When is a Ladle a Dangerous Weapon?

In Commonwealth v. Gebo (Massachusetts Appeals Court No. 20-P-1175, June 29, 2021), seventy-five year old Elizabeth Gebo became irritated with her seventy-six year old husband of fifty-five years when he left his shoes on the porch of their home.  An argument followed and Elizabeth swung a plastic chair at her husband, striking his arm. After a jury trial, Elizabeth was convicted of assault and battery by means of a dangerous weapon on a person age sixty or over. (The husband had also contended that Elizabeth struck him on the head with a ladle, but the jury found Elizabeth not guilty of assault and battery by means of a dangerous weapon as to the "ladle incident.")

The issue before the Appeals Court was whether the chair was a “dangerous weapon.” The Appeals Court noted that in determining whether an item is a "dangerous weapon" under Massachusetts Law, it must be determined that the item is capable of producing “serious bodily injury.” I reaching this determination, a judge or jury is to consider the "nature and specific features of the object" and "the manner in which it was handled or controlled."

 
The Appeals Court considered that the trial evidence described that after being struck with the char the husband’s wrist "opened up" and bled profusely (because the husband was on blood-thinning medication). The injury left an abrasion one inch by two and one-half inches and required more than ten days to heal.

According to the Appeals Court, because the chair--as used-- caused serious injury, it amounted to a “dangerous weapon” for purposes of the charge of assault and battery by a dangerous weapon. It is conceivable (or perhaps likely) that the jury, in undertaking the same analysis as to the ladle incident, concluded that the ladle was not capable of producing serious bodily injury.

Moral of the Story: You should probably put your shoes away.

image courtesy: upklyak www.freepik.com/vectors/wood

A Look at the Law

In Pinney v. Commonwealth (Supreme Judicial Court of Massachusetts No.  SJC-13100, July 1, 2021), Mr. Pinney was tried for murder. The trial ended in a mistrial, meaning no outcome was achieved. The reported decision does not describe how the mistrial occurred, but typically a mistrial results when a jury is unable to reach a unanimous verdict. In Mr. Pinney’s case, the government was permitted to put Mr. Pinney to a second trial (which is not always true after a mistrial).

Prior to the second trial Mr. Pinney was successful in obtaining an order excluding the results of a swab of his cheek that was used at the first trial. The government then sought a court order permitting the government to obtain a second swab (to be used at the second trial), which the court granted.

Mr. Pinney appealed the order permitting the second swab, contending “it would be fundamentally unfair to require him to go through a second trial that is infected from the outset with reversible error.” Essentially Mr. Pinney contended that he was entitled to appeal the order permitting the second swab before the second trial, rather than require a second trial and only after trial obtain an appellate determination as to whether the second swab was properly permitted--that determination possibly negating the second trial but nevertheless subjecting him to the ordeal of trial.

The state supreme court declined to decide Mr. Pinney’s appeal, taking the position: "[Mr. Pinney] can raise the issue of the propriety of the order compelling the production of the [cheek] swab [o]n . . . appeal[ after a second trial], should he be convicted."

Rather than resolve the issue prior to trial, the court requires Mr. Pinney to submit to a second trial, which, if he is convicted, necessarily will result in an appeal (at least as to the issue of the cheek swab--an issue as to which Mr. Pinney had already prevailed). 

Even if Mr. Pinney were acquitted at a second trial, it is possible that a prior appellate determination as to the cheek swab would avoid a trial--the outcome of the appeal (whatever it might be) perhaps motivating some negotiated outcome (from dismissal to guilty plea). The court, rather than deciding the appeal, takes a position that all but requires a second trial and perhaps creates the result that when it finally is willing to decide the appeal (after the second trial) finds that trial to be defective--requiring still further proceedings.

It seems unfair to submit an accused (who may be held on bail) to a trial and subsequent appeal when a reasonable chance exists that the second trial may be voided for events that occurred--and can be resolved--prior to trial.

Buyer Beware

In Sullivan v. Five Acres Realty Trust (Massachusetts Supreme Judicial Court No. SJC-12934, March 12, 2020), Edward T. Sullivan, Jr., and Constance M. Sullivan described the difficulties they encountered after purchasing a home in Dover, Massachusetts. The Sullivan’s explained that they purchased the home from Giuseppe Gagliardi and Rosalie Gagliardi in 2013. The Gagliardi’s had owned and lived in the home since they purchased it in 2002. During that time the Gagliardis completed several renovations to the home, including renovating and enlarging the kitchen and transforming a screened-in porch to a "Tuscan-style room" with a brick pizza oven. 

Shortly after moving in the Sullivans discovered various defects in the property: principally that the ceilings in the kitchen and Tuscan-style room were in danger of collapsing. The Sullivans also discovered that the Gagliardis never obtained required building permits for the renovations. The Sullivans were informed that it would cost less to demolish and rebuild the Tuscan-style room than to attempt to fix it, and the cost to rebuild would be $211,000. 

The Sullivans sued the Gagliardis in 2014, alleging failure to deliver a habitable property and unfair and deceptive acts or practices in the conduct of business. A jury awarded the Sullivans $211,153.38 on the unfair-acts-in-business claim and $250,000 on the habitability claim and $461,000 in attorneys’ fees and costs.

The Gagliardis appealed.

The Supreme Judicial Court first considered whether the Gagliardis’ sale was “conduct of business.” The court considered that the Gagliardis renovated the home themselves, promoted the renovations when showing the home to prospective purchasers, and performed the renovations for the purpose of increasing the value of the home and selling the home at a profit. Nevertheless, the court concluded that a sale of a long-term residence is not a business transaction; and the court set aside the $211,000 award on the unfair-acts-in-business claim.  

With respect to the habitability claim, the court observed that such claims are applicable only to “new” residential construction. While the Sullivans contended that the Gagliardis renovations amounted to new (seemingly meaning recent) construction, the court concluded that "new" construction contemplates building a new residence--not new renovations to an existing building. The court set aside the $250,000 award on the habitability claim. Because ultimately the Gagliardis did not prevail on any claim, the court set aside the attorneys fee award as well.

The Sullivans responded that even if the Gagliardis' conduct did not amount to an unfair business practice or the sale of an uninhabitable home, the Gagliardis nevertheless engaged in fraud when they failed to disclose the defects in the home and failed to disclose that the renovations were performed without required building permits. The court concluded that the Gagliardis did not commit fraud because “silence does not constitute . . . fraud . . . even where a seller may have knowledge of some weakness in the subject of the sale and fails to disclose it." While sometimes “half truths” may amount to fraud, the Gagliardis--by keeping silent rather than providing partial information--could not speak a half-truth--the court noting that a half truth occurs when one makes a representation that is intended to cause the buyer to believe something that was untrue, which does not occur when one remains silent.

The moral: When purchasing a home you may be purchasing someone else’s problems. Proceed with caution.

A Day in the Life of a Lawyer

Commonwealth v. Teixeira (Massachusetts Supreme Judicial Court No. SJC-11279, January 20, 2021), was decided by four Justices of the Massachusetts Supreme Judicial Court, Justices Lenk, Gaziano, Cypher, and Kafker. The case discussed, primarily, when one may use deadly force in self-defense.

A lesser discussion involved the limitations on a prosecutor’s closing argument. At a criminal trial, the attorneys make opening statements, evidence is presented (through witnesses), and the attorneys make closing arguments (among other events, such as jury selection, jury instructions, deliberations, etc.).

Closing arguments are intended to permit an attorney to argue why the evidence supports the outcome the attorney advocates. Attorneys, however, can get carried away in closing arguments, straying from the evidence to matters that really are not appropriate for jury consideration. The court explained:

While prosecutors are entitled to argue forcefully for the defendant’s conviction, closing arguments must be limited to facts in evidence and the fair inferences that may be drawn from those facts. A prosecutor should not refer to the defendant's failure to testify, misstate the evidence or refer to facts not in evidence, interject personal belief in the defendant's guilt, play on racial, ethnic, or religious prejudice or on the jury’s sympathy or emotions, or comment on the consequences of a verdict. A prosecutor may not use closing argument to argue or suggest facts not previously introduced in evidence.

Referring to certain of the prosecutor’s closing argument, Justices Lenk and Gaziano concluded:

The suggestion that the victim was cowering . . . was . . .  speculative, and prone to inflame the jury. Prosecutorial appeals to sympathy obscure the clarity with which the jury would look at the evidence and encourage the jury to find guilt even if the evidence does not reach the level of proof beyond a reasonable doubt . . . In asserting that . . . the victim ‘knew what was coming,’ the prosecutor also improperly invited juror sympathy by emphasizing the purported emotions of the victim immediately prior to his death, where there was no evidence as to what the victim was feeling . . . [T]he prosecutor’s statements not only played to the emotions of the jury in inviting them to imagine the victim's last moments, but also were unsupported by the evidence . . . [T]he prosecutor crossed the line, and her remarks as to the victim’s position and state of mind shortly before his death were improper.”

In legal circles, concluding that an attorney intentionally resorted to jury emotion to obtain a conviction is damning.

 
While Justice Lenk and Gaziano concluded that the prosecutor’s closing argument was highly improper, these justices concluded that these improprieties did not warrant upsetting the defendant’s conviction.

 
Justices Cypher, and Kafker agreed that the defendant’s conviction need not be upset--so on that issue the court was unanimous. Yet Justices Cypher and Kafker wrote separately about the prosecutor’s closing arguments:

[We] disagree . . . that the prosecutor went beyond the bounds of a reasonable inference in [closing] argument . . . [We] . . . disagree . . . that the prosecutor’s use of the word ‘cowering’ was mere speculation rather than reasonable inference based on the evidence . . . Finally, [we] disagree that the prosecutor’s statement that the victim ‘knew what was coming’ improperly invited juror sympathy by emphasizing purported emotions of the victim before his death that were unsupported in evidence.

The Supreme Judicial Court is the highest court in Massachusetts. Over matters of state law, it is the last word. Its justices occupy the absolute highest judicial positions in the Commonwealth. Yet these four judges could not agree on what is permitted during an event that occurs at virtually every trial in the Commonwealth--closing argument--and were evenly divided on the issue: two reaching one conclusion and two reaching the opposite conclusion.

So this is the life of an attorney: striving to satisfy requirements without clear guidance on what are the requirements.

You Should Probably Read Those “Terms and Conditions”

In Kauders v. Uber Technologies, Inc. (Massachusetts Supreme Judicial Court No. SJC-12883, January 4, 2021), the plaintiff commenced a discrimination action against Uber Technologies, Inc. (“Uber”) in the Massachusetts trial court. Pointing to a dispute-resolution provision of the “terms and conditions” imposed when a user registers with Uber, Uber sought to compel arbitration. The plaintiff opposed arbitration, contending that the “terms and conditions” did not create an enforceable contract.

While the court sided with the plaintiff and found no enforceable contract, the case includes troubling language for unsuspecting consumers.

Facts: Uber, a ride-share service, requires users to register with it before using its services. Registration may take place through a cellular telephone application (“app”). The mobile app registration process proceeds through three screens labeled “create an account,” “create a profile,” and “link payment.”

The first and second screens were fundamental--requiring personal information--and the court focused on the third screen--that screen addressing payment for services and the “terms and conditions” of the relationship between Uber and the to-be-registered user. 

The bottom of the “payment” screen provided: “By creating an Uber account, you agree to the Terms & Conditions and Privacy Policy.” The text “Terms and Conditions and Privacy Policy” was displayed in a rectangular box and in bold--indicating that the box was a clickable hyperlink. If a user clicked the hyperlink the user could view the “Terms & Conditions” and “Privacy Policy.” On the other hand, if the user provided payment information, a button labeled “DONE” became clickable. Once the user clicked "DONE," the user completed the account creation process. Thus, the app permitted the user to complete the registration process without ever visiting the “Terms and Conditions” or “Privacy Policy” page.

The court highlighted some of the “terms and conditions” (here paraphrased):

Uber has no responsibility or liability for any transportation services provided to you by third party transportation providers (i.e., drivers).

Uber shall not be liable for any loss, damage or injury which may be incurred by you . . . You expressly waive and release Uber from any and all liability, claims or damages arising from or in any way related to the third party transportation provider. Uber is exempt from all liability for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind, including personal injury and loss of data, revenue, profits, use or other economic advantage.

User must indemnify Uber for all costs Uber incurs arising out of a user’s violation or breach of any term of this Agreement or any applicable law or regulation, violation of any rights of any third party, or the use or misuse of the Application or Service.

Uber can monitor user access to or use of its service or the app, and it can provide law enforcement or a government agency with whatever user information it chooses.

Analysis: The court considered whether Uber’s “terms and conditions” constituted an enforceable contract between it and the plaintiff. The court observed that a valid contract requires notice of its terms and assent to those terms.

The court stated: “When considering whether the user assented to the terms of the online agreement, we consider the specific actions required to manifest assent. A user may be required to expressly and affirmatively manifest assent to an online agreement by clicking or checking a box that states that the user agrees to the terms and conditions. These are often referred to as ‘clickwrap’ agreements, and they are regularly enforced . . . [W]hile clickwrap agreements . . . are not necessarily required . . . , they are certainly the easiest method of ensuring that terms are agreed to.’ ”

The court noted that “the [Uber] interface did not require the user to scroll through the conditions or even select them. The user could fully register for the service and click ‘done’ without ever clicking the link to the terms and conditions.” Because a user may never have even seen terms and conditions, no contract including those terms could be created.

Commentary: Uber’s terms and conditions are onerous and likely unsuspecting and only need be subject to a “clickwrap” to be enforceable. The court noted that other vendors’ terms and conditions are imposed by “clickwrap” and are thus enforceable.

Uber’s terms and conditions--that likely are not unique to Uber--provide that the user must indemnify Uber for all costs Uber incurs arising out of the user’s use of the Application or Service. An “indemnity” is reimbursement of costs and expenses incurred by a party in responding to allegations or claims of another party. Thus, if Uber paid a large claim that was related to a ride provided to a user, the user may be required to reimburse Uber for some or all of the amount paid. For instance, if an Uber driver caused injury to a pedestrian or other driver or vehicle while providing a ride to a user, and Uber was found to be responsible for the injury, it is not inconceivable that the user would be required to reimburse Uber because Uber’s loss occurred as a result of the user’s use of the service--an occasion imposing indemnity. There may be many reasons why Uber would be reluctant to seek indemnity, but it would be preferable to avoid the possibility of indemnity rather than rests one’s hopes on Uber’s better judgment.

Even apart from the possibility of indemnifying Uber, Uber’s use of user’s data--including ride data--and providing same to law enforcement, perhaps even without a request from law enforcement--may be unwanted. (Hardly a "Privacy Policy.").

Moral of the Story: You should probably read those pesky “Terms and Conditions.”