Opinion
No. 11–P–1066.
2012-07-3
Wiesia NYE, administrator, & another v. GOLY'S GARAGE, INC.
By the Court (WOLOHOJIAN, SMITH, and AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On October 23, 2006, plaintiff's decedent, Craig S. Nye, was driving a truck owned by his employer, Rice Oil Co., Inc. (Rice). Riding with him was plaintiff and fellow employee James Starbuck. Nye lost control of the vehicle and it rolled over, resulting in Nye's death. Starbuck was seriously injured. The plaintiffs sued Goly's Garage, Inc. (Goly's), alleging that it had negligently failed to inform Rice of the truck's faulty brakes following its repair of the truck's transmission on March 6, 2006. On November 23, 2010, a Superior Court judge allowed Goly's motion for summary judgment against Nye. On May 17, 2011, a second judge allowed Goly's motion for summary judgment against Starbuck. This appeal followed.
The cases were consolidated in the trial court, and remain consolidated on appeal.
Background. During the relevant period of time, Rice had a fleet of forty-seven vehicles, including the truck driven by Nye during the fatal accident. Doug Smith was Rice's maintenance manager. Although Rice performed its own vehicle maintenance, it occasionally referred major repairs to Goly's. On March 6, 2006, at Smith's request, Goly's repaired the transmission on the truck. Smith did not ask Goly's to inspect the braking system, and did not expect Goly's to do so. In fact, Smith testified that all brake work on the Rice trucks was done by Rice. After repairing the transmission, Bill Goly, the owner of Goly's, conducted a road test to determine whether the transmission repair was successful. While driving the truck, Goly did not observe any problems with the brakes.
As part of its vehicle maintenance program, Rice serviced its vehicles every 5,000 miles. On May 23, 2006, Rice performed a routine 5,000 mile service on the truck, which included a check and adjustment of the brakes. In addition to the 5,000 mile inspections, every morning before leaving the yard, Rice drivers completed a driver vehicle inspection report (DVIR) on the vehicle they would be driving that day. As part of the DVIR, the driver of each vehicle was responsible for checking the brakes. If a driver noted a problem, he would sign the DVIR after a mechanic had fixed it. No indication of brake problems was noted in the DVIR reports on the truck until August 21, 2006. On August 22, 2006, the brakes were adjusted.
At that time, it was noted that the truck “will need [a] brake job when we do summer cleaning.”
In the August 23, 2006, DVIR, brakes were not listed as an issue, and the condition of the truck was reported as satisfactory. No complaints about the brakes appeared in subsequent DVIRs. Starbuck drove the truck on five to ten occasions thereafter and did not notice any problems with the brakes.
Because Nye was a new employee, Starbuck had been assigned to be his trainer. Before Nye, Starbuck had never trained another employee at Rice. Although the two had gone on the road together fifteen to twenty times over the course of three to four weeks, the morning of the accident was the first time that Nye had driven the truck. After the accident, Trooper Dziedzic of the Massachusetts State police conducted an investigation and prepared a detailed collision reconstruction report. He listed various factors that had contributed to the accident, including the winding and sloping road, Nye's unfamiliarity with the surroundings and with the handling and operation of the truck, Nye's mistake of shifting the truck into a higher gear, the truck's speed of more than twice the legal limit, and the defective brakes at the right rear tires.
Discussion. “[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates ... that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case.” York v. Zurich Scudder Invs., Inc., 66 Mass.App.Ct. 610, 614 (2006), quoting from Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). To sustain their negligence claim, the plaintiffs need to establish that Goly's owed them a legal duty, that Goly's breached that duty, and that the breach proximately caused their injuries. Docos v. John Moriarty & Assocs., Inc., 78 Mass.App.Ct. 638, 640 (2011), citing Davis v. Westwood Group, 420 Mass. 739, 742–743 (1995). “[W]hether a defendant owes a duty of care is a question of law, ‘and is thus an appropriate subject of summary judgment.’ “ Judge v. Carrai, 77 Mass.App.Ct. 803, 805 (2010), quoting from Jupin v. Kask, 447 Mass. 141, 146 (2006).
On appeal, the plaintiffs argue that both motion judges erred in deciding that Goly's owed them no duty of care with respect to the truck's brakes. In their complaints, they allege that Goly's negligently maintained, inspected, and serviced the truck. The record demonstrates, however, that Goly's was not responsible for the truck's regular maintenance, inspection, or service, including its brakes. No allegation is made that Rice asked Goly to inspect or repair the brakes.
What Goly's was asked to do and what it did on March 6, 2006, was to repair the truck's transmission. No allegation is raised that this repair was done negligently or that it caused the accident in question.
The plaintiffs nevertheless argue that by conducting a road test after the transmission repair, Goly's undertook a duty to do so with due care, which in turn meant advising Rice of the brake problems that, according to the plaintiffs' expert, would have been obvious during the road test. While a defendant may voluntarily assume a duty even though no duty existed otherwise, Peters v. Haymarket Leasing, Inc., 64 Mass.App.Ct. 767, 778 (2005), Goly's assumption of a duty to road test the truck to determine whether its transmission repair was successful imposed no additional duty on it to test any other part of the truck or to warn Rice of any problems unrelated to the transmission. Ibid. Summary judgments were proper, for the reason, if no other, that Goly's assumed no duty vis-a-vis Rice related to anything other than a transmission repair.
Nevertheless, even if we were to assume that the plaintiffs would be able to show that Goly's owed them a duty of care, we would be compelled to conclude as a matter of law that they would be unable to prove causation. Peters v. Haymarket Leasing, Inc., 64 Mass.App.Ct. at 779. First, there is no evidence in the record that Rice knew of Goly's custom of conducting road tests on repairs of $2,500 or more, and that Rice relied on those tests in making maintenance and repair decisions. Second, Rice performed a 5,000 mile service on the truck, which included a brake inspection, in May of 2006. Third, there was no evidence of any brake issues with the truck until August 21, 2006, more than six months after Goly's transmission repair. Last, but not least, the State trooper who concluded that several different factors contributed to the accident wrote the following regarding the role of the brakes:
“Though, the defective braking system may have been a contributing factor to the increased speed as [the truck] began its descent, it is this officer's opinion that had [Nye] been able to down-shift the transmission in conjunction with braking, the vehicle speed may have been controllable and would not have increased speed to the point of rollover. The erroneous shifting to a higher gear and inability to correct the mistake while engaged in the situation is a direct result of the aforementioned inexperience.”
We accordingly conclude that summary judgment was properly entered in favor of Goly's as to each plaintiff.
We have considered the plaintiff's other arguments and find them to be without merit.
Conclusion. The November 23, 2010, judgment, the January 26, 2011, order denying the motion for reconsideration, and the June 7, 2011, judgment are affirmed.
So ordered.