Opinion
21-P-777
08-10-2022
MICHELLE WILLIAMS, personal representative,[1] v. LSTAR SOUTHFIELD, LLC & others[2]; RACHAEL GROSS, third-party defendant.[3]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
In this wrongful death action, the defendant and third-party plaintiff LStar Southfield, LLC, (LStar) timely appeals from the entry of summary judgment in favor of the third-party defendant Rachael Gross on its indemnity and contribution claims. Because we conclude that genuine disputes of material fact remain, we vacate the judgment in favor of Gross and remand for further proceedings.
Background.
This case arises from a fatal accident in the parking lot of LStar's Weymouth property during a fall festival in October 2015, which Gross, an event planner, helped plan. We summarize only those undisputed facts that are necessary to our decision, and do so in the light most favorable to the non moving party, LStar. See Yee v. Massachusetts State Police, 481 Mass. 290, 292 (2019).
In June 2015, Gross and LStar contracted for Gross to provide corporate planning and management services at LStar's Weymouth property from June 3, 2015, to December 31, 2015. Gross agreed to plan a weekly farmer's market and a food truck festival series; the contract also allowed for changes to the scope of services under certain conditions. The contract included a clause that required Gross to indemnify LStar against liability "arising from or related to acts or omissions by Consultant [Gross], its officers, employees, agents, representatives or subconsultants." There was no written contract between LStar and Gross that specifically referred to the fall festival. Gross planned and organized at least certain aspects of that festival: she marketed the event; coordinated the children's activities; handled logistics like accepting deliveries and scheduling; and recruited food trucks, the audio and stage company, vendors, artisans, and entertainment.
Boston Valet managed parking at the fall festival. Boston Valet's involvement appears to have begun when it submitted a proposal to Gross, not included in the record before us, to provide personnel to flag patrons into the parking lots, direct them to parking spots inside the lots, and monitor the lots' capacity. Gross recommended that LStar hire Boston Valet and told LStar how many attendants Boston Valet would provide.
LStar then hired Boston Valet to work at the festival, but the terms of that agreement similarly do not appear in the record before us. Before the fall festival, Gross, Boston Valet, and others attended planning meetings with the Weymouth Police and Fire Departments to discuss various issues, including managing large crowds of people and cars, and -- possibly -- the sale of alcohol at the event, which LStar planned to do. At one festival planning meeting that Gross attended, there was a discussion about people bringing their own alcohol to events at the property. In addition, Boston Valet reviewed parking diagrams with the Police and Fire departments and provided its professional opinion on how to manage traffic and parking.
The parties dispute whether Gross had any responsibility for alcohol service at the event. The record reveals that Gross facilitated getting the liquor license, while noting that she was "not coordinating the alcohol service for any events"; the license was issued to defendant Southcoast Connected, Inc., and listed defendants George Krall and Sean Williams as the alcohol managers. Gross's name was not on the license. For the festival, plainclothes police officers were hired to walk around and look for intoxicated patrons and underage drinking.
Plaintiff Michelle Williams (Michelle) and her husband Chris Williams (Chris) went to the festival on October 10, as did defendant Stephen Burke. Burke, intoxicated, struck Chris with his vehicle in the parking lot, killing him. After Michelle filed this wrongful death action, LStar brought a third-party complaint against Gross seeking indemnification and contribution. A judge granted Gross's motion for summary judgment and entered judgment pursuant to Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974). This appeal followed.
Because the plaintiff and one of the defendants share a last name, we use first names to avoid confusion.
Discussion.
"Our review on summary judgment is de novo." Yee, 481 Mass. at 294, citing LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318, (2012). "The standard of review for a grant of summary judgment requires that we take the evidence in the light most favorable to the nonmoving party to determine whether any genuine issues of material fact existed and whether the moving party was entitled to judgment as a matter of law." Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass.App.Ct. 599, 602 (2003), citing Harrison v. NetCentric Corp., 433 Mass. 465, 468 (2001). "[T]he court does not 'pass upon the credibility of witnesses or the weight of the evidence [or] make [its] own decision of facts.'" Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281 (1986), quoting Attorney Gen. v. Bailey, 386 Mass. 367, 370 (1982).
The factual questions at the heart of this case are whether, and the extent to which, Gross was involved in arranging and procuring the alcohol and parking services for the fall festival. Resolution of the case also requires determining whether the June 2, 2015 contract governed Gross's involvement in the fall festival. Viewing the facts in the light most favorable to LStar, we cannot say that Gross has affirmatively established that there are no genuine issues of material fact.
Taking the second issue first, the parties disagree about whether the June 2, 2015 contract governed Gross's services for the fall festival. This genuine dispute cannot be resolved on the record before us, as the judge correctly determined. By its terms, the contract remained in effect at the time of the fall festival. Although it does not mention the fall festival, in the contract, Gross agreed to provide "[f]ull [s]ervice, [c]orporate [p]lanning"; the contract included a clause that allowed for changes in Gross's scope of work; and Gross provided services for the fall festival. Viewing the facts, as we must, in the light most favorable to LStar, we cannot say that Gross's services did not fall within the parties' contract. This matters because, among other reasons, if the contract governed Gross's services for the fall festival, she might be obligated to indemnify LStar for its defense, and her professional liability insurance (assured by the contract) could be implicated. See Prozinski, 59 Mass.App.Ct. at 422-424 (remanding for further proceedings where issues of material fact precluded findings that parties' contract governed). See also Dennis v. Kaskel, 79 Mass.App.Ct. 736, 741-742 (2011) .
Despite correctly finding that there was a genuine dispute about the applicability of the contract, the judge concluded that Gross could not be held liable because "no reasonable jury could find that Gross had any duty with respect to the service of alcohol at the festival." In light of evidence that Gross facilitated the application for the liquor license and was involved in planning meetings in which public safety and alcohol service were discussed, and in light of sworn testimony from
Kyle Corkum, the general manager of the property and LStar's Chief Executive Officer, that Gross attended to "the entire event, whether it was her responsibility or not . . .," we cannot say with confidence that this conclusion is dictated by the record. "[T]he question of negligence is one of fact for the jury. Only when no rational view of the evidence warrants a finding that the defendant was negligent may the issue be taken from the jury" (quotation and citations omitted). Mullins v. Pine Manor College, 389 Mass. 47, 56 (1983). Where, as here, there is ambiguity in the record, summary judgment may not lie.
Summary judgment is also precluded by the parties' unresolved factual dispute about the extent of Boston Valet's role and the scope of its contractual obligations for the fall festival. Although the record reveals that Boston Valet provided a proposal to Gross for parking attendant services, Gross recommended to LStar that it hire Boston Valet, and LStar hired Boston Valet, neither the proposal nor the contract is included in the record, and there was no testimony as to the terms of those agreements. LStar maintains that Boston Valet had a contractual duty to assist attendees exiting the parking lot and thus had a duty to prevent attendees from driving intoxicated. Gross asserts that "Boston Valet's scope of services did not include assisting each and every Fall Festival attendee as they exited a parking spot or parking lot at the property." Without knowing what Boston Valet contracted to do, and what role, if any, Gross played in that contractual relationship, her potential liability for any claimed negligence on the part of Boston Valet remains a disputed issue of material fact. See Correa v. Schoeck, 479 Mass. 686, 693 (2018), and cases cited (to prevail in wrongful death suit, plaintiff must prove defendant was negligent and duty is element of negligence). The existence of disputed issues of material fact precluded the entry of summary judgment. Therefore, we vacate the entry of summary judgment in favor of Gross on LStar's indemnification and contribution claims, and remand to the Superior Court for further proceedings consistent with this memorandum and order.
The judge noted, in his summary judgment ruling, that there was no information in the record of the "applicable standard of care in the traffic or parking industry" about the measures Gross or Boston Valet should have taken to prevent the fatal accident. This absence results from the procedural posture of this third- party lawsuit; such information would reasonably be expected to come from Michelle, who is not a party to LStar's third-party suit. We would not expect LStar to present evidence or argument about the negligence of those who organized the event (some of whom may fall within the scope of Gross's contractual indemnity) when such evidence could have exposed LStar to liability in the underlying action.
So ordered.
Green, C.J., Singh &Hershfang, JJ.
The panelists are listed in order of seniority.