Sargent v. Casella Waste Management of Massachusetts, Inc.

Appeals Court of Massachusetts.

Edward F. SARGENT & another,

Geraldine Sargent, Edward F. Sargent’s wife, brought a loss of consortium claim against the defendant. For convenience we refer to the plaintiffs in the singular.

v.

CASELLA WASTE MANAGEMENT OF MASSACHUSETTS, INC.

No. 07-P-182.

Jan. 29, 2008.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, who worked for Now Statewide Carting hauling trash, was injured at the Casella Waste Management of Massachusetts, Inc. (Casella), transfer station when he fell off his truck while covering it with a tarp. He brought this action against Casella alleging that he fell as a result of its failure to provide a safe tarping station. (R.A. 7-8) The defendant moved for summary judgment, arguing that it did not owe the plaintiff a duty to provide a tarping station and that even if the judge went beyond the allegations in the complaint and considered a general duty of reasonable care, there was still no evidence of negligence on its part. (R.A. 12-22)  A Superior Court judge allowed the defendant’s motion “[f]or essentially the reasoning stated in the defendant’s memorandum of law.”(R.A. 80) We affirm.

The defendant’s supporting materials included the joint pretrial memorandum, the plaintiff’s answers to the defendant’s interrogatories, and excerpts from the depositions of the plaintiff and the trucker who helped the plaintiff tarp his truck. The plaintiff’s opposition included excerpts from the deposition of Casella’s employee who loaded the truck with trash. The plaintiff did not submit any affidavits.

We review the undisputed material facts, keeping in mind that the summary judgment evidence must be considered in the light most favorable to the opposing party. O’Sullivan v. Shaw, 431 Mass. 201, 203 (2000). The plaintiff had been hauling trash from the Casella facility two to three times per day for five or six months prior to the accident. On the morning of May 4, 2001, the plaintiff backed his truck into the pit. The pit had more garbage than usual, interfering with the loading process. Casella’s employee, who was loading the garbage into the trucks, asked the plaintiff to pull forward about eight feet so that he could swing the loader around and reach the back of the plaintiff’s truck. (R.A. 50:73)

“R.A. 50:73” refers to page 73 of a transcript that is reprinted in 1/4 size, four to a page, on record appendix page 50. Similar references appear throughout this memorandum.

When the truck was loaded, the plaintiff went atop the truck to cover it with a tarp. Although there are tarping systems that do not require the trucker to stand on top of the load, the plaintiff’s truck was not equipped with such a system. (R.A. 56:17, 57:18) The plaintiff stood two to three feet from the back of the truck and four feet from the side of the truck. Christopher Cogan, another trucker, went up to help the plaintiff. After the plaintiff threw his part of the canvas, “the next thing I know is I was in the air …. [and landed] [o]ut behind the trailer, between the trailer and the end of the pit.”(R.A. 52:81) He had no recollection of how he fell. (R.A. 52:81) Cogan testified at his deposition that when you are on top of the truck, “if you’re not very careful, you fall overboard” (R.A. 59:28-29), but that he did not see how the plaintiff fell.

“[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, by reference to material described in Mass.R.Civ.P. 56(c) [, 365 Mass. 824 (1974) ], 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). In a negligence case, the plaintiff has to show that the defendant breached a duty of care, that the plaintiff suffered a loss, and that the defendant’s negligence caused the loss. Glidden v. Maglio, 430 Mass. 694, 696 (2000). The existence of a duty is a question of law for the judge.Davis v. Westwood Group, 420 Mass. 739, 743 (1995).

The plaintiff argues that the defendant breached its duty of care by failing to provide a safe tarping area. He testified at his deposition that he hauled garbage from three locations and that one of them had a walkway on three sides at its tarping area. He had not hauled trash from any other locations with such a tarping area. (R.A. 46:37) Cogan testified that he knew of one facility that had a tarping station, but that the trucker still had to get on top of the truck in order to tarp, the only difference being that there one could use the stairs to go up while at Casella one used the ladder on the side of the truck. (R.A. 57:21)

In its summary judgment memorandum, the defendant referred to and quoted from Federal regulations said to require truck drivers to cover their loads. Neither party alleged that there were any State or Federal regulations requiring a tarping station, nor that it was an industry practice to provide them in areas from which trash or debris is hauled. See Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989). Based on the summary judgment materials, the judge could properly conclude that the plaintiff would not be able to prove at trial that the defendant’s failure to provide a tarping station at its facility constituted negligence which caused the plaintiff’s fall.

The defendant quoted the following sections of 49 CFR § 392.9 (2006):

“(a) General. A driver may not operate a commercial motor vehicle and a motor carrier may not require or permit a driver to operate a commercial motor vehicle unless-

“(1) The commercial motor vehicle’s cargo is properly distributed and adequately secured….

“(b) Drivers of trucks and truck tractors. Except as provided in paragraph (b)(4) of this section, the driver of a truck or truck tractor must-

“(1) Assure himself/herself that the provisions of paragraph (a) of this section have been complied with before he/she drives that commercial motor vehicle….”

The plaintiff also alleges three violations of the general duty of care by the defendant. Even if we went beyond the allegations of the complaint, this would not affect the result. As an initial matter, the plaintiff argues that the defendant’s requirement that two people tarp the truck was negligent and caused the plaintiff’s fall. Although there was evidence that one person, whether an employee of Casella or another truck driver, such as Cogan, would generally help with tarping, there was no evidence that this was a requirement. Cogan, an independent trucker, testified that he was probably next in line or the next one after that and that “out of courtesy you help” and that he helped the plaintiff “[p]lenty of times.” (R.A. 58:24, 59:26) When asked why Cogan would help him, the plaintiff testified that “He’s (sic) just another truck driver waiting to get in, wanting me to get out of there so he could get in, so he was going to give me a hand.”(R.A. 51:75)

The plaintiff’s second claim is that the defendant should have provided a walkway or a safety harness. As discussed above, there was no evidence that a walkway or a tarping station was required by any regulation or custom or that any regulation or custom required the owner of the transfer station to provide a safety harness for truckers who came to its facility. Moreover, the plaintiff testified that while working for Now Statewide Carting, he never used a safety harness when tarping his truck. (R.A. 49:47) Cogan also testified that he did not use nor did he ever see anybody use a safety harness while tarping a load. (R.A. 58:22)

The plaintiff’s last claim is that the loader’s instruction to move the truck eight to ten feet forward caused his fall and injuries. While the resulting position of the truck increased the height of the plaintiff’s fall, the position of the truck did not cause the plaintiff’s fall. (R.A. 52:81) The plaintiff did not present any evidence that the defendant was negligent in asking him to move the truck, or that it was the loader’s duty to take precautions against a driver’s falling in the course of covering the load.

The order allowing the defendant’s motion for summary judgment was proper.

Judgment affirmed.