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Solberg v. Borden Light Marina, Inc.

United States District Court, D. Massachusetts

August 25, 2014



DENISE J. CASPER, District Judge.

I. Introduction

Plaintiffs Richard Solberg ("Solberg") and Dorine Solberg (collectively, the "Solbergs") have filed this lawsuit against Defendants Borden Light Marina ("BLM"), Michel Lund ("Lund") and Kevin Munro ("Munro"). Solberg alleges general maritime law negligence while Dorine Solberg alleges loss of consortium. D. 1. BLM has moved for summary judgment. D. 38. For the reasons stated below, the Court DENIES BLM's motion.

II. Standard of Review

The Court grants summary judgment where there is no genuine dispute as to any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). A genuine issue exists when a reasonable jury could resolve the issue in favor of the non-moving party. Farjardo Shopping Ctr., S.E. v. Sun Alliance Ins. Co. of P.R. , 167 F.3d 1, 7 (1st Cir. 1999). "A fact is material if it carries with it the potential to affect the outcome of the suit under applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp. , 217 F.3d 46, 52 (1st Cir. 2000). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo , 215 F.3d 124, 132 (1st Cir. 2000); see Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). If the movant meets its burden, the non-moving party may not rest on the allegations or denials in its pleadings, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256 (1986), but must come forward with specific admissible facts showing that there is a genuine issue for trial. Borges ex rel. S.M.B.W. v. Serrano-Isern , 605 F.3d 1, 5 (1st Cir. 2010). The Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc. , 556 F.3d 20, 25 (1st Cir. 2009).

III. Factual Background and Procedural History

The following facts are drawn from BLM's statement of material facts and are not disputed by the Solbergs. Solberg is a musician who leads a musical group (the "Band"). D. 39 at 2; D. 46 at 10 ¶ 1-2. Lund is the President of BLM. D. 39 at 2. The Tipsy Seagull is a restaurant and bar owned by Barge, LLC, an entity distinct from BLM. D. 39 at 2; D. 46 at 11 ¶ 14. Solberg and the Band performed at The Tipsy Seagull on the evening of May 27, 2011 and were scheduled to perform again the following evening. D. 39 at 2; D. 46 at 3 ¶ 6.

Before the Band's second performance, Lund took Solberg and others on a boat ride on the Taunton River. D. 39 at 3; D. 46 at 6 ¶ 13. With Lund at the helm, the boat struck a submerged rock resulting in injury to Solberg. D. 39 at 1.

The Solbergs also allege that Lund is a manager of Barge, LLC, the alleged owner of The Tipsy Seagull.[1] D. 46 at 11 ¶ 15; D. 46-3 at 5. While not involved in the day to day operations, he supervises The Tipsy Seagull's managers and oversees the hiring of musicians. D. 46 at 11 ¶ 16. Prior to May, 2011, the Band had played at The Tipsy Seagull on at least two occasions. Id. at 12 ¶ 21. For each of the Band's performances, Lund dealt with Solberg to hire the Band and Lund paid the Band's fee. Id . ¶¶ 23-24.

The Tipsy Seagull is located on BLM premises. Id. at 11 ¶ 14. The Tipsy Seagull is a floating bar accessed only by a gangway from a float that houses the BLM fuel dock which is owned and maintained by BLM. Id. at 12 ¶ 22. BLM encouraged its customers to visit The Tipsy Seagull, rewarding them with points they can use to reduce their bills. Id. at 13 ¶ 31. BLM advertises The Tipsy Seagull on its logo, its website and in its newsletters. Id. at 13 ¶ 32. BLM also advertises that it is the home of The Tipsy Seagull while the Tipsy Seagull advertises that it is part of the BLM family. Id. at 13 ¶ 33.

BLM now moves for summary judgment on Count I for negligence and Count II for loss of consortium. D. 38. The Court heard the parties on the pending motion on July 23, 2014 and took the matter under advisement. D. 52.

IV. Discussion

The doctrine of respondeat superior provides that an employer is subject to liability for the torts of its employees committed while acting within the scope of their employment.[2] Dias v. Brigham Med. Assoc., Inc. , 438 Mass. 317, 319-20 (2002); Restatement (Third) of Agency § 2.04 (2006). An employee is acting within the scope of his employment if (1) his conduct is of the kind he is employed to perform; (2) it occurs substantially within the authorized time and space limits; and (3) it is motivated, at least in part, by a purpose to serve the employer. Wang Labs., Inc. v. Bus. Incentives, Inc. , 398 Mass. 854, 859 (1986) (internal citations omitted); see Roggio v. City of Gardner, No. 10-40076-FDS, 2011 U.S. Dist. LEXIS 34731 at *16 (D. Mass. Mar. 30, 2011); Lev v. Beverly Enters.-Mass., Inc. , 457 Mass. 234, 238 (2010); Restatement (Third) of Agency § 7.07 (2006).

BLM argues that it is entitled to summary judgment because the evidence does not demonstrate that BLM was responsible for Lund's actions. D. 39 at 1. According to BLM, Lund was not on duty as president of BLM when the accident occurred, the boat was not owned by BLM and no business was transacted or discussed during the excursion. Id. at 2. BLM notes that the boat ride was not part of the any contract between Solberg (or the Band) and any other party. Id. at 3. BLM points to Solberg's deposition testimony that he did not expect a boat ride as part of his compensation for performing at The Tipsy Seagull. Id . BLM also relies on Lund's deposition testimony to support its contention that Lund hosted Solberg on the boat purely as a friend and not in his role as president of BLM. Id. at 3. The accident occurred on a boat owned by Munro and not by BLM. Id. at ...

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