CHARLES B. SWARTWOOD, III, Magistrate Judge.
Nature of Proceeding
By Order of Reference dated January 26, 2001, and with the voluntary written consent of the parties, this matter has been referred to me for all further proceedings and the entry of judgment. This Order addresses the Third Party Defendant's Motion for Summary Judgment (Docket No. 26).
Nature of the Case
Plaintiff Tracy Raymond ("Ms. Raymond" or "Plaintiff") filed a Complaint against Taco Bell Corporation ("Defendant" or "Taco Bell") as a result of injuries she sustained when she slipped and fell in the parking lot of a Taco Bell restaurant located in Worcester, Massachusetts. Taco Bell has filed a Third Party Complaint (Docket No. 15) against Richard Kramek, d/b/a Bee Line Snow Plow ("Mr. Kramek" or "Third Party Defendant") and The Bee Line, in which it asserts the following claims: Count I (against Mr. Kramek) for Contribution under Mass.Gen.L. ch. 231B, § 1; Count II (against Mr. Kramek) for Breach of Contract; Count III (against Mr. Kramek) for Common Law Indemnification; Count IV (against Mr. Kramek) for Express and Implied Contractual Indemnity. In Counts V through VIII, Taco Bell asserts identical claims against The Bee Line.
Standard of Review
To prevail on a motion for summary judgment, the moving party must establish the non-existence of any genuine issue of material fact to a judgment in its favor. Snow v. Harnishfeger Corp., 12 F.3d 1154, 1157 (1st Cir. 1993). The moving party bears the burden "of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552 (1986) (quoting Fed.R.Civ.P. 56 (c)). The burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). A genuine issue of material fact exists when the disputed facts "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986). If there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law, summary judgment will be granted.
Facts
The following facts are stated in a light most favorable to Taco Bell as the non-moving party.
The Bee Line's/Mr.Kramek's Obligation To Plow the Taco Bell Parking Lot
1. Mr. Kramek provided snow plowing services to Taco Bell during the 1995-96 snow season. Those services were provided pursuant to a written agreement between Taco Bell and The Bee Line. Mr. Kramek signed the agreement on behalf of "The Bee Line". Aff. Of Thomas E. Kenney (Docket No. 28) ("Kenney Aff."), at Ex. B; Ex. A (Excerpts of Dep. of Richard Kramek) ("Kramek Dep."), at pp. 13-17.
2. The Bee Line was an unincorporated business which Mr. Kramek operated as a sole proprietor. Kramek Dep., at p. 10.
3. The agreement, which was signed on December 14, 1995, provided as follows:
We hereby propose to furnish with specifications below . . . all material and labor necessary to complete the following:
Snow Plowing of Taco Bell parking lot sanding of walk enterance [sic.] to begin after accumulation of 3 inches. Not liable for any personal or property damages due to adverse weather condtions. [F]or the sum of eighty-five dollars dollars [sic.] ($$[sic.]85.00). Return plowing sanding of walk and additional 30.00
. . . .
Kenney Aff., at Ex. B. The agreement further provided that "All work is to be completed in a workmanlike manner according to standard practices". Id.
4. When plowing the Taco Bell parking lot, Mr. Kramek's practice was to plow the main routes while maintaining a safe distance from any cars parked in the lot. Kramek Dep., at p. 63. Mr. Kramek plowed the lot at his discretion and Taco Bell never contacted him to do any additional plowing or sanding. Id., at p. 65.
5. Mr. Kramek submitted invoices to Taco Bell for payment of his services. These invoices were paid without dispute. Id., at p. 20-21.
Circumstances Surrounding Ms. Raymond's Accident
6. On January 13, 1996, Ms. Raymond and her family traveled to Taco Bell. Kenney Aff., Ex. C (Excerpts of Deposition of Tracy Raymond) ("Raymond Dep."), at pp. 94-95. Upon arriving at Taco Bell, Plaintiff exited the car and, while walking in the parking lot, slipped on ice and fell. Id., at pp. 99, 113, 118-120.
7. Ms. Raymond described the condition of the ice as thick, cloudy, old, dirty, and rutted, with a number of tire tracks running through it. Id., at pp. 118-12.
8. There were a number of other cars parked in the parking lot at the time of the accident. Kenney Aff., Ex. E (Excerpts of Deposition of Kenneth Raymond), at p. 63. The lot had been plowed but not sanded or salted. Raymond Dep., at p. 97; Kenney Aff., Ex. D (Excerpts of Deposition of Deborah Raymond), at pp. 108-109.
9. The fall resulted in significant injuries which continue to affect Ms. Raymond to the present. Plaintiff's Answers to Interrogatories Propounded by the Defendant, No. 16.
10. Mr. Kramek's only recollection concerning services he performed for Taco Bell on January 13, 1996 is that he plowed the parking lot twice. Mr. Kramek does not remember at what times he plowed the parking lot. Kramek Dep., at p. 44.
Discussion A. Taco Bell's Contribution claim.
Taco Bell seeks contribution from Mr. Kramek under Mass.Gen.L. ch. 231B, § 1, as a joint tortfeasor whose negligence was a proximate cause of Ms. Raymond's injury. Mr. Kramek argues that there is no evidence to support a finding that he may be liable to Ms. Raymond for injuries she sustained when she slipped and fell in the Taco Bell parking lot. Therefore, Mr. Kramek argues, he is entitled to summary judgment on Taco Bell's statutory contribution claim.
Chapter 231B, § 1 provides in relevant part as follows:
(a) Except as otherwise provided in this chapter, where two or more persons become jointly liable in tort for the same injury to person or property, there shall be a right of contribution among them even though judgment has not been recovered against all or any of them.
(b) The right of contribution shall exist only in favor of a joint tortfeasor, hereinafter called tortfeasor, who has paid more than his pro rata share of the common liability, and his total recovery shall be limited to the amount paid by him in excess of his pro rata share. No tortfeasor shall be compelled to make contribution beyond his own pro rata share of the entire liability.
"In order to state a claim for contribution from a joint tortfeaser, the party seeking contribution must show that the potential contributor is directly liable to the plaintiff." Panagakos v. Walsh, 434 Mass. 353, 354 (2001). Therefore, Taco Bell is entitled to contribution from Mr. Kramek ony if both Taco Bell and he are liable to Ms. Raymond for her injuries. See Donahue v. Ford Motor Co., 44 Mass. App. Ct. 937, 939 (1998) ("Contribution . . . is based on the shared fault of the joint tort feasors"). Ms. Raymond's claim sounds in negligence. For that reason, Taco Bell would be entitled to contribution from Mr. Kramek only if Mr. Kramek was negligent in plowing the parking lot and such negligence was a proximate cause of Ms. Raymond's injuries.
Generally, in order to establish a prima facie case of negligence, a plaintiff must establish: that the defendant had a duty to him/her; that the defendant breached such duty; that such breach was a proximate cause of his/her injuries; and damges. Davis v. Westwood Group, 420 Mass. 739, 742-743 (1995). However, where a plaintiff is alleging a negligence claim for injuries sustained as the result of having slipped on ice or snow for which the plaintiff alleges the defendant is responsible, the plaintiff must prove that the ice or snow upon which s/he fell was an "unnatural accumulation". Sullivan v. Brookline, 416 Mass. 825, 829 (1994). That is, "[l]iability is possible only `in circumstances where some act or failure to act has changed the condition of naturally accumulated snow and ice, and the elements alone or in connection with the land become a hazard to lawful visitors'". Id., at 827 (quoting Aylward v. McCluskey, 412 Mass. 77, 80 (1992)).
Ms. Raymond stated that the ice on which she fell was thick, cloudy, old, dirty, and rutted with multiple tire marks. This evidence is sufficient for purposes of summary judgment to establish that the snow/ice on which Ms/ Raymond fell was not in its natural condition. Consequently, Mr. Kramek may be liable to Ms. Raymond, and thus, to Taco Bell, only if there is evidence that: Mr. Kramek breached a duty which he owed to Ms. Raymond; Mr. Kramek was negligent, including that Mr. Kramek caused the unnatural condition of the snow/ice on which Ms. Raymond fell; and as a result of Mr. Kramek's negligence, Ms. Raymond was injured.
Mr. Kramek asserts that the basis for Ms. Raymond's claim against Taco Bell is that her injuries were the result of Taco Bell's failure to sand and/or salt the parking lot. Mr. Kramek argues that under his agreement with Taco Bell, he was not required to sand/salt the parking lot and therefore, his failure to do so, as a matter of law, cannot constitute negligence. Taco Bell, on the other hand, argues that there is a genuine issue of fact as to whether Mr. Kramek plowed the parking lot in a "workmanlike manner" as required by their agreement.
If Ms. Raymond's claim against Taco Bell was based solely on the grounds that her fall was caused by the failure to sand/salt the Taco Bell parking lot, then Taco Bell's claim for statutory contribution would, in all likelihood, fail as a matter of law. However, Ms. Raymond's claim is much broader than asserted by Mr. Kramek in support of his motion for summary judgment. In her Complaint, Ms. Raymond alleges that she fell as the result of an unnatural accumulation of ice and snow which was uneven and "rutted". Mr. Kramek has not asserted that there is no genuine issue of material fact as to whether he plowed the parking lot in a "workmanlike manner", that is, he has not argued that, as a matter of law, the facts do not support a finding that he caused the "ruts", etc. when he plowed the parking lot. Under these circumstances, Mr. Kramek has failed to establish that he is entitled to summary judgment on Taco Bell's statutory contribution claim because his negligence was not responsible for Ms. Raymond's injuries.
B. Taco Bell's Breach of Contract claim.
Taco Bell alleges that Mr. Kramek breached the contract by failing to perform his duty in accord with the express language of the contract. Mr. Kramek argues that Taco Bell's breach of contract claim is in essence the same claim as Taco Bell's claim for contribution and since he didn't have an obligation to sand/salt the parking lot, as a matter of law, he did not breach the contract.
Regardless of whether this claim sounds in tort or contract, as I have previously found, there is a genuine issue of material fact as to whether Mr. Kramek plowed the parking lot in a "workmanlike manner". Therefore, Mr. Kramek's motion for summary judgment on Taco Bell's breach of contract claim is denied.
C. Taco Bell's claims for Indemnification
Taco Bell has asserted claims against Mr. Kramek for common law and contractual indemnification. Mr. Kramek argues that he is entitled to summary judgment because as a matter or law, Taco Bell is not entitled to either common law or contractual indemnification. In its oppolsition to Mr. Kramek's motion for summary judgment, Taco Bell has not addressed Mr. Kramek's legal arguments concerning its alleged failure to state a claim for common law and/or contractual indemnification.
Whether Taco Bell is Entitled to Common Law Indemnification
"At common law a person may seek indemnification if that person `does not join in the negligent act but is exposed to derivative or vicarious liability for the wrongful act of another' . . . `The general rule is that a person who negligently causes injury to a third person is not entilted to indemnification from another person who also negligently caused that injury'". Fireside Motors, Inc. v. Nissan Motor Corporation, 395 Mass. 366, 369 (1985) (citation to quoted cases omitted). Mr. Kramek argues that he is entilted to summary judgment on this claim because under Firestone, if the finder of fact determines that Taco Bell's negligence was the cause of Ms. Raymond's injuries, Taco Bell is barred from seeking indeminification from him. On the other hand, if the finder of fact determines that Taco Bell's negligence did not cause Ms. Raymond's injuries, its claim for common law indemnification will be moot. Therefore, Mr. Kramek argues that regardless of whether Taco Bell is found liable to Ms. Raymond, it is not entitled to indemnification. I disagree. If the jury determines that Taco Bell is liable to Ms. Raymond because it was negligent for failing to sand/salt the parking lot, then Mr. Kramek's position is valid (assuming, as Mr. Kramek alleges, that he was not responsible for sanding/salting the parking lot). However, should the jury find that Taco Bell is liable to Ms. Raymond not as the result of its own negligence, but because its independent contractor, Mr. Kramek, did not adequately plow the parking lot, then Taco Bell may be entitled to indemnification from Mr. Kramek. Therefore, Mr. Kramek's motion for summary judgment with respect to this claim is denied.
Mr. Kramek has not asserted any other basis for dismissing Taco Bell's common law indemnification claim and for that reason, for purposes of this Order, I will assume that Taco Bell can otherwise meet the requirements of such a claim.
Taco Bell's claim for Express and Implied Contractual Indemnification. Express Contractual Indemnification
Taco Bell asserts that the agreement between it and Mr. Kramek contains a provision whereby Mr. Kramek expressly agreed to indemnify Taco Bell under the circumstance of this case. Mr. Kramek argues that the parties agreement does not contain an express indemnification provision.
I find that there is a complete absence in the agreement of any language which could be read to provide that Mr. Kramek agreed to indemnify Taco Bell for any injuries sustained by persons injured in the parking lot as a result of his plowing. For this reason, summary judgment shall enter for Mr. Kramek on Taco Bell's claim for express contractual indemnification. See Araujo v. Woods Hole, Martha's Vineyward, Nantucket Steamship Authority, 693 F.2d 1, 2 (1982).
Implied Contractual Indemnification.
Taco Bell asserts that there was an implied agreement between the parties whereby Mr. Kramek agreed to indemnify it under the circumstances of this case. Mr. Kramek argues that Taco Bell has not presented any evidence indicating an implied agreement existed between the parties.
This Court will read an agreement to impliedly provide for one party thereto to indemnify the other if there is evidence of "`unique special factors' demonstrating that the parties intended the putative indemnitor to bear the ultimate liability" or a "special relationship carrying with it an obligation to indemnify." Decker v. Black and Decker Manufacturing Company, 389 Mass. 35, 38-39 (1983).
There is nothing in the record before me to suggest that at the time they entered the agreement, these parties intended that Mr. Kramek would indemnify Taco Bell for personal injuries sustained by persons using the parking lot after it had been plowed by Mr. Kramek. In fact, there is evidence to the contrary within the contract which provides in relevant part that Mr. Kramek would not be "liable for any personal or property damages due to adverse weather condtions" and that Taco Bell was responsible for providing its own insurance. Furthermore, the relationship between these parties is not such that there exists a special obligation for Mr. Kramek to indemnify Taco Bell. See Araujo, 693 F.2d at 3. Under these circumstances, I find that Mr. Kramek is entitled to summary judgment with respect to Taco Bell's implied contractual indemnification claim.
E. Taco Bell's Claims against The Bee Line.
In counts V through VIII, Taco Bell asserts the same claims against The Bee Line that it asserts against Mr. Kramek in Counts I through IV. Mr. Kramek argues that The Bee Line is not a separate entity, that is, he would be personally responsible for any damages assessed against The Bee Line and for that reason, the claims against The Bee Line are duplicative of the first four counts and should be dismissed. Taco Bell has not opposed Mr. Kramek's motion for summary judgment with respect to its claims against The Bee Line.
"The term `sole proprietor' refers to a single individual who owns a business . . . and `is solely liable for all debts of the business'". Ladd v. Scudder Kempter Investments, Inc., 433 Mass. 240, 243 (2001) (citation to quoted authority omitted). The Bee Line does not exist as a legal entity separate from Mr. Kramek. Third Party Def. Statement of Facts, p. 2 No. 3.; Kramek Depo., p. 10. Therefore, the claims against The Bee Line are duplicative and will be dismissed.
Conclusion
It is ordered that:
1. Third Party Defendant's Motion for Summary Judgment (Docket No. 26) is allowed with respect to Counts IV, V, VI, VII, and VIII. In all other respects, this motion is denied.