NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1149
RICKY J. FRENI
vs.
UBER TECHNOLOGIES, INC., & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal arises from an incident that occurred in
February of 2019, after Guilherme Rocho picked up an intoxicated
passenger, Matthew Tyre, while working as a driver for the
ridesharing company, Uber Technologies, Inc., and its holding
company, Rasier, LLC (collectively, Uber). During the ride,
Tyre became enraged and began assaulting Rocho. Fearing for his
safety, Rocho pulled over to the breakdown lane, ran from the
vehicle with its engine still running, and dialed 911. Tyre
started chasing Rocho, threw a glass bottle of whiskey at him,
and punched him twice in the arm. Tyre then ran back towards
the vehicle, sat in the driver's seat, and fled the scene
without Rocho. While commandeering the vehicle, Tyre collided
1 Rasier, LLC; Guilherme Rocho; and James River Casualty Company. with a truck parked on the side of the road. The plaintiff was
sitting inside the truck and sustained significant injuries.
The plaintiff now appeals from a Superior Court judgment
allowing Uber's motion to dismiss; allowing Rocho's motion for
judgment on the pleadings; allowing the assented-to motion to
dismiss filed by Rocho's insurance company, James River Casualty
Company (JRCC); 2 and dismissing his amended complaint. On
appeal, the plaintiff claims that the judge erred in dismissing
his amended complaint because the plaintiff alleged facts
plausibly suggesting an entitlement to relief. We affirm.
Discussion. "A defendant's rule 12 (c) motion is 'actually
a motion to dismiss . . . [that] argues that the complaint fails
to state a claim upon which relief can be granted.'" Jarosz v.
Palmer, 436 Mass. 526, 529 (2002), quoting J.W. Smith & H.B.
2 JRCC had initially moved to dismiss, or in the alternative, to sever and stay the plaintiff's G. L. c. 93A, § 176D, claim against him. The judge took no action on the motion to dismiss but severed and stayed the G. L. c. 93A, § 176D, claim pending resolution of the plaintiff's tort claims against Rocho and the Uber defendants. JRCC then filed a motion for reconsideration, which was denied. Once the tort claims were resolved by the above-mentioned motions, the plaintiff filed his first notices of appeal. However, his appeal was not perfected because of the remaining claim against JRCC. Thus, JRCC moved to dismiss the remaining G. L. c. 93A, § 176D, claim with the assent of all parties, which was allowed. In any event, as the plaintiff conceded at oral argument, he has waived all claims against JRCC on appeal by not raising them in his brief. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). Therefore, we only address the claims against the remaining defendants herein.
2 Zobel, Rules Practice § 12.16 (1974). "We review the allowance
of a motion to dismiss de novo," accepting as true the facts
alleged in the plaintiff's complaint and any favorable
inferences that reasonably can be drawn from them. Galiastro v.
Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164
(2014). "In assuming the facts as alleged, however, '[w]e do
not regard as "true" legal conclusions cast in the form of
factual allegations.'" Sudbury v. Mass. Bay Transit Auth., 485
Mass. 774, 778-779 (2020), quoting Leavitt v. Brockton Hosp.,
Inc., 454 Mass. 37, 39 n.6 (2009). The facts alleged in the
complaint and the reasonable inferences drawn therefrom must be
enough to plausibly raise an entitlement to relief to survive a
motion to dismiss. See Iannacchino v. Ford Motor Co., 451 Mass.
623, 636 (2008).
" To prevail on a negligence claim, a plaintiff must prove
that the defendant owed the plaintiff a duty of reasonable care,
that the defendant breached this duty, that damage resulted, and
that there was a causal relation between the breach of the duty
and the damage." Jupin v. Kask, 447 Mass. 141, 146 (2006). As
the plaintiff concedes, "the question whether the complaint
properly was dismissed turns on whether the plaintiff alleged
facts demonstrating that the defendant had a duty to the
[plaintiff] to protect him against harm from third parties."
Heath-Latson v. Styller, 487 Mass. 581, 584 (2021).
3 "Fundamentally, the existence of a duty of care depends
upon the foreseeability of a risk of harm that the defendant has
an ability to prevent." Heath-Latson, 487 Mass. at 584. "This
duty generally does not extend to taking 'affirmative steps to
protect against dangerous or unlawful acts of third persons.'"
Id., quoting Luoni v. Berube, 431 Mass. 729, 731 (2000).
However, Massachusetts courts have recognized a duty to
protect against the conduct of a third party for the benefit of
another in narrowly prescribed circumstances. See Leavitt, 454
Mass. at 41-42; Mullins v. Pine Manor Coll., 389 Mass. 47, 54-55
(1983) (colleges have duty to protect resident students against
foreseeable criminal acts of third parties); Doe v. Boston Med.
Ctr. Corp., 88 Mass. App. Ct. 289, 291-292 (2015) (hospitals
have duty to protect patients from foreseeable harm caused by
its employees where employment facilitated harm). "A duty to
protect against harm caused by the conduct of a third person
arises where there is a 'special relationship' between a
defendant and a plaintiff such that the 'defendant reasonably
could foresee that he would be expected to take affirmative
action to protect the plaintiff and could anticipate harm to the
plaintiff from the failure to do so.'" Heath-Latson, 487 Mass.
at 585, quoting Irwin v. Ware, 392 Mass. 745, 756 (1984).
Here, the plaintiff claims that a special relationship
existed between him and Uber, and by extension, Rocho, such that
4 they were required to take affirmative steps to protect him from
Tyre's criminal conduct, which he avers was foreseeable. In
particular, the plaintiff claims that Uber, and by extension,
Rocho, are common carriers owing him this duty of care. We
disagree.
"It is the long settled law of this Commonwealth that a
common carrier owes to its passengers the highest degree of care
in the anticipation and prevention of violence from its
employees, other passengers, and even strangers, as is
consistent with the nature and operation of its business."
Quigley v. Wilson Line of Mass., Inc., 338 Mass. 125, 128
(1958). Even if we were to categorize Uber and Rocho as common
carriers, a common carrier does not owe nonpassengers, like the
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1149
RICKY J. FRENI
vs.
UBER TECHNOLOGIES, INC., & others. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal arises from an incident that occurred in
February of 2019, after Guilherme Rocho picked up an intoxicated
passenger, Matthew Tyre, while working as a driver for the
ridesharing company, Uber Technologies, Inc., and its holding
company, Rasier, LLC (collectively, Uber). During the ride,
Tyre became enraged and began assaulting Rocho. Fearing for his
safety, Rocho pulled over to the breakdown lane, ran from the
vehicle with its engine still running, and dialed 911. Tyre
started chasing Rocho, threw a glass bottle of whiskey at him,
and punched him twice in the arm. Tyre then ran back towards
the vehicle, sat in the driver's seat, and fled the scene
without Rocho. While commandeering the vehicle, Tyre collided
1 Rasier, LLC; Guilherme Rocho; and James River Casualty Company. with a truck parked on the side of the road. The plaintiff was
sitting inside the truck and sustained significant injuries.
The plaintiff now appeals from a Superior Court judgment
allowing Uber's motion to dismiss; allowing Rocho's motion for
judgment on the pleadings; allowing the assented-to motion to
dismiss filed by Rocho's insurance company, James River Casualty
Company (JRCC); 2 and dismissing his amended complaint. On
appeal, the plaintiff claims that the judge erred in dismissing
his amended complaint because the plaintiff alleged facts
plausibly suggesting an entitlement to relief. We affirm.
Discussion. "A defendant's rule 12 (c) motion is 'actually
a motion to dismiss . . . [that] argues that the complaint fails
to state a claim upon which relief can be granted.'" Jarosz v.
Palmer, 436 Mass. 526, 529 (2002), quoting J.W. Smith & H.B.
2 JRCC had initially moved to dismiss, or in the alternative, to sever and stay the plaintiff's G. L. c. 93A, § 176D, claim against him. The judge took no action on the motion to dismiss but severed and stayed the G. L. c. 93A, § 176D, claim pending resolution of the plaintiff's tort claims against Rocho and the Uber defendants. JRCC then filed a motion for reconsideration, which was denied. Once the tort claims were resolved by the above-mentioned motions, the plaintiff filed his first notices of appeal. However, his appeal was not perfected because of the remaining claim against JRCC. Thus, JRCC moved to dismiss the remaining G. L. c. 93A, § 176D, claim with the assent of all parties, which was allowed. In any event, as the plaintiff conceded at oral argument, he has waived all claims against JRCC on appeal by not raising them in his brief. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). Therefore, we only address the claims against the remaining defendants herein.
2 Zobel, Rules Practice § 12.16 (1974). "We review the allowance
of a motion to dismiss de novo," accepting as true the facts
alleged in the plaintiff's complaint and any favorable
inferences that reasonably can be drawn from them. Galiastro v.
Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164
(2014). "In assuming the facts as alleged, however, '[w]e do
not regard as "true" legal conclusions cast in the form of
factual allegations.'" Sudbury v. Mass. Bay Transit Auth., 485
Mass. 774, 778-779 (2020), quoting Leavitt v. Brockton Hosp.,
Inc., 454 Mass. 37, 39 n.6 (2009). The facts alleged in the
complaint and the reasonable inferences drawn therefrom must be
enough to plausibly raise an entitlement to relief to survive a
motion to dismiss. See Iannacchino v. Ford Motor Co., 451 Mass.
623, 636 (2008).
" To prevail on a negligence claim, a plaintiff must prove
that the defendant owed the plaintiff a duty of reasonable care,
that the defendant breached this duty, that damage resulted, and
that there was a causal relation between the breach of the duty
and the damage." Jupin v. Kask, 447 Mass. 141, 146 (2006). As
the plaintiff concedes, "the question whether the complaint
properly was dismissed turns on whether the plaintiff alleged
facts demonstrating that the defendant had a duty to the
[plaintiff] to protect him against harm from third parties."
Heath-Latson v. Styller, 487 Mass. 581, 584 (2021).
3 "Fundamentally, the existence of a duty of care depends
upon the foreseeability of a risk of harm that the defendant has
an ability to prevent." Heath-Latson, 487 Mass. at 584. "This
duty generally does not extend to taking 'affirmative steps to
protect against dangerous or unlawful acts of third persons.'"
Id., quoting Luoni v. Berube, 431 Mass. 729, 731 (2000).
However, Massachusetts courts have recognized a duty to
protect against the conduct of a third party for the benefit of
another in narrowly prescribed circumstances. See Leavitt, 454
Mass. at 41-42; Mullins v. Pine Manor Coll., 389 Mass. 47, 54-55
(1983) (colleges have duty to protect resident students against
foreseeable criminal acts of third parties); Doe v. Boston Med.
Ctr. Corp., 88 Mass. App. Ct. 289, 291-292 (2015) (hospitals
have duty to protect patients from foreseeable harm caused by
its employees where employment facilitated harm). "A duty to
protect against harm caused by the conduct of a third person
arises where there is a 'special relationship' between a
defendant and a plaintiff such that the 'defendant reasonably
could foresee that he would be expected to take affirmative
action to protect the plaintiff and could anticipate harm to the
plaintiff from the failure to do so.'" Heath-Latson, 487 Mass.
at 585, quoting Irwin v. Ware, 392 Mass. 745, 756 (1984).
Here, the plaintiff claims that a special relationship
existed between him and Uber, and by extension, Rocho, such that
4 they were required to take affirmative steps to protect him from
Tyre's criminal conduct, which he avers was foreseeable. In
particular, the plaintiff claims that Uber, and by extension,
Rocho, are common carriers owing him this duty of care. We
disagree.
"It is the long settled law of this Commonwealth that a
common carrier owes to its passengers the highest degree of care
in the anticipation and prevention of violence from its
employees, other passengers, and even strangers, as is
consistent with the nature and operation of its business."
Quigley v. Wilson Line of Mass., Inc., 338 Mass. 125, 128
(1958). Even if we were to categorize Uber and Rocho as common
carriers, a common carrier does not owe nonpassengers, like the
plaintiff, a duty to prevent harm caused by the criminal conduct
of its passengers. See id. Neither Uber nor Rocho had any kind
of relationship with the plaintiff that would allow for the
imposition of a duty of care. Additionally, the facts alleged
in the amended complaint do not indicate that Tyre's criminal
conduct would have been reasonably foreseeable to either
defendant such that they should be required to take the
affirmative steps the plaintiff has proposed. 3
3 For this reason, we also decline to impose a duty on Uber or Rocho as a matter of public policy. See Heath-Latson, 487 Mass. at 584. The plaintiff's public policy argument is a matter for the General Court, not our court.
5 Moreover, Tyre's criminal conduct is a superseding cause
that "breaks the chain of proximate causation" to Uber and
Rocho. Copithorne v. Framingham Union Hosp., 401 Mass. 860, 862
(1988). Thus, any negligence by Rocho that could be found in
failing to remove his keys from the ignition of the vehicle is
not the proximate cause of the plaintiff's injuries. See
Jesionek v. Massachusetts Port Auth., 376 Mass. 101, 104-105
(1978) ("negligence in leaving keys in the ignition of a parked
car is not the proximate cause of injuries resulting from the
operation of the car by a thief"), and cases cited.
Accordingly, Uber cannot be held liable under a theory of
respondeat superior, even if we were to conclude that Rocho
should be classified as an employee of Uber. Nor could Uber be
held liable for any direct negligence that could be found in its
failure to implement training for its drivers or other measures
to prevent the harm caused due to the lack of proximate
causation.
In sum, the plaintiff has failed to plead factual
allegations plausibly suggesting an entitlement to relief.
While we acknowledge the extent of the plaintiff's injuries and
other damages suffered, the facts alleged do not indicate a duty
of care nor proximate causation on the part of either Uber or
6 Rocho to impose liability for negligence under any theory
proffered by the plaintiff.
Judgment affirmed.
By the Court (Meade, Singh & Smyth, JJ. 4),
Clerk
Entered: December 13, 2023.
4 The panelists are listed in order of seniority.