Boston, Mass. (October 14, 2024) - Boston Managing Partner Kenneth B. Walton and Partner Matthew M. O' Leary recently secured summary judgment on behalf of a civil engineering firm in a serious personal injury matter arising from a trip-and-fall incident in a mall parking lot.
The client was retained to provide site civil engineering design for the parking lot of a local mall. The design included multiple bioretention areas known as rain gardens. In November of 2019, a woman tripped and fell while attempting to cross a rain garden to reach her car. She suffered significant bodily injuries, including a fracture of the cervical spine that resulted in partial paralysis.
The woman and her husband sued the mall's owner for negligence and loss of consortium in June 2021. The owner, in turn, impleaded Lewis Brisbois' client and the lot's builder, asserting third-party claims for contribution, contractual and common law indemnity, and breach of contract. In addition, the builder cross-claimed against Lewis Brisbois' client for contribution and common law indemnity.
Mr. Walton and Mr. O' Leary filed a motion for summary judgment for the client on the owner's third-party claims and the builder's cross-claims in September 2023. The team argued that neither the owner nor the builder had disclosed expected expert testimony concerning the standard of care, breach of the standard or causation, which would be necessary to prove their case against the engineering firm. The court denied the motion without prejudice giving the other parties more time to complete discovery and disclose experts. The Lewis Brisbois team re-filed it in August of 2024 after the parties again failed to disclose the identity of the required experts. Furthermore, they argued that the owner and builder cannot maintain their common law indemnity claims because, if they are found liable, they would only be liable under a direct, and not vicarious, liability theory.
Massachusetts Superior Court Judge Michael K. Callan agreed with the Lewis Brisbois team's arguments on both points.
Judge Callan found that the owner and builder had not excused their failure to file Rule 56 (f) affidavits or provide any representations regarding what discovery they would need to be able to present expert testimony at trial. The owner had suggested that it considered it "unwise" to disclose its expert before the plaintiff did, but the judge found that a "nonmoving party's strategic preference is not grounds for denying a motion for summary judgment." Therefore, the owner's and builder's contribution, breach of contract, and breach of contractual indemnity claims against Lewis Brisbois' client fail, the judge held.
Judge Callan also agreed with the client's position that the owner and builder only face liability based on their own alleged conduct, and not "solely" or "exclusively" based on the client's conduct, which would be the only circumstance in which they could assert common law indemnity claims.
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