United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO
Dennis Saylor IV, United States District Judge
suit arises from the tragic death of Aura Beatriz Garcia on
December 31, 2013. The deceased was walking across the
McArdle Bridge, a drawbridge in East Boston, when it opened
and closed, causing her death.
Hernandez, Garcia's sister and the personal
representative of her estate, brought suit against multiple
defendants, including Hardesty & Hanover, LLP, Hardesty
& Hanover, LLC, and Hardesty & Hanover Holding, LLP
(collectively, the “Hardesty & Hanover
Defendants”), and the City of Boston. The complaint
includes claims for gross negligence, wrongful death and
violations of Garcia's civil rights under 42 U.S.C.
§ 1983. The Hardesty & Hanover Defendants have
filed cross-claims against all of their co-defendants seeking
indemnification, or alternatively contribution. Defendant
City of Boston has moved for dismissal of those cross-claims.
For the reasons stated below, that motion will be denied.
McArdle Bridge is a two-lane drawbridge in East Boston,
Massachusetts, that carries Meridian Street across the
Chelsea River. (2d Am. Compl. ¶ 3). The bridge is owned,
operated, and managed by the City of Boston. (Id.).
It is raised and lowered by a bridge tender, who sits in a
booth close to the bridge. (Id. ¶¶ 31,
37-38). According to the complaint, the Hardesty &
Hanover Defendants were responsible for installing and
maintaining video and surveillance equipment on the bridge.
(Id. ¶¶ 40-41).
December 31, 2013, at approximately 12:25 p.m., Garcia walked
across the bridge. (Id. ¶ 37). The spotlights
on the bridge were not working. (Id. ¶ 36).
According to the complaint, the bridge tender opened the
bridge while Garcia was walking across it, without first
ensuring that the bride was clear of pedestrians.
(Id. ¶ 38). As the bridge opened, Garcia clung
to one of the bridge plates and screamed for help.
(Id. ¶ 39). The bridge tender then closed the
bridge on top of her, crushing her and causing her death.
Mirna Hernandez, Garcia's sister and the personal
representative of her estate, has brought suit against
multiple defendants, including the City of Boston and
Hardesty & Hanover Defendants. The complaint sets forth
claims against these defendants for wrongful death and
deprivation of Fourteenth Amendment due process rights
pursuant to § 1983.
22, 2017, the Hardesty & Hanover Defendants filed a
cross-claim for indemnification and contribution against all
other defendants in the case. On June 23, the City of Boston
filed a motion to dismiss the cross-claims against it for
failure to state a claim.
motion to dismiss, the Court “must assume the truth of
all well-plead[ed] facts and give . . . [cross-claimant] the
benefit of all reasonable inferences therefrom.”
Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d
1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175
F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss,
the cross-complaint must state a claim that “is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). That is,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level, . . . on the
assumption that all the allegations in the [cross-complaint]
are true (even if doubtful in fact).” Id. at
555 (citations omitted). “The plausibility standard is
not akin to a ‘probability requirement, ' but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly, 550 U.S. at 556).
Dismissal is appropriate if the cross-complaint fails to set
forth “factual allegations, either direct or
inferential, respecting each material element necessary to
sustain recovery under some actionable legal theory.”
Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir.
2008) (quoting Centro Medico del Turabo, Inc. v.
Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
Whether the Cross-Claim States a Claim for
to indemnification can arise in three ways. Araujo v.
Woods Hole, Martha's Vineyard, Nantucket S.S. Auth.,
693 F.2d 1, 2 (1st Cir. 1982). First, a right to
indemnification can be created by express agreement.
Id. Second, “a contractual right to
indemnification may be implied from the nature of the
relationship between the parties.” Id. Third,
“a tort-based right to indemnification may be found
where there is a great disparity in the fault of the
City of Boston contends that the cross-claim fails to allege
facts sufficient for a contractual right to
indemnification. The Hardesty & Hanover Defendants
largely concede this point, as their opposition makes no
reference to the contract-based theory. In any event, the
cross-claim contains no factual pleadings that ...