449 Mass. 257 | Mass. | 2007
This wrongful death case arises out of a fatal automobile crash that was preceded by underage drinking. In the early morning of July 28, 1996, the plaintiffs’ son, Peter Afarian (Afarian), was killed when the automobile in which he was a passenger veered off the road and struck a utility pole. The driver, Jason Veilleux, was intoxicated and fell asleep at the wheel. The plaintiffs asserted claims of wrongful death predicated on negligence, gross negligence, and wilful or reckless conduct against Massachusetts Electric Company, New England Telephone and Telegraph Company, and Bell Atlantic Corporation,
1. Summary judgment. The material undisputed facts relative to the motion for summary judgment are as follows.
Later that day, Veilleux picked up Afarian, and the two then were joined by some of their other friends. The group drove to Mansfield in two automobiles to attend a concert. They brought the beer that had been purchased earlier that day and drank nearly all of it before the concert started.
After the concert, in the early morning of July 28, Afarian,
The crash took place on the south edge of Route 133, just past the entrance to a Raytheon facility and where the road curves to -the left. The utility pole was located on the outside of a horizontal curve to the left, some six inches from the edge of Route 133 and between the curb and the sidewalk that run parallel to the road. As Veilleux had approached the curve, he continued straight or slightly to the right, hitting the pole. The point of impact with the pole was approximately six inches from the front right corner of the automobile. At the time of impact, the right front comer of the automobile had crossed approximately twelve inches off the paved portion of Route 133.
The utility pole that Veilleux hit is jointly owned by MEC and the telephone company pursuant to a joint ownership agreement. Under the agreement, MEC is responsible for the care and maintenance of the pole. Each party, however; is responsible for the care and maintenance of its own attachments.
The pole was installed in 1969 pursuant to a license granted by the town of Andover.
The pole was inspected in 1987 pursuant to NEES Standard 2015, dated July, 1977, and was accepted.
To prevail on their wrongful death claims, the plaintiffs must prove negligence on the part of the utility defendants. An essential element of every negligence claim is the existence of a legal duty, which is the determinative issue in this case. See Glidden v. Maglio, 430 Mass. 694, 696 (2000). The existence of a legal duty is a question of law appropriate for resolution by summary judgment. Jupin v. Kask, 447 Mass. 141, 146 (2006). In the Jupin case, we set forth the guiding principles for determining the existence of a legal duty:
“ ‘The concept of “duty” . . . “is not sacrosanct in itself, but is only an expression of the sum total of . . . considerations of policy which lead the law to say that the*262 plaintiff is entitled to protection. . . . No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.” ’ Luoni v. Berube, 431 Mass. 729, 735 (2000), quoting W.L. Prosser & W.P. Keeton, Torts § 53, at 358-359 (5th ed. 1984). ‘The assertion that liability must ... be denied because defendant bears no duty to plaintiff “begs the essential question — whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct.” ’ Tarasoff v. Regents of the Univ. of Calif., 17 Cal. 3d 425, 434 (1976), quoting Dillon v. Legg, 68 Cal. 2d 728, 734 (1968). ‘[A] duty finds its “source in existing social values and customs,” ’ see [Mullen v. Pine Manor College, 389 Mass. 47, 51 (1983)], quoting Schofield v. Merrill, 386 Mass. 244, 247 (1982), and thus ‘imposition of a duty generally responds to changed social conditions.’ Petolicchio v. Santa Cruz County Fair & Rodeo Ass’n, 177 Ariz. 256, 262 (1994).
“We have recognized that ‘[a]s a general principle of tort law, every actor has a duty to exercise reasonable care to avoid physical harm to others.’ See Remy v. MacDonald, supra at 677, citing Restatement (Second) Torts § 302 comment a (1965). A precondition to this duty is, of course, that the risk of harm to another be recognizable or foreseeable to the actor. See Foley v. Boston Hous. Auth., 407 Mass. 640, 646 (1990), quoting Husband v. Dubose, 26 Mass. App. Ct. 667, 669 (1988) (‘There is no duty owed when the risk which results in the plaintiff’s injury is not one which could be reasonably anticipated by the defendant’). See also Husband v. Dubose, supra (determination whether person has duty to protect other from harm caused by third party ‘involve[s], to some extent, the foreseeability of the harm’). Consequently, with some important exceptions, ‘a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’ Tarasoff v. Regents of the Univ. of Calif., supra at 434-435. See Restatement (Second) Torts § 284 (1965) (‘Negligent conduct may be . . . an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another . . .’ [emphasis added]). ‘To the extent that a*263 legal standard does exist for determining the existence of a tort duty . . . , it is a test of the “reasonable foreseeability” of the harm.’ McClurg, Armed and Dangerous: Tort Liability for the Negligent Storage of Firearms, 32 Conn. L. Rev. 1189, 1230 (2000)
Jupin v. Kask, supra at 146-147. See Whittaker v. Saraceno, 418 Mass. 196, 198 (1994), quoting 4 F. Harper, F. James, Jr., & O. Gray, Torts § 20.5, at 136-137 (2d ed. 1986) (“Foreseeability does play a large part in limiting the extent of liability .... Notions about what should be foreseen, in other words, are very much interwoven with our feelings about fair and just limits to legal responsibility”); Vaughan v. Eastern Edison Co., 48 Mass. App. Ct. 225, 229 (1999), quoting White v. Southern Cal. Edison Co., 25 Cal. App. 4th 442, 447 (1994) (duty is “determined by balancing the foreseeability of harm, in light of all the circumstances, against the burden to be imposed”). In this case, the plaintiffs contend that the utility defendants owed a duty to the motoring public, including Afarian, to exercise reasonable care in the placement of the pole. The plaintiffs argue that due to the proximity of the pole to the road, and the pole’s location on the outside of a curve, the pole was placed in a dangerous position.
Not surprisingly, utility poles along roads have generated numerous cases dealing with a utility company’s liability for personal injury when a vehicle collides with the utility pole. In determining whether to impose a duty, courts generally have followed two approaches. The first approach focuses on the driver’s conduct. See, e.g., Collier v. Redbones Tavern & Restaurant, Inc., 601 F. Supp. 927, 930-931 (D.N.H. 1985) (utility owed no duty to passenger in vehicle operated by drunk and speeding driver). The second approach involves an assessment of several factors. See Coates v. Southern Md. Elec. Coop., Inc., 354 Md. 499, 514 (1999). The factors include driver conduct as well as the proximity of the pole to the road; the nature and condition of the road in the vicinity of the pole; whether the pole was to the right or left of the vehicle in the direction the vehicle should have been traveling; the extent to which the vehicle veered off the road; whether the pole had been struck on previous occasions; whether the location of the
The Restatement (Second) of Torts § 368 (1965) takes what has been characterized as a “somewhat more liberal approach, by recognizing the prospect of liability in certain settings for off-road collisions” (emphasis in original). Coates v. Southern Md. Elec. Coop., Inc., supra at 516. Section 368 concerns the liability of owners or occupiers of land for artificial conditions created thereon that cause injury to travelers on a nearby highway:
“A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who (a) are traveling on the highway,[12 ] or (b) foreseeably deviate from it in the ordinary course of travel.”
Section 368 applies to all travelers, including drivers and passengers. Soares v. George A. Tomasso Constr. Corp., 66 Conn. App. 466, 474-475 (2001).
The comments to § 368 provide guidance about its application. Comment e explains that “[t]he public right to use the highway carries with it the right to protection by reasonable care against harm suffered in the course of deviations which may be regarded as the normal incidents of travel” (emphasis added). Restatement (Second) of Torts, supra at 269. Comment g clarifies that § 368 “has no application where the deviation
In this case, the judge adopted more than one approach. She first concluded, applying § 368 of the Restatement (Second) of Torts, that the utility defendants owed no duty to Afarian because Veilleux had been driving while intoxicated, which is not a normal incident of travel. She then turned to, and applied, the Coates factors, ultimately concluding that, based on those factors, it was not foreseeable that Veilleux would strike the pole. Although we have not had occasion to consider the application of § 368, in circumstances such as those presented here, we believe that the principles it expresses provide a functional framework for determining the issue of duty. We conclude that because he was intoxicated, Veilleux cannot be said to have deviated from the road in the ordinary course of travel and his deviation, which was caused by intoxication, was not, and could not have been, reasonably anticipated. Accordingly, the utility defendants owed no duty to Afarian. We therefore do not reach the question whether the pole’s placement created an unreasonable risk of harm to persons lawfully traveling on the road and to persons deviating from it in the ordinary course of travel.
We adopt the approach set forth in § 368 of the Restatement because it comports with concepts of reasonable foreseeability and because a contrary decision would come effectively close to imposing strict liability on utility companies for all collisions with poles by drunk drivers. In view of our society’s dependence on the services supplied by utility companies, and the public
While it can be said that, no matter the number, there are far too many drunk driving accidents, one does not typically encounter drunk drivers in the ordinary course of day-to-day travel. While a driver may deviate from a public road for a variety of reasons — some deviations caused by lawful conduct and other deviations caused by unlawful conduct — driving while intoxicated is a most serious, and many times fatal, deviation. A utility company does not ordinarily have any involvement with a driver’s decision to become impaired. Utility companies have no way of anticipating the road on which a drunk driver will travel, the exact place of deviation from that road, and the particular pole that will be struck. Driving while intoxicated does not constitute a normal incident of travel. A deviation by a drunk driver cannot reasonably be anticipated by a utility company.
Our conclusion is supported by decisions from other jurisdictions. See Collier v. Redbones Tavern & Restaurant, Inc., 601 F. Supp. 927, 930-931 (D.N.H. 1985) (defendants owed no duty to passenger in vehicle operated by drunk and speeding driver because such erratic and uncontrolled deviation not normal incident of travel); Speigel v. Southern Bell Tel. & Tel. Co., 341 So. 2d 832, 833 (Fla. Dist. Ct. App. 1977) (affirming summary judgment for utility company, noting utility company has no obligation to guard against extraordinary exigencies created when out-of-control vehicle leaves travel portion of road); Bush v. Northern Ind. Pub. Serv. Co., 685 N.E.2d 174, 178 (Ind. Ct. App. 1997) (utility is not required to
As has been stated, our conclusion further comports with the principles of reasonable foreseeability. While it is foreseeable that some drivers will drive in an intoxicated state, it is not foreseeable when, and exactly where, that illegality will occur. See Schrader v. Great Plains Elec. Coop., Inc., 19 Kan. App. 2d 276, 280 (1994) (utility company owed no duty to motorist killed in collision with off-road guy wire because it was not reasonably foreseeable that motorist would stray from road and collide with guy wire); Beck v. Zabrowski, 168 Pa. Commw. 385, 394-395 (1994) (affirming summary judgment in favor of utility where it was not reasonably foreseeable that driver, who was intoxicated and speeding while fleeing from police without aid of headlights, would drive in wrong lane, make sharp turn into another roadway, and then strike pole located eight inches from roadway on opposite side of road).
2. Motion to amend. The plaintiffs filed their original
In the plaintiffs’ pretrial memorandum filed in 2004, they more specifically set forth their allegations and theory of liability on the issue of the negligent sale of alcohol. The decedent was not involved in the purchase of the alcohol. On the morning of July 27, 1996, Veilleux, Sean Croteau, and Daniels, all underage, drove to a supermarket on Route 28 in Salem, New Hampshire. They entered the store together and proceeded to the beer and wine section located to the far left, in the front of the store. They selected three thirty-can cases of beer and placed them in a shopping cart. They discussed which of the checkout employees appeared to be the youngest. One of the boys pointed to a particular checkout line. Daniels, who had his older brother’s identification, purchased the beer. Croteau remained in the store and Veilleux left the store. They regrouped in the parking lot. The plaintiffs claimed that the supermarket violated its own procedures, industry standards, and New Hampshire statutory law by negligently selling beer to Daniels in circumstances where the cashier and supervisory personnel should have known he was underage and was buying the beer for his underage friends.
In May, 2004, in preparation for a mediation with Market Basket, counsel for the plaintiffs discovered, by visiting the Market Basket supermarket at issue with Veilleux, that the beer consumed by Veilleux had not been purchased at the Market Basket store, but rather, at a different supermarket that was owned by Demoulas and, that at some point in time, bore the sign “Demoulas.”
As the named defendants had filed answers to the first amended complaint, it fell within a judge’s discretion to allow or to deny the plaintiffs’ motion to amend.
In the present case, the judge applied correct legal principles and acted within her discretion in denying the motion. The proposed amendment was not merely an inconsequential name correction such as that in Potter v. John Beam Div. of Food Mach. & Chem. Corp., supra at 424. The amendment involved a change of fact, namely, that the alcohol purchase took place at an entirely different store (bearing a different name and having a different location). Even assuming that Demoulas, at the time of the alcohol purchase in 1996, controlled, managed, and financed Market Basket, that factual assumption has no bearing on what was the determinative issue for the judge — prejudice caused by undue delay. As the judge noted, Demoulas “would have great difficulty when attempting to determine who worked at the store on the day of ... the alleged illegal sale [many] years ago and when attempting to gather relevant evidence.” Indeed, the plaintiffs did not dispute evidence submitted by Demoulas that, prior to the 1997 merger of Market Basket and Demoulas, each of the entities had its own set of employees.
Further, the judge was warranted in determining that the plaintiffs reasonably should have known “long before” moving to amend the complaint from which store the alcohol was purchased. In view of the difficulties the plaintiffs were having with obtaining witness cooperation, and the plaintiffs’ knowledge from Market Basket’s answers to interrogatories in June, 2002, that there remained an issue regarding where the alcohol had been purchased, if the plaintiffs had concerns that the Market Basket store may not have been the store at which the alcohol had been purchased, they could have physically inspected the store earlier (or attempted other discovery on their own or with the aid of the court). As the burden of proof fell on the plaintiffs, it was not the obligation of Market Basket to ascertain the store at which the alcohol had been purchased.
It cannot be said that the judge abused her discretion in denying the motion to amend.
3. Conclusion. The orders allowing the utility defendants’
So ordered.
We shall refer to the Massachusetts Electric Company as MEC. We shall refer to the New England Telephone and Telegraph Company and Bell Atlantic Corporation as the telephone company. Collectively, we refer to MEC and the telephone company as the utility defendants.
The docket and record appendix are not models of clarity. We pause to remind counsel to adhere to Mass. R. A. R 18 (d), as appearing in 370 Mass. 919 (1967), when compiling the record appendix. See Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 810-812 (1992). We add that it appears that the appeal is improperly before us because no final judgment entered pursuant to Mass. R. Civ. R 58 (a), as amended, 371 Mass. 908 (1977), and it is not clear from the docket or record whether all claims have been finally resolved against all parties. See Harrison v. Roncone, 447 Mass. 1001, 1001-1002 (2006). This defect is particularly troubling in view of the facts that no “judgment” in favor of the utility defendants was noted on the docket, see Lewis v. Emerson, 391 Mass. 517, 520 (1984), and a Superior Court judge denied the plaintiffs’ motion for separate and final judgment pursuant to Mass. R. Civ. R 54 (b), 365 Mass. 820 (1974), in favor of the utility defendants (although that denial is not specified on the docket, the telephone company has provided a copy of the judge’s ruling). Also, it appears that judgment entered only in favor of Market Basket and third-party defendant Scott Munroe.
The precise supermarket is not material to the summary judgment analysis, but has relevance in the section concerning the motion to amend.
Prior to 1969, two poles were located across the street from where the pole currently sits. The poles were located on the inside of the curve.
This standard speaks to the positioning of poles: “Poles shall be set with face not less than [six inches] from street side of curb.”
The regulations pertain to clearances involving wires and supporting structures. See 220 Code Mass. Regs. § 125.23 (1993). The regulations require that supporting structures, such as utility poles, have a horizontal clearance rate of “[n]ot less than six inches measured to the street side of the curb.” Id. at § 125.23(2)(b).
This standard governs the field inspection of wood poles in order “to secure maximum life of poles,” and sets forth an inspection procedure.
Different variations of these approaches exist. For example, some courts focus only on a single factor. See, e.g., Weiss v. Holman, 58 Wis. 2d 608, 627 (1973) (assessing duty only in terms of distance of pole from road). Some courts also analyze a factor or factors in terms of determining the issue of proximate cause for the collision. See Coates v. Southern Md. Elec. Coop., Inc., 354 Md. 499, 514-515 (1999).
The parties do not dispute that this subsection applies to collisions that occur on the highway itself and, therefore, is not applicable.
Contrary to the plaintiffs’ contention, we are not relieving utility companies of a duty to consider motorist safety when determining the placement of utility poles, and we do not doubt that the Legislature is also concerned about the safe placement of utility poles. We decline to consider the plaintiffs’ argument relying on G. L. c. 166, § 21, which provides that utility companies “shall not incommode the public use of public ways” when installing utility poles. The plaintiffs did not raise the issue of the application of this statute below. See Porter v. Treasurer & Collector of Taxes of Worcester, 385 Mass. 335, 338 n.5 (1982). We point out, however, that the pole’s placement here was not on the actual public way.
Our conclusion obviates the need to address the plaintiffs’ argument
At his deposition in December, 1999, Jason Veilleux stated that he, Peter Daniels, and Sean Croteau purchased the beer (with Daniels making the actual purchase) at a Market Basket store on Route 28 in Salem, New Hampshire.
The plaintiffs did not challenge that in July, 1996 (the time of the alcohol purchase), the two supermarkets were owned by separate corporate entities, namely, Market Basket and Demoulas.
The plaintiffs challenged the judge’s order by filing a petition for interlocutory relief pursuant to G. L. c. 231, § 118. A single justice of the Appeals Court denied relief, concluding that there was no error of law or abuse of discretion. Prior to filing their notice of appeal from the judge’s denial of their motion to amend, the plaintiffs moved to dismiss their claims against Market Basket. The motion was allowed and judgment entered dismissing the plaintiffs’ claims against Market Basket.