Appeals Court of Massachusetts.
Annemarie LEBRUN,
v.
THE STOP & SHOP SUPERMARKET COMPANY.
No. 05-P-1160.
July 31, 2006.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case concerns the liability of The Stop & Shop Supermarket Company (Stop & Shop) for a tragic accident, in which a dolly converter (used to attach the second of two trailers to a truck) disengaged from a truck delivering a single trailer of juice to Stop & Shop. The dolly converter crossed several lanes of highway and the median, and killed the plaintiff’s decedent. A Superior Court judge granted Stop & Shop’s motion for summary judgment, ruling that Hills Trucking, Inc. (Hills), the trucking company that owned (and by a third party, operated) the truck involved in the accident and had been hired by Stop & Shop to deliver its goods, was an independent contractor, and that Stop & Shop was not subject to liability under any of the exceptions to the general rule that employers are not ordinarily liable for the negligence of an independent contractor. The Superior Court judge also ruled that the trucking activity involved was not an “inherently dangerous” activity, such that Stop & Shop would be liable for the negligence of its independent contractors. We affirm.
1. Factual background. Viewed in the light most favorable to the plaintiff under the governing summary judgment standard, the undisputed material facts are as follows. In 1999, Stop & Shop, an operator of supermarkets, entered into a contract with Hills for the delivery of goods, purchased by Stop & Shop from vendors, to Stop & Shop’s distribution warehouses. The agreement provides that Stop & Shop will designate a time and place of delivery of goods, and Hills is responsible for arranging the pick up of said goods to facilitate their timely delivery. The agreement explicitly states that “CARRIER [Hills] shall solely determine the means and methods of performance of all transportation services under this Contract undertaken by the CARRIER, and shall retain all responsibility for … maintenance of its tractor and trailer … for the safe and efficient operation and maintenance of its equipment and safe operation of the vehicles over the road.” The agreement further indicates that “CARRIER acknowledges that the vehicle operator will not in any way be under the direction, supervision or control of the RECEIVER [Stop & Shop] … [t]he CARRIER shall perform the services hereunder as an independent contractor.” Hills is required to carry insurance, including liability insurance and workers’ compensation insurance, and to indemnify Stop & Shop for any liability.
The contract is between Hills and Stop & Shop’s parent company, Ahold USA, Inc. As do the parties, we will use the term “Stop & Shop” to refer to both entities.
Hills subsequently entered into an agreement with Danny Farnham (Farnham) to operate Hills’s trucks and to transport goods. Hills was responsible for verifying that Farnham was properly trained and educated for operating trucks, for towing, and for use of truck equipment, including converter dollies that permit a truck to tow tandem trailers on certain interstate highways. Stop & Shop was not involved in Hills’s selection and training of its drivers.
At the time of the accident, Stop & Shop and Hills had been doing business under the contract for more than four years. Stop & Shop did not consult with Hills as to what type of trucks were used in its deliveries, and it had no knowledge of what types of trucking equipment Hills used to make the deliveries. Stop & Shop’s purchase orders were limited to one truckload of goods.
On July 2, 2003, Farnham was summoned by Hills to deliver a single trailer of fruit juice from Dunkirk, New York, to the Stop & Shop distribution center in Readville. Farnham was also asked to deliver a separate order, for pet food, to be transported in a second trailer, to Gardiner, Maine. The two deliveries were combined into one tandem delivery, i.e., one tractor pulling two trailers, connected with a dolly converter. This combination of two trailers is not permitted on the roads of Massachusetts, except on the Massachusetts Turnpike. To exit the Turnpike and complete the first delivery, to Stop & Shop, Farnham was required to detach the second trailer and the dolly converter in a designated breakdown area of the Turnpike, near Weston. However, the dolly converter was not properly detached. Shortly after Farnham drove back on to the highway with the now single trailer loaded with fruit juice destined for Stop & Shop, the converter, still attached to the now single trailer, came loose and traveled across the highway median. The converter struck the vehicle in which the plaintiff’s decedent was traveling as a passenger and killed the plaintiff’s decedent.
The evidence before the motion judge concerning the accident included a Massachusetts State police accident reconstruction report. Stop & Shop objected to the admission of this report and moved to strike it, arguing that the report contained multiple levels of hearsay and would be inadmissible at trial. The record does not reflect whether the judge ruled on this motion to strike. Nevertheless, in his decision on Stop & Shop’s motion for summary judgment, the judge referenced factual information from this report. Because our determination as to Stop & Shop’s liability rests on the nature of the contract between Hills and Stop & Shop, we need not further address the judge’s consideration of the report with respect to the facts involving the accident occurrence.
Although there appears to be some dispute between the parties concerning whether a particular affidavit, supporting the fact that the second trailer was destined for a customer other than Stop & Shop, was properly before the motion judge, the evidence in the record was that Farnham was summoned by Hills to deliver only a single trailer of juice to Stop & Shop, and that the second trailer was not part of the Stop & Shop order. There is no evidence in the record that would tend to dispute this fact.
2. Hills’s status as independent contractor. Despite the language in the contract between Hills and Stop & Shop designating Hills an independent contractor, the plaintiff argues that Hills was not, in fact, an independent contractor, but was acting as Stop & Shop’s agent or employee, and that Stop & Shop should be held liable under the doctrine of respondeat superior. “To determine whether one is an employee or an independent contractor, we look to certain indicia of the employment relationship. Whether an individual is an employee … or whether the individual is an independent contractor is ordinarily a question of fact.” National Assn. of Govt. Employees v. Labor Relations Commn., 59 Mass.App.Ct. 471, 474 (2003), and cases cited. “If in the performance of his work an individual is at all times bound to obedience and subject to direction and supervision as to details, he is an employee; but if he is only responsible for the accomplishment of an agreed result in an agreed manner, he is an independent contractor.” Brigham’s Case, 348 Mass. 140, 141-142 (1964). “The primary test is whether one has a right to control the individual’s work performance.” National Assn. of Govt. Employees, supra.
The principle of respondeat superior provides that “an employer … should be held vicariously liable for the torts of its employee … committed within the scope of employment.” Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 319-320 (2002).
As quoted above, the contract in this case provides that Hills is solely responsible for the means and methods of its performance under the contract. The plaintiff presented no evidence that Stop & Shop had any control over the manner in which Hills provided delivery, including the selection of trucks and trailers, the training of drivers, or the determination of the route taken. The only directive given by Stop & Shop, under the contract, was the time and date by which delivery was to be made. In other words, Hills was “only responsible for the accomplishment of an agreed result in an agreed manner.” Brigham’s Case, supra at 142. Simply put, no evidence existed in the record that Hills (or Farnham, Hills’s employee) was the agent or employee of Stop & Shop, and the plaintiff had “no reasonable expectation of proving [this] essential element of [her] case.” Dias v. Brigham Med. Assocs., Inc., 438 Mass. 317, 319 (2002), quoting from Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
3. Inherently dangerous activity exception. It is well established that, as an employer of an independent contractor, Stop & Shop would ordinarily not be liable for Hills’s negligence (or, further, for the negligence of Farnham, Hills’s employee). Santella v. Whynott, 27 Mass.App.Ct. 451, 453 (1989), citing Restatement (Second) of Torts § 409 (1964). The plaintiff argues that, even if Hills is an independent contractor, this case falls under an equally well-established exception to this rule, namely, that “one who hires an independent contractor to perform work which is inherently dangerous is liable for failure to take precautions.” Vertentes v. Barletta Co., 392 Mass. 165, 168 (1984), citing Whalen v. Shivek, 326 Mass. 142, 150 (1950). See Restatement (Second) of Torts § 416 (1965). The question posed for summary judgment is whether the work Stop & Shop hired Hills to perform was inherently dangerous, or, put another way, created “a peculiar risk of physical harm to others,” within the meaning of this rule. Ibid. We determine that it was not.
Section 416 does not employ the term “inherently dangerous,” but applies to an activity “which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken.”
The commentary to the Restatement (Second) of Torts is instructive: “A ‘peculiar risk’ is a risk differing from the common risks to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community…. Thus if a contractor is employed to transport the employer’s goods by truck over the public highway, the employer is not liable for the contractor’s failure to inspect the brakes on his truck, or for his driving in excess of the speed limit, because the risk is in no way a peculiar one, and only an ordinary precaution is called for. But if the contractor is employed to transport giant logs weighing several tons over the highway, the employer will be subject to liability for the contractor’s failure to take special precautions to anchor them on his trucks.” Restatement (Second) of Torts, supra at § 416 comment d, at 397. The plaintiff urges that the task performed by Hills in this instance is akin to the transportation of giant logs, and argues that, at the very least, a jury question is presented as to whether Hills was engaged in an inherently dangerous activity. We disagree.
The plaintiff would urge this court to conflate the activity performed by Hills, the use of tandem trailers attached by a dolly converter, with the activity Stop & Shop hired Hills to perform: the transportation of a single trailer of fruit juice across State lines. The rule of employer liability for independent contractor negligence “has no application where the negligence of the contractor creates a new risk, not inherent in the work itself or in the ordinary or prescribed way of doing it, and not reasonably to be contemplated by the employer.” Restatement (Second) of Torts, supra at § 427 comment d, at 417. Here, the undisputed evidence in the record demonstrates that Stop & Shop requested that Hills deliver a single trailer, and that Hills’s decision to combine the Stop & Shop delivery with another delivery was a “new risk” created by Hills and not inherent in the work commissioned by Stop & Shop. In this case, the plaintiff has not established that Stop & Shop had responsibility for or control over this aspect of Hills’s operation, i.e., the use of tandem trailers. Put another way, “the danger of which the plaintiff complains was due not to the nature of the work but to the negligent performance by the contractor of a detail which it was not intended or expected that it would do.” Kunan v. DeMatteo, 308 Mass. 427, 430 (1941).
The plaintiff urges this court to consider whether Stop & Shop knew or had reason to know that Hills would use tandems to combine Stop & Shop deliveries with other deliveries. The plaintiff points to no evidence in the record to support this allegation, however, nor is it a reasonable inference from the other evidentiary materials. An “unsubstantiated speculation as to what future evidence might show is insufficient to avoid summary judgment.” Hanover Ins. Co. v. Leeds, 42 Mass.App.Ct. 54, 59-60 n. 6 (1997).
Given our conclusion, we are not required to reach, in this case, the question whether the use of tandem trailers may, in certain circumstances, constitute an “inherently dangerous activity .”
As Stop & Shop did not hire Hills to perform a delivery involving the use of tandem trailers, the only way the plaintiff could survive summary judgment would be if the interstate trucking of a single trailer of fruit juice were, as matter of law, an inherently dangerous activity. As the trial judge correctly found, such a determination “would impose a huge burden and risk on any business which orders product and arranges for it to be transported by an independent trucking firm.” Interstate trucking of such a commodity is an ordinary, everyday activity. “The imposition of vicarious liability on the employer of an independent contractor who fails to take reasonable precautions in performing inherently dangerous work ‘is grounded in a recognition that the possibility of harm to others is so great when the work activity is inherently dangerous that the law tolerates it only on terms insuring the public against injury.” ’ Vertentes v. Barletta Co., 392 Mass. at 175, quoting from Jackson v. Petit Jean Elec. Co-op, 270 Ark. 506, 510 (1980) (Abrams, J., concurring). This simply cannot be said about interstate trucking, and the plaintiff proffered no evidence that could lead a rational jury to determine that Stop & Shop hired Hills to engage in an inherently dangerous activity. Because “no rational view of the evidence” would permit a finding of liability, summary judgment was appropriate. See Roderick v. Brandy Hill Co., 36 Mass.App.Ct. 948, 949 (1994).
The plaintiff’s reliance on Barry v. Keeler, 322 Mass. 114, 126-127 (1947), in support of this proposition is unavailing. The Barry case involved the liability of an interstate contract carrier (such as Hills Trucking) for the negligence of its independent contractor driver, relying on Restatement of Torts § 428 (1934), which provides that an entity “carrying on an activity which can be lawfully carried on only under a franchise granted by public authority and which involves an unreasonable risk of harm to others, is subject to liability for bodily harm caused to such others by the negligence of a contractor employed to do work in carrying on the activity.” Stop & Shop, here, was acting as a customer of Hills and was not operating in connection with this incident as an interstate contract carrier. Furthermore, the Barry case cannot be read to stand for the proposition that interstate trucking does, in fact, pose an “unreasonable risk of harm to others,” as the Barry court explicitly stated that it accepted the principle of this section of the Restatement “without adopting the word ‘unreasonable’ as wholly appropriate in this connection.” Barry v. Keeler,supra at 127.
4. Motion for reconsideration. “[T]here is no duty to reconsider an issue or a question of fact or law, once decided….” Phoenix Home Life Mut. Ins. Co. v. Brown, 49 Mass.App.Ct. 657, 661 (2000). The plaintiff argues that newly submitted materials included with the motion for reconsideration should have compelled the judge to reconsider. Even assuming, arguendo, that these materials were properly before the court, cf. Clamp-All Corp. v. Foresta, 53 Mass.App.Ct. 795, 808 (2002) (where party failed to offer “any reasonable excuse for its failure to submit the materials included with its motion for reconsideration earlier,” the judge is “not required even to consider the motion for reconsideration, let alone to allow it”), none of these materials counter the conclusion reached by the motion judge, nor do they counter the analysis above.
These materials included, but were not limited to, the affidavit of an alleged expert stating that double trailer combinations have special handling characteristics, and information concerning the weight of the trailers and dolly converter involved.
5. Attorney’s fees and costs. While we consider the plaintiff’s arguments to be unpersuasive, we do not consider them frivolous. Accordingly, the defendant’s motion for attorney’s fees and costs under Mass.R.A.P. 25, as amended, 378 Mass. 925 (1979), is denied.
Judgment affirmed.
