Gulizia v. Knight

5 Mass. L. Rptr. 685
CourtMassachusetts Superior Court
DecidedJuly 30, 1996
DocketNo. CA 924979
StatusPublished

This text of 5 Mass. L. Rptr. 685 (Gulizia v. Knight) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gulizia v. Knight, 5 Mass. L. Rptr. 685 (Mass. Ct. App. 1996).

Opinion

Hamlin, J.

Plaintiffs Michael Gulizia and his wife Donna Gulizia brought this action against defendants George Knight (“Knight”) and Brookville Transport, Ltd. (“Brookville”) to recover damages resulting from personal injuries suffered by Mr. Gulizia. Mr. and Mrs. Gulizia moved for an assessment of damages and a hearing was held.

BACKGROUND

On April 13, 1992, Mr. Gulizia was traveling on Route 3, northbound, when his car was involved in an accident with a tractor trailer operated by Knight who was employed by Brookville. As a result of the automobile accident, he sustained extensive severe injuries to his right knee, right hip and multiple facial lacerations requiring multiple surgeries, extensive medical intervention and physical therapy.

On July 29, 1992, Mr. Gulizia commenced this action against Knight and Brookville. On September 24, 1992, the court allowed Mr. Gulizia’s motion to amend his complaint to add his wife Donna as a plaintiff. The case was dismissed on November 18, 1992 as a result of plaintiffs’ failure to serve defendants. Subsequently, on December 30, 1992, the court allowed plaintiffs’ motion to vacate that dismissal and defendants were served.

In March 1993, defendants filed their answers and plaintiffs filed a request for production of documents. On August 12, 1993, plaintiffs served interrogatories on the defendants.3 Despite the requirement of Mass.R.Civ.P. 33(a) that interrogatories be answered within forty-five days after service, defendants failed to file either answers or objections, failed to produce certain documents, and also failed to request additional time within which to answer. On October 1, 1993, plaintiffs mailed an application pursuant to Mass.R.Civ.P. 33(a) to each defendant which specified that defendants failed to answer the interrogatories and requested that final judgments for relief enter. Written notice of the plaintiffs’ application stated in part: “final judgment for relief be entered as appropriate for” plaintiffs.

Defendants, still, one and one-half years after plaintiffs served interrogatories on each defendant, had failed to respond. On March 2, 1995, plaintiffs’ reapplication pursuant to Mass.R.Civ.P. 33(a) was mailed. Written notice of the plaintiffs’ reapplication was sent that day to each defendant by the Clerk of the Superior Court. That notice stated in part: “Final judgment would be entered unless the answers to interrogatories were filed, either within thirty (30) days from the date of the notice or prior to the filing of the reapplication for final judgment.”

[686]*686On September 19, 1995, almost six months after the clerk sent out notice of the reapplication, defendants filed an emergency motion for removal of default.

On December 11, 1995, after meeting with the parties, and by agreement of the parties, the court appointed Camille Sarrouf, Esq. as mediator. Mediation was unsuccessful.

On February 14, 1996, the court after due and careful consideration denied the defendants’ emergency motion for removal of the default. There was no good cause shown pursuant to Mass.R.Civ.P. 55(c), nor any basis under Mass.R.Civ.P. 60(B) to allow the motion. Whether to “remove a default judgment is essentially a matter of the trial judge’s discretion, see Riley v. Davison Construction Co., Inc., 381 Mass. 432, 441 (1980), and based upon all the facts and circumstances in this case, the court denied the motion, and allowed judgment for the plaintiffs against the defendants on the issues of liability. (Exhibit A — Docket entries attached hereto.)

On March 18, 1996 the court held a lengthy hearing concerning assessment of damages. Subsequently the parties filed proposed findings of facts.

Concerning the plaintiffs injuries, immediately after the accident surgeries were performed on his right knee and right hip by Anthony Teebagy, M.D., an orthopedic surgeon at the University of Massachusetts Medical Center, where he was airlifted after the accident due to the extent and severity of his injuries. His right hip operation was followed by using a compression screw and long-sided plate to hold the hip together.

The plaintiff was also treated after the accident by the Plastic Surgery Service which cleaned and closed his numerous facial lacerations.

He was an inpatient until April 24, 1992 and during this period of time had extensive daily physical therapy while taking numerous medications including Per-cocet and Heparin. He was in severe pain.

Upon discharge he was prescribed medication including Vilodin which he had to take every three hours and Motrin which he had to take three times daily. His discharge diagnosis was “right traumatic knee arthro-tomy and an intertrochanteric femur fracture on the right; status post irrigation and debridement of right knee laceration and open reduction and internal fixation of right hip fracture.” He was unable to put any weight on his right leg until May 5, 1992 when Dr. Teebagy advised that he begin with 30% weight on the right knee.

On May 7, 1992, the plaintiff began intensive outpatient physical therapy consisting of visits three times a week. He was unable to ambulate without the aid of crutches through August 1992 and had to use a cane until around the end of October 1992. For a period of time after the accident, he was on a CPM machine 23 hours a day while at home.

The problems in the plaintiffs right knee and hip as a result of the accident continued to plague him severely for approximately 2 V2 years after the accident and continue to affect his life now and will do so in the future. On April 6, 1993, at the University of Massachusetts Medical Center, he underwent further surgical intervention including removal of the compression hip screw and side plate from his right hip, as well as arthroscopy and debridement of adhesions and scar tissue and chondroplasty of his patella. On January 12, 1994 his right knee required further arthroscopy because of internal derangement. Intensive physical therapy continued into February 1995.

As a result of the accident he was totally disabled and unable to work for approximately 21/2 years.

Concerning the plaintiffs medical situation, it is more probable than not that future surgery will be required because the accident will cause future arthritic changes to his right knee to happen quicker than normal for a man of his age. It is likely that he will need a total knee replacement in the future.

As a result of the accident, he has a permanent moderate-to-significant limp which the court had occasion to observe as he approached and left the witness stand. He has permanent partial impairments of (1) the right hip — 10%, (2) the right knee — 8%, and (3) the cervical spine — 5%.

He has a 9 inch scar which is some Vfe" in width extending from his left hip to his thigh as well as multiple scarring about the right knee including scars, one 41/2" long and another W wide.

Mr. Gulizia is a 35-year old man who continues to suffer constant pain in his right hip and knee. He continues to have physical therapy. Recently an unsuccessful attempt was made to alleviate the pain by a cortisone injection into his right hip. His total medical bills to date are $78,382.57.

Mr. Gulizia has been employed for over seventeen years as a mailer for the Boston Globe Printing Company, working at its Billerica, Massachusetts site.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Riley v. DAVISON CONSTRUCTION CO., INC.
409 N.E.2d 1279 (Massachusetts Supreme Judicial Court, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
5 Mass. L. Rptr. 685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulizia-v-knight-masssuperct-1996.