Opinion
20-P-967
06-04-2021
Thomas ZERFAS & another v. TOWN OF READING & others.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2014, plaintiff Thomas Zerfas was injured while engaging in volunteer activity, along with other members of the Reading Memorial High School Band Parent Organization (BPO), to assist the town of Reading's high school band. Zerfas was in the driver's seat of a golf cart, helping to unload it from a truck, when the golf cart fell off of the truck, causing Zerfas to fall to the ground and suffer a traumatic brain injury. In 2017, Zerfas filed this Superior Court negligence action. On the defendants' motions for summary judgment, a judge ruled that Zerfas's claim against the town of Reading (town) was barred by G. L. c. 258, § 10 (j ). The judge further ruled that defendants Brian and Carole Mahoney (Mahoneys) -- who served as co-presidents of the BPO at the time of the accident -- and defendant Pat Fallon -- who served as internal vice president of the BPO at the time of the accident and who under the BPO bylaws had certain responsibilities related to moving of equipment and transportation -- owed no duty to Zerfas in the circumstances presented. The claims against the other defendants were dismissed by Zerfas, or without his opposition, and a judgment of dismissal entered. Zerfas appealed from so much of the judgment as dismissed his claims against the town, the Mahoneys, Fallon, and the BPO.
The complaint also asserted claims by his wife, Lucretia Zerfas, for loss of consortium. Because the wife's claims are derivative of the husband's, for clarity we will hereinafter refer only to the claims asserted by the husband, using his surname in the singular.
Zerfas voluntarily dismissed the claims against Ryder Truck LT and Ryder Truck Rental, Inc.
Zerfas did not oppose, and the judge allowed, the motions for summary judgment filed by Karyn Bennett, Rosalee Scozzari, Vito Politano, Richard Salz, Jennifer Delaney, Deb Kiikka, Anne Joyce, Timothy O'Neill, Patricia Gernert, and Lauren Bennett. Although the record does not reflect that Colleen Dolan-Murphy moved for summary judgment, judgment dismissing the claims against her was entered, and Zerfas's notice of appeal did not appeal from that aspect of the judgment. So much of the judgment as dismissed the claims against these eleven defendants is not before us.
We conclude that the judge was correct in granting summary judgment for the town based on § 10 (j ), but that it was error to grant summary judgment for the Mahoneys, Fallon, and the BPO, because genuine issues of material fact remain concerning their liability.
Whether the BPO itself was and remains a party defendant has not been sufficiently addressed in the parties' appellate briefs, and thus we express no view upon the question, leaving it to be sorted out on remand. The complaint referred to the BPO and the defendants who are natural persons as the "BPO defendants," and it alleged that they would "fairly and adequately protect the interests of the association and its members," language implicating Mass. R. Civ. P. 23.2, 365 Mass. 769 (1974). The complaint did not mention G. L. c. 182, § 6. The judgment listed the BPO as a defendant. The majority of the persons who were alleged to fairly and adequately represent the BPO's interests are no longer parties. See notes 2 and 5 supra.
Background. Viewing the summary judgment record in the light most favorable to Zerfas, and drawing all reasonable inferences in his favor, we recite only those facts most pertinent to our analysis. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
The BPO is an unincorporated association, organized as a tax-exempt non-profit charitable entity under section 501(c)(3) of the Federal Internal Revenue Code, for the purpose of providing financial and physical support to the town's high school band, color guard, and related activities. The Mahoneys, Fallon, and the other officers and members of the BPO were uncompensated volunteers. Under the BPO's bylaws, membership was generally limited to parents or guardians of those students currently involved in the band, color guard, and related activities, although other types of membership were permitted. Zerfas had been an active member when his children were students at the high school, and after they graduated he continued to do occasional work with the BPO.
The BPO used golf carts for purposes such as helping the band director (a town employee) to move around fields during outdoor band events. The golf carts were stored at the high school and transported to events at other locations using a rental truck that was paid for by the town and was driven, loaded, and unloaded by BPO volunteers. The truck's cargo area was about four feet above the ground, and the truck was equipped with a hydraulic lift gate.
Ownership and control of the carts were disputed facts.
Because each golf cart's wheelbase was too long for the cart to fit fully onto the lift gate, BPO volunteers used various methods over time to load and unload the golf carts onto and off of the truck, including the "lifting," "plank," and "ramp" methods. The lifting and plank methods were ways of supporting the cart's front wheels, which extended beyond the rear edge of the lift gate, while the cart's rear wheels -- the weight of which was on the truck's lift gate and which in turn bore most of the cart's weight -- were raised and lowered using the hydraulic lift gate. The ramp method involved two parallel ramps that extended from ground level up to the truck's cargo area. Each ramp was twelve to fifteen feet long, was supported at two midpoints, and had boards projecting up a few inches from each edge in order to keep the wheels on the ramp. These allowed a golf cart to be driven onto and off of the truck without using the lift gate to lift the weight of the cart.
Zerfas had used all three methods, including having been the cart driver for the plank method five or six times prior to the accident. Zerfas said in deposition testimony that the ramp method was the safest of the three, "definitely a lot better" than the others. Other BPO volunteers involved in the loading and unloading process said of the plank method that "[s]omebody was going to get hurt," that it was "ludicrous," "too freaking dangerous," and "an accident waiting to happen to say the least." Neither any town employees, nor the Mahoneys or Fallon, had ever directed the BPO volunteers how to load or unload the golf carts, nor were any town employees or the Mahoneys or Fallon present at the time of the accident.
However, sometime in the weeks before the accident, the Mahoneys learned that a parent had expressed concern about the safety of the loading and unloading process. Carole Mahoney placed the issue on the agenda for discussion at the BPO executive board meeting held five days before the accident. She understood that the method then in use was the plank method; at the meeting, a participant stated that "at one point in the history, they had used a ramp and they had gone back and forth between the two methods," but there was no discussion at the meeting of going back to the ramp method.
Brian Mahoney did not attend the meeting, but his understanding, like his wife's, was that the plank method was then in use; he had never seen the ramp method used.
The band director was present at the meeting and participated in discussing the safety of the loading and unloading method but "disregarded the concern" and "downplayed the issue." The BPO executive board collectively believed the issue should be addressed. The meeting minutes reflect that there was discussion of renting a trailer instead of a truck to transport the golf carts; Fallon stated that he would look into the availability and pricing of a trailer. If the BPO had believed that volunteers were being put in an unsafe position by loading and unloading the golf carts, the BPO could have stopped supplying volunteers for that purpose, but the BPO did not do so.
Five days later, while Zerfas was at the high school and driving a golf cart out of the truck onto the planks for unloading, the front wheels of the cart came off of the planks, causing the cart and Zerfas to fall to the ground and Zerfas to suffer a traumatic brain injury. Whether the wheels came off the planks because of some negligent or other act by Zerfas is a matter of dispute. But Zerfas later acknowledged that the ramps were available in the school's band room that night and could have been used to unload the carts. Sometime after the accident, the band director informed the BPO that the band would no longer be using the golf carts. Brian Mahoney also sent an e-mail to BPO truck drivers informing them of a "[c]larification on truck loading and unloading policy": that the band director or his assistant (also a town employee) had to be present before a truck could be loaded or unloaded.
Discussion. "The standard of review of a grant of summary judgment is 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., 410 Mass. at 120.
1. The town's immunity. The town argued, and the judge ruled, that it was immunized against Zerfas's claim by § 10 (j ) of the Massachusetts Tort Claims Act, G. L. c. 258, § 10 (j ). That provision, with certain exceptions not relevant here, immunizes the town and other public employers from:
"any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer."
The courts have "construed the ‘original cause’ language to mean an affirmative act (not a failure to act) by a public employer that creates the ‘condition or situation’ that results in harm." Kent v. Commonwealth, 437 Mass. 312, 318 (2002). "[T]he act must have materially contributed to creating the specific ‘condition or situation’ that resulted in the harm." Id. at 319.
Although the Kent decision referred to a " ‘condition or situation’ that results in harm inflicted by a third party" (emphasis added), Kent, 437 Mass. at 318, "immunity under § 10 (j) is not restricted to those claims arising from the violent or tortious behavior of third persons." Jacome v. Commonwealth, 56 Mass. App. Ct. 486, 489 (2002) (§ 10 [j ] barred claim based on Commonwealth's failure to prevent swimmer from drowning at State-owned beach).
Here, although the town provided the truck equipped with the lift gate and expected or permitted BPO volunteers to use it to transport the golf carts for use by the town's band director and in band activities, the town did not prescribe the method by which the carts were to be loaded onto and off of the truck. Various methods were developed by BPO volunteers; they chose which method to use; and the accident resulted from their use of the plank method, which allowed the cart's front wheels to come off of the planks and the cart to fall to the ground. The ramp method did not create this same risk, was known by Zerfas to be safer, and was available for use on the day of the accident, but was not used. Accordingly, the condition or situation that most directly caused the accident, other than Zerfas's own acts in driving the cart, was the use of the plank method by Zerfas and others on the day of the accident. The town did not cause the use of the plank method and thus is immune under § 10 (j ), notwithstanding that the town could have prevented the use of that method.
Whether his conduct was negligent is a question of fact on which we express no view.
The decision in Gennari v. Reading Public Schools, 77 Mass. App. Ct. 762 (2010), is not to the contrary. In Gennari,
"an elementary school principal ... directed that the first graders' recess be conducted in a concrete courtyard, although there were alternative locations where that recess might have been held, including the school gymnasium which was equipped with padded walls. The courtyard ... was populated by several ‘bench-walls,’ essentially low, concrete-topped brick walls, each several feet long, that could be used as benches, and that had sharp edges and corners."
Id. at 763. As the plaintiff raced around the courtyard with other children, a classmate either pushed, or fell into, him from behind, causing him to fall and his face to strike the corner of a concrete bench-wall, resulting in a severe laceration. Id. at 764. In rejecting the town's § 10 (j ) defense, the court held:
"Running, falling, and pushing are understood, foreseeable, even inherent parts of first-grade recess. Thus, even though [the classmate's] conduct in pushing or falling into [the plaintiff] can be said to be the more immediate cause of the injury, [the principal's] decision to hold recess in the concrete courtyard, which contained whatever danger the protruding bench-walls represented, materially contributed to the ‘condition or situation’ that caused the harm."
Gennari "perhaps represents the outer limits of conduct falling within the scope of what might be considered an ‘original cause’ under § 10 (j )." Cormier v. Lynn, 479 Mass. 35, 42 n.13 (2018).
Here, in contrast, the BPO volunteers' use of the plank method, instead of the safer ramp method, was not an inherent part of using the town-provided truck to transport golf carts. To whatever extent the plank method was foreseen or understood by the town to be one of the methods in use, the most that can be said is that the town failed to prevent Zerfas and other volunteers from using it. That is not enough; "the principal purpose of § 10 (j ) is to preclude liability for failures to prevent or diminish harm." Brum v. Dartmouth, 428 Mass. 684, 696 (1999).
2. Liability of the Mahoneys and Fallon. Although the judge's rationale for ruling that the Mahoneys and Fallon owed no duty to Zerfas was detailed and thoughtful, we are constrained to conclude that the ruling was error in these circumstances and that material issues of fact remain.
Because it is unclear whether the BPO itself is a party, see note 6 supra, and because Zerfas makes no argument regarding the BPO's liability that differs from his arguments regarding the liability of the Mahoneys and Fallon, we do not separately address whether and under what circumstances the BPO might be liable even if the Mahoneys and Fallon are not. We add that at oral argument, Zerfas acknowledged that his theory was that only the Mahoneys and Fallon were negligent and he did not seek to recover based on any negligence of any other person.
Undoubtedly the existence of a legal duty is both an essential element of a negligence claim and a question of law for the courts, to be determined by "look[ing] to existing social values and customs, and to appropriate social policy." Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989). See Jupin v. Kask, 447 Mass. 141, 143 (2006). "A basic principle of negligence law is that ordinarily everyone has a duty to refrain from affirmative acts that unreasonably expose others to a risk of harm." Yakubowicz, supra.
Zerfas argues that, under that principle, the Mahoneys and Fallon had a duty to refrain from continuing to supply volunteers to load and unload the golf carts, when they knew or should have known that that activity unreasonably exposed volunteers to the risk of an accident such as befell Zerfas. The judge essentially concluded that no such duty existed here, for three reasons: (1) Zerfas had greater control over the golf cart operation than the Mahoneys and Fallon; (2) volunteers such as Zerfas, rather than the Mahoneys and Fallon, devised and employed the plank method; and (3) the Mahoneys and Fallon, as parent volunteers, were on an equal footing with Zerfas, not in a position of authority over him. Thus, the judge concluded, they owed no duty to dictate or provide safer alternatives to the plank method; "the opposite conclusion would place too great a burden on volunteers, which serve an obvious benefit to our society."
First, however, that volunteers such as Zerfas may have devised and exercised greater control over the use of the plank method does not mean that the Mahoneys and Fallon had no control at all. Second, whether the Mahoneys and Fallon had authority over Zerfas, such that they themselves could dictate or provide safer alternatives to the plank method, both presents an issue of fact and does not address Zerfas's larger point: the Mahoneys and Fallon could, he asserts, have told the band director that the BPO would not supply volunteers to load and unload the golf carts unless a safer method was implemented. There is no suggestion in the record that Zerfas would have participated in the unloading without the BPO's being involved.
We acknowledge that Zerfas's larger point also turns on issues of fact, including the extent to which the Mahoneys and Fallon could make and enforce decisions about what BPO volunteers would and would not do. The BPO bylaws provide that the board "shall act collectively in all matters pertaining to the general administration of the organization." The extent to which this and other bylaw provisions actually constrained the day-to-day actions of the Mahoneys and Fallon is a question for the factfinder in the first instance.
Third, while the imposition of liability on the Mahoneys and Fallon in these circumstances might very well discourage socially beneficial activity, the Legislature has already addressed that issue in G. L. c. 231, § 85W, which immunizes volunteer officers of charitable organizations from suit except for grossly negligent or intentionally harmful conduct. See Lynch v. Crawford, 483 Mass. 631, 638-640 (2019) (discussing similar protection provided by Federal Volunteer Protection Act, 42 U.S.C. § 14503 [a] [2012]). Whether "judicial recognition of a legal duty is appropriate[ ] ultimately comes down to ‘public policy’ factors ... (to the extent that such issues have not been resolved by the Legislature itself)." Pantazis v. Mack Trucks, Inc., 92 Mass. App. Ct. 477, 483-484 (2017).
Section 85W provides, in pertinent part:
"[N]o person who serves without compensation ... as an officer, director or trustee of any nonprofit charitable organization ... shall be liable for any civil damages as a result of any acts or omissions relating solely to the performance of his duties as an officer, director or trustee; provided, however, that the immunity conferred by this section shall not apply to any acts or omissions intentionally designed to harm or to any grossly negligent acts or omissions which result in harm to the person."
Id. Also, G. L. c. 231, § 85K, second par., provides certain liability protections for officers of "educational institution[s]." But at least the first paragraph of § 85K provides an affirmative defense, and the burden is on those asserting the defense to show that it applies. See Larkin v. Dedham Med. Assocs., Inc., 93 Mass. App. Ct. 661, 664 (2018). On this summary judgment record, the Mahoneys and Fallon have not shown that the BPO qualifies as an educational institution.
Issues of fact remain not only as to whether the Mahoneys and Fallon could have prevented the use of the plank method but also, importantly, as to whether any failure to do so was grossly negligent and was the proximate cause of Zerfas's accident. Ordinarily "causation is a question of fact," and at the summary judgment stage this is not a case "where it can be said, as matter of law, that a cause is remote rather than proximate," i.e., where "all the facts are established and there can be no reasonable difference as to the effect of them, [so that] causation becomes a question of law." Stamas v. Fanning, 345 Mass. 73, 76 (1962). Cf. Leavitt v. Brockton Hosp., Inc., 454 Mass. 37, 44-45 (2009).
Although "summary judgment is rarely granted in negligence actions," Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 21 (1997), the courts have on rare occasions upheld summary judgment where the record, despite containing evidence of negligence, did not create a genuine issue of fact regarding gross negligence. See Brandt v. Davis, 98 Mass. App. Ct. 734, 741-742 (2020) ; Zavras, supra at 21. The parties have not addressed these cases, but we conclude that the evidence is sufficient at least to raise a jury question on gross negligence.
It remains to address the judge's reliance on an analogy to principles of premises liability. "Landowners are relieved of the duty to warn of open and obvious dangers on their premises because it is not reasonably foreseeable that a visitor exercising (as the law presumes) reasonable care for his own safety would suffer injury from such blatant hazards." O'Sullivan v. Shaw, 431 Mass. 201, 204 (2000). The judge analogized the use of the plank method to an open and obvious danger, of which the Mahoneys and Fallon had no duty to warn Zerfas because he already was or should have been aware of it.
At oral argument, Zerfas expressly disclaimed any reliance on a duty to warn. He relies on cases concluding that although "an open and obvious danger provides its own warning, a landowner is not relieved from remedying that danger where he knows or has reason to know that lawful entrants may not heed the warning for a variety of reasons, including their own failure to exercise reasonable care." Dos Santos v. Coleta, 465 Mass. 148, 157-158 (2013), citing Restatement (Second) of Torts § 343A, at 220 (1965). "A plaintiff's own negligence in encountering the danger does not relieve the landowner of a duty to remedy that danger where the plaintiff's negligent act can and should be anticipated by the landowner." Dos Santos, supra at 159. One who "actively facilitate[s] [an] improper and highly dangerous use" of real property may be liable notwithstanding that the danger was open and obvious and that the landowner gave no warning. Id. at 161. The facts may entitle "a jury ... to conclude that the defendants owed a duty of care -- specifically a duty to remedy -- despite the open and obvious nature of the danger." Id. at 163.
Of course, "the reasonableness of the plaintiff's decision to encounter the obvious risk bears on the question of his comparative fault for his injury." Dos Santos, 465 Mass. at 157 n.10.
This principle is not necessarily limited to the premises liability context. Under the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 18 (2010), which deals more generally with the subject of negligent failure to warn, "[e]ven if the defendant adequately warns of the risk that the defendant's conduct creates, the defendant can fail to exercise reasonable care by failing to adopt further precautions to protect against the risk if it is foreseeable that despite the warning some risk of harm remains." Id. at § 18(b). Whether this broad principle applies in contexts such as activities carried out by officers and members of volunteer organizations is an issue neither resolved by the Supreme Judicial Court nor expressly addressed by the parties. We decline to express a view on the issue at this stage of the litigation, while questions remain about whether the Mahoneys and Fallon "actively facilitated [an] improper and highly dangerous use" of the golf carts, lift truck, and loading equipment, Dos Santos, 465 Mass. at 161, or whether, in some other manner, their "conduct create[d]" the risk. Restatement (Third) of Torts, supra.
Conclusion. So much of the judgment as dismissed the claims against the town is affirmed. So much of the judgment as dismissed the claims against the Mahoneys, Fallon, and the BPO is vacated.
The town has requested appellate costs and is entitled to them under Mass. R. A. P. 26 (a), as appearing in 481 Mass. 1655 (2019). The town may recover them as provided in Mass. R. A. P. 26 (d), as appearing in 481 Mass. 1655 (2019).
So ordered.
affirmed in part; vacated in part