McNamara v. Massachusetts Port Authority

• Decision Date: 30 July 1991
• Docket Number: No. 89-P-1012,89-P-1012
• Citation: 30 Mass.App.Ct. 716,573 N.E.2d 510
• Parties: Laura McNAMARA v. MASSACHUSETTS PORT AUTHORITY.
• Court: Appeals Court of Massachusetts

Page 510

573 N.E.2d 510

30 Mass.App.Ct. 716

Laura McNAMARA v. MASSACHUSETTS PORT AUTHORITY.

No. 89-P-1012.

Appeals Court of Massachusetts,

Suffolk.

Argued Jan. 14, 1991.

Decided June 19, 1991.

Further AppellateReview Denied

July 30, 1991.

David M. Lipton (David Hayes Erickson with him), Boston, for plaintiff.

John P. Mulvey, Boston, for defendant.

Before DREBEN, KASS and LAURENCE, JJ.

LAURENCE, Justice.

This appeal arises out of an accident that occurred while the plaintiff, Laura McNamara, was driving an employee shuttle bus at Logan International Airport, a facility controlled by the defendant Massachusetts Port Authority (Massport). McNamara was driving the bus as an employee of Suburban Airport Transit Corporation (Suburban), a bus service company with which Massport had contracted to operate the buses Massport employees used to travel from their designated parking areas to their Massport work locations.

McNamara's complaint alleged that she was injured because her bus's steering mechanism malfunctioned, ¹ that Massport had a duty to maintain the bus, and that Massport failed in that duty. After extensive discovery, a Superior Court judge allowed Massport's motion for summary judgment.

The summary judgment materials established the following undisputed facts: (1) Suburban's bus operation proposal to Massport had provided that Suburban would be responsible for all bus maintenance and repair; (2) the agreements between Massport and Suburban stated that Suburban was to be an independent contractor; (3) the agreements placed the obligations of bus maintenance and repair on Suburban; (4) Suburban, not Massport, selected and owned the employee buses; (5) McNamara was employed by Suburban and not Massport; and (6) at no time did Massport or any of its employees undertake to operate, maintain or make repairs on any of the employee buses, or supervise anyone at Suburban regarding such activities. Furthermore, nothing in the submitted materials revealed that Massport knew or should have known of any problems or complaints concerning the maintenance, repair or mechanical condition of any of the employee buses, including the bus driven by McNamara, prior to her accident.

Massport was properly entitled on that record to judgment as a matter of law. Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). See Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 626, 536 N.E.2d 1067 (1989). Even with all inferences from the facts presented to the judge on the motion drawn in the light most favorable to her and all doubts regarding material facts resolved against Massport, Attorney Gen. v. Bailey, 386 Mass. 367, 371, 436 N.E.2d 139, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970, 103 S.Ct. 301, 74 L.Ed.2d 282 (1982), McNamara failed to show that Massport owed her any duty giving rise to tort liability. More specifically, the undisputed material facts did not demonstrate any duty owed her by Massport with respect to maintenance or repair of the employee shuttle bus she was driving.

McNamara argues that Massport should be held liable on the basis of Restatement (Second) of Torts § 414 (1965), ² adopted as a principle of Massachusetts law in Corsetti v. Stone Co., 396 Mass. 1, 10-11, 483 N.E.2d 793 (1985). The application of § 414 depends on whether Massport retained sufficient control ³ over Suburban's bus maintenance and repair work. McNamara's assertion that Massport had such control relies on Article V, Section D, of the Massport-Suburban agreement, which provided that:

"Any vehicle and equipment of the service, which in the opinion of the Authority or its designee fails to meet the requirements herein, shall immediately upon the Authority's direction, be removed from the service and a substitute vehicle shall be immediately provided by the Authority. The vehicle and/or equipment removed shall not be returned to the service until the condition complained of and any other deficient condition has been corrected."

As the judge pointed out, however, this section did not impose a duty on Massport to maintain or repair Suburban's buses ⁴ and did not constitute a retention by Massport of control over the manner in which any repair work by Suburban was to be done. Cf. Agustynowicz v. Bradley, 25 Mass.App.Ct. 405, 407-408, 519 N.E.2d 599 (1988). Instead, the provision merely gave Massport a right analogous to that of making suggestions or recommendations, ordering alterations or deviations in performance, or (most pertinently) rejecting unsatisfactory work and demanding correction. None of these reserved rights is sufficient to bring Massport within the Restatement rule, as explained by comment c to § 414:

"In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way."

See Foley v. Rust Intl., 901 F.2d 183, 185 (1st Cir.1990) (under Massachusetts law and § 414, general right to stop unsatisfactory work not enough control to impose tort liability). See also Boutwell v. Chevron U.S.A., Inc., 864 F.2d 406, 408-409 (5th Cir.1989); Sharkey v. Airco, Inc., 522 F.Supp. 646, 652 (E.D.Pa.1981), aff'd, 688 F.2d 824 (3rd Cir.1982); Hood v. Hess Oil Virgin Islands Corp., 650 F.Supp. 678, 680-681 (D.V.I.1986); Buxton v. Amoco Oil Co., 676 F.Supp. 722, 728 (W.D.La.1987); Farren v. General Motors Corp., 708 F.Supp. 436, 446 (D.Mass.1989). Cf. Schlenk v. Northwestern Bell Tel. Co., 329 N.W.2d 605, 606-608 (N.D.1983).

McNamara's reliance on Corsetti v. Stone Co., 396 Mass. 1, 483 N.E.2d 793 (1985), is mistaken. The contract in that case specified that the defendant employer, and not the independent contractor, was responsible...