Opinion
20-P-587
07-13-2021
N.E. BRIDGE CONTRACTORS, INC. v. ASPEN AERIALS, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, N.E. Bridge Contractors, Inc. (NEB), appeals from a summary judgment in favor of the defendant, Aspen Aerials, Inc. (Aspen), on NEB's claims of negligence, products liability, breach of contract, and breach of the implied warranty of merchantability. We conclude, as did the motion judge, that the key piece of evidence on which NEB seeks to rely is inadmissible as a subsequent remedial measure, that NEB may not proceed on a negligence theory of res ipsa loquitur, and that NEB's contract-based claims are barred by the statute of limitations. Accordingly, we affirm.
The motion judge concluded that NEB's products liability claim did not assert a separate cause of action distinct from NEB's other claims, which included negligence and breach of the implied warranty of merchantability. See Hanson Hous. Auth. V. Dryvit Sys., Inc., 29 Mass. App. Ct. 440, 446 (1990) (products liability action may be brought under negligence or breach of warranty theories). NEB does not dispute this conclusion, and we do not address NEB's products liability claim further.
NEB asserted two other claims, for violation of G. L. c. 93A and for breach of the implied warranty of fitness for a particular purpose, both of which NEB waived at the summary judgment hearing.
Background. In this matter involving cross motions for summary judgment, we set forth the facts, largely uncontested, from the record in the light most favorable to NEB, which was the losing party. See Welch v. Barach, 84 Mass. App. Ct. 113, 119 (2013). Aspen manufactured an A-75 bridge inspection unit -- a piece of machinery with articulating booms -- that Aspen then sold to NEB. The A-75 was fitted on a truck chassis provided by NEB and was taken into NEB's possession on or around August 6, 2010. During the next six years, NEB leased the A-75 to various third parties. Then, on August 29, 2016, the A-75 tipped over during a bridge inspection.
Following the accident, NEB sent the A-75 back to Aspen for inspection. During the inspection, Aspen discovered an "issue" with something called a "limit switch" that would have permitted "[a]n operator who [was] untrained and unfamiliar with the [A-75's] flight envelope [to] place the [A-75] into an unstable position." Aspen disputed that there was a manufacturing defect with the limit switch, and instead contended that the limit switch was altered while in NEB's possession. Nonetheless, Aspen sent a service bulletin to other A-75 owners stating that the "limit switches on your A-75 may inadvertently make contact, enabling booms to be operated in a non-operating position," and "recommending that an [included] extension kit be installed."
NEB subsequently brought this action and sought damages for, among other things, the loss of use of the A-75. The parties cross-moved for summary judgment. On summary judgment, NEB did not have any expert evidence and instead relied on Aspen's service bulletin as evidence that there was a manufacturing defect. On the above facts, and after concluding that the service bulletin was inadmissible as a subsequent remedial measure, the motion judge granted summary judgment in Aspen's favor.
NEB also relied on a report written by the Occupational Safety and Health Administration (OSHA) following OSHA's investigation into the accident. The OSHA report identified three root causes of the accident: the limit switch, operator error, and NEB's failure to conduct required inspections of the A-75. As noted by the motion judge, the OSHA report did not find that there was a manufacturing defect. Moreover, the motion judge concluded that the OSHA report was inadmissible, and NEB does not argue any error in that conclusion on appeal.
Discussion. 1. Subsequent remedial measure. Central to all of NEB's claims is the allegation that there was a manufacturing defect with the limit switch. While NEB contends that Aspen's service bulletin establishes a genuine issue of material fact on this point, Aspen argues that the service bulletin was a subsequent remedial measure and is thus inadmissible as proof of Aspen's liability. We agree with Aspen.
It has long been established that evidence of postaccident safety measures is inadmissible as proof of negligence or culpable conduct. See doCanto v. Ametek, Inc., 367 Mass. 776, 779 (1975). "The predominant reason for this exclusionary rule derives from public policy unrelated to the fact-finding process, that a contrary rule would discourage owners from making repairs to dangerous property" (quotation and citation omitted). Martel v. Massachusetts Bay Transp. Auth., 403 Mass. 1, 4 (1988). Evidence of postaccident safety measures may be admitted for other purposes, however, such as to prove the feasibility of making improvements or to show that the defendant knew or should have known of the danger at the time of the plaintiff's injury. See doCanto, supra at 780.
Here, Aspen inspected NEB's A-75 and determined that there was an issue with a limit switch. Aspen, without knowing whether the limit switch was manufactured that way or was subsequently altered, nonetheless took the precautionary measure of sending the service bulletin and included repair kit to other A-75 owners. As a postaccident safety measure, the service bulletin is inadmissible to prove Aspen's culpability (i.e., that there was a manufacturing defect).
In arguing that the service bulletin was not a subsequent remedial measure, NEB relies on the Massachusetts Guide to Evidence, which states that measures "taken that would have made an earlier injury or harm less likely to occur" are inadmissible to prove negligence or culpable conduct. Mass. G. Evid. § 407(a) (2021). NEB argues that because Aspen denied that there was a manufacturing defect, there was no causal connection between the accident and the service bulletin, and thus no basis to conclude that the service bulletin would have made the earlier injury less likely to occur. This argument is unavailing.
First, to the extent NEB argues that Aspen had to admit a manufacturing defect to benefit from the rule regarding subsequent remedial measures, that would defeat the purpose of the rule. Second, there is no genuine issue of material fact regarding the causal connection between the accident and the service bulletin. It is undisputed that Aspen sent the service bulletin, which addressed the precise issue discovered on NEB's A-75, to other A-75 owners immediately following discovery of the issue.
NEB also argues that the service bulletin was distinct from the repair kit and that the service bulletin, which merely announced a possible problem, should not be viewed as a subsequent remedial measure. We disagree. The service bulletin was a necessary component of Aspen's attempt to make a postaccident safety improvement.
2. Res ipsa loquitur. NEB next argues that it may proceed on a negligence theory of res ipsa loquitur. We conclude that res ipsa loquitur is inapplicable in the circumstances of this case.
Res ipsa loquitur is "a way of establishing negligence." Hanover Ins. Group, Inc. v. Raw Seafoods, Inc., 91 Mass. App. Ct. 401, 407 (2017). It "permits a trier of fact to draw an inference of negligence in the absence of a finding of a specific cause of the occurrence when an accident is of the kind that does not ordinarily happen unless the defendant was negligent in some respect and other responsible causes including conduct of the plaintiff are sufficiently eliminated by the evidence." Dunn v. Genzyme Corp., 486 Mass. 713, 722 n.9 (2021), quoting Enrich v. Windmere Corp., 416 Mass. 83, 88 (1993). Res ipsa loquitur "does not ‘overcome the lack of evidence of the defendant's negligence.’ " Dunn, supra, quoting Enrich, supra.
NEB's reliance on res ipsa loquitur founders in at least two respects. First, even construing the facts in the light most favorable to NEB, other responsible causes were not sufficiently eliminated. Other responsible causes are sufficiently eliminated where, for example, the defective product was in the exclusive control and management of the defendant. See, e.g., Wilson v. Honeywell, Inc., 409 Mass. 803, 805-806 (1991). NEB, however, took the A-75 into its possession on or around August 6, 2010, and the A-75 did not tip over until six years later, on August 29, 2016. In the meantime, NEB leased the A-75 to various third parties and also performed its own maintenance on the A-75, which included replacing limit switches. While NEB's principal testified at his deposition that he did not replace the specific limit switch at issue, he also testified that it was possible that he did so. Regardless, even assuming that he did not replace the limit switch at issue, there remains the distinct possibility that the limit switch was altered by someone else during the six years that NEB owned and leased the A-75 to third parties.
Evangelio v. Metropolitan Bottling Co., 339 Mass. 177 (1959), on which NEB relies, is not to the contrary. In that case, which involved an exploding soda bottle, the plaintiff had to show that after the defendant surrendered control of the bottle, the bottle was not "improperly handled by [the plaintiff] or by intermediate handlers." Id. at 183.
Second, even if the limit switch was not altered while in NEB's possession, we do not think this is the sort of case where negligence may be inferred from the accident itself. The A-75 is a complex piece of machinery, and a specific technical defect with a limit switch is "outside the common knowledge or common experience of the jury, thus requiring expert testimony" (quotation and citation omitted). Nemet v. Boston Water & Sewer Comm'n, 56 Mass. App. Ct. 104, 110 (2002). See Esturban v. Massachusetts Bay Transp. Auth., 68 Mass. App. Ct. 911, 911-912 & n.7 (2007) (acknowledging that some design defects are "so simple or obvious" that need for expert testimony is eliminated, but concluding that escalator in question was "complex, technical piece of machinery, whose design and operation requirements [were] not straightforward"). Without the aid of expert testimony, jurors would have been left to speculate on any variety of issues, including what the industry standards were and whether other feasible designs might have prevented the accident. See Esturban, supra at 912.
While industry standards are not conclusive, they "may be relevant and useful." Pignone v. Santa Anita Mfg. Corp., 17 Mass. App. Ct. 944, 945 (1983).
Aspen argues that NEB's negligence claim fails for an additional reason: the economic loss doctrine. The economic loss doctrine bars a plaintiff from recovering on a negligence claim unless the plaintiff can establish that the injuries suffered involved physical harm or property damage, and not solely economic loss. See Cumis Ins. Soc'y, Inc. v. BJ's Wholesale Club, Inc., 455 Mass. 458, 469 (2009). Here, while NEB alleged damage to its truck, it did not seek compensation for that damage. We need not decide whether this was sufficient to satisfy the economic loss doctrine, as NEB's negligence claim fails regardless.
3. Statute of limitations. Lastly, we note that NEB's contract-based claims are barred by the statute of limitations. The applicable statute of limitations is set forth in G. L. c. 106, § 2-725 (1), which provides that "[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued." The statute further provides that "[a] cause of action accrues when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach," and that "[a] breach of warranty occurs when tender of delivery is made." G. L. c. 106, § 2-725 (2). See Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 106 (1989). NEB alleged that Aspen breached the contract and the implied warranty of warranty of merchantability by delivering a defective product. Both claims thus accrued on the tender of delivery on or around August 6, 2010. NEB did not bring this action until March 20, 2017, well over four years later, and its contract-based claims are thus time barred.
In light of this authority, including the clear language of the statute, there is no merit to NEB's argument that the limitations period instead began to run when NEB discovered, or reasonably should have discovered, the alleged manufacturing defect.
We note that Aspen also argues that all of NEB's claims are precluded by a one-year warranty on the A-75, which included the following disclaimer: Aspen's liability to NEB "shall not in any event exceed the cost of correcting defects in the equipment as herein provided and upon the expiration of said one year, all such liability shall terminate." NEB argued below that this disclaimer was not adequately disclosed, and the motion judge declined to address the issue, as do we.
Judgment affirmed.