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,
)
)
)
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
8
\)
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