Robertson v. McCarte

• Court: Appeals Court of Massachusetts
• Citation: 433 N.E.2d 1262,13 Mass.App.Ct. 441
• Parties: Nancy A. ROBERTSON et al. v. Richard F. McCARTE et al.
• Decision Date: 21 April 1982

Page 1262

433 N.E.2d 1262 13 Mass.App.Ct. 441 Nancy A. ROBERTSON et al.
v.
Richard F. McCARTE et al. Appeals Court of Massachusetts, Middlesex. Argued March 8, 1982.
Decided April 21, 1982.

Page 1263

Stephen J. Brown, Lunenburg, for plaintiffs.

Joan B. Gozonsky, Boston, for defendants.

Before HALE, C. J., and GRANT and PERRETTA, JJ.

HALE, Chief Justice.

A Superior Court judge allowed the defendants' motion for dismissal pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), in an action in which the plaintiffs sought contribution for sums paid by them in settlement of an automobile accident. The single issue presented is whether one of two or more joint tortfeasors who enters into a settlement with a claimant which releases all tortfeasors may recover contribution from the other wrongdoer(s) under G. L. c. 231B.

The complaint alleges that the plaintiff Jerome L. Robertson was driving an automobile which struck a three year old boy, Mark Shapiro; that the other plaintiff and owner of the automobile, Nancy A. Robertson, was riding in the car at the time; that Mark was under the supervision of the defendant Karen L. McCarte and playing at the home of Karen and Richard F. McCarte when he darted from their driveway into the path of the automobile; and that the accident[13 Mass.App.Ct. 442] was caused by Karen's negligent failure adequately to supervise the boy and by Karen's and Richard's negligence in allowing shrubbery to grow on their property in such a manner as to obscure Jerome's vision so that he could not see the boy run into the street.

The complaint further alleges that an investigation was conducted on behalf of the plaintiffs from which it appeared that, as a result of the accident, Mark had sustained injuries and hospital expenses which could be the basis for a substantial recovery. A settlement was entered into for $75,000, and a release was given by Mark's parents for themselves and on his behalf which ran in favor of both Robertsons and both McCartes. The Robertsons (or their insurer) paid ¹ the full amount of the settlement, pursuant to G.L. c. 231B. Their motion to dismiss was grounded on G.L. c. 231B, § 4(b), which states that a release given to one of two or more joint tortfeasors in good faith discharges that tortfeasor from liability for contribution to any other tortfeasor. We reverse the judgment of dismissal.

The text of G.L. c. 231B, § 4, as set out in the margin, ² cannot be read in isolation

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but must be read in context with the other sections of that chapter and " 'considered in connection with the cause of its enactment, the mischief ... to be remedied and the main object to be accomplished, to the [13 Mass.App.Ct. 443] end that the purpose of its framers may be effectuated.' (citations omitted)." Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513, 333 N.E.2d 450 (1975). It has been recognized as "plain that the evil to be remedied (by c. 231B) was the unfairness of allowing a disproportionate share of the plaintiff's recovery to be borne by one of several joint tortfeasors, and the object to be accomplished was a more equitable distribution of that burden among those liable in tort for the same injury." Hayon v. Coca Cola Bottling Co. of New England, 375 Mass. 644, 648, 378 N.E.2d 442 (1978).

Section 1(a) of chapter 231B establishes a right of contribution even though no judgment has been entered against the tortfeasors, a...