Lind v. Domino's Pizza LLC

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
14-P-928 Appeals Court
MICHAEL A. LIND, coadministrator,1 & another2 vs. DOMINO'S
PIZZA LLC & another.3
No. 14-P-928.
Hampden. March 12, 2015. - July 29, 2015.
Present: Grainger, Meade, & Fecteau, JJ.
Practice, Civil, Summary judgment, Change of ruling,
Instructions to jury, New trial. Rules of the Superior
Court. Negligence, Vicarious liability. Contract,
Franchise agreement, Third party beneficiary. Negligence,
Vicarious liability, Duty to prevent harm, Expert opinion.
Evidence, Expert opinion. Witness, Expert.
Civil action commenced in the Superior Court Department on
June 16, 2009.
A motion for summary judgment was heard by Constance M.
Sweeney, J., and was reconsidered by Richard J. Carey, J.; the
case was tried before him, the entry of separate and final
judgment was directed by him, and a motion for a new trial was
considered by him.
1
Of the estate of Corey M. Lind.
2
Lisa A. Bishop, coadministrator of the estate of Corey M.
Lind.
3
Domino's Pizza, Inc.
2
John J. Egan for the plaintiffs.
Paul G. Boylan (Kevin G. Kenneally & John F. Burke, Jr.,
with him) for the defendants.
FECTEAU, J. Plaintiffs Michael Lind and Lisa Bishop,
coadministrators of the estate of their son, Corey M. Lind
(Corey), appeal from separate and final judgments entered in the
Superior Court resolving all claims in favor of the defendants
Domino's Pizza LLC and Domino's Pizza, Inc., in connection with
the plaintiffs' wrongful death action filed pursuant to G. L.
c. 229, § 2.4 The plaintiffs challenge as error the
reconsideration and partial allowance by the judge, on the eve
of trial, of the defendants' motion for summary judgment.5 The
plaintiffs also challenge rulings made by the judge during trial
excluding certain testimony and declining to give a particular
jury instruction. Finally, the plaintiffs contend the judge
erred in denying their motions for reconsideration and a new
trial. We affirm.
4
The ten-count complaint for wrongful death and conscious
pain and suffering alleged the following causes of action
against these defendants: breach of voluntarily assumed duty
(Counts I and II); general negligence (Counts III and IV);
third-party beneficiary (Counts V and VI); negligent supervision
(Counts VII and VIII); and vicarious liability (Counts IX and
X).
5
All counts, with the exception of those that alleged
breach of a voluntarily assumed duty (Counts I and II), were
dismissed as a result.
3
Background. The relevant facts are largely undisputed.
In June, 2003, David Jenks, the president of Springfield Pie,
Inc. (Springfield Pie), entered into a "Standard Franchise
Agreement" (franchise agreement) with Domino's Pizza LLC,6
providing that Springfield Pie, the franchisee, would operate a
Domino's Pizza Store at 624 Boston Road in Springfield (Boston
Road store or store). The franchise agreement generally
provided that Springfield Pie would be bound by basic
operational standards as set forth by Domino's, but would
otherwise exercise control over the day-to-day operations of the
store.
Springfield Pie hired Corey as a delivery driver in 2007 to
work in the Boston Road store. At about 2:30 A.M. on December
8, 2007, a Saturday, a man named "Alex," later identified as
Alex Morales, telephoned the Boston Road store and reached
Cassandra, the wife of the store's manager, Carl Johnson.
Morales placed an order, and provided his telephone number and
requested a delivery to 104 Arnold Avenue in Springfield.
Around 2:50 A.M., Corey left to make the delivery at that
address, but he returned a few minutes later because the address
was not valid. Cassandra telephoned Morales and told him that
6
Defendant Domino's Pizza LLC is the operating company and
wholly owned subsidiary of defendant Domino's Pizza, Inc. We
refer to them collectively as "Domino's."
4
the delivery driver could not find the address. Morales said he
was farther down Arnold Avenue toward Christopher Drive.
Cassandra relayed this information to Johnson, who, believing
that Christopher Drive ran parallel to Arnold Avenue (not
perpendicular, as Morales had indicated), decided to telephone
Morales himself. Johnson asked Morales exactly where he was;
Morales gave a different, more specific address and claimed that
he was in a house. Johnson asked Morales to leave the front
porch light on and wait in the doorway for the delivery driver;
Morales agreed and Johnson ended the call.
Johnson explained to Corey where the house was located, and
showed him the location on the store map. Corey left the store
to make the delivery to Morales and a second, separate order
after that. Around 3:34 A.M., Morales telephoned the store and
said he had not yet received his food. Johnson explained to him
that the driver (Corey) did not have a cellular telephone, but
that Johnson would make sure that Morales received his order.
Johnson left the store to look for Corey, but was unable to find
him after searching for about an hour. In the meantime, Johnson
telephoned the store and spoke to Cassandra, who told him that
Morales had telephoned the store at 3:44 A.M. and said that he
no longer wanted the order delivered.
It was eventually discovered that Morales had kidnapped,
robbed, and murdered Corey after Corey attempted to deliver the
5
order to him. Morales, who confessed to police in varying
stages, was convicted of murder in the first degree, armed
robbery, and kidnapping, and those convictions were affirmed by
the Supreme Judicial Court. See Commonwealth v. Morales, 461
Mass. 765 (2012).7
1. Summary judgment ruling. "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
a judgment as a matter of law." Augat, Inc. v. Liberty Mut.
Ins. Co., 410 Mass. 117, 120 (1991). See Mass.R.Civ.P. 56(c),
as amended, 436 Mass. 1404 (2002). The moving party bears the
burden of demonstrating affirmatively the absence of a triable
issue and entitlement to judgment as a matter of law. Pederson
v. Time, Inc., 404 Mass. 14, 16-17 (1989). In determining
whether a genuine issue of material fact exists, the judge must
draw all inferences from the underlying facts in the light most
favorable to the party opposing the motion. Attorney Gen. v.
7
Morales initially was a defendant to this instant action
but has since been defaulted pursuant to Mass.R.Civ.P. 55(a),
365 Mass. 822 (1974). He invoked his Fifth Amendment privilege
against self-incrimination at the instant trial and did not
testify. No final judgment has entered against him in this
case. In light of this, the judge issued two separate and final
judgments pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974),
in favor of Domino's on the claims disposed of by the jury
verdict and the motion for summary judgment.
6
Bailey, 386 Mass. 367, 371 (1982). An appellate court reviewing
summary judgment must examine its allowance de novo and based on
same record as the motion judge. Fortenbacher v. Commonwealth,
72 Mass. App. Ct. 82, 85 (2008).
"We note at the outset that the trial judge had the
authority to reconsider the motion for summary judgment sua
sponte." Riley v. Presnell, 409 Mass. 239, 242 (1991).
Although judges "should . . . hesitate to undo the work of
another judge," Peterson v. Hopson, 306 Mass. 597, 603 (1940),
we do not agree with the plaintiffs that it was error for the
trial judge, sua sponte, to reconsider Domino's summary judgment
motion after it had been denied by another judge. Although this
practice might not follow recommended procedures, see Superior
Court Rule 9D, "there is no lack of power" to do so, and, until
final judgment is entered, a judge is free to do so. Peterson
v. Hopson, supra. See Dolan v. Von Zweck, 19 Mass. App. Ct.
1032, 1034 (1985) ("An order merely denying a motion for summary
judgment . . . does not amount to a final judgment and may be
modified or changed at any time prior to final judgment").
Here, there was additional evidence entered in the record
following the initial November 8, 2012, denial of the motion,
and before the May, 2013, partial allowance of the motion.
Moreover, this is not a case where the judge's reconsideration
of a motion previously denied "further exacerbated" a party's
7
predicament by, for example, forcing it to alter entirely its
defense on the eve of trial without the benefit of a requested
continuance. See Barbosa v. Hopper Feeds, Inc., 404 Mass. 610,
622 (1989). We turn now to the merits of each claim pleaded by
the plaintiffs and dismissed on summary judgment.
a. Vicarious liability. The parties agree that the
controlling decision where a plaintiff seeks to hold a
franchisor vicariously liable for an alleged tort of its
franchisee is Depianti v. Jan-Pro Franchising Intl., Inc., 465
Mass. 607 (2013) (Depianti).8 In Depianti, the Supreme Judicial
Court noted that the usual rules of agency do not transfer
easily to the franchisor-franchisee context because, although
franchisors are required under the Lanham Act, 15 U.S.C.
§ 1064(5)(A) (2006), to maintain baseline controls and standards
relating to their trademarks, Federal rules concerning trademark
protection were "not intended to 'create a [F]ederal law of
agency.'" Id. at 615, quoting from Oberlin v. Marlin Am. Corp.,
596 F.2d 1322, 1327 (7th Cir. 1979). The mere fact that
franchisors set baseline standards and regulations that
franchisees must follow in an effort to protect the franchisor's
8
Depianti was issued approximately one month after the
defendants' summary judgment motion was allowed in part. Both
the plaintiffs and Domino's urge its application on appeal. We
note that the judge below cited nearly identical law in
resolving the vicarious liability claims against the plaintiffs.
8
trademarks and comply with Federal law, does not mean that
franchisors have undertaken an agency relationship with the
franchisee such that vicarious liability should apply. See
ibid. Ultimately, the Supreme Judicial Court, referencing with
approval the analysis of Kerl v. Dennis Rasmussen, Inc., 273
Wis. 2d 106 (2004) (Kerl), held that "a franchisor is
vicariously liable for the conduct of its franchisee only where
the franchisor controls or has a right to control the specific
policy or practice resulting in harm to the plaintiff."
Depianti, supra at 617. The specific policy or practice should
"be understood broadly, as the particular practice of the
franchisee that led to the plaintiff's injury." Id. at 617
n.11.
Other jurisdictions have applied similar tests and, in
doing so, have consistently ruled that, as matter of law,
franchisors are not vicariously liable for the alleged torts of
their franchisees. See, e.g., Wendy Hong Wu v. Dunkin' Donuts,
Inc., 105 F. Supp. 2d 83, 88 (E.D.N.Y. 2000) (determining as
matter of law that franchisor not vicariously liable for
franchisee's security deficiencies because franchise agreement
did not give franchisor "considerable control . . . over the
specific instrumentality at issue"); Kerl, supra at 131-134
(restaurant franchisor not vicariously liable for franchisee's
negligent supervision of employees where franchisor had no
9
control or right of control over daily hiring and supervision of
franchisee's employees). But see Butler v. McDonald's Corp.,
110 F. Supp. 2d 62, 67-68 (D.R.I. 2000) (denying franchisor's
summary judgment motion because franchisor required franchisees
to conform to comprehensive system, inspected franchisee
premises and operations frequently, took profits, and had a
right to terminate agreement in event of franchisee breach).9
Applying the Depianti test here, we conclude that the
plaintiffs failed to establish a genuine issue of fact whether
Domino's either controlled or had the right to control the
specific policy or practice that resulted in harm to Corey. We
note initially that the "specific policy or practice resulting
in harm to the plaintiff" is difficult to ascertain in a context
such as here, where the harm was caused by a third party acting
9
See also Viches v. MLT, Inc., 127 F. Supp. 2d 828, 832
(E.D.Mich. 2000) (granting summary judgment on basis that hotel
franchisor not vicariously liable for franchisee's negligent use
of pesticides where franchise agreement only ensured "uniformity
and standardization . . . of services" [citation omitted]);
Pizza K., Inc. v. Santagata, 249 Ga. App. 36, 37-39 (2001)
(franchisor not vicariously liable for franchisee delivery
driver's accident because franchisor did not supervise day-to-
day activities of franchisee's employees); Vandemark v.
McDonald's Corp., 153 N.H. 753, 763 (2006) (restaurant
franchisor not vicariously liable for attack on franchisee's
employee because franchisor established uniformity and
standardization of products and services, but did not exercise
control over security operations). But see Miller v. McDonald's
Corp., 150 Or. App. 274, 281 (1997) (franchisor could be
vicariously liable where franchisee's patron bit into sandwich
that contained stone because franchise agreement provided
"precise methods" of food handling and preparation).
10
malevolently. However, inasmuch as actions by Springfield Pie
or Domino's "resulted in harm" or, in other words, caused or
contributed to the harm to Corey, the focus is correctly placed
on the instrumentality of pizza delivery under the circumstances
presented in the early morning hours of December 8, 2007. The
plaintiffs seek to define the specific policy or practice more
broadly as pizza delivery in general, but this ignores that the
circumstances presented on December 8, 2007 -- including the
fact that it was around 3 A.M. when Corey left the store, and in
response to a caller who provided three different addresses, two
of them not valid -- were inherently more dangerous than other
potential deliveries, such as mid-day deliveries to customers
who provide a correct address that bear no relation to the
circumstances at bar. Therefore, the specific policy or
practice here is properly defined as pizza delivery at 3 A.M.,
following a series of calls that, when viewed in a light most
favorable to the plaintiffs, were reasonably suspicious.
When viewed in the proper context however, it is clear that
the plaintiffs failed to proffer evidence that Domino's
controlled or had the right to control this specific policy or
practice of the Boston Road store. Although Domino's mandated
that all franchisees remain open until 1 A.M. on Fridays and
Saturdays, it was solely Springfield Pie's decision to remain
open until 3 A.M. Moreover, although Domino's -- pursuant to
11
the franchise agreement as well as the "Delivery Area Security
Procedure Manual" -- generally required franchisees to deliver
all orders, Domino's explicitly left it to the discretion of the
franchisee whether to deliver under circumstances that appeared
dangerous. For example, the franchise agreement states that
franchisees are "not required to offer delivery service in areas
which might present a danger to you or your employees."
Additionally, Domino's required that store telephones have a
caller identification system in place or use "security
callbacks" in the absence of caller identification to follow up
on suspicious or late-night orders, or in response to first-time
callers. In an affidavit, Johnson, the manager that night,
confirmed that the store was, in fact, solely responsible for
deciding to send Corey out on the delivery in question ("the
taking of the pizza order by phone, the calls back to 'Alex,'
the person making the order, and the process recounted for the
delivery of the pizza by [Corey], were all done pursuant to
policies developed and implemented by Springfield Pie in the
time I had been working there").
Despite the foregoing, the plaintiffs aver that Domino's
mandatory requirements that franchisee employees not carry
weapons of any type or money in excess of twenty dollars on
deliveries, not resist in the event of attempted robbery, and
wear Domino's uniforms and place a lighted rooftop Domino's sign
12
on their vehicles, caused Corey's harm, or at least contributed
to it. However, Domino's requirements that drivers wear a
specific uniform and place the rooftop sign on their vehicles
are precisely the type of operational standards that courts have
recognized for protection of a trademark and are insufficient to
establish control over a franchisee. See Kerl, 273 Wis. 2d at
126-127 ("[T]he clear trend in the case law in other
jurisdictions is that the quality and operational standards and
inspection rights contained in a franchise agreement do not
establish a franchisor's control or right of control over the
franchisee sufficient to ground a claim for vicarious liability
as a general matter or for all purposes"). Moreover, it is not
reasonable to suggest that the uniform and vehicle sign related
in any way to the harm that befell Corey, in light of the fact
that Morales specifically placed an order with the store and,
therefore, was expecting a Domino's driver.
We acknowledge that Domino's nonresistance policy,
prohibition on weapons, and prohibition on drivers carrying more
than twenty dollars cannot reasonably be classified as trademark
controls, but are rules clearly designed, at least in part, for
employee safety. In theory, therefore, these policies provide
more of a basis to establish vicarious liability because they
are indicative of an intent to assert control over delivery
safety protocol. However, when viewed in this particular
13
context, it cannot be said that those mandatory policies
resulted in the harm suffered by Corey. As to the nonresistance
policy, that policy did not apply where an employee was
assaulted or otherwise presented with physical danger, such as
the case here. Domino's specifically left it to franchisees to
train employees to respond to assaults or other physical
dangers. Moreover, we do not view this record as demonstrating
the existence of a genuine issue whether the prohibition on
drivers' carrying weapons contributed to the harm suffered by
Corey; more significantly, when viewed in the instant context,
in a light most favorable to the plaintiffs, the causal link is
speculative at best.10
Even if the instrumentality or specific policy were to be
viewed more broadly as delivery under any and all circumstances,
as the plaintiffs urge, the record is clear that Domino's
neither controlled nor had the right to control delivery
generally at the store. As discussed supra, Springfield Pie had
the exclusive authority and responsibility to train and
supervise drivers concerning safety during deliveries, decide to
remain open past 1 A.M., decide to suspend temporarily delivery
or refuse to make individual deliveries where dangerous, and
10
The plaintiffs have not articulated, and the summary
judgment record is silent on, how Domino's policy that drivers
carry no more than twenty dollars on their person when
delivering food resulted in harm to Corey.
14
design and implement additional safety protocols, where
necessary, over and above the basic requirements imposed by
Domino's.11 Even more generally, the franchise agreement clearly
provided that no agency relationship existed between Domino's
and Springfield Pie and that the latter was solely responsible
for the day-to-day operation of the Boston Road store. See
Kerl, 273 Wis. 2d at 132 (noting that license agreement between
franchisor and franchisee disclaimed agency relationship, which
is "informative but not dispositive" information).12
The plaintiffs also place emphasis on § 15.1 of the
franchise agreement, which provides that Springfield Pie agrees
fully to "comply with all specifications, standards and
operating procedures" prescribed by Domino's, including those
related to delivery of customer orders, arguing that this
11
There is evidence in the summary judgment record that
Springfield Pie did take additional measures to ensure safety.
For example, the Boston Road store locked its doors during
business hours, necessitating that customers "buzz" in.
12
Although Domino's retained an inspection right, which it
occasionally exercised, and the right to terminate the franchise
agreement if Springfield Pie did not comply with mandatory
requirements set by Domino's, the right to inspect did not
extend to safety issues. Moreover, these types of provisions
have been deemed insufficient by other courts to warrant the
imposition of vicarious liability on a franchisor. See Kerl,
273 Wis. at 125 ("[B]ecause many franchise relationships include
a license to use the franchisor's trade or service mark, the
detailed quality and operational standards and inspection rights
specified in the franchise agreement are integral to the
protection of the franchisor's trade or service mark under the
Lanham Act").
15
provision created a genuine issue of material fact concerning
Domino's right to control deliveries. However, the plaintiffs
overstate the importance of this provision which, read in
context, requires Springfield Pie only to comply with the
provisions set out more specifically in other portions of the
franchise agreement. The plaintiffs claim that the judge
weighed evidence improperly for summary judgment purposes by, in
effect, comparing different sections of the franchise agreement;
however, the analysis of these issues is essentially contract
interpretation, which is a legal, not factual, inquiry proper at
the summary judgment stage. See Lumber Mut. Ins. Co. v. Zoltek
Corp., 419 Mass. 704, 707 (1995).
In sum, Domino's, via the franchise agreement, disclaimed
an agency relationship with Springfield Pie and left it
exclusively in Springfield Pie's purview to supervise, train,
and direct employees as to delivery and safety issues, and to
implement safety measures above the baseline standards imposed
by Domino's. To the extent that any policy or practice relating
to delivery "resulted in" or caused Corey's harm, it was one
exclusively controlled by Springfield Pie. Simply put, the harm
that ultimately occurred would not have occurred but for the
decision by Springfield Pie to send Corey on the delivery in
question, despite the possible danger inherent in such a
delivery. There is no genuine issue of material fact whether
16
any policy or practice of Domino's, including the weapon
prohibition, is directly and causally related to the harm. In
light of the foregoing, the judge's summary judgment ruling on
the vicarious liability claim was correct.
b. Direct negligence. The plaintiffs sought to hold
Domino's directly liable under the theory that Domino's created
an unreasonable risk of harm to Corey from third parties. In
order to succeed on a claim of negligence, a plaintiff must
establish that the defendants owed him a legal duty of care.
The existence or nonexistence of such a duty is question of law
and is thus an appropriate subject of summary judgment. See
Remy v. MacDonald, 440 Mass. 675, 676-677 (2004). "As a general
principle of tort law, every actor has a duty to exercise
reasonable care to avoid physical harm to others." Id. at 677.
A precondition to this duty is, of course, that the risk of harm
to another be recognizable or foreseeable to the actor. See
Foley v. Boston Hous. Authy., 407 Mass. 640, 646 (1990). "[A]s
a general rule, there is no duty to protect another from the
criminal conduct of a third party." Kavanagh v. Trustees of
Boston Univ., 440 Mass. 195, 201 (2003). However, such a duty
may arise where the plaintiff has reasonable expectations and
reliance that a defendant will anticipate harmful acts of third
parties and take appropriate measures to protect the plaintiff
from such harm. Ibid.
17
The parties cite no Massachusetts cases relating to direct
negligence principles concerning a franchisor's duty of care to
its franchisees' employees. The most analogous Massachusetts
case law is that of tort liability in the context of independent
contractors, as set out in Corsetti v. Stone Co., 396 Mass. 1
(1985). In Corsetti, the issue was whether a general contractor
owed a duty of care to an employee of its subcontractor, who had
been injured on the job. See id. at 3, 9-10. The relevant
inquiry was whether the employer maintained "sufficient control
over part of the work of an independent contractor to render him
liable under [Restatement (Second) of Torts § 414 (1965)]." Id.
at 11. However, § 414 is "usually, though not exclusively,
applicable when a principal contractor entrusts a part of the
work to subcontractors, but himself or through a foreman
superintends the entire job." Id. at 10, quoting from
Restatement (Second) of Torts § 414 comment b. Clearly, that is
a much different situation than the one presented here. Section
414, as interpreted by Corsetti, has not been adopted in this
jurisdiction in whole or in part in the franchisor context.
Consequently, Corsetti is instructive to our inquiry, but is not
binding or even entirely analogous.
Other jurisdictions that have considered the issue have
applied modified versions of § 414 and focused the inquiry on
the "extent of the franchisor's control of the daily operation
18
of the [franchisee's] business." Hoffnagle v. McDonald's Corp.,
522 N.W.2d 808, 814 (Iowa 1994). See Helmchen v. White Hen
Pantry, 685 N.E.2d 180, 181-182 (Ind. Ct. App. (1997)
(franchisor liability depends on level of control over
franchisee operations); Folsom v. Burger King, 135 Wash. 658,
673 (1998) ("In order to retain sufficient control, a franchisor
must retain the ability to make decisions concerning the daily
operation of the franchised restaurant").
Here, the inquiry we make is very similar to that applied
in the vicarious liability context, but to a different end. The
issue is not to determine whether Domino's should be vicariously
liable for a tort committed by Springfield Pie. We ask how much
control Domino's exercised over Springfield Pie's daily
operations to determine whether Domino's assumed a duty to
protect Corey from this practice. The result is the same. The
plaintiffs did not establish a genuine issue whether Domino's
exercised control over the daily operations of Springfield Pie
such that Domino's, as matter of law, had a duty to protect
Corey from the harm that befell him. Most baseline requirements
imposed by Domino's on the Boston Road store and other
franchisees were clearly intended for protection of the Domino's
trademark. Otherwise, franchisees were wholly responsible for
the day-to-day operations of their stores, whether in matters of
hiring employees, training employees, managing conflicts, or, as
19
most pertinent here, ensuring the safety of employees.
Therefore, the judge correctly determined that, as a matter of
law, the plaintiffs did not present a triable issue whether
Domino's had a legal duty to Corey to protect him against the
harm that he suffered.
c. Third-party beneficiary.13 When two people enter a
contract for the direct benefit of a third person, that third
party is an intended beneficiary. See Ayala v. Boston Hous.
Authy., 404 Mass. 689, 699 (1989). To maintain a cause of
action for breach of contract, a third party must therefore
"show that he was an intended beneficiary" of a contractual
obligation. Ibid. "Under Massachusetts law, only intended
beneficiaries, not incidental beneficiaries, can enforce a
contract." Harvard Law Sch. Coalition for Civil Rights v.
President & Fellows of Harvard College, 413 Mass. 66, 71 (1992).
The intent of the parties to the contract "determines whether a
third party is an incidental or intended beneficiary." Markel
Serv. Ins. Agency, Inc., v. Tifco, Inc., 403 Mass. 401, 405
(1988).
13
The plaintiffs did not reference this claim or the
negligent supervision and training claim, see infra, in their
appellate briefs on appeal or at oral argument. Thus, those
claims would ordinarily be considered waived. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975). However, because
waiver makes no difference to the outcome, we consider the
claims on the merits.
20
In their complaint, the plaintiffs alleged that Corey was a
third-party beneficiary of an agreement between Domino's Pizza
LLC and the United States Department of Justice. That agreement
concerned procedures Domino's would use in limiting delivery
areas so as to ensure that any decision to restrict deliveries
was not discriminatory.
Assuming that a claim sounding in contract may properly be
pleaded in a wrongful death action, we agree with the judge's
decision that summary judgment was warranted on this claim. A
plain reading of the agreement between Domino's Pizza LLC and
the Department of Justice, and the "Limited Delivery Service
Standard" and "Delivery Area Security Procedures Manual" that
Domino's promulgated in response, clearly indicates that the
parties did not manifest an intent to contract for the benefit
of Corey specifically or employees of franchisees generally.
Compare Ayala v. Boston Hous. Authy., 404 Mass. at 700-702
(primary purpose of contract between parties was to directly
benefit plaintiffs). Rather, the Department of Justice
agreement, and the Domino's policies created in response
thereto, were clearly intended to prevent racial discrimination
when limiting deliveries to certain geographical areas.
Employee safety was accounted for in Domino's newly created
policies, but that was not the primary purpose of the agreement,
21
such that franchisee employees can be said to be intended
beneficiaries of the agreement.
d. Negligent supervision and training. The plaintiffs
contended that Domino's had a duty to supervise its franchisees
"with respect to the store's adoption and implementation of the
policies and procedures promulgated and approved by [Domino's] .
. . concerning the safety and protection of delivery employees
and the training of franchise owners and employees with respect
to those policies and procedures." To the extent that this
claim depends on an allegation that, because Domino's was
negligent in its supervision of Springfield Pie, Springfield Pie
did not comply with Domino's baseline safety requirements (i.e.,
requiring that drivers not carry more than twenty dollars or a
weapon), the plaintiffs did not allege in the complaint or argue
in their pleadings that Springfield Pie did not follow those
requirements.
To the extent that this claim alleged that Domino's acted
negligently in the sense that it failed to provide more
comprehensive safety regulations that franchisees such as
Springfield Pie could have followed, the record as developed at
the summary judgment stage showed that Domino's had the right,
but not the duty, to promulgate additional safety regulations.
This is not a distinction without a difference; the franchise
agreement was narrowly prescribed to provide only that Domino's
22
imposed on franchisees certain baseline safety requirements,
contractually obligating Springfield Pie (and other franchisees,
given their greater local knowledge), to provide additional
safety measures to ensure the safety of their employees. Since
it retained no right to demand more specific and comprehensive
safety rules to be followed by all franchisees, it had no duty,
either under the franchise agreement or otherwise required by
law, to do so.
2. Trial issues. a. Exclusion of testimony. The
plaintiffs first contend that the judge improperly excluded
putative testimony from Springfield Deputy Chief of Police
Robert McFarlin concerning the relative danger of the city of
Springfield in 2007, compared to the rest of the United States.
McFarlin had been allowed to testify that "Sector G," where the
Boston Road store is located and where Morales's crimes against
Corey began, was in the "mid-range of reported criminal
activity" compared to other sectors of Springfield.
We discern no abuse of discretion or other error in the
judge's exclusion of this testimony on the basis that Deputy
Chief McFarlin lacked qualification to testify about this
matter.14 McFarlin had testified that he had not reviewed the
14
We review the judge's exclusion of the testimony for an
abuse of discretion or other error of law. See Aleo v. SLB Toys
USA, Inc., 466 Mass. 398, 406 (2013).
23
Federal Bureau of Investigation's reports "concerning the
comparative statistics between Springfield and other areas," but
asserted that "I have a pretty good idea of where [Springfield's
crime rate is relative to other locations], and I have a pretty
good idea of [the same] in [2007]." As the proponents of the
evidence, the plaintiffs failed to demonstrate that the witness
had a specific basis of knowledge to testify concerning
statistics gleaned from those reports. See Aleo v. SLB Toys
USA, Inc., 466 Mass. 398, 406 (2013), quoting from Sevigny's
Case, 337 Mass. 747, 751 (1958) ("Expert opinion testimony may
be excluded 'where it amounts to no more than mere speculation
or a guess from subordinate facts that do not give adequate
support to the conclusion reached'"). Prejudice to the
plaintiffs resulting from the exclusion of this testimony, if
any, would likely be mitigated by the general knowledge of
jurors about their locale and any relative danger, especially
considering the testimony that the deputy chief did provide.
See Commonwealth v. Fitzgerald, 376 Mass. 402, 420 (1978)
(discerning no error in prosecutor's remark that there was "fear
. . . in those projects" despite lack of evidence on that point
because "it was proper for the jury to take into consideration
their common knowledge concerning the projects"); Commonwealth
v. Kingsbury, 378 Mass. 751, 753 (1979) ("Jurors are entitled to
rely on their general knowledge of matters commonly known within
24
the community"). Additionally, even if exclusion of this
putative testimony were error, we view any possible prejudicial
effect as slight, because the testimony would not have addressed
the type of specific crimes that occurred here.
Second, the plaintiffs argue that the judge erroneously
excluded testimony from their expert security witness, Donald
Greene, as improper opinion testimony. Greene was permitted to
testify to his opinion of numerous deficiencies in Domino's
security plans but was not allowed to provide legal conclusions
whether these plans were negligent.15 The judge did not err in
excluding this proffered testimony. Although expert witnesses
may offer an opinion on the ultimate issues that the jury must
decide, see Simon v. Solomon, 385 Mass. 91, 105 (1982), those
witnesses generally may not testify as to whether a defendant
was negligent or to other matters which "touch[] on reasonable
care, an issue properly left for the jury." Welch v. Keene
Corp., 31 Mass. App. Ct. 157, 165 n.10 (1991).
b. Requested jury instruction. Finally, the plaintiffs
contend that the judge erred in not giving their requested jury
instruction on Corey's common-law right to self-defense. Citing
15
The judge made the ruling prior to the start of Greene's
testimony. Later, the plaintiffs' attorney clarified that
Greene would have testified, if allowed, that "the security plan
[was] willful, wanton, reckless, gross negligence. He found it
to be one of the worst corporate security plans he had ever
reviewed, and those matters were excluded by the Court."
25
Tyson v. Booth, 100 Mass. 258, 265 (1868), the plaintiffs
requested the following instruction: "A person has a right to
protect himself from attack provided that no more force than is
reasonably necessary for that purpose is used." The judge
declined to give the requested instruction.
We disagree with the plaintiffs that this was error. The
requested instruction did not speak to the use of weapons, and
therefore was not applicable to the plaintiffs' argument that
Domino's restricted Corey's right to self-defense by preventing
him from carrying a weapon. Moreover, while the Domino's policy
prohibited resistance to a robbery, it did not restrict drivers
from resisting in the event of violence against their person;
therefore, the instruction was not pertinent. It was within the
discretion of the judge to determine whether to refer to parts
of the evidence, and to determine that reference to self-defense
was unnecessary. See Poole v. Boston & Maine R.R., 216 Mass.
12, 15 (1913) (within judge's discretion to determine that
emphasis on plaintiffs' family businesses would have been
disproportionate and unnecessary to proper determination of
case); Goldman v. Mahony, 354 Mass. 705, 711 (1968) (within
discretion of judge to determine whether to refer to parts of
evidence).
26
3. Denial of motion for new trial.16 The plaintiffs
contend that the verdict was against the weight of the evidence.
A trial judge may set aside a jury verdict and order a new trial
if the verdict is against the clear weight of the evidence.
Oldham v. Nerolich, 389 Mass. 1005, 1005-1006 (1983). This
requires that the judge "is satisfied that the jury have failed
to exercise an honest and reasonable judgment in accordance with
the controlling principles of law." Ibid., quoting from
Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60
(1948). We review for an abuse of discretion. Hartmann, supra
at 60-61.
The plaintiffs have not met their high burden to show that
the verdict was against the weight of the evidence. Based on
evidence that Domino's provided basic safety guidelines for use
in franchisee stores, such as requirements that drivers not
carry more than twenty dollars or weapons on their person,
16
The plaintiffs also challenge the judge's decision
declining to alter or amend the partial allowance of summary
judgment, in light of Depianti, supra. The judge allowed the
plaintiffs' motion for reconsideration, acknowledging that
Depianti was issued after his summary judgment ruling but, on
reconsideration, ruled that his prior decision would stand
unaltered. For the reasons stated supra, the judge correctly
denied the plaintiffs' motion for reconsideration in light of
Depianti because he did, in fact, cite case law identical to the
rule later announced in Depianti at the time he granted the
summary judgment motion in part, and his ruling that summary
judgment was warranted on the vicarious liability claim was not
erroneous.
27
provided franchisees with training materials to train their
employees, generally monitored franchisees to determine whether
they complied with mandatory guidelines, and reserved the right
to terminate the franchise relationship in the event of
noncompliance, the jury could have found that Domino's
reasonably discharged any duty it voluntarily assumed to protect
Corey from the foreseeable harm of a third party.
Finally, the plaintiffs advance several related arguments
concerning the effect of the judge's partial allowance of the
motion for summary judgment just prior to opening statements.
The plaintiffs essentially contend that the summary judgment
ruling unfairly altered the course of trial. However, allowance
of summary judgment by which some claims are dismissed will
often alter the course of trial. Other than the issues already
discussed above, the plaintiffs point to no exclusion of
testimony, disallowance of any argument, or other restriction on
the plaintiffs' presentation at trial on the remaining claim of
voluntary assumption of duty. Moreover, although the plaintiffs
complain that the summary judgment decision freed Domino's to
employ an "empty chair" defense -- blaming the party not at
trial, Springfield Pie -- such a tactic would have been
available to Domino's in some fashion regardless whether other
counts, such as vicarious liability, were also tried. In short,
although the summary judgment ruling clearly removed some of the
28
plaintiffs' claims vis-a-vis trial, the plaintiffs have shown no
error either in the summary judgment ruling or the effect of
that ruling on trial such to warrant a new trial.
Judgments affirmed.
Orders denying motions for
reconsideration or to alter
or amend the judgment and
for new trial affirmed.