Martineau v. DV-8 Production, Inc.

Randy MARTINEAU v. DV-8 PRODUCTION, INC. dba Club Red 1888, et al.^[1]

No. WOCV200601768D.

Superior Court of Massachusetts, Worcester County.

February 6, 2012

MEMORANDUM OF DECISION AND ORDER ON PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT

DOUGLAS H. WILKINS, Justice.

As a result of an alleged beating at Club Red 1888 (" Club Red" ) on the evening of April 2, 2005, the plaintiff Randy Martineau (" Martineau" ) brought claims against five defendants. The Second Amended Complaint alleged that defendant, Jarrett J. Watkins (" Watkins" ), a Worcester police officer on paid detail at Club Red, was the one who beat him. It also asserts claims against the owner of Club Red, DV-8 Production, Inc. d/b/a/ Club Red 1888 (" DV-8" ); DV-8's sole officer and director, Daniel Saleba (" Daniel" ); the landlord, Balbek Development, LLC (" Balbek" ); and Balbek's sole member, Paul Saleba (" Paul" ). All defendants except DV-8 have filed motions for summary judgment, which Martineau has opposed. After hearing on December 22, 2011 attended by all parties, the Defendant Jarrett J Watkins' Motion for Summary Judgment (" Watkins Motion" ) is DENIED. The Motions of Balbek Paul, and Daniel are ALLOWED. ^[2]

BACKGROUND

The undisputed facts, supported in the Rule 9A(b)(5) statement and not genuinely contested by Martineau, along with the reasonable inferences drawn in favor of Martineau as opposing party are as follows.

DV-8 owned and operated a bar and nightclub known as Club Red at 41 Pleasant Street, Worcester. Daniel Saleba is the owner and managing member of Club Red. Balbek owns the real estate at 41 Pleasant Street. Paul is the manager, sole member, and owner of Balbek.^[3] Paul has been to the Club on numerous occasions.

Balbek leased to DV-8 the space in which Club Red operated pursuant to a written lease. Under the terms of the lease between DV-8 and Balbek, the landlord maintained control over the uses of the unit and all common areas in and around the building; had contractual authority to require its tenant to desist from nuisances, disturbances, violations of law, objectionable noise, and breaches of other terms of the lease; and required notice regarding maintenance and cancellation of insurance.

Watkins is a City of Worcester Police Officer who, for purposes of summary judgment, perpetrated the attack on Martineau on April 2, 2005. At the time, he was working an off-duty paid detail assignment at Club Red. For those purposes, it is also taken as fact that Martineau was not involved in any physical or verbal altercation whatsoever.^[4] While wearing his regulation police uniform, Watkins struck Martineau with an expandable service baton, known as a " Monadnock" baton, twice on the leg and thigh. Watkins initially denied striking the plaintiff, but later admitted doing so and cannot explain the strike marks on Martineau from his Monadnock service baton, which is classified as a deadly weapon. The blows caused injuries to the plaintiff's kidneys, head, upper torso, neck, forearms, and other parts of his body, including broken bones in the plaintiff's head and neck area. Watkins did not file an incident report for the fight that is the subject of this case.

Watkins periodically worked off-duty assignments at Club Red during 2005 and was working such a detail at the time of the incident. He did details at Club Red approximately once a week since 2003. His role was to serve primarily as a buffer for any type of civil disorder or other situation involving safety concerns. He interacted with the Club's " bounce" staff. Worcester Police policy requires officers on paid details to " stay at their assigned post for the duration of the off-duty assignment unless authorized to leave by the vendor or a police supervisor." The Police department's policy also requires officers working off-duty assignments to submit a written report concerning any injury, accident or incident that occurs during the period of the off-duty assignment no later than the completion of the off-duty assignment.

On the night in question, Watkins did the detail by himself, without other officers. He claimed that he did not know who owned the buildings at 41 to 47 Pleasant Street, Worcester. Martineau challenges the credibility of this statement and, alternatively, argues that the statement is evidence that the Club failed to supervise Watkins' activities at the Club. Watkins received no security training from Paul Saleba; he does not even know Paul. Balbek never paid Watkins.

It was not uncommon for fights to happen at Club Red at the time in question. There was no set pattern to the fighting, which could occur twice per week, but could also go one to two months without happening. Paul testified that other than the incident that is the subject of this lawsuit, he did not hear of or have reason to know of any fights or altercations that occurred at Club Red. Paul also testified that he has no knowledge of any newspaper article concerning altercations that occurred at Club Red.

DV-8 maintained corporate records, and filed annual reports and annual tax returns. On April 2, 2005, it was not insolvent. It had allowed its insurance to lapse and paid its rent irregularly. Daniel paid himself a salary, but did not siphon away corporate assets. Nor did he use the corporation to promote fraud. Paul held a $130,000 promissory note against the assets of DV-8, which was discharged when DV-8 filed for bankruptcy.

DISCUSSION

I.

On summary judgment, the moving party has the burden to demonstrate that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. Foley v.. Boston Hous. Auth., 407 Mass. 640, 643 (1990). The movant may meet this burden by showing that the plaintiff has no reasonable expectation of producing evidence on a necessary element of her case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party meets the burden, the opposing party must advance specific facts that establish a genuine dispute of material fact. Id.

In ruling on a summary judgment motion " the existence of disputed facts is consequential only if those facts have a material bearing on the disposition of the case ... The substantive law will identify whether a fact, in the context of the case, is material." Hogan v. Riemer, 35 Mass.App.Ct. 360, 364 (1993) (citations omitted). A dispute is " genuine" if the evidence would permit a reasonable fact finder to resolve the point in favor of the opposing party. See Mulvihill v. The Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003).

II.

A. Watkins

While the original complaint sounded in negligence, it alleged ample facts to state a claim against Watkins for assault and battery as well, as this Court ruled on December 9, 2009. Martineau v. DV-8 Productions, 2009 WL 200601768 (Super.Ct.) (Tucker, J.) [26 Mass. L. Rptr. 374]. The rules of pleading do not require the complaint to cite specific legal theories, as long as it alleges the facts plausibly suggesting entitlement to relief upon some viable theory. See generally Pontremoli v. Spaulding Rehabilitation Hosp ., 51 Mass.App.Ct. 622, 626 n.4 (2001), quoting Whitinsville Plaza, Inc. v. Kotseas, 378 Mass. 85, 89 (1979) (" ‘ [A] complaint is not subject to dismissal if it would support relief on any theory of law’ " (emphasis in original)). Should any doubt remain, the Court has allowed the plaintiff's motion to clarify the complaint, which makes clear Martineau's intent to assert assault and battery claims. The City's attack upon the complaint's failure to plead such a theory is outside the scope of summary judgment in any event. See Smith v. Massimiano, 414 Mass. 81, 85 (1993) (Summary judgment motion concedes the validity of the complaint).

The facts, construed in plaintiff's favor, easily support a claim of assault and battery by Watkins upon Martineau. Sovereign immunity does not protect public employees from personal liability for their intentional torts, including assault and battery. G.L.c. 258, §§ 2, 10(c); Spring v. Geriatric Auth. of Holyoke, 394 Mass. 274, 286 n.9 (1985). If one draws all inferences in favor of the plaintiff, Watkins would be liable as an individual for the alleged assault and battery upon Martineau.

To the extent that Martineau presses his negligence claim against Watkins, he has also shown that genuine issues of material fact exist on Watkins' defense of immunity as a public employee under G.L .c. 258, § 2. That immunity is only available if Watkins was acting within his scope of duty as a Worcester Police Officer at the time of the alleged incident. Whether a public employee acted within his scope of employment for purposes of G.L.c. 258, § 2, depends on whether he performed the act in question in furtherance of the employer's work. Relevant factors include whether conduct (1) is the kind the employee is hired to perform, (2) occurs within authorized time and space limits, and (3) is motivated in part by a desire to serve the employer. See Clickner v. Lowell, 422 Mass. 539, 542 (1996). Here, Watkins was in uniform, was required to conform to the City's rules and regulations for off-duty paid detail and was keeping order, consistent with his duties to the City. However, he was paid by a private party, was not working on City time, and was not specifically assigned to the job by his employer.

A case decided before the enactment of G.L.c. 258 is instructive. In Davis v. Delrosso, 371 Mass. 768, 771 (1977), the Court held that a paid detail by a police officer (by coincidence, also Worcester officer) raised a jury question regarding whether the officer was a servant or employee of the bar, because:

[T]he jury were entitled to attach significance to the circumstances, among others, that

...