Commonwealth v. Angelo Todesca Corp.

Cordy, J.

(dissenting, with whom Marshall, C.J., and Cowin, *144 J., join). Officer Erickson’s death was the result of a horrible and regrettable accident. However, “the mere happening of [an] accident [does] not warrant a finding of negligence.” Zarrillo v. Stone, 317 Mass. 510, 512 (1945). I agree with the Appeals Court that the evidence at the criminal trial was insufficient to establish that Brian Gauthier operated his truck negligently, in violation of the motor vehicle homicide statute, thereby causing the officer’s death. 1 See Commonwealth v. Angelo Todesca Corp., 62 Mass. App. Ct. 599, 607-608 (2004). There was no evidence that the truck could not be operated safely without a back-up alarm, or that Gauthier did anything less than what ordinary prudence would require in the circumstances when he backed up. 2 While the absence of a functioning back-up alarm on Gauthier’s truck may be relevant to the question of its negligent operation, it clearly is not sufficient to establish such negligence on the instant facts. Because the court essentially concludes otherwise, I respectfully dissent.

All of the evidence at the trial (other than the absence of a back-up alarm) was consistent with the careful and prudent operation by Gauthier of his truck. 3 Minutes before the accident, Gauthier and the drivers of two other trucks waiting to unload their asphalt spoke to the officer about the order in which they would back up. Gauthier pointed out his truck and told the officer that he was going to be next. During the same conversation the officer agreed (as was his responsibility at the *145 intersection where he was stationed) 4 “to watch [their] backs” 5 as they backed up to ensure that vehicles and pedestrians stayed clear. The drivers then walked to their respective trucks to begin backing toward the paver. Right before entering the cab to his truck, Gauthier climbed up on its back frame to remove the tarp from the asphalt. He looked to see whether anyone was close to his truck. No one was. As he got into the cab of his truck, he saw the officer walking near the center yellow lines of the street away from his truck in the direction of the paver (which was approximately 1,600 feet away) at a distance too far to talk to him. This was not a position of danger. After entering the cab, Gauthier turned off both his “[m]usic radio and the CB,” opened a window, and began to back up at what was described by all of the witnesses as an exceedingly slow speed of from two to three miles per hour. 6 Gauthier used his mirrors to look behind him as he backed up, and stopped for a car that crossed behind him going either into or out of the mall entrance. In backing up, Gauthier kept his truck a vehicle’s width from the center line, where he had last seen the officer. Finally, after proceeding approximately 150 feet, two other truck drivers began to sound their air horns. Gauthier looked again at both side mirrors: first at the passenger side where he had been moving past parked trucks, thinking he might have clipped his mirror on another truck; and then out the driver’s side where he saw the officer on the ground partially under his truck. He stopped the truck immediately. Unfortunately, it was too late.

Witnesses to the accident testified that at some point while *146 the truck was backing up, the officer began to cross behind it diagonally from the passenger side, with his back to it. He proceeded to walk directly into the truck’s blind spot. As he walked, the officer was looking at and doing something with the gloves on his hands. He was wearing a winter-type hat that was pulled down over his ears. When the truck air horns began to blare, he did not take any notice, and kept walking behind the truck into its blind spot. Within seconds, Gauthier’s truck overtook the officer, knocking him to the ground. Realizing what was happening, the officer rolled toward the driver’s side to get out of the way, but his legs went under the wheels and were pinned. When help arrived at the scene, the officer was conscious. When asked by a paramedic what happened, he “made some . . . statement that he had really screwed up.”

General Laws c. 90, § 24G (b), penalizes a person who “operates a motor vehicle . . . negligently so that the lives or safety of the public might be endangered” and thereby causes death. To sustain a conviction, there must be, inter alla, sufficient evidence for a rational jury to conclude beyond a reasonable doubt that Gauthier failed to act as “a person of ordinary prudence would act in the circumstances.” Goldstein v. Gontarz, 364 Mass. 800, 805 (1974). Notwithstanding a presumptian in our case law that questions of negligence will be resolved by a jury, Massachusetts courts have on numerous occasions concluded that evidence of negligence was insufficient for a jury to hold a civil defendant liable or a criminal defendant culpable. See, e.g., Aucella v. Commonwealth, 406 Mass. 415 (1990); Cunningham v. Thurman Transp., Inc., 358 Mass. 824 (1971); Parsons v. Ryan, 340 Mass. 245 (1960); Callahan v. Lach, 338 Mass. 233 (1958); Cioffi v. Lowell, 316 Mass. 256 (1944); Burke v. Durland, 312 Mass. 291 (1942); O’Reilly v. Sherman, 298 Mass. 571 (1937).

It is, of course, true that some defects in a vehicle could, in and of themselves, make the vehicle so unsafe that operating it would be negligent without regard to other factors. Seriously defective brakes or steering mechanisms would be prime examples of such defects. It is axiomatic that to be driven safely a vehicle needs to be able to be stopped and steered. See, e.g., Elfeld v. Burkham Auto Renting Co., 299 N.Y. 336, 344 (1949) *147 (negligent to drive vehicle with defective steering mechanism and rear tires). Vehicle safety laws and regulations require that such mechanisms be present and be in good working order. It is not surprising that operating a vehicle in almost any circumstances knowing that such parts were so defective would be sufficient to support a finding of negligence. 7

With regard to back-up alarms, however, there is no Federal or State law that requires trucks of the type driven here to be equipped with them, 8 or to utilize them when operated on construction sites of this nature. 9 Cf. Madden v. Berman, 324 Mass. 699, 702 (1949) (violation of statute requiring red taillight “would be evidence of negligence on the part of the defendant”). The parties have cited no case from any jurisdiction, and I have found none, in which any court has held or suggested that a truck driver negligently operates his vehicle simply by backing up without a working back-up alarm. Unlike defective brakes, tires, or steering mechanisms, the lack of a working back-up alarm does not inherently affect the ability to drive a truck in a nonnegligent manner. There was no evidence adduced at trial to the contrary.

Recognizing this problem of proof, the court primarily rests its affirmance of the jury verdict on the observations that, in certain circumstances, an employee’s violation of his employer’s safety policy or the failure to operate a vehicle in conformity with one’s usual habit or custom can constitute negligence even where the defendant (and employer) had no independent obligation to adopt the policy or the custom in the first place. See *148 ante at 138-139. These theories of negligence liability, while perhaps applicable in other circumstances, fail here.

First, even were I persuaded that a violation of the defendant corporation’s safety policy might be sufficient, on its own, to support the jury’s verdict, which I am not, see Stevens v. Boston Elevated Ry., 184 Mass. 476, 479 (1904) (evidence of violation of employer’s safety rules is “not conclusive” of defendant’s negligence), the court misconstrues the safety policy in question. While it is correct that the defendant’s safety manual states that “[a]ll vehicles are to be equipped with back up alarms,” the court overlooks the evidence as to how that policy operated with regard to defective, broken, or missing parts on the defendant’s trucks. This is particularly important given the undisputed evidence that it is not uncommon for the back-up alarms with which the defendant’s trucks are equipped to break off or otherwise be damaged.

The evidence was that the defendant’s truck drivers are required to conduct a daily safety inspection of their respective trucks. Based on this inspection, the drivers fill out an inspectian form, noting any problems found. This form is submitted to the defendant company and to its mechanic. Gauthier noted the absence of a functioning back-up alarm on each inspection report he filed at least a couple of weeks and perhaps for “a couple of months” prior to the accident. 10 He personally informed the company mechanic of the problem weeks before the accident and, at that time, requested a new back-up alarm. However, neither the mechanic nor any other company official took any action to remove Gauthier’s truck from operation. No one suggested to Gauthier that he should not drive the truck until it was outfitted with a new alarm. 11 This is not surprising, as the testimony at trial was that neither the mechanic nor others affiliated with the defendant had ever heard of a truck being *149 removed from operation because of a missing or broken back-up alarm. 12

Gauthier did what the defendant required him to do to address the absence of a back-up alarm on his truck. Where Gauthier adequately and continuously notified the defendant of the absence of a back-up alarm, and where the defendant, in conformity with its normal conduct of business, allowed the vehicle to be used despite this problem, it would be odd to consider Gauthier’s operation of his truck to be in violation of the defendant’s rules and, therefore, evidence of his negligence. 13

As for grounding liability on a person’s failure to operate a vehicle in conformity with his usual habit or custom, it is difficult to conceptualize how this theory even applies to the issue of vehicular homicide in this case. It is Gauthier’s operation of the truck that is at issue on that charge, not the conduct of the defendant corporation. It was not Gauthier’s practice to drive vehicles with back-up alarms to this site — the evidence is exactly to the contrary — and the accident occurred during his third trip to the site that day without a back-up alarm. The fact that Gauthier’s truck did not have an alarm and that he was *150 aware that other trucks delivering asphalt to the site may have had them seems at most to be just one of the circumstances bearing on how an ordinarily prudent person in Gauthier’s position would act, not a separate basis on which to attach liability.

Assuming, arguendo, that this theory has some relevance, the evidence fails to support it. Although there was testimony that it was the defendant corporation’s practice to install back-up alarms on each of its trucks and that some of the trucks at the work site had functioning alarms, there was no evidence that its custom was to utilize only trucks with working alarms. Cf. Kelly v. Boston & Me. R.R., 319 Mass. 603, 607-609 (1946) (specific evidence of employees’ custom “nearly every other day”). To the contrary, and as noted above: despite Gauthier’s having noted the absence of a functioning back-up alarm daily for at least two weeks prior to the accident, Gauthier was permitted to continue using the truck during that time period; and the undisputed testimony was that the defendant corporation had never pulled a truck off the road because of a malfunctioning back-up alarm, even though damage to such mechanisms was common.

More problematic, a defendant’s habit or custom is only relevant to the negligence inquiry if it is known to and relied on by the injured party. R.J. Kenney, Jr., & T.J. Farris, Motor Vehicle Law and Practice § 2.13, at 59 (3d ed. 1998). 14 Cf. Flaherty v. New York Cent. & Hudson River R.R., 211 Mass. 570, 572 (1912). There was no evidence here of knowledge or reliance. There was no evidence that all of the trucks working at the site except Gauthier’s had back-up alarms. 15 At best, there was evidence from which the jury could infer that that the officer knew that some of the trucks delivering asphalt had back-up alarms. Gauthier, however, had made two previous *151 deliveries to the work site that very day without a back-up alarm sounding. 16 A jury could not permissibly infer from this dearth of evidence that the officer knew that it was the custom of the defendant corporation (or Gauthier) to use only trucks with functioning back-up alarms to deliver asphalt to this site, and that he was relying on that custom when the accident occurred. 17 To reach such a conclusion, the jury would have had to pile “inference upon inference or conjecture and speculation” in a way that our case law prohibits. Commonwealth v. Armand, 411 Mass. 167, 170 (1991). See Corson v. Commonwealth, 428 Mass. 193, 197 (1998), quoting Commonwealth v. Rhoades, 379 Mass. 810, 817 (1980) (evidence insufficient “if it tends ‘equally to support either of two inconsistent propositions’ ”).

As an afterthought, the court’s opinion notes that, even if the absence of a functioning back-up alarm was not dispositive of negligence, “the jury may have concluded that reasonable care would have required Gauthier to sound his city horn before backing up ... or that Gauthier, aware that the victim was behind him and that his truck has a blind spot, should have located the officer ... in his mirror before backing up again; or that Gauthier should have stopped his truck as soon as he heard other drivers’ air horns sounding.” Ante at 140.

In retrospect, after any accident, there will always be things that, had they been done differently, might have made a difference. That, however, is not the standard for negligence. See Zarrillo v. Stone, 317 Mass. 510, 512 (1945). Rather, there must be evidence that the defendant exercised a level of care below the level that an ordinarily prudent person would exercise in the same circumstances. See Goldstein v. Gontarz, 364 Mass. 800, 805-806 (1974). Assuming that an ordinarily prudent person would have exercised a heightened level of care due to *152 the absence of a working back-up alarm, see id. (“backing of a vehicle is not among the few situations which invariably demand heightened or ‘extreme’ care on the part of the man of ordinary prudence,” but “circumstances here . . . happened in fact to call for heightened . . . care”), the undisputed evidence was that Gauthier took extra precautions to ensure the safe operation of his vehicle at the work site. Cf. Burnett v. Conner, 299 Mass. 604, 607 (1938) (defendant negligent where vehicle rolled down hill because she knew of defective emergency brake and because “she knew how to secure the automobile from starting if the emergency brake became released”). He warned the officer that he was about to back up next, observed that neither the officer nor anyone else was near the back of the truck before he entered the cab, turned off his radios, rolled down his windows, used both side mirrors, and proceeded to back his truck up at a very slow rate of speed for 150 feet before the officer inadvertently crossed behind and into the blind spot.

While it might have added something if Gauthier had honked his “city horn” before backing up, this extra warning was not necessary to meet the prudent person standard in these circumstances. 18 Cf. Cioffi v. Lowell, 316 Mass. 256, 258 (1944) (running over child moments after starting motor vehicle not negligent in part because “warning that the defendant was about to start. . . would [not] have afforded the plaintiff any information not already made evident”); Burke v. Durland, 312 Mass. 291, 292-293 (1942) (evidence of negligence insufficient because, “[w]hen [defendant] started the truck, he . . . had no reason to suppose that [anyone] remained in a place of danger”); Tenney v. Reed, 262 Mass. 335, 338 (1928) (grounding negligence in part on fact that “no hom was sounded or other warning given . . . before the truck was started”). An ordinarily prudent person would have considered the advance warning given to the officer, who was neither a bystander nor (as is often the case) a child, enough to proceed without the fear of hitting him.

When Gauthier saw the officer in a position of relative safety *153 before entering his truck, it was not unreasonable for him to begin and continue backing up (albeit very slowly) although unable to see the officer in his mirrors. This is particularly so considering that the officer — moments before and in conformity with his job duties — had agreed to watch the trucks as they backed up, and that Gauthier’s truck stayed a safe distance from the last spot (the road centerline) where the officer had been seen. See Cioffi v. Lowell, supra at 258 (“When the defendant saw the plaintiff [child], she was in a position of safety. There was no evidence that she was then running about, so that she was likely immediately to place herself in a position of danger. . . . The relative positions of the automobile and of the plaintiff may have been such that the defendant could not see the plaintiff while he was starting his automobile. It is often difficult, if not impossible, to avoid some interval between the last sight of [a pedestrian] . . . and the starting of an automobile. It is not shown that ‘further attention’ by the defendant toward the plaintiff would have avoided the accident”); Callahan v. Lach, 338 Mass. 233, 234-235 (1958) (truck hitting child insufficient to establish negligence where child was warned to stay away because “defendant had no reason in the circumstances to suppose that the plaintiff was in a place of danger or likely to move into a place of danger either when he started his vehicle or immediately prior to the accident”). Cf. Capano v. Melchionno, 297 Mass. 1, 7-8 (1937) (although “question is somewhat close,” sufficient evidence of negligence where defendant did not take extra precautions after “seeing the little hands on the tailboard of his truck” indicating that “a child was dangerously near”). 19 In these circumstances, Gauthier had no reason to suspect that the officer might blindly walk behind his truck as it continued to back up toward the paver.

Notwithstanding the court’s claim, a rational jury could not find that Gauthier did other than what an ordinarily prudent *154 person in his situation would be required to do. As tragic as this accident was, the evidence in the instant case is, in my opinion, insufficient to find Gauthier (and hence the defendant corporation) guilty of vehicular homicide, even given the absence of a functioning back-up alarm on his truck. Because the defendant’s motion for a directed verdict should have been allowed, I respectfully dissent. 20

I also agree with this court’s analysis regarding corporate criminal liability, and its conclusion that the defendant corporation can be held vicariously liable for violating the motor vehicle homicide statute, G. L. c. 90, § 24G (b), if Brian Gauthier operated its truck negligently. See ante at 136-137.1 view this issue as entirely separate from whether the defendant corporation may be liable civilly for its own negligence in not replacing the back-up alarm on Gauthier’s truck.

I do not contend (as the Appeals Court held) that the evidence was insufficient for a jury to find the lack of a functioning back-up alarm proximately caused the accident. Contrast Commonwealth v Angelo Todesca Corp., 62 Mass. App Ct. 599, 608-609 (2004).

Gauthier’s conduct was also consistent with the careful maintenance of the defendant’s truck that he drove. He promptly informed the defendant’s mechanic of the loss of the back-up alarm, requested a replacement, and noted the absence of a back-up alarm each day on the daily inspection reports, which were submitted to his employer.

According to the testimony at trial, Officer Erickson was one of a number of officers working at the construction project as part of a paid detail. He had been on the job for approximately nine hours at the time of the accident. He was assigned to work at the entrance to the Bell Tower Mall that was located in the section of the highway that was to be paved that day. His responsibilities included ensuring that pedestrians and vehicles could safely get in and out of the mall, and that they did not get in the way of the trucks delivering asphalt to the site.

The truck driver who asked the officer to “watch [their] backs” testified that the time between this conversation and Gauthier’s starting his truck was twenty seconds, although the jury could have found that the interval may have been a bit longer.

One witness described the truck as “creeping along,” another as going as slow as it could go without stalling, and Gauthier testified that he could “crawl as fast as the truck was going.”

There was evidence that the front brakes on Gauthier’s truck pulled to one side when they were applied, but it was not contended that this had anything to do with the accident.

Contrast G. L. c. 90, § 7 (commercial vehicles used to deliver gasoline or other flammable material “shall be equipped with an audible warning system when the vehicle’s transmission is in reverse”).

As the Appeals Court notes, neither the Commonwealth nor the United States Department of Transportation requires a back-up alarm on the type of truck at issue here. An Occupational Safety and Health Administration regulation, which does not apply to trucks operating at work sites such as the site in the instant case, requires trucks either to have a back-up alarm or to back up only when an observer signals it is safe to do so. The regulation was not in evidence. See Commonwealth v. Angelo Todesca Corp., 62 Mass. App. Ct. 599 , 604-605 & n.8 (2004).

Although the inspection form expressly lists a number of essential truck parts, it does not require information about a back-up alarm. Gauthier, however, consistently handwrote that his truck lacked a back-up alarm.

Evidence adduced at trial showed that either the defendant’s vice-president of operations of construction, its mechanics, or a truck driver could decide to take the truck out of service for safety reasons.

Additional testimony revealed that the company also sanctioned the operation of trucks that were awaiting repairs on other parts, including those referenced in the section of the safety manual quoted by the court. See note 7, supra. See also ante at 129 n.4. For example, Gauthier was allowed to drive his truck for “a couple of weeks, a month maybe,” while the mechanic awaited parts necessary to fix a reported cracked manifold on the truck.

Stevens v. Boston Elevated Ry., 184 Mass. 476, 478 (1904), established that an employee’s violation of the defendant employer’s safety rules, adopted for the protection of a third party, can be admitted “in evidence as tending to show negligence of the defendant’s disobedient servant for which the defendant is liable.” However, it did so because “[a]gainst the proprietor of a business, the methods which he adopts for the protection of others are some evidence of what he thinks necessary or proper to insure their safety.” Id. at 480 . In addition to the general problem with this analysis — that the negligence standard is an objective, not subjective, one — it clearly does not apply to this case. Notwithstanding the safety manual, the defendant did not consider the lack of a functioning back-up alarm to be an emergency issue, requiring the immediate removal of a truck from operation. Rather, its policy was to repair such a problem as soon as practicable. Although this might suggest that the defendant believed operating with a back-up alarm is safer than operating without one, it does not suggest that the defendant believed the latter conduct to be unsafe. Cf. Towne v. Waltham Watch Co., 247 Mass. 390, 394 (1924) (Stevens case inapplicable where defendant did not violate duty to comply with employer’s order to keep steps and platform clean).

The use of a person’s custom or habit is a narrow exception to the general rule that “[a] party’s habitual or customary conduct of its activities has ordinarily no probative force as to whether its conduct on a particular occasion was negligent, since its habitual conduct is no measure of reasonable care.” R.J. Kenney, Jr., & T.J. Farris, Motor Vehicle Law and Practice § 2.13, at 57 (3d ed. 1998).

The defendant corporation was a subcontractor on the road improvement project. It did not own or operate all of the trucks delivering asphalt to the site.

During his first delivery to the site, Gauthier sounded his “city horn” when he backed up. He testified that he did so because there were many people around his truck when it was his turn to back up, and the path to the paver was “tight.” Those circumstances were not present at the second or the final drop off.

Evidence that the officer had worked details at other similar work sites is of no probative weight without evidence as to whether any, some, or all of the trucks at those sites had functioning back-up alarms.

The evidence was uncontested that the officer did not react to the air horns (which are much louder than a truck’s “city ham”) of the two other trucks that attempted to alert him that he was walking into the blind spot of Gauthier’s track.

Obviously, more caution is required by an ordinarily prudent person when operating a vehicle around children than when doing so around adults. Likewise, an ordinarily prudent person would exercise more care when operating a vehicle in relation to civilians than in relation to an officer whose job duties included watching the trucks reverse toward the paver. The instant case provides circumstances more favorable to the defendant than any of these three cases.

That Gauthier “admitted to sufficient facts” on a vehicular homicide charge and received a “continued without finding” disposition does not relieve the Commonwealth from proving each element of the crime with which the defendant is charged, beyond a reasonable doubt. Commonwealth v. Angelo Todesca Corp., 62 Mass. App. Ct. 599 , 605 n.9 (2004), quoting Wardell v. Director of the Div. of Employment Sec., 397 Mass. 433, 436-437 (1986) (“An admission to sufficient facts, absent a subsequent finding of guilt, does not constitute substantial evidence from which a finder of fact . . . can determine that the alleged misconduct has indeed occurred”).