Humphrey v. Boskey
Filing
42
Judge Richard G. Stearns: ORDER entered denying 29 Motion for Summary Judgment; denying 30 Motion for Summary Judgment (RGS, law1)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 13-11508-RGS
LAURA ABIGAIL HUMPHREY
v.
COLE BOSKEY
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
October 17, 2014
STEARNS, D.J.
Laura Abigail Humphrey brought this Complaint against defendant
Cole Boskey alleging that his negligent horseplay caused her to suffer a
concussion and related injuries. Somewhat inexplicably, the Complaint was
filed on the last conceivable day permitted by the statute of limitations on
actions in tort, Mass. Gen. Laws. 260, § 2A. Boskey moved immediately to
dismiss the Complaint, but was rebuffed by the court, which noted that
under the discovery rule, the issue as it then stood, was not one of law, but
fact - whether “a reasonably prudent person would have been aware of the
harm prior to [June 25, 2010]” – and was therefore beyond the reach of a
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motion to dismiss.1 See Dkt. # 8. The court, however, added that, if after
discovery, no material dispute of fact remained as to what Humphrey knew
or should have known about her injury, the court would entertain a motion
for summary judgment. Boskey has now accepted the invitation and has
refiled his motion for brevis disposition.
BACKGROUND
On June 20, 2010, Humphrey, Boskey and Ruchit Kumbhani, a
mutual friend, visited a public beach on Cape Cod. Boskey and Kumbhani
were roughhousing while Humphrey sat nearby reading. Boskey threw a
football in the direction of Kumbhani, which went off course and struck
Humphrey on the left side of her head. Humphrey shook off the blow and
remained at the beach with her two friends. Over the ensuing days, she
began to experience symptoms of dizziness, nausea, and headache. On the
evening of June 25, 2010, Humphrey presented at the Emergency Room at
Massachusetts General Hospital where she was diagnosed with a
concussion. Humphrey filed this Complaint on June 25, 2013, three years
and five days after being hit in the head by the football.
DISCUSSION
The exception is the rare instance in which “the pleader’s allegations
leave no doubt that an asserted claim is time-barred.” LaChapelle v.
Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998).
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Summary judgment is warranted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed. R. Civ. P. 56.
“Where summary
judgment is sought on the basis of a statute of limitations, once the
defendant establishes that the time period between the plaintiff’s injury and
the plaintiff’s complaint exceeds the limitations period set forth in the
applicable statute, the plaintiff bears the burden of alleging facts which
would take his or her claim outside the statute.” McGuiness v. Cotter, 412
Mass. 617, 620 (1992). An action in tort must ordinarily be brought within
three years of the time the cause of action accrues. Mass. Gen. Laws ch.
260, § 2A. A cause of action accrues when a reasonably prudent person
know, or should know, that she has been harmed. See Felton v. Labor
Relations Comm’n, 33 Mass. App. Ct. 926, 928 (1992). However, as a
matter of fairness, the statute of limitations is tolled when a plaintiff has
been injured by an “inherently unknowable” wrong. Flynn v. Associated
Press, 401 Mass. 776, 781 (1988); see also Szymanski v. Boston Mut. Life
Ins. Co., 56 Mass. App. Ct. 367, 371 (2002) (the “inherently unknowable”
standard is no different from and is used interchangeably with the “knew or
should have known” standard).
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Humphrey measures the critical day for statute of limitations
purposes from June 25, 2010, the day she was diagnosed with a concussion.
She argues that after the “initial shock” of the football’s impact, she “didn’t
think anything of it,” and continued with her normal activities, oblivious to
the fact that she had suffered a subdural injury.
Pl. Mem. at Ex. B
(Humphrey Dep. at 13). She also notes Boskey’s statement that in the
aftermath of the accident, she appeared “okay as far as I could tell,” Pl.
Mem. at Ex. A (Boskey Dep. at 28), as well as Kumbhani’s statement that
there was no “indication that [Humphrey] was injured.” Pl. Mem. at Ex. E
(Kumbhani Dep. at 15).
Boskey, for his part, argues that the cause of action accrued on June
20, 2010, the day of the injury, citing Humphrey’s testimony that the
football hit her with “great force,” and that she felt pain as a result. Compl.
¶ 8; Def. Mem. at Ex. F (Treatment notes for 8/10/10) (“She reports her
head hurt briefly but then felt fine the remainder of the day.”) and
(Treatment notes for 8/5/2010) (“The football hitting her head hurt her,
but she felt okay with no loss of consciousness, no dazed feeling, no other
specific systems.”) Boskey relies on the well-settled rule that a plaintiff
need not be aware of the full extent or nature of the harm that she has
suffered in order to trigger the running of the statute of limitations. Lareau
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v. Page, 39 F. 3d 384, 388 (1st Cir. 1994). “‘[T]he important point is that
the statute of limitations starts to run when an event or events have
occurred that were reasonably likely to put the plaintiff on notice that
someone may have caused her injury.’” Id. at 388, quoting Bowen v. Eli
Lilly & Co, Inc., 408 Mass 204, 206 (1990). While this is true, it is also well
settled that “factual disputes concerning when a plaintiff knew or should
have known of [her] cause of action are to be resolved by the jury.” Riley v.
Presnell, 409 Mass. 239, 247 (1991).
The issue is admittedly a close one, particularly given the shifting to
Humphrey of the burden of pleading facts that place her within the
protection of the discovery rule. In this regard, Boskey’s notice argument
hinges on two pieces of proffered evidence. First, he cites Humphrey’s
testimony that she felt pain on being struck by the football. Humphrey’s
response is that the “pain” she referenced consisted only of the “initial
shock” of an unexpected event that appeared to have no enduring
consequences. Boskey’s second piece of evidence is a conversation that
Humphrey is alleged to have had with Kumbhani in which she stated that
she might be suffering from a concussion.
Boskey claims that the
conversation occurred prior to June 25, 2010. Humphrey asserts that it did
not take place until that day when she received the medical diagnosis of a
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concussion.
Compare Def. Mem. at 4, citing Def. Mem. at Ex. D
(Kumbhani Dep. at 15-16); with Pl. Mem. at 14-16. As both pieces of
evidence turn on assessment of credibility, the disputes as to their
significance and timing are matters for a jury to resolve. See Wolinetz v.
Berkshire Life Ins. Co., 361 F.3d 44, 48 (1st Cir. 2004) (citing
Massachusetts law).
ORDER
For the foregoing reasons, defendant’s motion for summary judgment
is DENIED. The Clerk will set the case for trial by jury on the next available
trial date.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE
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