Alves v. Daly et al

Filing 416

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER. "It is hereby ORDERED that judgment shall enter in favor of defendants North Street Steakhouse and Sportsbar, Inc. and Edmond Richardi on Counts IX and X of the Second Amended Complaint." (Bartlett, Timothy)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

DUANE ALVES,
Plaintiff,

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)
)

v.

)

Civ. A. No. 12-10935-MLW

)

JOHN DALY, ARIEL COLLAZO,
CHRISTOPHER BORUM, LUIS
MARTINEZ, JONATHAN WELCH,
EDMOND M. RICHARDI, and NORTH
STREET STEAK HOUSE AND SPORTS
BAR, INC.,
Defendants.

)
)
)
)
)
)
)
)

MEMORANDUM AND ORDER
WOLF, D.J.

June 29, 2015

On May 27, 2015, after a three-week trial, the jury returned
a verdict against plaintiff Duane Alves on his claims for assault,
battery,

intentional

imprisonment,

infliction

of

emotional

distress,

false

violations of the Massachusetts Civil Rights Act,

and negligence.

The sole remaining claims are Counts IX and X of

the Second Amended Complaint, which allege that defendants Edmond
Richardi and North Street Steakhouse (the "Steakhouse") committed
unfair or deceptive acts
Laws Chapter 93A.

in violation of Massachusetts General

These claims must be decided by the court.

the reasons explained below,

For

the court is denying Alves Chapter

93A claims and entering judgment in favor of the defendants.

I.

BACKGROUND

Al ves brought

this

evening of May 25,

lawsuit

2011,

Steakhouse in Hyannis,

he was

in

2012,

alleging that

on the

assaulted and battered at the

Massachusetts.

He alleged that he was a

disc jockey working at the Steakhouse when he was attacked in two
separate incidents by several off-duty police officers who were
patrons at the Steakhouse.

He claimed that the Steakhouse had

inadequate security staff on duty to prevent or stop the fight,
and that the Steakhouse failed to call the police promptly or to
take steps to prevent the second assault.
In his Second Amended Complaint,

Alves asserted claims for

assault, battery, and violations of his federal rights pursuant to
42 U.S.C. §1983, among other things, against the officers. He also
asserted

claims

for

negligence

and

intentional

emotional distress against the Steakhouse,
and

two

of

its

employees,

Luis

Martinez

infliction

its owner,
and

of

Richardi,

Jonathan

Welch

(collectively, the "Steakhouse defendants").
Count IX of the plaintiff's Second Amended Complaint asserted
a cause of action under Massachusetts General Laws,
Section 9,

Chapter 93A

and Count X asserted a cause of action under Chapter

93A Section 11.
and Richardi.

Each count was alleged only against the Steakhouse
Prior to trial, the Steakhouse and Richardi moved

for partial summary judgment on Alves' Chapter 93A claims, arguing
that

a

plaintiff

cannot

advance
2

claims under both Chapter

93A

Sections 9 and 11 because the two sections are mutually exclusive.
The Steakhouse urged the court to require that Alves proceed under
§11 of the statute, which provides a cause of action for businesses
rather than consumers, because he was employed as a disc jockey at
the time he was injured.

The court denied this motion because

there was a material factual dispute as to whether Alves was acting
in his capacity as a disc jockey or whether he was merely a patron
at the bar at the time he was allegedly assaulted by the officers.
A jury trial on Alves'
Steakhouse

defendants

began

claims against the officers and the
on

May

5,

2015.

The

sole

claim

presented to the jury against the Steakhouse defendants alleged
negligence.

On May 27, 2015, the jury found for the defendants'

on all of Alves' claims.
the

Steakhouse

and

its

Among other things, the jury found that
employees

had been negligent,

and that

negligence had caused Alves harm, but that Alves' own comparative
negligence exceeded that of the Steakhouse.
After

trial,

Alves

and

the

Steakhouse

submitted

proposed

findings of fact and conclusions of law regarding the Chapter 93A
claims.

The court did not seek advisory findings of fact from the

jury on

the

Chapter

93A claims.

Instead,

the

court has made

independent findings of fact based on the evidence presented at
trial.

See Poly v. Moylan, 423 Mass. 141, 151 (1996).

3

II.

LEGAL STANDARD
Massachusetts

General

Laws

Chapter

93A

provides

that

"[u]nfair methods of competition and unfair or deceptive acts or
practices

in

the

conduct

declared unlawful."

of

any

trade

or

commerce

M. G. L. ch. 93A, § (2) (a).

are

hereby

Section 9 of Chapter

93A provides a private right of action for consumers, and Section
11

provides

commerce.

a

private

right

of

action

for

Compare id., §9, with id., §11.

persons

are

judged

under

Cummings v. HPG Intern.,

a

"more

in

While both Sections 9

and 11 require proof of an unfair or deceptive
claims

engaged

forgiving

act,

Section 9

consumer

standard."

Inc., 244 F.3d 16, 26

(1st Cir. 2001).

Conduct is "deceptive" within the meaning of Chapter 93A "if
it

could

reasonably

be

found

to

have

caused

a

person

to

act

differently from the way he otherwise would have acted."

Aspinall

v.

(quoting

Philip Morris Cos.,

442 Mass.

381,

394

(Mass.

2004)

Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 777 (1980)).
In deciding whether a business practice is "unfair" under Chapter
93A,

Massachusetts

whether

the

courts

practice

is

at

apply
least

a

three-step

within

the

analysis:

penumbra

of

"(1)
some

common-law, statutory, or other established concept of unfairness;
(2) whether it is immoral, unethical, oppressive, or unscrupulous;
and (3) whether it causes substantial injury to consumers."

Mass.

Eye & Ear Infirmary v. QLT Phototherapeutics, Inc., 412 F.3d 215,

4

243

(1st Cir. 2005)

(citing PMP Assocs.,

Inc. v. Globe Newspaper

Co., 366 Mass. 593, 595 (1975)).
"A negligent act standing by itself does not give rise to a
claim under c.

93A.
or

There must in addition be evidence that the

negligence

was

resulted

practice."

Squeri v. McCarrick, 32 Mass. App. Ct. 203, 207 (1992);

Poly v. Moylan,

423 Mass.

Mass.

410,

424

(1999);

Mass.

165,

176

regulation

in

141,

an

unfair

151

deceptive

(1996); Meyer v.

Klairmont v.

(2013).

and

Similarly,

act

Wagner,

Gainsboro Rest.,

Inc.,

"a

a

violation

of

law

or

429
465
or

will be a violation of c. 93A §2(A), only if the

conduct leading to the violation is both unfair or deceptive and
occurs in trade or commerce."
III.

Klairmont, 465 Mass. at 175.

ANALYSIS
The court finds that North Street and Richardi were negligent

and violated provisions of the Barnstable Town Code. 1

However,

this conduct did not constitute a violation of Chapter 93A because
it did not involve or result in any unfair or deceptive act.

See

Squeri, 32 Mass. App. Ct. at 207.
The facts proven by a preponderance of the credible evidence
show that

Steakhouse

and

Richardi

First, the security guard on duty,

were

negligent

Jonathan Welch,

in

two ways.

left his post

The acts and omissions in this case were committed by Steakhouse
employees who were acting in the scope of their employment, and
their acts are attributable to the Steakhouse. See Dias v. Brigham
Medical Associates, Inc., 438 Mass. 317, 320 (2002).
1

5

prior to the initial fight between Alves and the off-duty officers.
He was away from his post when defendant Christopher Borum was
escorted out of the bar.
bar

to

Welch's

at

least

absence

This enabled Borum to rush back into the

attempt
also

to

join

prolonged

in

the

the

initial

duration

altercation.

of

the

first

altercation between Alves and the officers because there were fewer
Steakhouse employees available to assist in breaking it up.

This

negligent conduct violated Barnstable Town Code §501-8(a), which
required

the

supervision

Steakhouse
is

"to

exercised

ensure

over

the

that

a

conduct

high
of

degree

the

of

licensed

establishment at all times."
Second, the bar employees delayed in calling the police when
they

should

have

done

so

immediately.

Martinez told Welch to call the police,
unreasonably.

The

court

finds

that

but that Welch delayed

Welch did not immediately call the police station.

At some point he called a Barnstable officer who he knew.
failing to reach that officer,

Welch called the police station.

The police arrived quickly after that call.
harm to Alves because,

After

Welch's delay caused

while waiting for the police to arrive,

Alves went downstairs, punched James Hyde, who was pursuing Alves,
and then was punched in the face by defendant Ariel Collazo.

This

delay in calling the police violated Barnstable Town Code §501­
13(A), which required Steakhouse employees "to call the police to
have patrons removed from the premises when such patrons are being
6

disruptive and they are unable to convince the patron to leave the
premises voluntarily."
However,

regardless of whether Alves's Chapter 93A claim is

analyzed under §9 or the more stringent §11 standard, he has failed
to

show

any

"unfair"

or

"deceptive"

act

or

practice

by

the

Steakhouse or Richardi that would establish Chapter 93A liability.
Alves

has

not

shown

that

the

Steakhouse' s

security

practices

"created a hazardous environment for patrons of the [Steakhouse's]
of

business

which

the

Klaremont, 165 Mass. at 177.

[Steakhouse]

w [as]

well

aware."

There was, for example, no evidence

that anyone had been harmed previously as a result of comparable
negligence by the Steakhouse.

Therefore, the court finds that the

Steakhouse did not act deceptively by implicitly holding itself
out to be a safe establishment.
In addition,

the

Steakhouse' s

Ear

unethical,

Infirmary,

Steakhouse

and

412
its

at

Rather,

243.

employees

on

May

the

25,

conduct

2011,

negligence," and did not involve the "dishonesty,
or

misrepresentation"

violation.

See

necessary

Darviris v.

to

Petros,

constitute

a

442 Mass.

274,

ORDER
7

Eye
of

was

fraud,

(quoting Poly v. Moylan, 423 Mass. 141, 151 (1996)).
IV.

"unfair"

Mass.

or unscrupulous."

oppressive,
F.3d

not

The conduct at issue was not

within the meaning of Chapter 93A.
"immoral,

negligence was

the

"mere
deceit,

Chapter
278

&

93A

(2004)

In view of the foregoing,
shall enter in
Sportsbar,

Inc.,

it is hereby ORDERED that judgment

favor of defendants North Street Steakhouse and
and Edmond Richardi on Counts

IX and X of the

Second Amended Complaint.

~~~.~~

UNITED STATES DISTRICT JUDGE

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\)