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Hernandez v. City of Boston

United States District Court, D. Massachusetts

October 2, 2017

MIRNA HERNANDEZ, Plaintiff,
v.
CITY OF BOSTON; Commissioner of Public Works JOANNE MASSARO; Superintendent of Bridges and Buildings FOUAD HAMZEH; BEC ELECTRICAL, INC.; CORA OPERATIONS, LLC; CORA OPERATIONS, INC.; ADVANCED ALARM SYSTEMS; HARDESTY & HANOVER, LLP; HARDESTY & HANOVER, LLC; HARDESTY & HANOVER HOLDING, LLC; B&B ELECTROMATIC, INC; B&B ELECTROMATIC CORPORATION; B&B ROADWAY, LLC; and B&B ARMR, Defendants.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS CROSS-CLAIMS

          F. Dennis Saylor IV, United States District Judge

         This 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.

         Mirna 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.[1] 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.

         I. Background

         The 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).

         On 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. (Id.).

         Plaintiff 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.

         On May 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.

         II. Legal Standard

         On a 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)).

         III. Analysis

         A. Whether the Cross-Claim States a Claim for Indemnification

         A right 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 parties.” Id.

         The City of Boston contends that the cross-claim fails to allege facts sufficient for a contractual right to indemnification.[2] 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 ...


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