EDWARD C. MCMAHON and another [Note 1] V. GENAVIEVE M. QUETTI and another [Note 2]

MURPHY, J. This case arises out of claims by Edward C. McMahon and Gloria M. McMahon ("plaintiffs") for personal injuries sustained when a car they were in, while in an automatic car wash owned and operated by F.L. Roberts and Company, Inc. ("F.L. Roberts"), was allegedly struck from the rear by a car driven by Genavieve M. Quetti ("Quetti"). Both defendants filed motions for summary judgment pursuant to Mass. R. Civ. P. 56, which were allowed. The plaintiffs filed a timely notice of appeal.

Background. We set forth the facts in the light most favorable to the nonmoving party. See LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012). On March 1, 2014, the plaintiffs occupied a motor vehicle that entered the Golden Nozzle Car Wash, an automatic track-controlled car wash located in Pittsfield, MA. Edward McMahon was driving. Quetti was the driver and lone occupant of her motor vehicle, which entered the car wash track directly behind the plaintiffs. Once in the car wash, the cars were propelled by rollers along a track designed to keep the vehicles at a set distance between each other. At the car wash entrance, both Quetti and the plaintiffs were instructed by an employee of F.L. Roberts to place and keep their cars in neutral, and not to use the brake while passing through the car wash. The employee could control the speed of the track but not the minimum distance between cars as that was determined by a pre-set minimum distance between the rollers. [Note 4] Once on the track, the cars would, absent intervention by a driver, travel at the same speed. About three-fourths of the way through the car wash, the front of the defendant's vehicle came into contact with the rear of the plaintiffs' vehicle. The track was

Page 11

moving at a speed of less than three miles per hour at the time of the collision. The car wash attendant was made aware of the collision almost immediately and stopped the track. Nearly three years later, the plaintiffs filed personal injury claims against Quetti alleging she negligently operated her motor vehicle, and against F.L. Roberts alleging it: (1) failed to properly maintain or repair its equipment, [Note 5] and (2) placed cars "closer together than normal" (hereafter, "negligent spacing") on the automatic track. F.L. Roberts filed crossclaims against Quetti for indemnification and contribution. Because the record on summary judgment was insufficient, as a matter of law, to show that Quetti breached her duty to exercise reasonable care as her car passed through the car wash, and because the plaintiffs' theory of negligent spacing liability against F.L. Roberts was unsupported by expert opinion or other admissible evidence for a jury to find the requisite breach of duty, we affirm.

Standard of review. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506 (2019), quoting Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015). See Mass. R. Civ. P. 56(c). "Our review of a motion judge's decision on summary judgment is de novo, because we examine the same record and decide the same questions of law." Boston Globe Media Partners, LLC v. Department of Criminal Justice Info. Servs., 484 Mass. 279, 286 (2020), quoting Kiribati Seafood Co. v. Dechert LLP, 478 Mass. 111, 116 (2017).

"To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage." Jupin v. Kask, 447 Mass. 141, 146 (2006). Where no rational finder of fact could find based on the evidence in favor of the plaintiffs on the elements of breach or causation, summary judgment is proper. Aulson v. Stone, 97 Mass. App. Ct. 702, 705 (2020); Brandt v. Davis, 98 Mass. App. Ct. 734, 737 (2020). "Usually, negligence and recklessness involve questions of fact left for the jury. However, where no rational view of the evidence would permit a finding of negligence or recklessness, summary judgment is appropriate" (citations omitted). Borella v. Renfro, 96 Mass. App. Ct. 617, 622 (2019).

Quetti: Duty. Quetti owed a duty to the plaintiffs to operate her car, to the extent she had control, in a reasonably careful and prudent manner while it was propelled through the car wash by the track mechanism. "Reasonable care is that degree of care which a reasonably careful person would use under like circumstances, and negligence may consist of either doing something that a reasonably careful person would not do, or omitting to do something that a reasonably careful person would do." Gilhooley v. Star Mkt. Co., 400 Mass. 205, 206 (1987). In the unique circumstances of this case, the standard of care was to follow the instructions given to drivers at the beginning of the car wash track. While the law does not totally absolve a driver of a duty to use reasonable care and act responsibly when giving control over a motor vehicle to the car wash mechanism, it certainly alters Quetti's duty in this case. To act responsibly under the circumstances was to follow the directions given at the entrance to the car wash.

Quetti: Breach of duty. Quetti is entitled to summary judgment because the

Page 12

plaintiffs have not shown a reasonable expectation of proving a breach of the duty of care. Negligence is established only upon proof of a defendant's breach of a duty of care that resulted in the damages or injuries sustained by the plaintiff. Gosselin v. Colonial Shopping Ctr., 2009 Mass. App. Div. 200, 201, aff'd, No. 09-P-2160 (Mass. App. Ct. Oct. 8, 2010) (unpublished Rule 1:28 decision). At best, the record showed that the front of Quetti's car came into contact with the rear of the plaintiffs' car while both cars were on the track and both operators were compliant with the directions of the car wash attendant. "The mere happening of an accident is not sufficient itself to require a finding of negligence." Arrendondo v. Frias, 2015 Mass. App. Div. 74, 75. "Evidence of a rear end collision without evidence of the circumstances under which it happens is not proof of the negligence of the operator of either vehicle, and the rule of res ipsa loquitur does not apply, but slight evidence of the circumstances 'may place the fault.'" Buda v. Foley, 302 Mass. 411, 412–13 (1939), quoting Jennings v. Bragdon, 289 Mass. 595, 597 (1935).

The circumstances of the collision in this case do not provide even slight circumstantial evidence that might place fault. A finder of fact would be left to speculate whether the duty of care was breached. While summary judgment is rarely granted in negligence actions, this is that rare case. Zavras v. Capeway Rovers Motorcycle Club, Inc., 44 Mass. App. Ct. 17, 21 (1997). There is nothing in the record to support the plaintiffs' contention that Quetti disobeyed the directions given to her at the entrance to the car wash or, absent speculation, to explain how or why the cars collided. Quettiis entitled to judgment as a matter of law on counts 1 and 3.

F.L. Roberts: Breach of duty. Assuming arguendo that there is some minimum, safe distance to space cars apart on an automated car wash track, we conclude the plaintiffs' claim against F.L. Roberts still must fail. The claim that cars were placed "closer together than normal" is supported only by the "lay opinion" of Quetti and of Edward McMahon. "[A] lay opinion is admissible only where it lies within the realm of common experience . . . ." Commonwealth v. Canty, 466 Mass. 535, 542 (2013). What is "normal" or safe distancing in an automatic, track-driven car wash would require technical or other specialized knowledge and is not admissible as lay opinion. Mass. G. Evid. § 701(c) (2022). The plaintiffs did not identify any expert witness, text or treatise, or point to other admissible evidence to support its "negligent spacing" theory. Expert testimony is required where the subject matter, as in this case, "is beyond the common knowledge or understanding of the lay juror." Commonwealth v. Sands, 424 Mass. 184, 186 (1997). Without an expert opinion, the plaintiffs are unable to establish a breach of any duty owed to them. The web of additional circumstantial evidence argued by the plaintiffs, that is, a "busy" car wash and a monetary incentive to employees to maximize the number of cars washed, are insufficient to create a material issue of fact as to whether the cars were "negligently spaced" because the plaintiffs' inability to establish a breach of duty attributable to F.L. Roberts renders all other facts immaterial. Lyon v. Morphew, 424 Mass. 828, 831 (1997). There are no genuine issues as to any material facts related to the plaintiffs' claims. F.L. Roberts is entitled to judgment as a matter of law on counts 2 and 4. [Note 6]

Judgment affirmed.

So ordered.