Vintimilla v. National Lumber Co.

Carhart, J. The plaintiff appeals from the allowance of the defendant’s motion for summary judgment on his claim for negligent entrustment and the denial of his motion to amend his complaint. We affirm. Background. The plaintiff, Miguel Vintimilla, filed a complaint against National Lumber Company (National Lumber) alleging negligent entrustment. Subsequently, Vintimilla moved to amend his claim by adding a count alleging unfair or deceptive acts or practices pursuant to G. L. c. 93A. The judge, in a [494] detailed memorandum, allowed summary judgment in favor of National Lumber. At the same time, the judge denied Vintimilla’s motion to amend the complaint to add a c. 93A count on the ground that the motion was futile in light of his allowance of summary judgment on the negligent entrustment count. The facts are not in dispute and in order to frame the issue on appeal, we recite them as stated by the judge in his memorandum of decision: “On November 26, 2007, National Lumber leased a forklift to Vermont Construction [Company (Vermont Construction)]. The lease agreement stated that the lessee ‘shall use the equipment in a careful and proper manner and shall comply with all national, state, municipal, police and other laws, ordinances and regulations in anywise [sz'c] relating to the possession, use, or maintenance of the equipment.’ This was the first time National Lumber leased equipment to Vermont Construction. National Lumber’s officers and employees did not know, and did not inquire, whether Vermont Construction’s employees had a license to operate the forklift or whether they were competent to operate forklifts. National Lumber’s officers and employees were unaware of any practice of using a forklift to lift a person into the air. Michael Gosselin, a sales representative of National Lumber who arranged for the lease of the forklift to Vermont Construction, was aware that Vermont Construction had been cited in the past for violations of [Occupational Safety and Health Administration] safety regulations. He was not aware of the specific nature of those violations. When the forklift was leased, National Lumber provided an instruction manual for it to Vermont Construction. National Lumber did not provide any other instruction regarding the operation of the forklift. On December 21, 2007, Vintimilla was standing on the forks of the forklift when he fell thirty-five feet to the ground, sustaining injuries. At the time of the accident, the forklift operator did not have a license to operate the forklift. The operator had received no training in the operation of a forklift.” Discussion. The sole issue in this case is whether the judge erred in granting summary judgment by concluding that National Lumber was not liable for Vermont Construction’s act of permitting an unlicensed person to operate the forklift. We review a grant of summary judgment de novo, looking to the summary [495] judgment record to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Roman v. Trustees of Tufts College, 461 Mass. 707, 710-711 (2012), quoting from Kennie v. Natural Resource Dept. of Dennis, 451 Mass. 754, 759 (2008). In order to set out a claim for negligent entrustment, Vintimilla must prove “(1) [National Lumber] entrusted [the forklift] to an incompetent or unfit person whose incompetence or unfitness was the cause of [his] injuries; (2) [National Lumber] gave specific or general permission to the operator to [operate the forklift]; and (3) [National Lumber] had actual knowledge of the incompetence or unfitness of the operator.” Picard v. Thomas, 60 Mass. App. Ct. 362, 369 (2004). Vintimilla argues that, pursuant to G. L. c. 146, §§ 53-54, National Lumber had a duty to check whether Vermont Construction had a hoisting license to operate the forklift before leasing the equipment. In support of this argument, Vintimilla relies on Mitchell v. Hastings & Koch Enterprises, Inc., 38 Mass. App. Ct. 271, 277 (1995), in which we held that “an owner who permits operation of his car by one whose license has been suspended or revoked, regardless whether he has actual knowledge of that fact, may himself be found responsible, on a negligent entrustment basis, for the negligent operation of the unlicensed driver.” Here, however, Vintimilla faces the insurmountable burden of showing that National Lumber somehow entrusted the forklift to the operator of the forklift, rather than to Vermont Construction. See Kassis v. Lease & Rental Mgmt. Corp., 79 Mass. App. Ct. 784, 790 n.15 (2011). Indeed, National Lumber did not entrust the forklift directly to the operator, as occurred in the cases cited by Vintimilla. See Gordon v. Bedard, 265 Mass. 408, 412 (1929); Davis v. Walent, 16 Mass. App. Ct. 83, 87-89 (1983); Mitchell v. Hastings & Koch Enterprises, Inc., supra. Rather, National Lumber entered into a lease agreement with Vermont Construction, whereby Vermont Construction agreed to “use the equipment in a careful and proper manner and . . . comply with all national, state, municipal, police and other laws, ordinances and regulations in anywise [sic] relating to the [496] possession, use, or maintenance of the equipment.” The lease agreement further provided that National Lumber “SHALL NOT BE HELD RESPONSIBLE FOR ANY DIRECT OR CONSEQUENTIAL DAMAGES OR LOSSES RESULTING FROM THE INSTALLATION, OPERATION, OR USE OF THE [FORKLIFT].” The facts lead us to conclude that this case is controlled by Kassis v. Lease & Rental Mgmt. Corp., supra. In Kassis, a woman was killed after being struck by a vehicle that the defendant (a business that leased, sold, and financed motor vehicles) had leased to the operator. Id. at 785. The administrator of the decedent’s estate sued the defendant for negligence, alleging that the defendant had a duty to maintain the mechanical condition of the vehicle, which, if properly maintained, would not have caused the accident that resulted in the death of the decedent. Id. at 786-788. We concluded that although parties generally have a duty of reasonable care, “where (as here) the owner has leased the vehicle to another under a long-term lease, we think the owner’s obligations are controlled by the common law of bailment to the extent they are not otherwise governed by the terms of the lease or by statute.” Id. at 788. We noted that the governing regulation, which required “ ‘[e]very owner or person in control of a Massachusetts registered motor vehicle’ to submit the vehicle for annual inspection,” did not differentiate between owners and lessees of vehicles, nor did the governing statute. Id. at 789 n.14, quoting from 540 Code Mass. Regs. § 4.03(1) (1999). Moreover, the lease agreement shifted the responsibility of maintenance and upkeep to the lessee. Id. at 785. Under the law of bailment, “[a]bsent contract, statute, or an agency relationship, a bailor of property is not liable to third persons injured as a result of a bailee’s negligent use or operation of the bailed property.” Id. at 789. Thus, we held that the defendant did not have a “duty to assure the safety” of the leased vehicle. Id. at 789. Similar to the statutes and regulations in Kassis, the statutes governing hoisting equipment, G. L. c. 146, do not differentiate between owners and lessees. And like the lease agreement in Kassis, the lease agreement between National Lumber and Vermont Construction shifted responsibility for safety compli [497] anee from the former to the latter. There is nothing in the record that suggests that the rental of the forklift was anything more than an arm’s-length transaction between two businesses. In these circumstances, we see no basis for imposing a duty of care running from the lessor beyond the lessee, and indeed, doing so may result in unintended litigation. Nor do we see any basis for requiring, as the dissent urges, that National Lumber check whether Vermont Construction possessed a hoisting license. Given our conclusion, we need not address Vintimilla’s other arguments.1 Judgment affirmed. Footnotes [1] The dissent relies heavily on the legislative history governing the operation of hoisting machines as a basis for concluding that National Lumber had a duty to ensure proper licensure for all operators of the machine it leased to Vermont Construction. Apart from the fact that exercising such a proposed duty of care would be unduly cumbersome, we ask, for example, (1) What specific steps must lessors undertake to ensure compliance with this duty of care? Would a simple inquiry or warning suffice? (2) Must lessors investigate all operators employed by lessees to ensure proper licensure? (3) Would such investigations continue through the duration of a lease, as operators in the lessee’s employ come and go? (4) What assurances do lessors have that, if a license is produced, operators will safely operate machinery? The law, at present, does not impose such a duty. [1] Initially, the plaintiff sued D. Pallotta Construction Company, Inc. (Pallotta), the general contractor on the work site, for negligence; Pallotta then brought Vermont Construction into the case as a third-party defendant. The plaintiff was allowed to amend his complaint to include a claim for negligent entrustment against National Lumber. Vermont Construction could neither be located nor served and was dismissed as a party. The parties stipulated to the dismissal of Pallotta.