Afarian v. Massachusetts Elec. Co.

Decision Date30 May 2007
Docket NumberNo. SJC-09873.,SJC-09873.
Citation449 Mass. 257,866 N.E.2d 901
PartiesKatcher AFARIAN & another,<SMALL><SUP>1</SUP></SMALL> administrators,<SMALL><SUP>2</SUP></SMALL> v. MASSACHUSETTS ELECTRIC COMPANY & others.<SMALL><SUP>3</SUP></SMALL>
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Andrea Peraner-Sweet, Boston (Francis J. Sally with her) for Massachusetts Electric Company.

Thomas M. Elcock, Boston (William A. Worth with him) for New England Telephone & Telegraph Co. & another.

The following submitted briefs for amici curiae:

Matthew R. Peterson & Richard J. Morrison, Cambridge, for Western Massachusetts Electric Company & others.

Nicholas J. Scobbo, Jr., & Sherry L. Vaughn for Massachusetts Municipal Utility Self-Insurance Trust Fund.

Marsha V. Kazarosian, Haverhill & J. Michael Conley, Braintree, for Massachusetts Academy of Trial Attorneys.



This wrongful death case arises out of a fatal automobile crash that was preceded by underage drinking. In the early morning of July 28, 1996, the plaintiffs' son, Peter Afarian (Afarian), was killed when the automobile in which he was a passenger veered off the road and struck a utility pole. The driver, Jason Veilleux, was intoxicated and fell asleep at the wheel. The plaintiffs asserted claims of wrongful death predicated on negligence, gross negligence, and wilful or reckless conduct against Massachusetts Electric Company, New England Telephone and Telegraph Company, and Bell Atlantic Corporation,4 based on the placement of the utility pole. The plaintiffs also asserted wrongful death claims against the defendant Market Basket, Inc., on the ground that it had sold the alcohol consumed by Veilleux to his underage friend. Later in the course of the litigation, the utility defendants moved for summary judgment, contending that they owed no legal duty to Afarian. After discovering that the alcohol consumed by Veilleux had been sold by a supermarket owned by Demoulas Super Markets, Inc. (Demoulas), and not by Market Basket, the plaintiffs moved to amend their complaint to add Demoulas as a defendant. A Superior Court judge granted summary judgment in favor of the utility defendants, and a different Superior Court judge denied the plaintiffs' motion to amend their complaint. We transferred this case here on our own motion. We affirm the challenged orders.

1. Summary judgment. The material undisputed facts relative to the motion for summary judgment are as follows.5 On

July 27, 1996, Veilleux, along with Sean Croteau and Peter Daniels, went to a supermarket6 in Salem, New Hampshire. Daniels, who had his brother's identification, purchased three thirty-packs of beer. They were all below the legal drinking age of twenty-one years. See G.L. c. 138, § 34A. They returned to Massachusetts.

Later that day, Veilleux picked up Afarian, and the two then were joined by some of their other friends. The group drove to Mansfield in two automobiles to attend a concert. They brought the beer that had been purchased earlier that day and drank nearly all of it before the concert started.

After the concert, in the early morning of July 28, Afarian Scott Munroe, and Ryan Moynihan joined Veilleux to return home in the automobile Veilleux was driving, a 1995 Honda Accord. Afarian was seated in the front passenger seat and fell asleep during the ride; Munroe and Moynihan were seated in the back seat. Veilleux was intoxicated. It was a clear night, and the road was dry and well lit. Veilleux was driving east on Route 133 in Andover, a road with which he was familiar. He was traveling at a speed between fifty-one to sixty miles per hour; the posted speed limit was forty miles per hour. Veilleux fell asleep at the wheel. He woke and saw a utility pole five to ten feet in front of him. The pole had a street light on it. Veilleux may have swerved to the left, but he hit the pole. There were no preimpact skid marks to indicate any braking before impact. Afarian was taken to a hospital where he was pronounced dead. The others were not seriously injured. Veilleux later pleaded guilty to charges of driving while intoxicated and motor vehicle homicide.

The crash took place on the south edge of Route 133, just past the entrance to a Raytheon facility and where the road curves to the left. The utility pole was located on the outside of a horizontal curve to the left, some six inches from the edge of Route 133 and between the curb and the sidewalk that run parallel to the road. As Veilleux had approached the curve, he continued straight or slightly to the right, hitting the pole. The point of impact with the pole was approximately six inches from the front right corner of the automobile. At the time of impact, the right front corner of the automobile had crossed approximately twelve inches off the paved portion of Route 133.

The utility pole hit by Veilleux is jointly owned by MEC and the telephone company pursuant to a joint ownership agreement. Under the agreement, MEC is responsible for the care and maintenance of the pole. Each party, however, is responsible for the care and maintenance of its own attachments.

The pole was installed in 1969 pursuant to a license granted by the town of Andover.7 When the pole was set, representatives from both MEC and the telephone company visited the site to determine its exact location and to provide the necessary engineering. The pole was designated by MEC as pole no. 608 and as pole no. 146 by the telephone company. The State highway right of way within which the pole was located extends beyond the edge of the paved roadway. MEC installed the pole in accordance with New England Electric System (NEES) Standard CS 20328 and in accordance with all National Safety Electric Code standards. The pole also complies with Massachusetts regulations.9 See 220 Code Mass. Regs. § 125.23 (1993).

The pole was inspected in 1987 pursuant to NEES Standard 2015, dated July, 1977, and was accepted.10 From the time that the pole was set in 1969, up to and including July 28, 1996, MEC never relocated, replaced, or changed the position of the pole. MEC has complied, and continues to comply, with all National Electric Safety Code and company standards concerning the design, installation, construction, inspection, and maintenance of the pole. After the fatal crash involving Afarian, the pole was replaced by another pole in approximately the same location.

To prevail on their wrongful death claims, the plaintiffs must prove negligence on the part of the utility defendants. An essential element of every negligence claim is the existence of a legal duty, which is the determinative issue in this case. See Glidden v. Maglio, 430 Mass. 694, 696, 722 N.E.2d 971 (2000). The existence of a legal duty is a question of law appropriate for resolution by summary judgment. Jupin v. Kask, 447 Mass. 141, 146, 849 N.E.2d 829 (2006). In the Jupin case, we set forth the guiding principles for determining the existence of a legal duty:

"`The concept of "duty" ... "is not sacrosanct in itself, but is only an expression of the sum total of ... considerations of policy which lead the law to say that the plaintiff is entitled to protection.... No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists."' Luoni v. Berube, 431 Mass. 729, 735 [729 N.E.2d 1108] (2000), quoting W.L. Prosser & W.P. Keeton, Torts § 53, at 358-359 (5th ed.1984). `The assertion that liability must ... be denied because defendant bears no duty to plaintiff "begs the essential question — whether the plaintiff's interests are entitled to legal protection against the defendant's conduct."' Tarasoff v. Regents of the Univ. of Calif., 17 Cal.3d 425, 434 [131 Cal.Rptr. 14, 551 P.2d 334] (1976), quoting Dillon v. Legg, 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912] (1968). `[A] duty finds its "source in existing social values and customs,"' see [Mullins v. Pine Manor College, 389 Mass. 47, 51 449 N.E.2d 331 (1983)], quoting Schofield v. Merrill, 386 Mass. 244, 247 [435 N.E.2d 339] (1982), and thus `imposition of a duty generally responds to changed social conditions.' Petolicchio v. Santa Cruz County Fair & Rodeo Ass'n, 177 Ariz. 256, 262 [866 P.2d 1342] (1994).

"We have recognized that `[a]s a general principle of tort law, every actor has a duty to exercise reasonable care to avoid physical harm to others.' See Remy v. MacDonald , supra at 677 [801 N.E.2d 260 (2004)] citing Restatement (Second) Torts § 302 comment a (1965). A precondition to this duty is, of course, that the risk of harm to another be recognizable or foreseeable to the actor. See Foley v. Boston Hous. Auth., 407 Mass. 640, 646 [555 N.E.2d 234] (1990), quoting Husband v. Dubose, 26 Mass.App.Ct. 667, 669 [531 N.E.2d 600] (1988) (`There is no duty owed when the risk which results in the plaintiff's injury is not one which could be reasonably anticipated by the defendant'). See also Husband v. Dubose, supra (determination whether person has duty to protect other from harm caused by third party `involve[s], to some extent, the foreseeability of the harm'). Consequently, with some important exceptions, `a defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.' Tarasoff v. Regents of the Univ. of Calif., supra at 434-435 [131 Cal.Rptr. 14, 551 P.2d 334]. See Restatement (Second) Torts § 284 (1965) (`Negligent conduct may be ... an act which the actor as a reasonable man should recognize as involving an unreasonable risk of causing an invasion of an interest of another ..., [emphasis added] ). `To the extent that a legal standard does exist for determining the...

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