Opinion
19-P-675
08-11-2020
HALIA SMICH v. MISSION E4, INC., & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Halia Smich, appeals from a summary judgment, entered in favor of the defendants, David T. Caron, Jr., and Town to Town Movers, Inc. We affirm.
Background. We summarize the undisputed facts drawn from the summary judgment record; to the extent the record includes disputed evidence, we consider that evidence in the light most favorable to Smich, against whom summary judgment entered. See Ritter v. Massachusetts Cas. Ins. Co., 439 Mass. 214, 215 (2003).
This case involves a two-vehicle collision on Route 290 East in Northborough. The area of Route 290 East in which the collision occurred had a speed limit of sixty-five miles per hour, was flat without sharp turns that would affect visibility, and consisted of three travel lanes and a fourth lane that developed to access an exit ramp. On November 15, 2013, Smich was a passenger in a van owned by Mission E4, Inc., and operated by Sterling McNeill. This van was traveling eastbound on Route 290. Caron was also traveling eastbound, driving a moving truck owned by Town to Town Movers, Inc. The weather was calm and sunny. McNeill determined that he wanted to move to his right; he put on his right directional signal, and testified that, prior to moving right, he observed in his passenger's side mirror the moving truck twenty-five to thirty feet behind him. McNeill testified that he then attempted to move to the right, but there was an impact fairly quickly. The two vehicles collided just before exit 25B of Route 290 eastbound. After the collision, the van operated by McNeill skidded and rolled. Smich sustained severe injuries.
Caron's and Town to Town's motion for summary judgment was allowed and a separate and final judgment for those defendants entered pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). On appeal, Smich alleges that Caron's contributory negligence was a substantial causal factor for the collision.
Discussion. We review a grant of summary judgment de novo, and determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). "To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage." Jupin v. Kask, 447 Mass. 141, 146 (2006).
As an initial matter, Smich is incorrect in arguing that Caron had the burden as the party moving for summary judgment to show that the collision was the sole result of McNeill's negligence. Caron "need not submit affirmative evidence to negate one or more elements of [Smich's] claim." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Rather, in cases such as this, where the party opposing summary judgment bears the burden of proof at trial (here Smich), the moving party (here Caron) may prevail "if he demonstrates, by reference to material described in Mass. R. Civ. P. 56 (c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Id. Smich must then respond by "set[ting] forth specific facts showing that there is a genuine issue for trial." Id., quoting Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974). Smich has failed to do so.
First, Smich argues that the jury could infer from the undisputed facts that Caron was comparatively negligent due to excessive speed. We disagree. Smich has failed to offer evidence that Caron was driving at an excessive speed. Trooper Anne Renzi of the Massachusetts State Police Collision Analysis and Reconstruction Section determined that the left front of the moving truck contacted the right rear of the van. Renzi also determined that, based on physical evidence at the scene, Caron applied breaks before the collision with the van. The moving truck operated by Caron left preimpact breaking skid marks that were 136.5 feet long. Renzi did not observe any preimpact skid marks left by the van operated by McNeill. Renzi could not determine the distance between the vehicles prior to impact, nor could she address the speed at which either vehicle was traveling.
Smich contends that a jury could infer that Caron's speed was unreasonable from expert witness testimony regarding "perception/reaction time," which is the time it takes for a driver to perceive and react to a situation while driving, and the length of skid marks left by Caron's truck. However, Smich's expert, Stephen R. Benanti, merely opined about vehicle speeds depending on when breaking occurs. Benanti did not offer an opinion about the speed of either vehicle or that Caron was speeding or negligent.
Smich's second theory is that once McNeill activated his right directional signal, Caron had the duty to anticipate that McNeill was about to move into the right lane and that Caron, due to inattention or excessive speed, failed to make an adequate response to avoid the collision. However, the occurrence of an accident without more is insufficient evidence of negligence. Osborne v. Hemingway Transp., Inc., 28 Mass. App. Ct. 944, 945 (1990). A driver's activation of a turn signal is an indicator of a desire to change lanes but is not a license to do so. Smich produced no evidence upon which a reasonable jury could find that Caron could have reasonably avoided the collision.
We need not address the motion judge's use of the "sudden emergency doctrine" because summary judgment can be entered on the issue of negligence "when no rational view of the evidence permits a finding of negligence" (quotation omitted). Doe v. Boston Med. Ctr. Corp., 88 Mass. App. Ct. 289, 291 (2015). Here, Smich fails to identify a material dispute of fact or rational view of the evidence that would permit a finding that Caron operated the moving truck negligently.
In light of the foregoing, and to the extent Smich so argues, the judge did not abuse her discretion by denying Smich's motion for reconsideration of the prejudgment partial summary judgment order.
Judgment affirmed.
By the Court (Meade, Rubin & Henry, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: August 11, 2020.