Massachusetts Appeals Court Holds Affidavits Need Not Be Certified by Spanish Interpreter

The Massachusetts Court of Appeals recently held that affidavits of Spanish-language speakers are not procedurally barred if they aren’t certified by a Spanish interpreter.scaffolding-1463583

Plaintiff Yepes sued C.H. Newton Builders and its subcontractors for negligence after he fell on the job. On the morning of September 7, 2010, Yepes and his coworker assembled scaffolding in a Winchester homeowner’s living room. Yepes locked the wheels and climbed up the scaffolding to begin sanding the ceiling. Soon afterward, the scaffolding moved suddenly. Yepes fell eight feet and fractured his ankle.

Prior to trial, the defendants moved for summary judgment. The lower court declined to consider two affidavits submitted in response by the plaintiff. The affidavits were written by Yepes’ coworkers, who were on site on the morning of the incident. The affidavits asserted that the defendants were in charge of the work site and directed how the work should be performed. Although it acknowledged that the affidavits raised a potential factual dispute, the lower court concluded that they did not comply with Massachusetts Rule of Civil Procedure 56(e), which requires affidavits be made based on personal knowledge, set forth admissible facts, and show affirmatively that the affiant can testify to the matters stated. Specifically, the judge found the affidavits to be “conclusory,” “largely irrelevant,” and unreliable because they were not certified by a Spanish interpreter.

The Massachusetts appeals court found to the contrary that the affidavits met the requirements of rule 56(e). The affiants alleged that the affidavits were based on personal knowledge, and they signed them under penalty of perjury. Each affiant worked on the job site where the accident occurred and stated his first-hand observations. The affiants also had their affidavits translated for them into Spanish. The defendants could point to no authority requiring that an affidavit be certified or signed by an interpreter. The affidavits therefore met the requirements of rule 56(e), and the trial court “strayed too close to making an impermissible credibility determination when he deemed them ‘unreliable.'”

The appeals court found, however, that Yepes failed to explain or argue on appeal how the factual disputes raised by the affidavits were material. Yepes’ negligence claim required him to prove that each defendant owed him a duty. The motion judge considered the following potential theories of duty:  duty arising from a contract, statutory duty, and the “retained control” theory established by the Massachusetts Supreme Court in Coresetti v. Stone Co. (This principle was taken from the Second Restatement of Torts § 414 (1965):  “One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”)

The appeals court found that the contract and statutory duty theories were unrelated to anything contained in the affidavits, a fact that Yepes did not contradict. As to the retained control theory, the appeals court agreed with the trial court that the plaintiff did not show that the defendants had more than a general supervisory role. Since Yepes did not challenge this on appeal, the appeals court affirmed the judgment.

If you have been injured by another’s negligence, you may face significant medical bills and time off work, and you may need the assistance of a personal injury lawyer to redress your injuries. At the Neumann Law Group, our personal injury attorneys provide trustworthy legal representation to accident victims all over the states of Massachusetts, Michigan, and California. Contact us toll-free at 800-525-NEUMANN or use our online form to set up a free consultation.

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