Mass Appeals Court Rules on Retroactive Interest in MBTA Bus Accident Case

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
 
RITA  TRAYBMAN  vs. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY & another.
[FN1]
 
10-P-253
 
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
 
The defendants, Massachusetts Bay Transportation Authority (MBTA) and Lancelot A. Blake, appeal from a judgment entered after a jury verdict in favor of Rita Traybman on her negligence claim. In addition to the judgment amount, the trial judge ordered the defendants to pay interest and costs. On appeal, the defendants claim the judge erred by permitting Traybman's counsel to mention a traffic citation and to publish to the jury the applicable statute in his opening statement, by admitting certain testimony regarding the investigation of the accident, and by refusing to permit the recall of a witness. The defendants also claim that the Legislature's enactment of legislation, postjudgment, which made the MBTA a 'public employer' for purposes of G. L. c. 258, is retroactive and precludes entry of judgment against Blake individually, as well as the award of costs and pre- and postjudgment interest against the MBTA. We affirm.
 
1. The defendants claim the judge erred in admitting evidence of the postaccident investigation, which was conducted by the MBTA's own officer, Detective Kenneth Sprague. We disagree. Specifically, the defendants claim that Sprague's testimony on causation, combined with the mention during Traybman's opening statement of a citation to the bus driver, and publication to the jury of a copy of the statute (G. L. c. 89, § 11), concerning the obligation to yield to a pedestrian, was tantamount to the officer being allowed to testify that the driver had violated the law. However, the defendants agreed to the admission of much of the now-challenged evidence. [FN2]
 
Sprague testified as an expert whose qualifications and accident reconstruction methods were unchallenged by the defendants. The scope of his testimony was defined by, and consistent with, an explicit agreement of counsel, reported to the court. Sprague did not testify that the driver had 'violated the law,' or that he was issued a citation. Rather, he testified that, based on his investigation, the cause of the accident was 'the failure of [the driver] to observe Rita Traybman in the crosswalk.' This testimony was agreed to by the parties prior to Sprague's testifying. [FN3] It is speculation to suggest, as do the defendants, that the jury tied together statements from an opening, a copy of the statute, and testimony from a witness to reach the conclusion that a citation was issued, especially where the citation was never introduced and, by agreement of counsel, the penalty section of the statute was redacted.
 
2. The defendants next claim that the judge abused her discretion by not permitting them to recall a witness, Ann Marie Rose. However, the argument misconstrues the judge's ruling. The defendants wished to recall Rose because they did not receive Rose's written statement until after she had testified. The judge conditioned the recall of Rose upon the defendants making a showing that the statement had been requested in discovery. The defendants claim they made the showing through a document production request. However, there is no record support for this claim. Instead, the record reflects that the defendants abandoned the request to recall Rose. The claim is waived.
 
3. Finally, the defendants argue that the 2009 amendment to G. L. c. 258, which made the MBTA a 'public employer' for purposes of tort claims, applies retroactively to this case. See St. 2009, c. 25, § 123. This claim is not properly before us as it was not raised in the Superior Court. [FN4] To the extent the parties wish the matter resolved now as it is a pure question of law, and resolution is in the interest of judicial economy, we hold that the 2009 amendment is not retroactive.
 
There is nothing in the language of the amendment that expressly communicates the Legislature's intent to have it apply retroactively. See Fleet Natl. Bank v. Commissioner of Rev., 448 Mass. 441, 448-449 (2007). In addition, we reject the defendants' claim that the emergency preamble, which applies to certain provisions of the amendment, expresses a legislative intent that it be applied retroactively. To the contrary, an emergency preamble demonstrates only the Legislature's desire that an act take effect immediately upon the Governor's signature, rather than ninety days later. See art. 48 of the Amendments to the Massachusetts Constitution, The Referendum, I; Vittands v. Sudduth, 41 Mass. App. Ct. 515, 518 (1996). Finally, the statute is not merely a remedial measure affecting matters of procedure, but rather one that also affects the substantive rights of the parties. See Fontaine v. Ebtec Corp., 415 Mass. 309, 318-319 (1993). Therefore, in the absence of an express legislative directive, we apply '[t]he general rule of interpretation . . . that all statutes are prospective in their operation.' City Council of Waltham v. Vinciullo, 364 Mass. 624, 626 (1974), quoting from Hanscom v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3 (1914). See Fleet Natl. Bank v. Commissioner of Rev., 448 Mass. at 450 ('statutory amendment that extinguishes a substantive right only operates prospectively, absent an explicit pronouncement from the Legislature to the contrary'; provision stating that amendment applies to any action 'pending or . . . previously adjudicated' would indicate such legislative intent).
 
Judgment affirmed.
 
By the Court (McHugh, Meade & Milkey, JJ.),
Entered: January 27, 2011.
     FN1. Lancelot A. Blake.
 
 
           FN2. Although the citation was mentioned in Traybman's opening, the parties agreed that it would not be admitted in evidence. The parties also agreed that the statute would be submitted to the jury with the penalty provision redacted.    
 
           FN3. Sprague did not testify to the remedial measures taken by the MBTA in response to the incident. See Martel v. Massachusetts Bay Transp. Authy., 403 Mass. 1, 4 (1988). The remedial investigation was performed by another MBTA official from its training department, who did not testify.    
 
           FN4. After the appeal in this case was docketed, the defendants sought a stay of the appeal in order to permit them to return to the Superior Court to resolve the matter. A single justice of this court denied the stay. The defendants' appeal from the denial of the stay has been docketed separately as Appeals Court No. 2010-P-476.     
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