Cottrell v. Laidley ( 2023 )

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21-P-740 Appeals Court
SHAUNTOO COTTRELL vs. EDWARD LAIDLEY & another.1
No. 21-P-740.
Middlesex. July 17, 2023. - October 18, 2023.
Present: Green, C.J., Ditkoff, & Hodgens, JJ.
Negligence, Motor vehicle, Foreseeability of harm, Expert
opinion, Employer, Vicarious liability. Practice, Civil,
Summary judgment.
Civil action commenced in the Superior Court Department on
October 17, 2018.
The case was heard by Patrick M. Haggan, J., on a motion
for summary judgment.
Andrew R. Gould, of Texas (Benjamin H. Duggan also present)
for the plaintiff.
William J. Fidurko for the defendants.
DITKOFF, J. The plaintiff, Shauntoo Cottrell,2 appeals from
a grant of summary judgment dismissing his complaint against the
1 Colonial of Watertown, Inc.
2 Cottrell died during the pendency of this appeal, and the
personal representative of his estate was substituted as the
2
defendants, Edward Laidley and Laidley's employer, Colonial of
Watertown, Inc. (Colonial), arising out of the plaintiff's
personal injuries sustained when Laidley lost consciousness and
rear-ended the bus the plaintiff was driving. This case
requires us to examine the doctrine of a sudden medical
emergency negating negligence. Although there is no genuine
dispute of material fact that Laidley's untreated medical
condition that included severe sleep apnea caused him to lose
consciousness, we conclude that a genuine issue of material fact
remains as to whether Laidley should have foreseen the
emergency; specifically, whether he was aware of prior onsets of
sleepiness or had experienced drowsiness in the hours leading up
to the accident and thus was negligent in deciding to drive
nonetheless. We further conclude that, although the summary
judgment record does not raise as a triable issue that Colonial
was directly negligent in hiring or supervising Laidley, should
Laidley be found negligent, Colonial would be vicariously liable
for Laidley's negligence. Accordingly, we reverse the judgment
as to both defendants.
1. Background. "We recite the material facts in the light
most favorable to the nonmoving party." Matter of the Estate of
Urban, 102 Mass. App. Ct. 284, 285 (2023), quoting Docos v. John
plaintiff. For ease of reference, we refer to Cottrell as the
plaintiff.
3
Moriarty & Assocs., 78 Mass. App. Ct. 638, 639 (2011). In
January 2017, Laidley, then fifty-five years old, applied for a
position as a parts driver at Colonial, a car dealership in
Watertown. Laidley's wife worked there as a receptionist.
Because Colonial required its parts drivers to have "a clean
driving record," Laidley submitted his driver's license as part
of his application. Colonial then provided Laidley's license to
its insurance company so that the insurance company could "clear
it." Shortly thereafter, Colonial's insurance company informed
Colonial that Laidley was cleared to drive. Colonial did not
interview Laidley or conduct any further evaluation. In May
2017, Laidley's wife told him that he got the job.
As a parts driver, Laidley was responsible for driving to
various locations to deliver or pick up motor vehicle parts.
Laidley spent approximately half of each workday driving and the
rest of the day on various other tasks. Although Laidley was
overweight, Colonial's general manager, who saw Laidley three to
four times a day, testified at a deposition that he never
noticed Laidley having trouble breathing or needing to take an
extra break at work. Colonial's general manager testified that
Laidley was "a good employee" because, instead of sitting and
waiting around for the next parts delivery, Laidley was always
"looking to be busy."
4
Between May 2017, when Laidley was hired as a parts driver,
and January 3, 2018, Laidley did not see a doctor, either for
any medical problems or for annual physicals. In the days
leading up to Wednesday, January 3, 2018, Laidley had a
"productive cough."
On January 3, 2018, at approximately 12:30 P.M., Laidley
was driving a parts truck for Colonial. At the time, the
plaintiff was driving his usual bus route for the Massachusetts
Bay Transportation Authority (MBTA), which ran from the Lechmere
station in Cambridge to Clarendon Hill in Somerville. As the
plaintiff approached the final stop on his route, he pulled out
onto Broadway Street and waited for traffic to clear so that he
could turn left to drop off his last passenger. While the
plaintiff was waiting to turn left into the Clarendon Hill bus
stop, Laidley, who was traveling behind the plaintiff, rear-
ended the bus. At the moment of impact, the bus was not moving.
The impact from Laidley's vehicle pushed the bus forward
approximately seventy-five feet. When the bus came to a
complete stop, the plaintiff called dispatch to report that he
had just "been struck." When the plaintiff exited the bus, he
observed Laidley's vehicle traveling in reverse "[f]or at least
a couple of seconds" before it struck a parked vehicle. After
striking the parked vehicle, Laidley's vehicle traveled forward
"a couple of feet" before coming to stop. As a result of the
5
accident, Laidley's vehicle sustained substantial damage. The
bus sustained minimal damage.
Approximately fifteen minutes later, emergency medical
services arrived on scene. Emergency medical personnel observed
that Laidley had "labored breathing" and a "confused mental
status." Laidley "wasn't answering questions appropriately" and
stated that he was "trying to get [his] story straight." As
Laidley was being treated for his injuries, he stated that he
"was driving, felt a chest pain, and blacked out. [He] didn't
mean to hit the bus." Laidley complained of pain in his neck,
scapula, and foot as well as chest tightness, which he described
as if someone were "'hugging' him under his armpits." Laidley
stated that he "[did] not remember the accident nor [the] events
leading up to the accident."
The bus passenger reported that, after Laidley hit the bus,
Laidley "looked like he was having a seizure or a heart attack."
The plaintiff did not see Laidley until after the accident, when
Laidley was placed on a stretcher. No one observed Laidley's
physical appearance in the moments before the accident.
After the accident, Laidley was transported to the hospital
where he was placed in a medically induced coma for
approximately one month. Laidley's doctors suspected that "a
medical emergency caused the accident" when Laidley "lost oxygen
to [his] brain." When Laidley woke up, he had no recollection
6
of the accident and no recollection of the two to three weeks
leading up to the accident. Doctors suspected that Laidley
suffered from sleep apnea, scheduled a sleep study, and
"[s]trongly advised [him] against driving/working heavy
machinery until resolved."
After the accident, Laidley was diagnosed with severe
obstructive sleep apnea, high blood pressure, high cholesterol,
and diabetes.3 Laidley had never been diagnosed with sleep apnea
before. Again, his doctor advised him not to drive until the
"sleep apnea has improved with the treatment." After several
months using a continuous positive airway pressure device,
Laidley reported that "[h]is frequent nocturnal awakenings have
resolved to just 1" and that he "no longer is groggy in the
morning." Six months after the accident, the doctor approved of
Laidley's resuming driving after a successful week of driving
with his wife in the passenger seat.
Laidley testified at his deposition that prior to the
accident he never had difficulty breathing, shortness of breath,
chest pains, or trouble sleeping.4 Laidley testified that his
wife had complained about his snoring for their entire thirty-
3 When Laidley was diagnosed with sleep apnea, a sleep study
revealed that he woke up "91 times per hour."
4 The parties provided both us and the Superior Court with
the full deposition transcripts, rather than providing snippets.
This practice greatly eases our review of the evidence.
7
year marriage. Despite this, Laidley did not recall ever
leaving work early or starting work late because he was feeling
tired. Laidley testified that he did not feel lethargic except
"when [he] was sleepy at night." Laidley further testified that
he was never informed by a doctor that the conditions that he
was diagnosed with after the accident were a result of long-
standing medical issues. In addition, Laidley attested in his
affidavit that prior to the accident he was never told by a
doctor that it was unsafe to drive and he "had never experienced
a loss of consciousness." Laidley further attested that before
the accident he "had never experienced any medical issues while
[he] was driving that led [him] to believe that driving was
unsafe."
In the course of his treatments Laidley made several
statements to his sleep specialist, Dr. Michael Zaslow.5 Laidley
described "'horrible snoring,' gasping and non-refreshing
sleep." Laidley stated that, although he was fatigued "some of
the time" and was "apt to doze off watching television and in
the lunchroom at work," he "never had micro-sleeps at red
lights." In addition, Laidley stated that he was "never able to
sleep more than a few hours at a time consecutive[ly]" and that
he "takes 2 or 3 naps per week for between 90 and 120 minutes."
5 The statements are contained within Dr. Zaslow's report
dated April 12, 2018.
8
Subsequently, at a hospital follow-up, Laidley told his doctor
that he had suffered from "frequent nocturnal awakenings" and
had been "groggy in the morning" prior to sleep apnea treatment.
After the accident, the plaintiff sued the defendants
seeking damages for medical expenses and pain and suffering that
he incurred as a result of the accident.6 The plaintiff alleged
that Laidley negligently rear-ended him, that Colonial was
vicariously liable for Laidley's negligence and, inter alia,
directly liable for negligent hiring and negligent supervision.7
In their answer the defendants asserted that, inter alia, "the
accident in which the Plaintiff was injured was the result of a
sudden medical emergency and therefore the Defendants [were] not
liable." After the parties exchanged discovery, the defendants
moved for summary judgment on all of the plaintiff's claims.
The plaintiff opposed the motion asserting, among other things,
that there was a factual dispute as to whether Laidley suffered
from a sudden, unforeseeable medical emergency.
6 The plaintiff alleged that he sustained "serious injuries
to his neck, back, legs, head, shoulders, and other parts of his
body."
7 Contrary to normal practice, the complaint does not
include counts. Cf. Lane v. Winchester Hosp., 101 Mass. App.
Ct. 74, 76 (2022) (complaint contained several counts alleging
various theories of negligence). Instead, it includes various
theories of direct liability, only two of which the plaintiff
pursued in opposing the defendants' motion for summary judgment.
9
Both parties presented expert medical opinions. One of the
defendants' experts, Dr. Corey Hardin, opined that "Laidley lost
consciousness before the accident due to hypoxemia" as a result
of undiagnosed chronic obstructive pulmonary disease (COPD).8
Dr. Hardin further opined that Laidley's "co-existent sleep
apnea also played a role." The defendants' other expert,
Dr. Amy Fogelman, opined that there were no pre-accident medical
records where Laidley was told not to drive nor was Laidley
experiencing any symptoms that would have indicated that he
should not have been driving. Although Laidley had a
"productive cough" in the days leading up to the accident, as
well as elevated blood pressure and a history of smoking,
Dr. Fogelman opined that none of these issues were reasons not
to drive. Similarly, she opined that, although Laidley had a
history of snoring, "[s]noring, without symptoms of excessive
fatigue, is not an indication that one should not be driving."
She also recounted that Laidley had testified that he did not
recall "[d]aytime somnolence," nor was that noted in any of his
records. Ultimately, Dr. Fogelman concluded that "there was
8 No other medical professional, before or after, has
diagnosed Laidley with COPD. Although there is no genuine
dispute of material fact that Laidley suffered from severe sleep
apnea at the time of the accident, there is a genuine dispute
whether he suffered from COPD.
10
nothing to indicate to [Laidley] that he should not have been
driving."
The plaintiff's expert, Dr. Meir Kryger, agreed with the
defendants' expert evidence to the extent that Laidley's
untreated sleep apnea "ultimately caused the accident." But
unlike the defendants' experts, Dr. Kryger opined that Laidley
"knew or should have known that his excessive sleepiness made it
dangerous for him to operate a vehicle." Dr. Kryger opined that
"Laidley had experienced prior sudden onsets of sleepiness
because sleep apnea is not an acute condition and because
[Laidley's] symptomology [obesity and snoring] was significant."
Dr. Kryger explained that untreated sleep apnea is associated
with "excessive daytime sleepiness." In particular, patients
such as Laidley, "with an [apnea hypopnea index] of greater than
40 are at [an] increased risk." Dr. Kryger determined that,
"[t]o a reasonable degree of medical probability, Laidley would
have felt very drowsy while driving the vehicle on the date of
the subject incident" and that "[t]he drowsiness should have
compelled him not to drive further." Dr. Kryger also opined
that, "[g]iven the significant symptoms described [obesity9 and
snoring], the defendant's symptoms of apnea and his excessive
9 Dr. Kryger noted Laidley's body mass index (BMI) to be 38.
BMI refers to a relationship between a person's weight and
height. See Richardson v. Chicago Transit Auth., 926 F.3d 881,
884 (7th Cir. 2019).
11
sleepiness should have been apparent to both him and his
employer."
After a hearing, the judge allowed the defendants' motion
for summary judgment and dismissed the plaintiff's complaint.
The judge found that there was no genuine dispute of material
fact that Laidley suffered a sudden, unforeseeable medical
emergency when he rear-ended the plaintiff and that, because
Laidley was not liable, Colonial could not be held vicariously
liable. As to the plaintiff's direct liability claims against
Colonial, the judge determined that the summary judgment record
did not raise a triable issue of negligent hiring or negligent
supervision on the part of Colonial.10 This appeal followed.
2. Standard of review. "We review a grant of summary
judgment de novo to determine '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.'" Chambers v. RDI Logistics, Inc.,
476 Mass. 95, 99 (2016), quoting DeWolfe v. Hingham Ctr., Ltd.,
464 Mass. 795, 799 (2013). "In deciding a motion for summary
10The judge also found that Colonial could not be held
liable on the plaintiff's negligent entrustment claim. Because
the plaintiff does not contest the grant of summary judgment on
this claim on appeal, we need not address it. See Zoning Bd. of
Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 55
(2013) ("Because the board did not argue this issue in its
appellate brief, we need not reach it").
12
judgment the court may consider the pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits."
Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506 (2019),
quoting Niles v. Huntington Controls, Inc., 92 Mass. App. Ct.
15, 18 (2017). "[A] judge may decide the issue as a matter of
law when no rational view of the evidence permits a finding of
negligence." Petrell v. Shaw, 453 Mass. 377, 381 (2009).
3. Sudden medical emergency. "To prevail on a negligence
claim, a plaintiff must prove that the defendant owed the
plaintiff a duty of reasonable care, that the defendant
[committed a breach of] this duty, that damage resulted, and
that there was a causal relation between the breach of the duty
and the damage." Nguyen v. Massachusetts Inst. of Tech., 479
Mass. 436, 448 (2018), quoting Jupin v. Kask, 447 Mass. 141, 146
(2006). Under the sudden medical emergency doctrine, however,
"a sudden and unforeseeable physical seizure rendering an
operator unable to control his motor vehicle cannot be termed
negligence." Ellingsgard v. Silver, 352 Mass. 34, 36 (1967),
quoting Carroll v. Bouley, 338 Mass. 625, 627 (1959).11 A
11For other cases recognizing the sudden medical emergency
doctrine, see Fain v. Benak, 205 Conn. App. 734, 743 (2021);
Patrick v. Henthorn, 184 N.E.3d 1195, 1199 (Ind. Ct. App. 2022);
Hagenow v. Schmidt, 842 N.W.2d 661, 675 (Iowa 2014); Karl v.
Terbush, 63 A.D.3d 1359, 1359-1360 (N.Y. App. Div. 2009); Norman
v. Pearson, 2022-Ohio-4317, ¶¶ 27, 44 (Ct. App.); Shiner v.
Ralston, 64 A.3d 1, 6 (Pa. Super. Ct. 2013); Simpson v. Rood,
178 Vt. 474, 476 (2005). See also Sutherlin v. Fenenga, 111
13
defendant who invokes the sudden medical emergency doctrine in
moving for summary judgment must "establish the existence of the
claimed medical emergency and its unforeseeable nature" with
"competent or expert medical evidence." Pitt v Mroz, 146 A.D.3d
913, 914 (N.Y. App. Div. 2017). See Carroll, supra (defendant
bears burden of proving sudden medical emergency). "[T]he
foreseeability inquiry in [these] cases . . . frequently amounts
to a consideration by the factfinder of whether the defendant
driver should have been driving at all." McCoy v. Murray, 2009-
Ohio-1658, ¶ 14 (Ct. App.), quoting Roman v. Estate of Gobbo,
2003-Ohio-3655, ¶ 51.
Here, although there is no genuine dispute of material fact
that a sudden medical emergency caused Laidley to lose
consciousness while driving, a genuine dispute of material fact
exists concerning whether Laidley was either aware of prior
onsets of sleepiness or had experienced drowsiness in the period
before the accident. See Dunlap v. W.L. Logan Trucking Co.,
2005-Ohio-2386, ¶ 6 (Ct. App.) (record indicated that "[the
defendant] knew or should have known that he had a propensity to
fall asleep at unpredictable times"). To be sure, the
defendants presented considerable evidence that Laidley's loss
N.M. 767, 774-775 (Ct. App. 1991) (defense of sudden emergency);
Wiggins v. East Carolina Health-Chowan, Inc., 234 N.C. App. 759,
766 (2014) (same).
14
of consciousness was not foreseeable. Laidley testified that
prior to the accident he never had difficulty breathing,
shortness of breath, chest pains, or trouble sleeping. In
addition, Laidley attested that before the accident he had never
been told by a doctor that it was unsafe to drive, he "had never
experienced a loss of consciousness," and he "had never
experienced any medical issues while [he] was driving that led
[him] to believe that driving was unsafe." See Cincinnati Ins.
Co. v. Allen, 2008-Ohio-3720, ¶ 43 (Ct. App.) ("There was no
evidence that [the defendant] had ever lost consciousness due to
the lightheadedness prior to the September 2004 accident").
Although Laidley had a "productive cough" in the days
preceding the accident, in addition to elevated blood pressure
and a history of smoking, Dr. Fogelman opined that none of these
would have impacted Laidley's ability to drive. Similarly,
despite Laidley's history of snoring for his "entire marriage,"
Dr. Fogelman opined that "[s]noring, without symptoms of
excessive fatigue, is not an indication that one should not be
driving," given that Laidley did not recall any pre-accident
symptoms of excessive lethargy. Moreover, Laidley did not
recall any "[d]aytime somnolence" nor was it noted in any of his
records.
Dr. Fogelman, however, did not review the treatment records
of the sleep specialist, Dr. Zaslow, or Laidley's other
15
treatment records after the initial hospitalization. Indeed,
she seemed to be unaware that Laidley suffered from severe sleep
apnea. Moreover, although she opined that "there was nothing to
indicate to [Laidley] that he should not have been driving," she
ignored the fact that Laidley had no recall of his symptomology
(or, indeed, anything) in the weeks leading up to the accident.
In any event, Dr. Fogelman's opinion was contested by
competent contrary medical evidence. Dr. Kryger opined that
"Laidley had experienced prior sudden onsets of sleepiness
because sleep apnea is not an acute condition" and Laidley had
"the main symptoms of sleep apnea (obesity [BMI=38], snoring)
for decades prior to the crash." Cf. Denson v. Estate of
Dillard, 116 N.E.3d 535, 542 (Ind. Ct. App. 2018) ("there is no
evidence that [the defendant] suffered any symptoms prior to his
decision to drive . . . which would have alerted him of the
impending physical incapacity"); Duchene v. Finley, 2015-Ohio-
387, ¶ 3 (Ct. App.) (underlying disease causing defendant's
sudden loss of consciousness while driving "was not clinically
apparent" and he "was asymptomatic until that moment"); McCoy v.
Murray, 2009-Ohio-1658, ¶ 22 (Ct. App.) ("there was nothing in
[the defendant's] history that would lead a reasonable person to
believe they were in danger of suffering a loss of
consciousness"). In an appropriate case, a competent medical
16
expert12 can determine from a postaccident diagnosis what
symptoms a patient must have been experiencing prior to the
accident. Cf. Meyers v. Shontz, 251 So. 3d 992, 998 (Fla. App.
2018) (medical expert "theorized that the findings from the
postaccident [magnetic resonance imaging] took decades to
develop and did not show any sign of being related to trauma,
such as would occur in a car accident").
Although Laidley testified that he was never lethargic
except "when [he] was sleepy at night," Laidley had no memory of
the weeks leading up to the accident and thus no memory whether
he was lethargic in the relevant time period. Dr. Kryger's
report (if credited) suggests that it was not possible or at
least highly unlikely that Laidley was not lethargic before the
accident, as untreated sleep apnea is associated with "excessive
daytime sleepiness." This opinion was supported by the
postaccident medical records that were not reviewed by
Dr. Fogelman. Dr. Zaslow's report reflects that Laidley stated
a few months after the accident that "he's never able to sleep
more than a few hours at a time consecutive," that "[h]e's apt
to doze off watching television and in the lunchroom at work,"
and that he had "'horrible snoring,' gasping and non-refreshing
12The defendants, although strongly asserting that
Dr. Kryger's opinion is not credible, raise no challenge to his
expertise or the admissibility of his opinion, at least for
summary judgment purposes.
17
sleep," and "wakes up frequently." Similarly, months after the
accident, Laidley told his doctor that he had suffered from
"frequent nocturnal awakenings" and had been "groggy in the
morning" prior to sleep apnea treatment. These facts all
support Dr. Kryger's opinion.
The fact that Laidley's medical records before the accident
do not mention sleep apnea symptoms may establish that he "did
not complain to his medical providers about [sleep apnea]
symptoms, and is certainly circumstantial evidence that supports
a finding that the [loss of consciousness] was unforeseen.
However, by no means does it conclusively establish that
[Laidley] never experienced symptoms prior to the date of the
collision." Shiner v. Ralston, 64 A.3d 1, 6 (Pa. Super. Ct.
2013). Although Laidley was not diagnosed with sleep apnea
until after the accident, Dr. Kryger opined that, on the day of
the accident, "Laidley would have felt very drowsy while driving
the vehicle" and that Laidley "knew or should have known that
his excessive sleepiness made it dangerous for him to operate a
vehicle." See Dunlap, 2005-Ohio-2386, ¶ 51 ("despite the fact
that [the defendant's] sleep apnea was not specifically
diagnosed until after the accident, [the defendant] was aware of
excessive fatigue and aware of falling asleep at inopportune or
unusual moments prior to the accident"). As Laidley had no
memory of the weeks leading up to the accident and the
18
defendants presented no medical expert testimony to the
contrary, a jury could credit Dr. Kryger's opinion. Even if
Laidley did not know why he was experiencing excessive
sleepiness, a jury could determine that he was negligent in
driving (assuming, of course, the jury credit Dr. Kryger's
opinion). Accordingly, a genuine issue of material fact exists
as to whether Laidley's loss of consciousness was reasonably
foreseeable and, thus, whether Laidley was negligent in driving
that day. See Roberts v. Boehl, 2018-Ohio-1118, ¶ 30 (Ct. App.)
("in a case of sudden medical emergency where . . . the issue of
foreseeability is doubtful, the question should be submitted to
the jury or factfinder").
4. Colonial's liability. Colonial acknowledges that, on
the day of the accident, Laidley was acting within the course
and scope of his employment as a parts driver. As such, if
Laidley is found liable at trial, Colonial will be vicariously
liable. See Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234,
238 (2010), quoting Dias v. Brigham Med. Assocs., 438 Mass. 317,
319-20 (2002) ("Under the doctrine of respondeat superior, 'an
employer . . . should be held vicariously liable for the torts
of its employee, or servant, committed within the scope of
employment'").
In addition to vicarious liability, the plaintiff advanced
theories of direct liability, including negligent hiring and
19
negligent supervision.13 See Doe v. Roman Catholic Bishop of
Springfield, 490 Mass. 373, 386 (2022). "The doctrine of
negligent hiring or retention provides that 'an employer whose
employees are brought in contact with members of the public in
the course of the employer's business has a duty to exercise
reasonable care in the selection and retention of his
employees.'" El Koussa v. Attorney Gen., 489 Mass. 823, 835
(2022), quoting Foster v. The Loft, Inc., 26 Mass. App. Ct. 289,
290 (1988). Under this doctrine, "[n]egligence in hiring or
retaining a person to perform given tasks who is unfit for the
job" provides "a ground of liability for the harmful effects of
the choice upon related persons." Or v. Edwards, 62 Mass. App.
Ct. 475, 483 (2004). Once an employee is hired, "[e]mployers
are responsible for exercising reasonable care to ensure that
their employees do not cause foreseeable harm to a foreseeable
class of plaintiffs." Helfman v. Northeastern Univ., 485 Mass.
308, 326 (2020), quoting Roe No. 1 v. Children's Hosp. Med.
Ctr., 469 Mass. 710, 714 (2014).
13 In the Superior Court, the defendants argued that the
existence of a viable claim for vicarious negligence negates any
claims for negligent hiring or negligent supervision. The
defendants do not press this theory on appeal, and therefore we
do not reach it. Cf. Trinh v. Gentle Communications, LLC, 71
Mass. App. Ct. 368, 376 n.9 (2008) (under certain circumstances,
punitive damages available for direct claim but not vicarious
claim).
20
Here, although the plaintiff presented evidence that
Colonial's hiring screening was minimal, there is no evidence to
suggest that a more thorough screening process would have
revealed that Laidley was unfit to drive. Cf. Or, 62 Mass. App.
Ct. at 488 ("Reasonable inquiry would have disclosed [the
employee's] shady background with criminal history, but only a
limited, hurried investigation was undertaken"). The summary
judgment record reflects that, at the time Laidley was hired,
Colonial required only that each parts driver have "a clean
driving record." There being no suggestion that an employer
hiring a truck driver has a duty to subject applicants to a full
physical (much less nocturnal polysomnography), given that
Laidley's sleep apnea was undiagnosed at the time and there were
no medical records stating that Laidley should not drive, the
plaintiff has presented no evidence that Laidley's unfitness
would have been discovered through more diligent screening.14
Similarly, there is no evidence that, at the time of the
accident, Colonial knew or should have known that it was unsafe
for Laidley to drive. See Nelson v. Salem State College, 446
Mass. 525, 527 (2006) (affirming summary judgment where "there
14The plaintiff agrees that Colonial had no independent
duty to require Laidley to submit to a physical examination.
The plaintiff properly makes no argument that an employer has a
duty to restrict employees from driving simply because they are
overweight.
21
was no negligent supervision or training of the defendants'
employees"). Colonial's general manager, who saw Laidley three
to four times a day, testified that he never noticed Laidley
having trouble breathing or needing to take an extra break at
work. To the contrary, he testified that, instead of sitting
and waiting for the next parts delivery, Laidley was always
"looking to be busy." Although Laidley told Dr. Zaslow several
months after the accident that he was "apt to doze off . . . in
the lunchroom at work," the mere fact that an employee naps
during a lunchbreak would not put an employer on notice that the
employee was unfit to drive.
To be sure, Dr. Kryger opined that Laidley's "symptoms of
apnea and his excessive sleepiness should have been apparent to
both him and his employer." Dr. Kryger, however, described
those symptoms as "obesity [BMI=38], snoring." Colonial had no
reason to know that Laidley snored, and we do not take
Dr. Kryger as opining that it should have been apparent to
Colonial merely from Laidley's obesity that he suffered from
sleep apnea or was unsafe to drive. In any event, Dr. Kryger's
nonmedical opinion concerning what an employer should know is
well outside his area of expertise and insufficient to create a
genuine issue of material fact. See Borella v. Renfro, 96 Mass.
App. Ct. 617, 627 (2019) ("The conclusory statements of
witnesses . . . cannot defeat summary judgment"). Accordingly,
22
there is no triable issue that Colonial was either negligent in
its hiring or in its supervision of Laidley. See Helfman, 485
Mass. at 326 (claim fails where "there is no evidence that any
of the defendants [were] negligent in training or supervising
its [employees]").
5. Conclusion. So much of the judgment that grants
summary judgment in favor of Colonial on the plaintiff's claims
of direct negligence is affirmed. In all other respects, the
judgment is vacated and remanded for further proceedings.
So ordered.