Hernandez v. City of Boston et al

Filing 113

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER. The motion to dismiss of defendant the City of Boston is DENIED, and the cross-claims of defendants Hardesty & Hanover, LLP, Hardesty & Hanover, LLC, and Hardesty & Hanover Holding, LLP for indemnity and contribution are STAYED pending further order of the Court. (Maynard, Timothy)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
MIRNA HERNANDEZ,
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Plaintiff,
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v.
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CITY OF BOSTON; Commissioner of
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Public Works JOANNE MASSARO;
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Superintendent of Bridges and
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Buildings FOUAD HAMZEH; BEC
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ELECTRICAL, INC.; CORA OPERATIONS, )
LLC; CORA OPERATIONS, INC.;
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ADVANCED ALARM SYSTEMS;
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HARDESTY & HANOVER, LLP;
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HARDESTY & HANOVER, LLC;
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HARDESTY & HANOVER HOLDING, LLC; )
B&B ELECTROMATIC, INC; B&B
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ELECTROMATIC CORPORATION; B&B
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ROADWAY, LLC; and B&B ARMR,
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Defendants.
)
__________________________________________)

Civil Action No.
16-10797-FDS

MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION TO DISMISS CROSS-CLAIMS
SAYLOR, J.
This suit arises from the tragic death of Aura Beatriz Garcia on December 31, 2013. The
deceased was walking across the McArdle Bridge, a drawbridge in East Boston, when it opened
and closed, causing her death.
Mirna Hernandez, Garcia’s sister and the personal representative of her estate, brought
suit against multiple defendants, including Hardesty & Hanover, LLP, Hardesty & Hanover,
LLC, and Hardesty & Hanover Holding, LLP (collectively, the “Hardesty & Hanover

Defendants”), and the City of Boston. The complaint includes claims for gross negligence,
wrongful death and violations of Garcia’s civil rights under 42 U.S.C. § 1983. 1 The Hardesty &
Hanover Defendants have filed cross-claims against all of their co-defendants seeking
indemnification, or alternatively contribution. Defendant City of Boston has moved for
dismissal of those cross-claims. For the reasons stated below, that motion will be denied.
I.

Background
The McArdle Bridge is a two-lane drawbridge in East Boston, Massachusetts, that carries

Meridian Street across the Chelsea River. (2d Am. Compl. ¶ 3). The bridge is owned, operated,
and managed by the City of Boston. (Id.). It is raised and lowered by a bridge tender, who sits
in a booth close to the bridge. (Id. ¶¶ 31, 37-38). According to the complaint, the Hardesty &
Hanover Defendants were responsible for installing and maintaining video and surveillance
equipment on the bridge. (Id. ¶¶ 40-41).
On December 31, 2013, at approximately 12:25 p.m., Garcia walked across the bridge.
(Id. ¶ 37). The spotlights on the bridge were not working. (Id. ¶ 36). According to the
complaint, the bridge tender opened the bridge while Garcia was walking across it, without first
ensuring that the bride was clear of pedestrians. (Id. ¶ 38). As the bridge opened, Garcia clung
to one of the bridge plates and screamed for help. (Id. ¶ 39). The bridge tender then closed the
bridge on top of her, crushing her and causing her death. (Id.).
Plaintiff Mirna Hernandez, Garcia’s sister and the personal representative of her estate,
has brought suit against multiple defendants, including the City of Boston and Hardesty &
Hanover Defendants. The complaint sets forth claims against these defendants for wrongful
death and deprivation of Fourteenth Amendment due process rights pursuant to § 1983.

1

The Court granted motions to dismiss the claims under 42 U.S.C. § 1983 as to several defendants,
including the City of Boston, on April 25, 2017.

2

On May 22, 2017, the Hardesty & Hanover Defendants filed a cross-claim for
indemnification and contribution against all other defendants in the case. On June 23, the City of
Boston filed a motion to dismiss the cross-claims against it for failure to state a claim.
II.

Legal Standard
On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and

give . . . [cross-claimant] the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total
Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77
(1st Cir. 1999)). To survive a motion to dismiss, the cross-complaint must state a claim that “is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual
allegations must be enough to raise a right to relief above the speculative level, . . . on the
assumption that all the allegations in the [cross-complaint] are true (even if doubtful in fact).”
Id. at 555 (citations omitted). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is
appropriate if the cross-complaint fails to set forth “factual allegations, either direct or
inferential, respecting each material element necessary to sustain recovery under some actionable
legal theory.” Gagliardi v. Sullivan, 513 F.3d 301, 305 (1st Cir. 2008) (quoting Centro Medico
del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st Cir. 2005)).
III.

Analysis
A.

Whether the Cross-Claim States a Claim for Indemnification

A right to indemnification can arise in three ways. Araujo v. Woods Hole, Martha’s
Vineyard, Nantucket S.S. Auth., 693 F.2d 1, 2 (1st Cir. 1982). First, a right to indemnification
can be created by express agreement. Id. Second, “a contractual right to indemnification may be

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implied from the nature of the relationship between the parties.” Id. Third, “a tort-based right to
indemnification may be found where there is a great disparity in the fault of the parties.” Id.
The City of Boston contends that the cross-claim fails to allege facts sufficient for a
contractual right to indemnification. 2 The Hardesty & Hanover Defendants largely concede this
point, as their opposition makes no reference to the contract-based theory. In any event, the
cross-claim contains no factual pleadings that plausibly support the existence of a special
relationship between them and the City of Boston.
A tort-based, or common-law, right to indemnification is available “where the person
seeking indemnification did not join in the negligent act of another but was exposed to liability
because of that negligent act.” Rathbun v. Western Mass. Elec. Co., 395 Mass. 361, 364 (1985).
It is “[d]esigned to shift the whole loss upon the more guilty of the two tortfeasors,” and “has
usually been available only when the party seeking it was merely passively negligent while the
would-be indemnitor was actively at fault.” Araujo, 693 F.2d at 3. Furthermore, “[p]assive
negligence has been limited to instances in which the indemnitee was vicariously or technically
liable.” Id. However, “[w]here the party seeking indemnification was itself guilty of acts or
omissions proximately causing the plaintiff’s injury, tort indemnification is inappropriate.” Id.
The Hanover & Hardesty Defendants contend that they are entitled to “full . . . commonlaw indemnity” because any of their “alleged liability . . . was secondary and passive.”
(Hardesty Ans. at 23). They contend that they “never performed any installation or maintenance
of any equipment on the Bridge,” and “there is no evidence of any negligence on the part of

2

A contractual right to indemnification will be implied only “when there are unique special factors
demonstrating that the parties intended that the would-be indemnitor bear the ultimate responsibility for the
plaintiff’s safety, or when there is a generally recognized special relationship between the parties.” Araujo, 693 F.2d
at 2-3. For example, the mere existence of a “vendor/vendee relationship, without more,” does not “giv[e] rise to a
contract to indemnity.” Roy v. Star Chopper Co., 442 F. Supp. 1010, 1019 (D.R.I. 1977) (aff’d 584 F.2d 1124 (1st
Cir. 1978)). The party seeking an implied contractual right to indemnification must proffer evidence “establishing a
special relationship between the parties.” Araujo, 693 F.2d at 3.

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Hardesty & Hanover.” (Hardesty Opp. at 3, 4). The City of Boston contends that common-law
indemnification is inappropriate because assuming that plaintiff’s factual pleadings are true, the
Hardesty & Hanover Defendants were primary tortfeasors. However, under Fed. R. Civ. P.
12(b)(6), the Court is required to “accept[ ] the allegations in the cross-claims as true and draw[ ]
all reasonable inferences in the cross-claimant’s favor.” Humes v. Farr’s Coach Lines, 2016 WL
1031320, at *2 (W.D.N.Y. Mar. 8, 2016). See also Scheurer Hospital v. Lancaster Pollard &
Co., 2013 WL 173268, at *1 (E.D. Mich. Jan. 16, 2013); Leon-Figueroa v. Tropigas De Puerto
Rico, Inc., 2010 WL 11545575, at *3 (D.P.R. Mar. 22, 2010). Under the circumstances, the
Court must assume that the allegations of the cross-claims are true, and therefore will not dismiss
the cross-claim on that basis. 3
B.

Whether the Cross-Claim States a Claim for Contribution

The Hardesty & Hanover Defendants have also filed a cross-claim for contribution.
Massachusetts law provides that “where two or more persons become jointly liable in tort . . .
there shall be a right of contribution among them even though judgment has not been recovered
against all or any of them.” Mass. Gen. Laws ch. 231B, § 1(a). The policy rationale is to
counteract the “unfairness of allowing a disproportionate share of the plaintiff’s recovery to be
borne by one of several joint tortfeasors . . . .” LeBlanc v. Logan Hilton J.V., 463 Mass. 316, 326
(2012) (quoting Hayon v. Coca Cola Bottling Co. of New England, 375 Mass. 644, 648 (1978).
The right of contribution exists only in favor of a joint tortfeasor “who has paid more than his
pro rata share of the common liability.” Mass. Gen. Laws ch. 231B § 1(b). “A tortfeasor
seeking contribution must meet certain statutory requirements.” Medical Prof’l Mut. Ins. Co. v.

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Of course, the factual allegations of both the complaint and the cross-claims are inconsistent, and
therefore both cannot be true. Nonetheless, for purposes of evaluating the validity of the cross-claims, the court will
independently assume its allegations are true.

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Breon Labs., Inc., 966 F. Supp. 120, 122 (D. Mass. 1997) (citing Mass Gen. Laws ch. 231B, §
3). See also Commonwealth v. Tradition (N. Am.) Inc., 91 Mass. App. Ct. 63, 68 (2017). As
with the indemnification claim, assuming the factual allegations of the cross-claim are true, the
cross-claim for contribution states a claim for relief.
C.

Whether the Cross-Claims Are Premature

Both cross-claims are contingent claims that will become ripe only if the Hardesty &
Hanover Defendants are actually found liable. They are, therefore, technically premature. The
Court could therefore dismiss the cross-claims without prejudice on the ground that the Hardesty
& Hanover Defendants have not alleged that they have discharged a common liability, and that
they can bring a separate action in the future should that contingency come to pass. See Mass.
Gen. Laws ch. 231B, § 3(d) (providing one-year limitation period for contribution actions).
Nevertheless, it makes little sense to dismiss the cross-claims outright, only to revive
them if the Hardesty & Hanover Defendants are ultimately found liable. There appears to be no
requirement that indemnification and contribution cross-claims be brought in separate actions,
and dismissing the claims would achieve little.
However, the cross-claims are not in fact ready to be litigated. The Court will therefore
stay the cross-claims until such time as defendants are actually found liable. It is unclear what if
any practical consequence will follow from the imposition of a stay, as the relative fault of the
parties is surely an appropriate issue during discovery of plaintiff’s claims. However, if it
appears that a party seeks discovery on facts concerning only the cross-claims, the Court will
entertain a motion to lift the stay or take such other action as justice may require.

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IV.

Conclusion
For the reasons stated above, the motion to dismiss of defendant the City of Boston is

DENIED, and the cross-claims of defendants Hardesty & Hanover, LLP, Hardesty & Hanover,
LLC, and Hardesty & Hanover Holding, LLP for indemnity and contribution are STAYED
pending further order of the Court.
So Ordered.
s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: October 2, 2017

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