Carr v. Town of Bourne By Its Board of Selectmen

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

TIMOTHY CARR,

Plaintiff,

v.

TOWN OF BOURNE BY ITS BOARD OF No. 21-cv-11808-DLC

SELECTMEN, CHIEF OF POLICE OF

THE TOWN OF BOURNE, POLICE

OFFICER TIMOTHY DERBY, POLICE

OFFICER KYLE TRINGALI, NEW

ENGLAND SECURITY PROTECTIVE

SERVICES AGENCY, INC., AND JAMES

GRACIE,

Defendants.

ORDER ON DEFENDANTS JOSEPH GRACE AND NESPSA’S

MOTION FOR SUMMARY JUDGMENT

Cabell, U.S.M.J.

I. Introduction

Timothy Carr (“Carr” or “the plaintiff”) contends that his

rights were violated when two Bourne Police Department (BPD)

officers and a security guard, Joseph Grace (Grace), came to his

office in the middle of the night, reportedly in response to a

call from Grace. Carr contends that the officers forcibly broke

into his office with weapons drawn and told him not to move. He

contends that Grace took “an active role in assisting them” by

“opening the door” and “holding the door” open for the officers.1

(Dkt. No. 1-2, ¶¶ 4-41). Carr has brought suit against Grace and

his employer, NESPSA, Inc. (NESPSA);2 Bourne Police Officers

Timothy Derby and Kyle Tringali (the “officers”); the town of

Bourne by its Board of Selectman; and the Bourne Chief of Police.

Defendants Grace and NESPSA move for summary judgment on the single

claim presently pending against them, a claim for common law

trespass; the plaintiff opposes. (Dkt. Nos. 31; 35). For the

reasons explained below, their motion is GRANTED.

II. Facts

The parties agree that a surveillance video camera (without

audio) positioned outside of Carr’s office captured the entire

incident and accurately reflects the salient events. (Dkt. No.

32-2, video recording of incident; Dkt. No. 33, ¶ 11, Defendants’

1 Although Carr elsewhere in his complaint lumps the defendants together and

characterizes Grace’s and the officers’ conduct collectively as “br[eaking]

into the unit” and “ma[king] entry into Mr. Carr’s rental,” these

characterizations appear to be more the result of imprecise phrasing rather

than specific allegations regarding Grace’s conduct. In that vein, Carr

specifically alleges that Grace “assisted” the officers in opening the door to

Carr’s office, after which one or both officers then “entered the office,

weapons drawn.” See (Dkt. No. 1-2 ¶¶ 10-12, 17, 41). In any case, and as noted

below, video footage of the incident makes it clear that Grace never entered

Carr’s office. Also, Carr refers to the allegedly trespassed space variously

as his office, unit, or rental. For simplicity, the court refers to the space

as his office.

2 The court uses the defendants’ correct names; they are misnamed in the

complaint as New England Security Protective Services Agency, Inc., and James

Gracie.

Statement of Material Facts). Based on the video3 and other

undisputed facts, the record reflects as follows.

Carr at all relevant times rented an office space located at

1248 Route 28A, Unit 3, in Cataumet, MA.4 (Dkt. No. 33, ¶ 2).

Grace worked as a private security guard for NESPSA. On July 21,

2018, the officers arrived outside Carr’s office space around 3:21

a.m.5 (Dkt. No. 32-2; Dkt. No. 33, ¶ 18). Grace was also present.

(Dkt. No. 32-2; Dkt. No. 33, ¶ 18). While standing on the

sidewalk/walkway outside Carr’s office, the officers and Grace

looked around with flashlights for a few minutes, including into

the office’s door and windows. (Dkt. No. 32-2; Dkt. No. 33, ¶¶

19-20).

At about 3:25 a.m., Carr –- not Grace -– opened the door to

his office from the inside. (Dkt. No. 33, ¶ 21). Carr stood

inside the threshold and spoke with one of the officers; it is not

clear which officer. (Dkt. No. 33, ¶ 23; Dkt. No. 32-2). The

parties dispute whether this officer ever crossed the threshold

into Carr’s office. Grace and NESPSA contend that the officer

3 Where video evidence “blatantly contradict[s] the plaintiff’s version of

events,” facts on summary judgment are as “depicted by the video evidence.”

Underwood v. Barrett, 924 F.3d 19, 20 (1st Cir. 2019) (citing Scott v. Harris,

550 U.S. 372, 377 (2007)).

4 Cataumet is a village in the town of Bourne.

5 The parties contest whether the officers arrived in response to a call from

Grace. It is immaterial to the pending motion whether Grace, someone else, or

even no one contacted the officers.

stood outside Carr’s office while Carr avers that the officer

entered the office, asserting that, in the surveillance video,

“the officer’s body position is obscured at the time of his entry.”

(Dkt. No. 33, ¶ 23; Dkt. No. 35, p. 2). The court agrees that the

video does not show the lower portion of the officer’s body, and

thus does not unequivocally reveal whether any portion of the

officer’s body ever crossed the threshold during the interaction.

The video does show beyond dispute, however, that Grace remained

outside the office at all times and held the door open while one

officer interacted with Carr. (Dkt. No. 33, ¶ 13; Dkt. No. 35, p.

2). It is also clear from the video that, notwithstanding the

allegations in the complaint, the officers did not forcibly break

into Carr’s office or draw their firearms.

After an interaction lasting approximately two minutes, in

which the officer who spoke with Carr remained around the entrance

to Carr’s office, the officers and Grace walked away. (Dkt. No.

33, ¶¶ 25-27). Less than a minute later, Carr left his unit and

followed them. (Dkt. No. 33, ¶ 28).

III. Standard of Review

Summary judgment is warranted “if the movant shows that there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The moving party bears the initial burden of “assert[ing] the

absence of a genuine issue of material fact and then support[ing]

that assertion by affidavits, admissions, or other materials of

evidentiary quality.” Mulvihill v. Top-Flite Golf Co., 335 F.3d

15, 19 (1st Cir. 2003). “An issue is ‘genuine’ if it can be

‘resolved in favor of either party,’ and a fact is ‘material’ if

it ‘has the potential of affecting the outcome of the case.’”

Feliciano-Muñoz v. Rebarber-Ocasio, 970 F.3d 53, 62 (1st Cir. 2020)

(quoting Tang v. Citizens Bank, N.A., 821 F.3d 206, 215 (1st Cir.

2016)).

Once the moving party meets its initial burden, the opposing

party “bears the burden of producing specific facts sufficient to

defeat summary judgment.” González-Cabán v. JR Seafood Inc., 48

F.4th 10, 14 (1st Cir. 2022) (internal quotations omitted). More

narrowly, the opposing party must “produce specific facts, in

suitable evidentiary form, to establish the presence of a

trialworthy issue.” Clifford v. Barnhart, 449 F.3d 276, 280 (1st

Cir. 2006) (internal quotation omitted); see Pleasantdale

Condominiums, LLC v. Wakefield, 37 F.4th 728, 733 (1st Cir. 2022)

(quoting Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.

1991)) (At summary judgment, the nonmovant “must present definite,

competent evidence” on “issues where [he] bears the ultimate burden

of proof.”); see also Ingram v. Brink’s, Inc., 414 F.3d 222, 229

(1st Cir. 2005) (“[S]ummary judgment cannot be defeated by relying

on improbable inferences, conclusory allegations, or rank

speculation.”). Ultimately, the court must “view the record in

the light most favorable to the non-moving party and resolve all

reasonable inferences in its favor, without weighing the evidence

or evaluating the credibility of the witnesses.” Sheehan v. The

N. Am. Mktg. Corp., 610 F.3d 144, 149 (1st Cir. 2010) (citing

Clifford, 449 F.3d at 280).

IV. Discussion

Carr contends that Grace committed the tort of trespass by

holding the door to Carr’s office open while a Bourne police

officer spoke with Carr. Presumably, he contends that NESPA is

vicariously liable as his employer under a theory of respondeat

superior. See Kavanagh v. Trustees of Boston University, 795

N.E.2d 1170, 1174 (Mass. 2003).

Under Massachusetts law, a claim of trespass requires the

plaintiff to show (1) actual possession of the property at issue

and (2) an unlawful entry by the defendant, that is, an intentional

entry onto the property without permission or privilege. See Fed.

Ins. Co. v. Bos. Water & Sewer Comm’n, 583 F. Supp. 2d 225, 229

(D. Mass. 2008). Actual possession is based on mere possession

rather than any specific title or right to the property. McCarthy

v. Verizon New England, Inc., 731 F. Supp. 2d 123, 133 (D. Mass.

2010). A leasehold may qualify as actual possession. Id.; Warner

v. Abbey, 112 Mass. 355, 361 (1873).

Here, the first element is satisfied where Carr leased the

office and was present at the time of the alleged trespass. With

respect to the second element, however, Carr cannot show that Grace

made an unlawful entry onto his property because Grace simply never

entered Carr’s office, let alone entered without permission.

Notwithstanding Carr’s allegation that “[Grace] made entry into

Mr. Carr’s rental without right or permission,” the surveillance

video shows indisputably that Grace did not make entry. Grace did

no more than hold the door to Carr’s office open, and did that

only after Carr himself had already opened the door to greet the

police officer. In short, Grace never made an entry onto Carr’s

property and thus did not commit a trespass.

To be sure, Carr in his opposition advances for the first

time two alternative theories for finding Grace liable for trespass

even assuming he never entered Carr’s office, but neither is

persuasive here.

First, Carr contends that Grace committed a trespass merely

by using the sidewalk-walkway outside of Carr’s office. The record

does not exhaustively describe the area around Carr’s office, but

the sidewalk-walkway appears to be shared by multiple units. It

appears to be a common walkway that people who wanted to visit

Carr’s office (or any other business in the same building) would

necessarily need to traverse to reach their destinations.

Carr notably has not cited to any authority supporting the

proposition that one may commit a trespass merely by using a common

sidewalk-walkway, and the court has similarly found little

authority on point, but the proposition appears dubious at best.

Massachusetts courts have endorsed the notion that a person using

a sidewalk/walkway may be deemed to have an implied license to do

so if it is the only way to reach a commercial building. See

Walker v. Georgetown Housing Auth., 677 N.E.2d 1125, 1128 (Mass.

1997) (citing Perry Educ. Ass'n v. Perry Local Educators Ass'n,

460 U.S. 37, 45 (1983)) ("streets and sidewalks are quintessential

public forums"). Similarly, the Supreme Court has noted that “a

police officer, like any other citizen, has an implied license to

walk up the path to the front door of a home and knock on the front

door.” Florida v. Jardines, 569 U.S. 1, 8 (2013) (emphasis added).

In light of such precedent, as well as the absence of any

countervailing authority offered by the plaintiff to support his

position, the court rejects the plaintiff’s argument. Grace did

not commit a trespass by traversing the walkway outside Carr’s

office.6

Second, Carr suggests that, assuming the police officer with

whom he interacted entered his office without permission and

committed a trespass, Grace could be held liable as an aider and

abettor of that trespass. To prevail on a claim of aiding and

abetting a trespass, a plaintiff “must demonstrate (1) that [a

third party] committed the [trespass]; (2) that [the defendant]

6 For these same reasons, it would be futile to grant the plaintiff leave to

amend his complaint to allege that Grace (or any defendant) committed a

trespass by traversing the walkway outside his office.

knew [that the third party was] committing the [trespass]; and (3)

that [the defendant] actively participated in or substantially

assisted in [the] commission of the [trespass].” Massachusetts

Port Auth. v. Turo Inc., 166 N.E.3d 972, 981–82 (Mass. 2021)

(quotation omitted); Kurker v. Hill, 689 N.E.2d 833, 837 (Mass.

App. Ct. 1998) (“key to” aiding and abetting “cause of action is

a defendant's substantial assistance, with the knowledge that such

assistance is contributing to a common tortious plan”).

Here, even assuming (without deciding) that a police officer

improperly entered Carr’s office, Carr has not adduced any evidence

to suggest that Grace understood that the officer intended to enter

Carr’s office or that Grace substantially assisted the officer in

entering the office. On the contrary, the record reflects that

Carr himself opened the door, and it is that act which in turn

permitted the officer to position himself in the doorway where he

and the plaintiff then had an interaction. Assuming the officer

(or a portion of his person) crossed the threshold during this

exchange, and thus technically made entry into Carr’s office, Grace

played no meaningful role in that entry. It follows that he did

not aid and abet a trespass. See Stock v. Fife, 430 N.E.2d 845,

849 n.10 (Mass. App. Ct. 1982) (“mere presence of the particular

defendant at the commission of the [tort], or his failure to object

to it, is not enough to charge him with responsibility”).

V. Conclusion

In light of the foregoing, the defendants’ motion for summary

judgment of defendants is GRANTED. Judgment will enter in favor

of defendants Joseph Grace and NESPSA.

/s/ Donald L. Cabell

DONALD L. CABELL, U.S.M.J.

DATED: April 12, 2023