30 Mass. App. Ct. 716

January 14, 1991 - June 19, 1991

Suffolk County


In an action against the Massachusetts Port Authority by a plaintiff who alleged injury as the result of a malfunction of the bus she was operating while employed by a contractor that furnished bus service for the authority, summary judgment was properly entered for the authority where the materials before the judge did not demonstrate any duty that it owed the plaintiff with respect to maintenance of the bus [717-720], and where the plaintiff offered no evidence in support of her alternative theory that the authority had been negligent in its selection of a contractor [720].

CIVIL ACTION commenced in the Superior Court Department on November 28, 1984.

The case was heard by Robert A. Mulligan, J., on a motion for summary judgment.

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

John P. Mulvey for the defendant.

LAURENCE, J. 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.

Page 717

McNamara's complaint alleged that she was injured because her bus's steering mechanism malfunctioned, [Note 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 (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, cert. denied sub nom. Bailey v. Bellotti, 459 U.S. 970 (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

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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 Section 414 (1965), [Note 2] adopted as a principle of Massachusetts law in Corsetti v. Stone Co., 396 Mass. 1 , 10-11 (1985). The application of Section 414 depends on whether Massport retained sufficient control [Note 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 [Note 4] and did not constitute a retention by Massport of control

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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 (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 Section 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 Section 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. 680, 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).

Page 720

McNamara's reliance on Corsetti v. Stone Co., 396 Mass. 1 (1985), is mistaken. The contract in that case specified that the defendant employer, and not the independent contractor, was responsible for the initiation, maintenance, and supervision of job site safety, as well as compliance with all applicable safety regulations. Id. at 6. Liability resulted from the employer's failure to take adequate safety measures in the face of those obligations. Id. at 9-12. Compare Foley v. Rust Intl., 901 F.2d at 185 (distinguishing Corsetti on the basis of that contractual provision).

McNamara makes an alternative argument, relying on Section 411 of the Restatement, [Note 5] that Massport failed to exercise reasonable care in the selection and employment of Suburban. It also fails. She presented no evidence to support this contention, as the judge properly concluded. See Doyle v. LaCroix, 336 Mass. 484 , 487 (1957). [Note 6]

Judgment affirmed.


[Note 1] Materials submitted by McNamara on the summary judgment motion also alleged defects in the braking system.

[Note 2] Section 414 states: "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care."

[Note 3] Although control in cases involving Section 414 is ordinarily a factual issue to be resolved by the jury, summary judgment is proper when, as here, the plaintiff fails to provide evidence creating a genuine issue for trial. See Hood v. Hess Oil Virgin Islands Corp., 650 F. Supp. 678, 680 (D.V.I. 1986). Similarly, judicial reluctance to grant summary judgment in negligence actions should not preclude entering such judgment in appropriate cases. See, e.g., Watson v. Salvoni, 27 Mass. App. Ct. 735 (1989).

[Note 4] Indeed, the very next paragraph of the agreement, Section E, stated that "Operator [Suburban] shall immediately and promptly repair any damage, perform the necessary maintenance and/or replace the necessary parts so as to return such vehicle to operation in the service as soon as possible." Article V also required Suburban to follow a preventative maintenance program for the buses which could be adjusted to "conform to the highest standards in the industry."

[Note 5] "An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor . . . to perform any duty which the employer owes to third persons." Restatement (Second) of Torts Section 411 (1965). There appears to be no case law in Massachusetts interpreting Section 411.

[Note 6] McNamara submitted affidavits indicating that just before her accident, a woman fell to her death from a Massport passenger shuttle due to a defective door and that Suburban dismissed one of its passenger bus drivers because he refused to drive an unsafe bus. (Suburban operated Massport's passenger shuttle bus service at Logan Airport under a separate agreement executed earlier than the employee shuttle bus service agreement.) Whether or not these facts might indicate negligence on the part of Suburban, they failed to provide a tortious link to Massport with respect to the employee buses or to support the contention of negligent employment. A malfunctioning bus does not by itself raise any presumption of incompetence to maintain or repair buses, let alone of negligent hiring, see Schlenk v. Northwestern Bell Tel. Co., Inc., 329 N.W.2d at 614; nor does the firing of an employee over a safety issue establish negligence, particularly when McNamara made no showing that Massport knew or should have known of the incident.