Opinion
15-P-343
05-03-2016
BORIS VILIDNITSKY v. C. COTE INTERIORS, INC. & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from a separate and final judgment entered in the Superior Court, pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), dismissing his claims against C. Cote Interiors, Inc. (C. Cote). We affirm, addressing the plaintiff's claims in turn.
1. Vicarious liability. To the extent the plaintiff seeks recovery on a theory of vicarious liability, his claim fails by reason of the "going and coming" rule. See Lev v. Beverly Enterprises-Mass., Inc., 457 Mass. 234, 238 (2010). Put simply, the scope of Gardner's employment ended when he left the Sports Pub to return to his motel room. "At that juncture, [Gardner] was no longer acting on behalf of or under the direction or control of [C. Cote]." Id. at 239.
The plaintiff's reliance on Frassa v. Caulfield, 22 Mass. App. Ct. 105, 109-110 (1986), is misplaced. That case describes the scope of activities within the course of employment, for purposes of workers' compensation, and not the scope of employment, for purposes of respondeat superior.
2. Negligent hiring, retention, training, and supervision. We likewise discern no error in the dismissal of the plaintiff's claim that C. Cote was negligent in its hiring, retention, training, or supervision of Gardner, for substantially the reasons explained by the motion judge in his thorough memorandum of decision. Specifically, as the motion judge observed,
"Gardner was hired to serve as a construction foreman, a position in which the record discloses no expected interaction with the public at all. Gardner's work overseeing the Wayland project in this instance likewise entailed no vehicular usage beyond ordinary driving to and from the job site. The evidence is undisputed that Gardner never operated [C.] Cote automobiles, and was at no time prior to the accident ever called upon to transport [C.] Cote personnel in connection with work-related matters."
The nature of the responsibilities of the position for which C. Cote hired Gardner did not implicate the prior alcohol-related offenses the plaintiff suggests C. Cote should have discovered before hiring him. See Foster v. The Loft, Inc., 26 Mass. App. Ct. 289, 294 n.7 (1988).
Nor does the summary judgment record frame a viable claim that C. Cote had a duty to supervise Gardner's activities outside the scope of his employment. C. Cote did not serve alcohol to Gardner as a social host, or control his consumption of it at the dinner it sponsored for him. The motion judge correctly allowed C. Cote's motion for summary judgment.
Separate and final judgment affirmed.
By the Court (Green, Trainor & Milkey, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 3, 2016