Opinion
15-P-200
04-04-2016
ROBERT SNARAS, administrator, v. RICHARD LUNDGREN, INC., & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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 1:28
The plaintiff appeals from the entry of summary judgment in favor of defendant Richard Lundgren, Inc., doing business as Lundgren Honda (Lundgren), on counts V (vicarious liability) and VI (negligent entrustment) of his amended complaint for the wrongful death of his wife (decedent). We vacate as to count V and affirm as to count VI.
Background. The following material facts are undisputed. On December 9, 2006, Lundgren provided Enrique Palau, Jr. with a "loaner vehicle" pursuant to a "service loaner agreement" (loaner agreement). The loaner vehicle was owned by and registered in the name of Lundgren. The loaner agreement stated that Palau was not "nor [did he] hereby become an agent, servant or employee of [Lundgren] in any manner whatsoever," and that, while operating the vehicle, Palau would not carry more than five passengers; he would not use the vehicle in violation of any city, State, or Federal law, and he "shall be responsible for any violation thereof." The loaner agreement was signed by a representative of Lundgren but not by Palau.
On December 20, 2006, the decedent was a passenger in the loaner vehicle driven by Palau when he caused an accident that resulted in both of their deaths. The plaintiff brought suit against Lundgren, McGuire's Lounge (where the decedent and Palau had been drinking before the accident), the owner of McGuire's Lounge, and Palau's estate, alleging wrongful death and negligence. Defaults entered against McGuire's Lounge, the owner of McGuire's Lounge, and the estate of Palau; the owner of McGuire's Lounge also filed for bankruptcy. Following discovery, the plaintiff moved for partial summary judgment on the issue of Lundgren's liability under counts V and VI of the amended complaint. Lundgren cross-moved for summary judgment on those counts and, after a hearing, a judge in the Superior Court allowed Lundgren's motion in a written decision. The plaintiff appeals.
Discussion. The plaintiff sought summary judgment on count V of the amended complaint on the basis that Lundgren was the registered owner of the loaner vehicle at the time of the accident. See G. L. c. 231, § 85A. That statute "provides that, in actions to recover for injuries resulting from motor vehicle accidents, proof that the defendant is the registered owner of a motor vehicle is 'prima facie evidence' of the defendant's responsibility for the actions of the motor vehicle's driver." Covell v. Olsen, 65 Mass. App. Ct. 359, 362 (2006), quoting from G. L. c. 231, § 85A. General Laws c. 231, § 85A, "does not change the substantive law of negligence," but "it does shift to the defendant the burden of proving the absence of the requisite control." Covell v. Olsen, supra at 363. Relying in part on the loaner agreement's statement that Palau was not an agent of Lundgren, the judge concluded that the "undisputed evidence . . . reflects no true indicia that Lundgren had the 'power and means' to control Palau's operation of the vehicle" such that Lundgren would be vicariously liable for Palau's tortious conduct.
"When considering a motion for summary judgment, the judge should not consider the credibility of the witnesses or the weight of the evidence." Riley v. Presnell, 409 Mass. 239, 244 (1991). His consideration is limited to determining whether "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). "In reviewing a grant of summary judgment, 'we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party.'" Pugsley v. Police Dept. of Boston, 472 Mass. 367, 371 (2015) (citation omitted).
"Reduced to the essentials, . . . the substantive question in this case is whether [Lundgren] had the authority and means to control [Palau]'s use of the automobile when the accident occurred." Covell v. Olsen, supra at 364. "The question is not whether [Lundgren] exercised that control, but whether [it] had the authority and means to do so." Ibid. The plaintiff was not entitled to summary judgment "that any negligence of [Palau] was to be imputed to [Lundgren]" because the loaner agreement, which expressly disclaims any agency relationship between Palau and Lundgren, provided evidence "of the nonexistence of a master-servant relationship between [Lundgren] and [Palau]." Cheek v. Econo-Car Rental Sys. of Boston, Inc., 393 Mass. 660, 662
(1985). However, the absence of Palau's signature on the loaner agreement renders it insufficient to "affirmatively eliminate any genuine issue of material fact regarding [Lundgren's] power to control [Palau]'s conduct." Covell v. Olsen, supra at 364-365. "The conflicting evidence precludes summary judgment," Peters v. Haymarket Leasing, Inc., 64 Mass. App. Ct. 767, 775-776 (2005), and, on this record, "the existence or nonexistence of a master-servant relationship [is] a question of fact," Cheek v. Econo-Car Rental Sys. of Boston, Inc., supra.
However, summary judgment was appropriate on count VI, alleging negligent entrustment, on the basis that Palau's license was suspended at the time Lundgren provided him with the loaner vehicle. It is undisputed that Palau's license was suspended for "improper equipment" and "no inspection sticker," and that the license had been reinstated by the time of the accident. The plaintiff adduced no evidence that would support an inference that Lundgren "had actual knowledge of the incompetence or unfitness of [Palau]" by virtue of Palau's failure to have proper equipment or an inspection sticker on a previous vehicle, or that these prior lapses by Palau "was the cause of the [decedent]'s injuries." Picard v. Thomas, 60 Mass. App. Ct. 362, 369 (2004). The Superior Court judge "determined that the plaintiff[] failed, as matter of law, to prove that [Lundgren] had knowledge of any incompetence or unfitness on the part of [Palau,]" his conclusion is supported by undisputed evidence in the record, and we agree with him that Lundgren "was entitled to summary judgment on the claim for common-law negligent entrustment." Nunez v. A&M Rentals, Inc., 63 Mass. App. Ct. 20, 22-23 (2005).
So much of the judgment as allowed summary judgment on the vicarious liability claim against Lundgren is vacated and we remand for further proceedings on that claim. In all other respects, the judgment is affirmed.
By the Court (Cohen, Carhart & Kinder, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: April 4, 2016.