Anderson v. Paulo

909 N.E.2d 47, 74 Mass. App. Ct. 635
CourtMassachusetts Appeals Court
DecidedJuly 9, 2009
DocketNo. 08-P-1053
StatusPublished
Cited by1 cases

This text of 909 N.E.2d 47 (Anderson v. Paulo) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Paulo, 909 N.E.2d 47, 74 Mass. App. Ct. 635 (Mass. Ct. App. 2009).

Opinion

Dreben, J.

Plaintiff Irena Anderson claims that defendant Michael Paulo, a plumber, caused a fire in the third-floor apartment of her house in Somerville by negligently using a machine for thawing frozen pipes. She appeals from the allowance by a judge of the Superior Court of Paulo’s motion to strike the opinion of her expert, and from the subsequent allowance of Paulo’s motion for summary judgment. We reverse.

We view the facts in the light most favorable to the plaintiff, the nonmoving party. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Materials presented on summary judgment showed the following. On January 9, 2004, after receiving a call from her third-floor tenant that the pipes in her kitchen were frozen, the plaintiff engaged Paulo, a licensed plumber, to remedy the situation. Paulo and an assistant spoke with the plaintiff, inspected the building, and proceeded to use an electric device known as an IceBreaker 350 to thaw the pipes.

Before using the device, Paulo cleared materials from underneath the third-floor kitchen sink where one end of each of the pipes was exposed. The kitchen sink cabinet “was full of chemicals, detergents, et cetera, all cleaning supplies.” After running an electrical charge through the pipes and after the pipes had thawed, he disconnected the device and replaced the items that had been under the sink. He told the plaintiff that due to the severe frozen state of the pipes, he used the pipe-thawing machine for a longer period than usual. While Paulo was talking with the plaintiff outside the house, the second-floor tenant alerted them to a fire in the building.

The Somerville fire department responded to the fire call, and pursuant to a mutual aid agreement between the departments, a fire investigator certified by the Commonwealth, Lieutenant Brian Higgins of the Cambridge fire department, came to make what is known as an origin and cause determination.

Higgins’s report detailing his investigation on the day of the fire was dated the day after the fire.2 He stated that he interviewed the plaintiff, the tenants of the second- and third-floor apartments, and Paulo. The third-floor tenant accompanied him to the apartment and showed him, from the exterior of the building, [637]*637the previous location of her sink. She also told Higgins that she had stored under her sink “Comet cleaner, Windex spray, plastic containers, soap, and some rags used for cleaning.” Higgins’s report contained Paulo’s description of what he had done: that he had cleared out the contents under the sink, hooked up the machine, turned it on, and waited about ten minutes. He knew when the hot water started to flow because he saw ice coming through the faucet. He followed the same procedure for the cold water pipe. Once the pipes began to work, he cleaned up and put everything back under the third-floor sink. He put “chemicals, sponges, and spray bottles back.” While he was talking outside with the plaintiff, the second-floor tenant came outside and said there was smoke in her second-floor kitchen ceiling. Paulo ran upstairs and saw fire coming from a place where a ceiling panel was missing. He tried to throw water on it for about a minute and then went outside and called 911.

Higgins’s report describes his fire scene examination. After conducting a perimeter examination, he entered the building and went to the third floor. In his examination he used the “backwards theory,” namely he worked from the least amount of damage to the most. The heaviest amount of damage was on the exterior bearing wall on the “Bravo” side of the building closest to the “Charlie.”3 This was where, on the inside, the sink had been, although the sink was no longer there and could not be found. The joists on the third floor just over the second-floor kitchen appeared to have burned from tire third floor down because the heaviest amount of char was on the top side of the joist on the third floor. The stability of the building was in question because of a partial roof collapse closest to where the “Bravo” and “Charlie” comers met and because of the water that had been used to suppress the fire. As the fire had rekindled, Higgins had to leave the building.

His summary stated that his report is to be considered a preliminary origin and cause determination. He arrived at his opinion by conducting witness interviews and his fire scene examination. The cause of the fire was accidental in nature, and

“the ice defrosting machine utilized by the plumber just [638]*638prior to the fire would have heated up the pipe sufficiently to be a competent heat source to ignite building materials as well as contents that were placed back under the 3rd floor sink once the pipes had been cleared. The contents from under the 3rd floor sink, building materials or a combination[] of both were most likely ignited as a result of direct contact with a hot pipe under the sink, radiant heat from a hot pipe under the sink, or a combination of both. I have determined that the area of origin was the 3rd floor ‘Bravo’ side of the building closest to the ‘Charlie’ side. It is the opinion of this fire investigator that heat source was a hot pipe under the 3rd floor sink through conduction or radiation or a combination of both igniting common combustibles or building materials or a combination of both.”

In a 2007 affidavit and in a March 24, 2008, deposition, Higgins reiterated his opinion as to the cause of the fire. He also stated that he had no reason to believe that this was an electrical fire.4

While not questioning Higgins’s credentials or expertise, Paulo argues, citing Goffredo v. Mercedes-Benz Truck Co., 402 Mass. 97, 103 (1988), that his opinion was too speculative, a claim concurred in by the motion judge. Paulo bases this claim on his counsel’s questioning of Higgins during the latter’s deposition, and on the opinion of Paulo’s expert that Higgins’s investigation was insufficient to determine the cause and origin of the fire.

At the deposition, Paulo’s counsel pointed to the language of Higgins’s report which stated that the report shall be considered “a preliminary origin and cause determination in an effort to assist the Somerville Fire Department.” When asked whether a final determination was ever completed, Higgins replied, “I gathered as many people as I could at the scene before they were gone, did what I could to do a thorough examination of the building .. . with the safety issues in mind and the imminent collapse and things like that — the building was eventually knocked down.[5] What I did was I gathered all this information, put it together, gave my opinion, and I forwarded all the information over to the [639]*639Somerville Fire Department.” Counsel subsequently asked:

Q.: “Do you have an opinion to a reasonable degree of scientific certainty as to the cause of this fire?”
A.: “Well, at this time I have a preliminary, because that’s what I said, a preliminary, that it’s accidental relative to this machine. But because I wasn’t able to get in there and do a complete investigation because of the structural integrity of the building, this is all that I can arrive at.”
Q.: “All right. So I take it that your opinion contained in your report is a preliminary one, correct?”
A.: “That’s correct.”

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Cite This Page — Counsel Stack

Bluebook (online)
909 N.E.2d 47, 74 Mass. App. Ct. 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-paulo-massappct-2009.