Banner 8 Banner 7 Banner 6 Banner 4 Banner 3 Banner 5 Banner 2 Banner 1

Jan 2014

Richard J. Riley and William P. Mekrut obtained summary judgment in a wrongful death action on behalf of the firm’s client, an automotive  towing company. The case involved an accident that occurred on Interstate Route 495 when a vehicle traveling on the highway collided with a broken down truck that had been abandoned in the breakdown lane by its owner. The driver of the vehicle that collided with the truck was killed in the accident. The Estate of the decedent sued the tow truck company alleging that it had agreed in a telephone conversation with the truck’s owner to tow the truck from the breakdown lane but failed to do so. (The tow company denied that it had agreed to tow the truck prior to the happening of the accident.) The trial court granted the tow truck company’s Motion for Summary Judgment on the basis that even if the tow truck company agreed to tow the vehicle, it did not owe a general duty to third persons – such as the traveling public – to tow the vehicle. The decision was based on the premise that the failure to perform a contractual obligation is not a tort in the absence of a duty to act apart from the promise made.  See, e.g., Anderson v. Fox Hill Village Homeowner’s Corp., 424 Mass. 365 (1997).  On Appeal, the Court of Appeals upheld the decision on different grounds: that there was no admissible evidence that the tow truck company actually agreed to tow the vehicle that night in the first place.  The plaintiff’s sole evidence that the tow truck company had agreed to tow the vehicle that night was the truck owner’s hearsay testimony that an employee of the tow truck company had told the owner’s friend that the tow truck company would tow the vehicle that night.  The owner never spoke with the tow truck company himself and there was no other admissible evidence presented at the summary judgment stage to warrant a finding that the tow company had in fact agreed to tow the truck from the breakdown lane that night prior to the accident.  The Appeals Court held that the owner’s testimony that the tow truck company told the owner’s friend that it would tow the vehicle was inadmissible hearsay, and thus there was no evidence that the tow truck company agreed to tow the vehicle.  The Appeals Court’s decision was unpublished but the Court’s Rule 1:28 Memorandum decision can be found at: Barryvs. Art’s Auto Service, Inc., et al., 84 Mass. App. Ct. 1119, 2013 Mass. App. Unpub. LEXIS 1075.It can also be obtained by contacting either Rick Riley or Bill Mekrut via email. (See the Contact Us page for email addresses of all the firm’s attorneys.)


Additional News & Notes

May 2017 - Murphy & Riley, P.C., is pleased to announce that Roger Soun has joined the firm.... [More]
Dec 2016 - The Supreme Judicial Court recently expanded the facts pursuant to which the “mode of operation”... [More]
Nov 2016 - Five Murphy & Riley attorneys named Super Lawyers. Super Lawyers, a rating service that publishes... [More]
Oct 2016 - Lisa White was recently a panelist, for the second year in a row, at the... [More]
Oct 2016 - Murphy & Riley, P.C., is pleased to announce that Amy B. Welch has joined the... [More]
Jul 2016 - Joe King was recently elected President of the Frank J. Murray Inn of Court, which... [More]
Jun 2016 - Susan Donnelly Murphy, along with Lisa Oliver White, recently obtained a jury verdict in favor... [More]
May 2016 - Murphy & Riley, P.C., is pleased to announce that Paul R. Kennedy has joined the... [More]
Apr 2016 - In a matter of first impression for Massachusetts, on March 7, 2016, the Supreme Judicial... [More]
Apr 2016 - Jack Coakley recently prevailed in defeating a Plaintiff physician’s appeal of a defense verdict to... [More]
Apr 2016 - April 2016 Jack Coakley secured the dismissal of a hostile work environment claim filed with... [More]
Feb 2016 - Robert J. Murphy and Kevin M. Sullivan recently obtained a dismissal on behalf of a... [More]
Feb 2016 - Jack Coakley and Melissa Arnold were recently awarded summary judgment on behalf of a Massachusetts... [More]
Sep 2015 - In a recent unpublished decision, the Massachusetts Appeals Court held that a legal malpractice claim... [More]
Jun 2015 - Lisa Oliver White received the Rising Star Award from the Massachusetts Defense Lawyers Association at... [More]