Opinion
19-P-403
03-12-2020
Daniel N. VAIL v. PETER PAN BUS LINES, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Daniel N. Vail, appeals from summary judgment entered in favor of the defendant, Peter Pan Bus Lines, Inc. (Peter Pan), in an action in Superior Court for breach of the implied warranty of merchantability, pursuant to G. L. c. 106, § 2-314 (implied warranty). Vail alleges that a defect in the bus caused a fire during which he sustained injuries. On appeal, Vail maintains that summary judgment was improper based on Peter Pan's Mass. R. Civ. P. 30 (b) (6), 365 Mass. 780 (1974), witness admission that the bus was defective. We affirm.
Background. We summarize the undisputed facts in the light most favorable to Vail, the nonmoving party, in a grant of summary judgment. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). In June 2012, Vail, as an employee of Greyhound Lines, was driving a BoltBus passenger bus from New York to Boston when the bus caught fire. Peter Pan had leased the bus to BoltBus. As Vail assisted passengers to exit the bus, he sustained injuries. Vail filed a worker's compensation claim against Greyhound Lines, which was settled for $50,000. In the present action, Vail asserted that Peter Pan breached its implied warranty of merchantability, pursuant to G. L. c. 106, § 2-314. The judge granted summary judgment in favor of Peter Pan.
Vail submitted a cross motion for partial summary judgment, which the judge denied.
Peter Pan maintains that Vail was an employee of BoltBus. We need not resolve this dispute.
Peter Pan entered into a joint venture with Greyhound Lines to form BoltBus.
The judge found that the plaintiff abandoned his original negligence claim, and thus discussed and ruled only on the implied warranty claim. The plaintiff does not raise any issues regarding the negligence claim on appeal.
Discussion. Summary judgment is appropriate only where, viewing the evidence in the light most favorable to the nonmoving party, there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). See Cargill, Inc. v. Beaver Coal & Oil Co., 424 Mass. 356, 358 (1997). "[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 ..., unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Our review is de novo. See Chambers v. RDI Logistics, Inc., 476 Mass. 95, 99 (2016).
To prevail on an implied warranty claim, a plaintiff must show, inter alia, that a defect or unreasonably dangerous condition existed at the time the product left the defendant's hands so that it was not reasonably suitable for the ordinary uses for which goods of that kind were sold. See G. L. c. 106, § 2-314 ; Lally v. Volkswagen Aktiengesellschaft, 45 Mass. App. Ct. 317, 337 (1998). If the machinery at issue, by its nature, has a complex design and operation outside the scope of an average person's knowledge such that a jury would have to resort to "conjecture and surmise" without expert testimony, the lack of such testimony is fatal to an implied warranty claim that requires proof of a defect. Esturban v. Massachusetts Bay Transp. Auth., 68 Mass. App. Ct. 911, 911-912 (2007). See Turcotte v. DeWitt, 332 Mass. 160, 165 (1955).
Here, whether the fire was caused by a defect in the bus is a type of issue beyond the common, general knowledge of a jury. See, e.g., Triangle Dress, Inc. v. Bay State Serv., Inc., 356 Mass. 440, 441-442 (1969) (expert testimony needed for cause of air conditioner bursting into flames). See also Enrich v. Windmere Corp., 416 Mass. 83, 87 (1993) (presence of defect in electric fan at time of injury speculation and conjecture without expert testimony where other possible causes of fire not sufficiently eliminated); Goffredo v. Mercedes-Benz Truck Co., 402 Mass. 97, 104 (1988) (amount of force necessary to open door latch mechanism beyond scope of average person's knowledge). In fact, Vail does not argue that the issue whether the fire was caused by a defect in the bus was within the general knowledge of a jury, and he admits that he did not provide expert testimony to establish this element.
Instead, he contends that summary judgment was improper because he could meet this burden by relying on purported admissions of Peter Pan through its corporate designee. This argument is unavailing because Peter Pan made no such admission. To the contrary, in response to Vail's interrogatory as to the cause of the fire, Peter Pan stated: "[Peter Pan] did not perform an independent investigation of the cause of the fire, and therefore submits that any answer provided by [Peter Pan] to this interrogatory [seeking Peter Pan's opinion as to the cause of the fire] would amount to little more than speculation."
Similarly, when asked about Peter Pan's interrogatory response and the cause of the fire, Peter Pan's rule 30 (b) (6) designee testified multiple times that he was not an expert and that his belief was based on the designee's personal speculation from a "cursory look at the vehicle" following the incident. Further testifying, he stated, "I speculated because, you know, I'm no expert."
In fact, Vail's counsel acknowledged that the designee's testimony was mere lay opinion, stating, "I appreciate that you say you're not an expert," but nevertheless prompted the witness for "a conclusion, even a speculative conclusion," as to the cause of the fire. On that basis, the witness proceeded to provide his lay opinion, stating, "Whether it was a lack of [lubrication in the wheel bearing], I speculated that it would have been what I would have thought would have been the cause," and clarifying that there were other possibilities "if you want me to speculate" and that his response was, "[y]ou know, the [sic] total speculation, I'm just no expert." Moreover, when asked to admit that the fire was caused by a defect in the bus, Peter Pan did not do so. See Goffredo, 402 Mass. at 103 ("An opinion based solely on speculation is without probative value").
Vail also relies on a portion of the designee's testimony as follows:
Q.: "You just testified a few minutes ago that ... counsel asked you whether this was a vehicle defect or maintenance issue.
"I'm assuming because you sent it to the manufacturer in the warranty that you felt it was a vehicle defect. Is that a fair statement?"
A.: "Yeah."
Q.: "So, it had nothing to do with your maintenance protocol, this wheel bearing issue, because it happened prematurely?"
A.: "Correct."
Q.: "So, if you were to answer that question again from counsel, it would be a vehicle defect?"
A.: "Yes."
Even in the light most favorable to Vail, the testimony constitutes the designee's lay opinion that he "felt" such a defect justified submission of the issue to the manufacturer because the wheel bearing failed "prematurely." Especially in the context of his entire testimony, clearly disclaiming any expertise in this area and that his opinions were speculation, it is not an admission of a defect.
Vail also relies on the fact that Peter Pan, pursuant to a "base warranty," expected the manufacturer to replace the bus and "make [Peter Pan] whole." The designee's testimony is clear that his communication with the manufacturer was "speculation that it appears to be a unitized wheel." The manufacturer also did not "arrive at any conclusions as a result of [its] inspection" and took "[no] position on the cause of the fire." The record shows only that the manufacturer settled with Peter Pan, giving Peter Pan a credit to offset a contract regarding another bus, as a "goodwill" gesture while the fire was being reviewed.
Because lay opinion, such as Peter Pan's, "cannot substitute for this absence of expert testimony," Enrich, 416 Mass. at 87, the judge properly granted the defendant's motion for summary judgment.
We need not reach the merits of the defendant's other grounds for summary judgment.
--------
Judgment affirmed.