In a decision dated March 26, 1990 the Supreme Judicial Court in Commercial Wharf East Condominium Association v. Waterfront Parking Corporation et al, 407 Mass. 123 upheld in major part my decision at the trial court level in this case and remanded the case to me to modify the judgment to conform to the opinion. This has been done in a judgment after rescript dated July 2, 1990 and a supplemental judgment after rescript of even date therewith. The second supplemental decision related to the duration of the reservations and other questions which had been reserved. During the trial the action was bifurcated with the interpretation of the declaration of covenants and easements and the application of G.L. c. 183A to the particular master deed and the declaration as the principal issues before the Court. Appropriate injunctions were granted in the first phase of this case, but the consideration of the question as to whether the plaintiff Commercial Wharf East Condominium Association ("Association") was entitled to damages was reserved for future hearing. That hearing has now taken place.
A trial on the issue of damages was held at the Land Court on October 22 and 23, 1990 at which a stenographer was appointed to record and transcribe the testimony. All exhibits introduced into evidence are incorporated herein for the purpose of any appeal. At the trial Robert J. Sachs, an owner of two condominiums at Commercial Wharf and a participant in security negotiations, Roger Brown Tyler, a property manager with The Niles Company which manages the condominium, Charles J. McSweeney, a former president of the board and a resident of Commercial Wharf testified for the plaintiff. The Association also called as a rebuttal witness Endre Barath, security manager for Pinkerton Security and Investigation. The Waterfront Park Limited Partnership ("Waterfront") called as witnesses Harold J. Thomas, the building superintendent, John Guglielmo, a long time parking lot attendant at Commercial Wharf, Lawrence J. Fenelly, an expert witness who is in charge of crime prevention and coordinates all training activities for the police department at Harvard University, as well as being a consultant in the field, and Mark Lutwack, the regional manager of Lars Parking.
The plaintiff seeks damages only for sums expended to hire Pinkerton's, Inc. to provide security in accordance with the provisions of the declaration and to compensate the unit owners for the distress and discomfort caused by Waterfront's overburdening of the easement. The defendants ceontend that the engagement of security guards was unnecessary and that their performance was incompetent. They further argue that there was no evidence as to the amount of the damages suffered by the individual unit owners and that even if there were, the Association could not recover on behalf of its members. For this phase of its defense, Waterfront relies on Golub v. Milpo, Inc., 402 Mass. 397 (1988).
On all the evidence I find and rule as follows:
1. After Waterfront assumed the obligations of Blue Water Trust, as set forth in the decision of the Supreme Judicial Court, the lot "attendant was no longer uniformed and did not make rounds". This led to negotiations between representatives of the Association and Messrs. Wayne and Lazares of Waterfront the restoration of a uniformed presence on the Wharf. Wayne, in particular, objected to the presence of a uniformed guard and interrogation of clients when they attempt to gain access to the Wharf.
2. After several months of impasse the Association obtained bids from three security firms and selected Pinkerton, Inc. to provide a uniformed guard to make the rounds of the Wharf beginning November 1, 1985.
3. The Association found the services of Pinkerton's to be unsatisfactory from time to time, and complaints were made by Mr. Tyler to the agency. A uniformed security guard was engaged to be present from 10:00 P.M. to 6:00 A.M., but there were occasions when he arrived late or out of uniform. Adjustments were made in the charges made to the Association upon resolution of the complaints. There were continuing efforts to improve performance.
4. During the years in question, 1985 to 1990, the booth for the parking lot attendant was manned on a 24 hour basis. The attendant did not wear a security type uniform but rather one for employees of Lars Parking (or previous to Lars's involvement, of Pilgrim Parking). The attendant did not customarily patrol the parking lot, but certain of the attendants including one who works three nights a week, generally on the 4:00 P.M. to 12:00 midnight shift, John Guglielmo, a witness at the trial, would walk down the wharf occasionally to check on any untoward activity.
5. The Pinkerton guard for whom a separate booth was constructed adjacent to the front of the condominium buildings was instructed to make periodic rounds to check the detex machines which are in three locations, to keep the light in his booth on at all times and to observe the safety of both parked cars and boats at the site. At least until 1989 the guard was also supposed to observe pedestrians on the site.
6. The Pinkerton guards were furnished with forms for incident reports, but it is unclear how many reports of incidnts of the presence of miscreants on the wharf were made. There may have been some incidents which involved a police presence which escaped the security guard.
7. The Pinkerton security force underwent some security training before they were assigned to a site. The Pinkerton presence in the Boston area included many diverse facilities ranging from Burlington Mall and the Prudetial Center to the oneman operative at Commercial Wharf, and accordingly the monitoring of the guards and their performance was more strict in the larger facilities where there are more guards on duty than at a single operative site such as Commercial Wharf. The Lars parking lot attendants had no training in security, and their principal duties were to keep a log for cars entering the lot and to make sure that the tickets were validated. Pinkerton's Inc. was involved in a corporate takeover during this period, and the surviving entity instituted additional controls in the security guards.
8. Waterfront's expert witness who in addition to his duties at Harvard University also has a security consulting company and is extremely well informed in the area agreed that there was a deterrent effect from uniforms.
9. Mr. Roger B. Tyler testified at the trial that The Niles Company, on behalf of the Association, had paid Pinkerton's $125,500 and that an additional $4,500 in invoices was outstanding. The invoices for the entire period were introduced into evidence other than those for the months of October and November, 1987 where only the computer printout of the invoice and payment was available, the invoices for those two months being stored somewhere in the management company's records outside its main office. The Court has reviewed all the invoices furnished and the computer printouts, and it appears from this that there has been paid a total of $122,168.29 to which there should be added as damages bills rendered but not paid at the time of the trial in the amount of $2,097.32. I accept the figure of $124,285.61 as the amount paid by the Association and hold that as to the two months without invoices the computer printout was admissible.
The defendant contends that it was unnecessary to have a uniformed presence on the wharf and that the Pinkerton guard duplicated the work of the parking lot attendant. Waterfront also contends that a security uniform may well be inadvisable and that in any event the scope of the duties as set forth in the declaration did not include changing the detex machines within the condominium building. The arguments presented by Waterfront on this phase of the case have largely been determined adversely to its position in the first stage of this litigation. The Supreme Judicial Court already has agreed with my determination that the change which substituted a parking lot attendant not in a security uniform who did not make rounds was one element in the material departure by Waterfront from the prior arrangement. It seems to me that the debate therefore has been concluded as to the advisability of a uniformed presence on the wharf, and that being so, it is too late to argue this point again.
Waterfront also contends that the performance by Pinkertons was substandard, and there is no doubt that the Association was dissatisfied from time to time with Pinkerton's performance. However, the Association and Pinkerton's supervisors attempted to rectify the situation and the Association did not pay for services that were not rendered. Accordingly I find and rule that the Association is entitled to be reimbursed for sums expended by it for the services of a security guard. The plaintiff is entitled to be made whole so that it will be in the same position that it would have been in if Waterfront had performed as BWT had in the past, the standard by which the issue of the security guard as well as others is to be judged. Prodoctura E Importadora de Papel S. A. v. Fleming, 376 Mass. 826 (1978); Snelling v. Dine, 270 Mass. 501 (1930). The Association is not, of course, entitled to be put in a better position than it would have been in had the defendant Waterfront performed. Magnolia Metal Co. v. Gayle, 189 Mass. 124 , 132-133 (1905). With the damages that I have awarded the Association will be made whole for its out of pocket expenses, but there is no windfall to it. Waterfront has understood from the beginning of the relationship that the Association was insisting upon a uniformed attendant to make rounds. Waterfront determined at its peril that it was not required to provide this service, and now must reimburse the Association. The Association also is entitled to interest at the rate of 12% from the date of each payment made by the Association, Sterilite Corp. v. Continental Casualty Co., 397 Mass. 836 , 841-2 (1986); this equals $36,449.71 as of December 31, 1990 with interest thereafter at the same per diem rate of $42.52 commencing January 1, 1991.
I do not, however, award damages for the distress and discomfort sufered by the unit owners from the excesses of the valet parking and from other aggravations inherent in the situation. There is no doubt that emotional distress is compensable in Massachusetts. Fenton v. Quaboag Country Club. Inc., 353 Mass. 534 , 539 (1968); Harrison v. Textron, Inc., 367 Mass. 540 (1975). The appellate courts have been lenient in upholding awards for distress and discomfort in some instances. In Stevens v. Rockport Granite Co., 216 Mass. 486 , 489 (1914) the court was of the opinion that a view by the finder of facts would enable him to weigh the damages suffered by the homeowners from the noise of the defendant's operation. In the Harrison case, however, the court held that there was no evidence of mental or emotional harm to the plaintiffs, and therefore they had not suffered damages. On Commercial Wharf there are some unit owners who were emotionally upset and discomforted by problems emanating from the parking lot. Doubtless there were others who were indifferent to this facet of their urban life. There was no evidence, however, to judge the extent of injury of those who were sensitive to the abuses of the parking lot operation, particularly the practices of the valets and of the customers of Cherrystone's Restaurant. Even were I decide that I was in a position to make an award of damages on the rule of Stevens v. Rockport Granite Co., supra, I am faced with another obstacle. The individual unit owners are not the plaintiffs in this litigation. The plaintiff properly is the Association to which the management of the common areas and litigation concerning it is entrusted, but the Association has no authority to litigate individual claims for injury, whether it be emotional or physical to the unit owners. Golub v. Milpo, Inc., 402 Mass. 397 (1988). The line is difficult to draw in this particular situation, but is seems to me that on analysis the distress and discomfort damages are personal to the individual and should be recoverable, if at all, by them and not by the Association. Accordingly I find and rule that the Association is entitled to reimbursement for sums expended to provide the services of a security guard after Waterfront refused to do so together with interest on the amounts paid from the date of payment, but that it is not entitled to recover any sums for damages for distress and discomfort suffered by its members.