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July 25, 1978


Suffolk. Question of law certified to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.

Hennessey, C.j., Kaplan, Wilkins, Liacos, & Abrams, JJ.


Negligence, Maintenance of cargo container facility, Forklift, Intoxicated person, Proximate cause.

The opinion of the court was delivered by: Abrams

In an action for personal injuries sustained at a Massachusetts Port Authority facility when the rear wheel of a forklift was driven over the plaintiff's foot, the authority was not relieved of liability for its negligence in failing to secure the forklift on its premises by the fact that an intoxicated seaman was taking it for a joyride when the accident occurred where the actions of the seaman and the resulting harm to the plaintiff were reasonably foreseeable. [104-106]

In this tort action the plaintiff Cynthia J. Jesionek sought recovery for personal injuries sustained at the Massachusetts Port Authority's Mystic Container Facility (facility) when the rear wheel of a forklift was driven over her foot. After a trial in the United States District Court, District of Massachusetts, the jury returned a verdict for Mrs. Jesionek. *fn1 The defendant, Massachusetts Port Authority (authority), filed a motion for judgment notwithstanding the verdict. The trial Judge took the authority's motion under advisement and, pursuant to S.J.C. Rule 3:21, as amended, 366 Mass. 871 (1974), certified the following question to this court: "Does the evidence most favorable to the plaintiff . . . warrant submitting the case to a jury under Massachusetts law?" We answer the question in the affirmative.

The evidence most favorable to the plaintiff is as follows. *fn2 On June 15, 1974, sometime after 4 p.m. the plaintiff and her husband (the Jesioneks) arrived at the facility. The Jesioneks entered the terminal at the normal pedestrian entrance en route to visit a crewman aboard the M/V New England Trapper (Trapper), a container vessel which was berthed at the pier. The authority guard at the gate raised no objections to their entry; it was the authority's policy to allow social guests of officers and crew members to enter the terminal area and to traverse the storage area for containerized cargo for the purpose of visiting the ships. The security guards were aware that the Jesioneks had previously visited the facility on at least eight occasions.

For the month of June, 1974, the normal on-duty complement for the authority's security force at the terminal was two security guards. One security guard was to stand watch at the entrance gate to the facility while the other guard made hourly patrols inside the terminal. Between 4 p.m. and midnight on June 15, 1974, only one security guard was on duty at the facility. He was expected to spend most of his time at the entrance gate and to be away from the gate on patrol as little as possible. As a result, fewer and less thorough patrols were made of the facility, including the pier and the "C & D shed," the storage area for the facility's forklifts, than would have been made if two guards had been on duty.

The authority had in effect specific procedures with respect to securing the forklifts. The security guards were directed to ensure that the forklifts were not operated by unauthorized persons. After cargo operations ceased, the forklifts were to be parked by their operators inside the "C & D shed," which was then to be locked. If the "C & D shed" was locked prior to the cessation of cargo operations, then the forklifts would be temporarily parked by their operators outside and next to the "C & D shed" and, after all cargo operations ended, the forklifts were to be secured at a different location, namely the mechanics' office near the guards' office and the entry gate.

Between 9 and 9:30 p.m. on June 15 the security guard on duty at the facility made a patrol near the "C & D shed." Cargo operations had terminated and the forklifts had been parked outside the "C & D shed." Although the guard walked within three feet of the forklifts, he did not take any action to secure the forklifts or to check for keys in the ignitions of the machines.

Sometime around 9:30 p.m. an eighteen-year old seaman disembarked from the Trapper and mounted a forklift. The seaman had become intoxicated in the crew's lounge of the Trapper where alcoholic beverages were readily available to crew members when the ship was in dock. The authority was aware that intoxicated crewmen were commonly incident to vessels in port. It was a frequent occurrence for drunken seamen to arrive at the security gate either alone or in the custody of the police. If the seaman was in police custody the police would escort him to his vessel; otherwise the security guard would provide an escort. Once a drunken seaman is on board his vessel there is no physical barrier to his leaving the ship and wandering around the terminal.

The intoxicated young crewman had been "joyriding" on the forklift and operating it in an erratic and dangerous manner for at least fifteen minutes before the accident. The erratic operation included circling, going backwards, stopping and starting, and going behind containers and then reappearing. This forklift was a 5,000 pound hard-tire machine which the authority owned and controlled. The rear wheels, rather than the front wheels, are used to turn such a vehicle; when the steering wheel of the forklift is turned, the machine moves in the direction opposite to that in which a car would move. When the seaman was operating the forklift, the security guard was in the guard office near the entry gate where he could not see or hear the forklift. No representative of the authority had any knowledge that the seaman was driving the forklift.

At approximately 9:45 p.m. the Jesioneks disembarked from the Trapper. The plaintiff observed the seaman operating the forklift at the end of the pier. The Jesioneks remained in the lee of the gangway because the forklift was being driven by the seaman on the customary walking route to the gate and the pedestrian exit. As the Jesioneks stood there the seaman approached them on the forklift. When the seaman spotted the pair he turned the steering wheel sharply away from them, thus causing the forklift to turn toward the Jesioneks. One of the rear wheels of the machine rolled over the plaintiff's left foot.

After the accident, the forklift which injured the plaintiff was found in the immediate vicinity of the vessel with its key in the ignition. The forklift was identical to the vehicles which the ...

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