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)

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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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