Guzman v. Pring-Wilson

963 N.E.2d 1196, 81 Mass. App. Ct. 430
CourtMassachusetts Appeals Court
DecidedMarch 13, 2012
DocketNo. 10-P-1431
StatusPublished
Cited by13 cases

This text of 963 N.E.2d 1196 (Guzman v. Pring-Wilson) 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
Guzman v. Pring-Wilson, 963 N.E.2d 1196, 81 Mass. App. Ct. 430 (Mass. Ct. App. 2012).

Opinion

McHugh, J.

On April 12, 2003, Alexander Pring-Wilson was involved in a physical altercation with Michael Colono, during which Colono suffered a fatal stab wound. The executrix of Colono’s estate, Cindy Guzman, commenced an action against Pring-Wilson for damages. In a jury-waived trial, a judge of the Superior Court found Pring-Wilson negligent and Colono comparatively negligent, then adjusted the award of damages accordingly. On appeal, Pring-Wilson argues that the judge misapplied the law and should have found that he acted inten[431]*431tionally, foreclosing a finding of negligence. We disagree and affirm the judgment.

Neither party contests the judge’s factual findings. In essence, those findings reveal that at approximately 1:50 a.m. on April 12, 2003, Colono, his cousin Sammy Rodriguez, and Giselle Abreu sat in a car parked on Western Avenue in Cambridge, waiting for a pizza they had ordered from a nearby restaurant. Pring-Wilson, walking home alone after attending a nearby club with friends, walked past the car. “All three men — Colono, Rodriguez, and [Pring-jWilson — had been drinking.” As Pring-Wilson approached on the sidewalk, Colono said out of his open window, “Look at that motherfucker, he’s shitfaced,” and then told Pring-Wilson to “get off the street.” Pring-Wilson, who had been talking on his cellular telephone, heard that someone in the car had addressed him but did not hear what was said, so he walked back to the car and asked, “Were you talking to me?” Colono’s confrontational reply was something to the effect of “Yeah, you want to do something about it?” Pring-Wilson then replied with “Fuck you” or “Fuck off,” and turned to leave.

Upset with Pring-Wilson’s response, Colono got out of the car and rushed Pring-Wilson. A fight began, and after about a minute, Rodriguez joined the fray, grabbing Pring-Wilson “from behind, and punching] him a few times in the head, albeit from close range and without causing serious injury.” At this point, Pring-Wilson pulled from his pocket a folding knife with a four-inch serrated blade that he almost always carried as a utility tool. With the knife opened, Pring-Wilson began flailing at Colono, the man in front of him. At that point, “Rodriguez was able to grab [Pring-]Wilson by the shoulders of his jacket and throw him to the ground [where he landed] on his knees and hands. [Rodriguez] heard Colono say in Spanish, ‘Be careful — he has a knife.’ Rodriguez hadn’t seen it before, but he did now. He didn’t yet realize it had been used, but assumed [Pring-jWilson was showing it as a warning.” After warning Rodriguez about the knife, Colono said, “Let’s go.” The two men ran back to the car and Abreu drove them away.

Initially, Colono did not realize that he had been stabbed but, in fact, he had been cut five times. The fatal wound was a stab [432]*432wound into the right ventricle of Colono’s heart. The wound did not extend to the full depth of the knife’s blade, though its precise depth was not measured. Two of the other wounds also were stab wounds, both three-quarters inch in depth. One, though in the chest area, did not enter the chest cavity. The other, to the left of the navel, did not enter the peritoneal cavity. The two remaining wounds were incise or slicing wounds, with respective depths of one-quarter inch and one-half inch. Neither singly nor in the aggregate would those four wounds have been fatal.

Although the complaint contained several counts alleging liability on multiple theories, the case proceeded to trial on a negligence count alone. The judge found that Pring-Wilson was negligent for both “failing to avail himself of reasonable alternatives to combat,” and “employing more force than was reasonably necessary to repel the attack.” Finding that Colono was comparatively negligent and Pring-Wilson and Colono were equally at fault for Colono’s death, the judge decreased the damage award by fifty percent, ordering entry of judgment in the amount of “$10,000 to the Estate of Michael Colono for conscious pain and suffering, and $250,000 for the benefit of Leah Colono [his daughter], for wrongful death.”3

On appeal, Pring-Wilson’s sole claim is that, although the judge’s factual findings are sound, those facts require an ultimate finding that he acted intentionally, not that he was negligent. We disagree.

“Negligence is the failure to exercise that degree of care which a reasonable person would exercise in the circumstances.” Morgan v. Lalumiere, 22 Mass. App. Ct. 262, 267 (1986). In deciding whether a defendant is negligent, the trier of fact “is to ask how a person of ordinary prudence would act in the circumstances. This is the sole standard.” Goldstein v. Gontarz, [433]*433364 Mass. 800, 805 (1974), citing Kane v. Fields Corner Grille, Inc., 341 Mass. 640, 641-643 (1961).

The judge found that

“ [Pring-JWilson’s intent, in pulling out his knife and using it as he did, was not to kill or even to inflict serious injury on either of his assailants; it was to drive them away. In so doing, however, he was negligent: first, in failing to avail himself of reasonable alternatives to combat, and second, in employing more force than was reasonably necessary to repel the attack. On the last point, the number of knife wounds inflicted, and particularly the nature of the fatal wound, were disproportionate to the danger actually posed or reasonably apprehended."4

The finding was amply supported by the evidence, including Pring-Wilson’s testimony and the forensic evidence.5

Although Pring-Wilson agrees that he did not intend to stab or kill Colono, he nevertheless argues that his actions were intentional because he purposefully removed the knife from his [434]*434pocket with the intent of scaring Colono and Rodriguez. That action amounted to the intentional tort of assault, he argues, so he could not have also been negligent. For that argument, he principally relies on Waters v. Blackshear, 412 Mass. 589 (1992).

In the first place, however, an assault at common law is an act done with the intention of causing “a harmful or offensive contact with the person of the other . . . , or an imminent apprehension of such a contact [if] . . . the other is thereby put in such imminent apprehension.” Restatement (Second) of Torts § 21(1) (1965). See Commonwealth v. Gorassi, 432 Mass. 244, 247 (2000) (“Under the common law, an assault may be accomplished in one of two ways — either by an attempted battery, or by putting another in fear of an immediately threatened battery”); Commonwealth v. Porro, 458 Mass. 526, 530-531 (2010), quoting from Commonwealth v. Melton, 436 Mass. 291, 295 (2002) (“attempted battery . . . requires the prosecution to prove that the defendant ‘intended to commit a battery,’ ” and “threatened battery requires the prosecution to prove that the defendant . . . intended to place the victim in fear of an imminent battery”). However, “[a]n attempt to . . . cause an apprehension of [a harmful or offensive] contact does not make the actor liable for an assault if the other does not become aware of the attempt before it is terminated.” Restatement (Second) of Torts, supra at § 22. See Commonwealth v. Tarrant, 367 Mass. 411, 417 n.5 (1975) (“[I]n civil cases . . . fear or at least apprehension is essential to recovery”). See also Commonwealth v. Chambers,

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Cite This Page — Counsel Stack

Bluebook (online)
963 N.E.2d 1196, 81 Mass. App. Ct. 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guzman-v-pring-wilson-massappct-2012.