Opinion
13-P-1070
10-28-2014
VIVIANA RESTO & another v. ALEX DELGADO & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from a summary judgment in the Superior Court in favor of Flansburgh Associates, Inc. (Flansburgh); and C&C Consulting Engineers, LLC (C&C) (collectively, the defendants). The plaintiffs argue that the judge made a number of errors when he determined that the defendants could not be found liable for the death of Dario Rodriguez, an eleven year old boy who was killed in a pedestrian accident. We affirm.
This decision concerns only these two defendants, which were awarded judgment pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974).
Background. We view the facts in the light most favorable to the plaintiffs, see Peters v. Haymarket Leasing, Inc., 64 Mass. App. Ct. 767, 768 (2005); however, the following facts are undisputed. At approximately 4:30 P.M. on October 1, 2007, Dario was walking from a park located beside Lawrence High School, when he tried to cross Winthrop Avenue (Route 114) near an intersection with Durso Avenue in the city of Lawrence (city), in an effort to get to Taco Bell. He was struck and killed by a car driven by James Gianni. Gianni was criminally charged and convicted of operating a motor vehicle negligently so as to endanger, as a result of the accident and Dario's death. Several years before the accident occurred, Flansburgh had contracted with the city to provide architectural services and to oversee the construction of a new high school on the other side of the park from Winthrop Avenue, but with walkways leading to that street. Flansburgh retained C&C to conduct a traffic study for the project.
Gianni had been tailgating a car driven by Alex Delgado on Route 114. Delgado stopped to allow Dario and two other children to cross the street, and Gianni became "aggravated" when Delgado slowed down and stopped. Two oncoming cars also had stopped to let the children cross the road. Gianni, traveling at a high rate of speed, pulled out from behind Delgado, moved into the right lane, and passed Delgado on the right. As Gianni was passing, he heard "a commotion on the other side of the highway. There [were] horns beeping and people hollering." He "looked to see what the commotion was, and at that point, felt something hit [his] car." One of the drivers in the oncoming lane saw Gianni approaching at "more than fifty" miles per hour; that driver honked his horn to try to get the child's attention "because [he] saw that [Gianni] wasn't stopping." As this other driver started to roll down his window "to get the kid's attention, it already had happened."
On April 27, 2009, the plaintiffs, alleging negligence, wrongful death, and negligent infliction of emotional distress, filed their first amended complaint against the defendants. On April 27, 2010, the plaintiffs moved to amend their complaint a second time to add as defendants the city and the Commonwealth; the motion was denied "based in part upon a lack of duty [and] proximate cause as to the purported defendants." On September 6, 2011, Flansburgh and C&C filed respective motions for summary judgment.
On October 14, 2011, the motion judge allowed Flansburgh's and C&C's summary judgment motions and dismissed the complaint against them, ruling that no issue of fact was in dispute and that "since neither the Commonwealth nor the city of Lawrence ha[s] liability in this case, neither can there be any liability on the part of Flansburgh and C&C Consulting Engineers, who were each under contract to Commonwealth and city." In addition, the judge determined that neither Flansburgh nor C&C owed a duty of care to the plaintiffs, nor breached any duty owed, and "the plaintiffs as a matter of law cannot establish any proximate cause between . . . Dario's death and these defendants." The judge also found that the conduct of Gianni was the intervening and superseding cause of Dario's death. The plaintiffs timely appealed. .
On September 9, 2009, the complaint as to Miqueas Quinones and Catherine Montalvo was voluntarily dismissed. On November 9, 2012, a stipulation of dismissal, with prejudice, entered as to James Gianni and Bonnie Gianni.
Discussion. "To prevail against the defendants' motions to dismiss their negligence claims, the plaintiffs must establish that the defendants owed them a legal duty and that the defendants' breach of this legal duty was the cause of the plaintiffs' injuries. Davis v. Westwood Group, 420 Mass. 739, 742-743 (1995)." Cumis Ins. Soc., Inc. v. BJ's Wholesale Club, Inc., 455 Mass. 458, 469 (2009). Here, the plaintiffs agree that Gianni struck and killed Dario as he was attempting to cross Winthrop Avenue. The plaintiffs argue, however, that the judge erred in finding Gianni to be the intervening and superseding cause of Dario's death; instead, they claim that the defendants negligently performed their contractual obligations in connection with the high school construction project and thereby breached a duty of care owed to pedestrians exposed to foreseeable safety concerns in the location where Dario was killed. The plaintiffs also contend that the judge erred in not considering that the defendants had breached a duty of care in accordance with public policy by failing to communicate to the city known safety hazards regarding children traveling between the high school and the fast food restaurants located across Route 114.
"In reviewing the grant of a motion for summary judgment, we conduct a de novo examination of the evidence in the summary judgment record, . . . and view the evidence in the light most favorable to the parties opposing summary judgment." LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012).
a. Duty of care. The plaintiffs' breach of duty argument fails. Under the contracts between Flansburgh and the city, Flansburgh owed a contractual duty to the city to construct two new "K-8" schools, along with possible additional construction in connection with the schools as the project developed, and also to prepare an environmental impact report for the entire project. Under the contract between C&C and Flansburgh, C&C owed a duty to Flansburgh, and the city as an agent of Flansburgh, to conduct a traffic study on various specified intersections in the vicinity of the project site; the intersection at Route 114 and Durso Avenue where Dario was killed was not one of the intersections listed in the contract. As a result, the contractual relationships between the city and the defendants did not create a duty of care from either defendant to Dario as a third person not a party to the contracts who may have foreseeably been exposed to danger "as a result of [the defendants'] negligent failure to carry out [their contractual] obligation." LeBlanc v. Logan Hilton Joint Venture, 463 Mass 316, 328 (2012), quoting from Parent v. Stone & Webster Engr. Corp., 408 Mass. 108, 114 (1990).
There are two contracts between Flansburgh and the city in the record: (1) the February 1, 1999, "standard contract," and (2) the American Institute of Architects agreement between the city and Flansburgh (AIA contract); both pertain to the performance by Flansburgh as contractor in the construction of two separate "K-8" school facilities. Although the high school project is not mentioned in either contract, in a December 18, 1998, letter from the city to Flansburgh, there is a reference to a contract award for design services in connection with "two schools" and "one high school."
The contract also obligates C&C to study "arterial traffic impacts" with regard to possible "cut-through" traffic in surrounding neighborhoods, safety hazards in the study area, and "traffic associated with activities at the proposed Performing Art Center." However, intersections other than the four described specifically were excluded as "intersections beyond [those] four [would] not be materially affected because of the effects on traffic dispersion on the street network."
The facts of this case differ, therefore, from those in LeBlanc, cited by the plaintiffs, because, in LeBlanc, supra at 321, the evidence was clear that the defendant had been informed in writing that the necessary danger warnings had not been provided to switchgear operators.
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In addition, Dario was not an intended third-party beneficiary to the contracts. "Under Massachusetts law, a contract does not confer third-party beneficiary status unless the 'language and circumstances of the contract' show that the parties to the contract 'clear[ly] and definite[ly]' intended the beneficiary to benefit from the promised performance." Doherty v. Admiral's Flagship Condominium Trust, 80 Mass. App. Ct. 104, 111 (2011) (citations omitted). The fact that a plaintiff may "derive a benefit from a contract between others does not make [him an] intended third-party beneficiar[y] and does not give [him] the right to enforce that agreement." Cumis Ins. Soc., Inc. v. BJ's Wholesale Club, Inc., 455 Mass. at 464. In fact, § 9.7 of the AIA contract explicitly states that "[n]othing contained in this Agreement shall create a contractual relationship with or a cause of action in favor of a third party against either the Owner or Architect," further weakening the plaintiffs' argument.
b. Duty of care as a matter of public policy. Finally, the plaintiffs' contention that the defendants owed a duty under the principles of public policy to pedestrians crossing Winthrop Avenue in the vicinity of the high school also fails. This was well outside the defendants' contractual responsibilities that form the basis of any duty they owed.
We are persuaded that the facts on the record before us do not present a "genuine issue as to any material fact" and therefore support a grant of summary judgment in favor of the defendants. Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).
Judgments entered October 21, 2011, affirmed.
By the Court (Cypher,
Kafker & Hanlon, JJ.),
Clerk Entered: October 28, 2014.