R.L. CURRIE CORP.
EAST COAST SAND AND GRAVEL, INC.
Heard: April 3, 2018
action commenced in the Superior Court Department on
September 26, 2014.
case was heard by Joshua I. Wall, J., on motions for
L. Shapiro (Eric L. Shwartz also present) for the plaintiff.
William J. Fidurko for the defendant.
Present: Wolohojian, Milkey, & Wendlandt, JJ.
case presents the issue whether the defendant (having left
heavy-duty equipment unlocked, unattended, and running idle
with keys in the ignition on a lot shared with the plaintiff)
has a duty of care to the plaintiff whose property was
damaged by an unauthorized third-party user of the equipment.
Concluding that the unauthorized use was not reasonably
foreseeable, a Superior Court judge granted summary judgment
in favor of the defendant on the plaintiff's claim for
negligence. We reverse.
We summarize the undisputed facts in the light most favorable
to the plaintiff, the party opposing summary judgment. See
Herbert A. Sullivan, Inc. v. Utica Mut. Ins.
Co., 439 Mass. 387, 393 (2003). The parties shared a lot
where they stored trucks and other heavy-duty equipment used
in their respective businesses. The defendant provides snow
a snowstorm in January of 2014, at approximately 10:00 P_.M.,
the defendant's employee left a front-end loader running
idle, unattended, and unlocked on the lot with the keys in
the ignition. The employee returned to the lot at 2:00
A.M. In the interim, an unknown and unauthorized third party
had driven the front-end loader into two of the
plaintiff's trucks, causing extensive damage.
there had been previous incidents where items such as
batteries and steel had been stolen from the lot, this was
the first incident involving unauthorized use of the
defendant's equipment. It was the defendant's
practice to leave the keys to its front-end loaders, usually
hidden, inside the vehicles. At least one of the
defendant's employees, nonetheless, did not adhere to
this practice because he did not want anyone else driving his
this incident, the plaintiff filed a complaint alleging,
inter alia, that the defendant was negligent in failing to
properly secure the front-end loader. On cross motions for
summary judgment, the judge granted the defendant's
motion. The judge concluded that the defendant did not owe a
duty of care to the plaintiff and that the plaintiff had no
reasonable expectation of proving causation at trial because
the damage to the plaintiff's trucks was not a reasonably
foreseeable consequence of the defendant's actions. The
Summary judgment is to be granted where, viewing the evidence
in the light most favorable to the nonmoving party, there are
no genuine issues as to any material fact and the moving
party is entitled to judgment as a matter of law.
Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). See
Cargill, Inc. v. Beaver Coal & Oil Co.,
424 Mass. 356, 358 (1997). "[The] party moving for
summary judgment in a case in which the opposing party will
have the burden of proof at trial is entitled to summary
judgment if he demonstrates . . . that the party opposing the
motion has no reasonable expectation of proving an essential
element of that party's case." Dulgarian v.
Stone, 420 Mass. 843, 846 (1995), quoting from
Symmons v. O'Keefe, 419 Mass. 288, 293 (1995).
Our review is de novo. Chambers v. RDI Logistics,
Inc., 476 Mass. 95, 99 (2016).
prevail on a negligence claim, a plaintiff must prove that
(1) the defendant owed the plaintiff a duty, (2) the
defendant breached this duty, (3) damage to the plaintiff
resulted, and (4) there was a causal relationship between the
breach of the duty and the damage. See Jupin v.
Kask, 447 Mass. 141, 146 (2006). "[T]he existence
of a duty is question of law, and is thus an appropriate
subject of summary judgment." Ibid. In
addition, while each of the other elements typically involve
questions of fact suitable for resolution by a jury, see,
e.g., Mullins v. Pine Manor College, 389 Mass. 47,
58 (1983), proximate cause may be resolved as a matter of
law, where "a plaintiff has no reasonable expectation of
proving that 'the injury to the plaintiff was a