passion, partiality or prejudice,” and claim that it did not breach any duty because the accident was “entirely random and unforeseeable,” the opinion states.

Albert filed a motion to reinstate the original award, claiming it was a reasonable amount in proportion to his injury, and alleged that the trial judge abused his discretion by allowing the motion for remitter and reducing the award.

The Appeals Court order stated that records prove Cumberland chose not to close the apex store or take any action to protect the location, despite requests by the Department of Transportation and the city of Chicopee to close due to the dangers of the location, and warnings of the risk by the director of risk management for Cumberland Farms, who also repeatedly lobbied for Cumberland to construct bollards to protect the perimeter of a location such as Cumberland’s apex entrance.

Sullivan stated that the trial judge did not abuse his discretion by allowing the motion for remitter. The court order said that although the trial judge noted his concerns that the jury may have acted out of passion or misconstrued directions, “the record does not support the finding that the jury ignored the judge's instructions.” 

Sullivan further agreed with the trial court’s finding that "no evidentiary foundation upon which to conclude that the $32,369,024.30 award represents fair and reasonable compensation to [the plaintiff].”

Sullivan disagreed with Cumberland’s argument that Kimmy’s accident was a “wholly unique set of events," referring to the more than 400 similar accidents at various store locations, and evidence proving that the accident was not a random occurrence. 

The Appellate Court found that Cumberland had breached its duty by not keeping their premises in a reasonably safe condition for customers, noting the “ample evidence…that Cumberland Farms was negligent and grossly negligent”.

The Appellate Court affirmed the amended award and denied Cumberland’s motion for a new trial.

Dubuque is represented by John E. Egan, Kevin D. Withers, Michael G. McDonough and Paul S. Weinberg.

Cumberland Farms is represented by Myles W. McDonough and Ryan B. MacDonald.

Massachusetts Court of Appeals case number 17-P-266

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