Monadnock Display Fireworks, Inc. v. Town of Andover

• Decision Date: 11 February 1983
• Citation: 388 Mass. 153,445 N.E.2d 1053
• Parties: MONADNOCK DISPLAY FIREWORKS, INC. v. TOWN OF ANDOVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1053

445 N.E.2d 1053

388 Mass. 153

MONADNOCK DISPLAY FIREWORKS, INC. v. TOWN OF ANDOVER.

Supreme Judicial Court of Massachusetts Essex.

Argued Oct. 7, 1982.

Decided Feb. 11, 1983.

John P. Ryan, Plymouth, for plaintiff.

Alfred L. Daniels, Town Counsel, Andover, for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, NOLAN and O'CONNOR, JJ.

O'CONNOR, Justice.

The plaintiff, Monadnock Display Fireworks, Inc. (Monadnock), appeals from a judgment for the defendant, the town of Andover, which was based on the doctrine of sovereign immunity. We hold that sovereign immunity is not a defense to Monadnock's claim for indemnity grounded on breach of contract, and we reverse the judgment.

The original complaint alleged a right of contribution toward a payment of $66,000 made by Monadnock to Robert DePierre in settlement of an earlier action commenced by DePierre, through his father, against Monadnock, Andover, and others. The earlier action had been brought to recover for personal injuries suffered by DePierre when he detonated a fireworks device which came into his possession following a fireworks display performed by Monadnock for Andover. After filing its original complaint, Monadnock amended the complaint by adding a claim for indemnity based on contract. The amended complaint alleged a written contract between Monadnock and Andover, dated April 6, 1973. The contract, admitted in evidence at trial, provided that Monadnock would present a display of fireworks on July 4, 1973, and that Andover would "furnish a suitable place to display the said fireworks, and ... furnish necessary police, fire and sponsors protection, for proper crowd control, auto parking ... and proper supervision in clearing the area of debris after the Display." The contract was executed on behalf of Andover by its town manager. He was authorized by Andover's charter to execute contracts on behalf of the town, and was authorized by the town meeting to execute this particular contract. On July 4, the display was presented by John Duval on behalf of Monadnock. A crowd in excess of ten thousand people was present. Immediately after the display, hundreds of children rushed to Duval's truck, which contained explosive devices. The children were throwing firecrackers in the area of the truck. No police had been detailed to stay with the truck either during or after the display. Duval was attempting to search the area for unexploded devices after the display, but the police and fire departments provided him with no protection. Because Duval feared the prospect of an explosion or theft at the truck, he abandoned his search for unexploded devices and went to guard the truck. He stayed after the display for about an hour, and received no assistance from police or fire personnel.

There was further evidence that following the display Robert DePierre, then fourteen years old, walked onto the display area in search of display remnants. He found a cardboard cylinder that he assumed would produce colors similar to those he had seen earlier. Later that evening DePierre dumped some powder out of the cylinder and lit it. He then shook more powder from the device onto the flame and the device exploded, causing DePierre to lose his right, major hand. An action was commenced on DePierre's behalf against Duval, Monadnock, Henry L. Hilton, who was Andover's fire chief, and Andover. Monadnock negotiated and paid a $66,000 settlement and obtained a release of all defendants.

In the instant action, the judge submitted four questions to the jury, pursuant to Mass.R.Civ.P. 49(a), 365 Mass. 812 (1974). The questions and the jury's answers were as follows:

"[1.] Was the Town of Andover negligent in the performance or failure to perform its obligations under the contract with Monadnock?" Answer: "Yes."

"[2.] Was the Town's negligence, if any, a proximate cause of the injury to Robert DePierre?" Answer: "Yes."

"[3.] Was Monadnock negligent in its performance of the fireworks display?" Answer: "No."

"[4.] Was Monadnock's negligence, if any, a proximate cause of the injury to Robert DePierre?" Answer: "No." The jury were not asked whether the settlement of DePierre's claim by Monadnock was fair and reasonable, and neither party demanded submission of that question to the jury. However, the judge made a finding on this issue, as he was permitted to do by Mass.R.Civ.P. 49. He found that the $66,000 settlement was fair and reasonable.

DePierre's injuries occurred on July 4, 1973. Any claim by DePierre against Andover is therefore barred by the common law doctrine of sovereign immunity. Vaughan v. Commonwealth, 377 Mass. 914, 915, 388 N.E.2d 694 (1979). Whitney v. Worcester, 373 Mass. 208, 366 N.E.2d 1210 (1977). General Laws c. 258, as appearing in St.1978, c. 512, § 15, the Massachusetts Tort Claims Act, does not apply to causes of action arising before August 16, 1977. St.1978, c. 512, § 16. Monadnock now concedes that, because Andover could not be liable to DePierre in tort for negligence, Andover cannot be liable to Monadnock for contribution as a joint tortfeasor pursuant to G.L. c. 231B. See Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524, 373 N.E.2d 957 (1978); O'Mara v. H.P. Hood & Sons, 359 Mass. 235, 268 N.E.2d 685 (1971). However, freedom from tort liability does not prevent liability for contractual indemnity, Whittle v. Pagani Bros. Constr. Co., 383 Mass. 796, 422 N.E.2d 779 (1981) (defendant claiming express contractual indemnity may implead the plaintiff's employer despite provisions of G.L. c. 152, § 23, releasing the employer from tort claims of the employee). Monadnock relies in this court only on its contractual indemnity claim.

We agree with Andover that for a town to be bound by a contract made on its behalf there must be underlying authority in the town to make the contract and the contract must be made by the town's authorized agent. Lord v. Winchester, 355 Mass. 788, 789, 244 N.E.2d 730 (1969). Lowell v. Massachusetts Bonding & Ins. Co., 313 Mass. 257, 272, 47 N.E.2d 265 (1943). Andover's only challenge to the authority of the town or its agent to enter into the contract with Monadnock, unsupported by citation of authority, is that "it may not contract away ... sovereign immunity." The doctrine of sovereign immunity, as in effect prior to the Massachusetts Tort Claims Act, was that a municipality was immune from liability for certain tortious acts, Whitney v. Worcester, 373 Mass. 208, 366 N.E.2d 1210 (1977), which are breaches of duty arising by operation of law, Scandura v. Trombly Motor Coach Serv., Inc., 370 Mass. 612, 618, 351 N.E.2d 202 (1976), rather than by operation of contract. The effect of the contract in question is not the relinquishment by Andover of a defense to an action asserting breach of a duty imposed by law. The defense of sovereign immunity from liability to DePierre and members of the public was left in place by the contract. Apart from the contract, Andover owed no duty to Monadnock to supervise clearing of the fireworks area after the display, for breach of which...