O'Brien v. American Medical Response of Massachusetts , 31 Mass. L. Rptr. 526 ( 2013 )

McDonough, Edward J., J.

After hearing, defendant American Medical Response of Massachusetts, Inc.’s (AMR) motion for partial summary judgment is DENIED.

It may well prove true, as a practical matter, that plaintiffs’ auto tort negligence claim against AMR for its alleged negligent hire of AMR driver Kenroy Smikle may be superfluous, given that plaintiffs claim against AMR may stand or fall on the jury’s determination that its driver Smikle was or was not negligent. This is because AMR has conceded defendant Smikle was acting within the scope of his employment with AMR at the time of the accident.

Nevertheless, at this stage, I see no legal barrier to plaintiffs pursuing alternative legal theories against AMR. Since the auto tort will be going to trial, this is a matter more properly addressed by the presiding judge at the time of trial. And plainly, there are material issues of fact for a jury on whether AMR used reasonable care in hiring defendant Smikle as one of its drivers.

Moreover, I have this day granted plaintiffs’ motion to compel further discovery from AMR, some of which appears to be directly related to defendant Smikle including aspects of his personnel file, his cell phone records on the day of the crash, and AMR’s internal investigation of the accident—all of which has been improperly withheld by AMR as information which plaintiffs were precluded from using in their summary judgment opposition.