Opinion
21-P-208
01-18-2022
Taylor BECKETT v. CS VENTILATION, INC., & another; Joseph Goulart, third-party defendant.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Taylor Beckett was crossing the street when she was struck by a truck owned by defendant CS Ventilation, Inc. (CS Ventilation). Following the accident, Beckett brought a negligence claim against CS Ventilation and the driver of the truck, one of the company's employees. The defendants then filed a third-party complaint seeking contribution from Joseph Goulart, who was riding a motorcycle that had stopped at the intersection where Beckett was struck. According to the defendants, Goulart was at least partially responsible for causing the accident because he signaled for Beckett to cross the street before it was safe for her to do so. Beckett then amended her complaint to bring a negligence claim against Goulart under the same theory.
Strictly speaking, the defendants’ third-party complaint also referenced indemnification, not just contribution. However, the defendants have never explained how Goulart -- who had no prior relationship to the defendants -- could be liable to them on an indemnification theory. In any event, any claim for common law indemnification would fail for the same reasons discussed below with regard to contribution. For simplicity, we, like the parties, focus our attention on contribution.
Goulart filed a motion for partial summary judgment with regard to his liability to Beckett, which both Beckett and the defendants opposed. The judge agreed with Goulart that Beckett's claim against him failed as a matter of law, because Beckett conceded during her deposition that in deciding to cross the street, she had not relied on any hand signals that Goulart made. Armed with this victory, Goulart then moved for summary judgment against the defendants on the ground that if he could not be liable to Beckett, he therefore could not be liable in contribution to the defendants. After the defendants filed no opposition to Goulart's second motion for summary judgment, the judge ruled in Goulart's favor and entered separate and final judgment for him pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). The defendants appealed; Beckett did not. For the following reasons, we affirm.
Goulart's liability to Beckett. At her deposition, Beckett testified that she crossed the street because the walk light had changed to the familiar icon of a stick figure walking, thereby signaling to her that it was safe to cross. When asked whether she was "relying on the walk signal," Beckett replied, "I was." When pressed about the role that Goulart may have played in her decision to cross the street, Beckett unequivocally stated that she did not rely on Goulart's signaling. When specifically asked to confirm that she had not "rel[ied] on any movement or signal given by [Goulart] to determine whether or not it was okay for [her] to start [crossing]," Beckett replied, "Correct."
We agree with Goulart that Beckett's statements that she did not rely on Goulart's actions constituted binding admissions, and that, as such, they established that Goulart's signaling could not have been the proximate cause of Beckett's injuries. Beckett's claim against Goulart therefore failed as a matter of law, and summary judgment was correctly granted against her. See Tam v. Federal Mgt. Co., 99 Mass. App. Ct. 41, 49-50 (2021) (summary judgment proper where plaintiff bound by deposition testimony because she failed to adhere to Mass. R. Civ. P. 30 [e], 365 Mass. 780 [1974], and where binding admissions established that she could not prevail at trial).
As Tam recognizes, a party who feels she misspoke at her deposition or that something she said there will be misconstrued, may seek relief by correcting her testimony in accordance with the procedures set forth in Mass. R. Civ. P. 30 (e). Nothing before us indicates that Beckett sought to correct her testimony in this manner. Nor are we persuaded by the defendants’ claims that Beckett's statements about her not relying on Goulart's actions were ambiguous. Although Beckett herself sought to dispute her admissions when she responded to Goulart's Superior Court Rule 9A statement of undisputed facts, see, this was not an adequate substitute for the procedures set for in Mass. R. Civ. P. 30 (e).
Goulart's liability in contribution. It is well established that "[n]o right of contribution exists unless the party would be ‘directly liable to the injured person.’ " LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 326 (2012), quoting O'Mara v. H.P. Hood & Sons, 359 Mass. 235, 238 (1971). It follows that because Beckett's claim against Goulart fails, so too must the defendants’ claims against Goulart for contribution.
To be sure, the Supreme Judicial Court has recognized a narrow exception under which a third party still could be liable in contribution even where the plaintiff's direct claim against it were barred. See McGrath v. Stanley, 397 Mass. 775, 781 (1986) ("plaintiffs’ inability to maintain a direct action against the town as a consequence of failing to make timely presentment does not bar the third-party plaintiffs’ action for contribution").
The court reasoned that "the compliance or lack of compliance with the presentment requirements of [the Massachusetts Tort Claims Act] does not affect the underlying liability of tort defendants or the contribution rights of third-party defendants, but merely affects the ability of plaintiffs to pursue actions against public entities." McGrath, 397 Mass. at 782.
The defendants did not argue in the trial court, or for that matter to us, that McGrath should be read broadly to apply to the circumstances presented here. Nor did they argue that a new exception should be recognized to the rule that a contribution action cannot be maintained against a party who is not liable to the plaintiff. Indeed, the defendants did not even file an opposition to the second motion for summary judgment, where Goulart's liability to them was directly at issue. Arguments "not discussed in the appellate briefs, [or] ... raised with the [trial court] judge" are waived and therefore need not be addressed. Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 50 n.7 (1998). See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019) ("The appellate court need not pass upon questions or issues not argued in the brief"). The defendants did not preserve an argument that Goulart could potentially be liable to them in contribution even if the claim brought by Beckett against Goulart failed as a matter of law. We therefore follow the general rule that the dismissal of Beckett's claim against Goulart precludes Goulart's liability in contribution to the defendants.
We acknowledge that in a post-argument filing nominally submitted pursuant to Mass. R. A. P. 16 (l), as appearing in 481 Mass. 1628 (2019), the defendants maintain that where a third-party defendant's liability to a plaintiff is barred by a binding admission that the plaintiff made, that binding admission does not, as a matter of law, preclude the liability of the third party in contribution. For this proposition, they cite two Pennsylvania cases. See Post v. Dodd, 116 Pa. Commw. 114, 118-119 (1988), citing Guarino v. DiBiase, 310 Pa. Super. 211, 212-213 (1983). We do not reach the merits of this argument, which was raised too late to preserve the issue.
Judgment affirmed.