NADEGE SIMON v. LAUNDROMAX-104 WARREN ST., LLC & Others.

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

23-P-951

NADEGE SIMON

vs.

LAUNDROMAX-104 WARREN ST., LLC & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After suffering an injury to her hand, Nadege Simon

(plaintiff) brought claims in the Superior Court against

defendant Laundromax-104 Warren St., LLC (Laundromax) for

negligence, breach of warranty, and violation of G. L. c. 93A,

§§ 2 and 9 (93A claims). At trial, the judge allowed

Laundromax's motions for directed verdicts on the plaintiff's

breach of warranty and 93A claims.2 The plaintiff appeals from

1Alliance Laundry Systems LLC (Alliance) and Commercial
Laundry Solutions, Inc. (Commercial). Commercial did not appear
in this appeal, and neither that entity nor Alliance filed a
brief or otherwise participated in this appeal. So much of the
final judgment as concerned the plaintiff's claims against those
entities are not part of this appeal.

2As we note below, Simon's negligence claims were submitted
to the jury.
so much of the final judgment as concerned those claims. We

affirm.

Background. We summarize the trial evidence in the light

most favorable to the plaintiff, see Forlano v. Hughes, 393

Mass. 502, 504 (1984), reserving certain details for later

discussion. Laundromax owned and operated a laundromat in

Roxbury. In 2015, the plaintiff paid to wash her clothing in

the laundromat's washing machines. Shortly after activating a

washing machine, the plaintiff realized that she had forgotten

her cellphone in her coat pocket, so she "ran to the [machine]"

and "opened the door without thinking." The washing machine was

in an "aggressive spin cycle" and did not stop when the door

opened. The plaintiff reached into the machine with her hand,

and her finger become entangled in the spinning clothes. As a

result, she sustained a serious injury to the top portion of her

left middle finger.

As relevant here, the plaintiff alleged negligence, breach

of the implied warranty of merchantability, and unfair and

deceptive business practices in violation of G. L. c. 93A

against Laundromax. As grounds, she asserted that the defendant

provided a defective and dangerous washing machine that did not

have an effective "interlock device" to prevent the door from

opening while the machine was running.

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In September 2022, the action was tried before a jury. At

the close of the plaintiff's case, the judge granted

Laundromax's motions for directed verdict on the plaintiff's

breach of warranty and 93A claims. In doing so, the judge

reasoned that (1) the plaintiff had not acquired a possessory

interest in the washing machine on which she sustained her

injury, and so could not prove a breach of warranty owed to her

by Laundromax; and (2) the 93A claims failed in the absence of a

breach of warranty. On the remaining negligence claim, the jury

found Laundromax negligent, but attributed forty-five percent

comparative negligence to the plaintiff. The plaintiff now

appeals from so much of the judgment as flowed from the directed

verdicts.

Discussion. 1. Standard of review. "Whether [a] judge

properly directed a verdict is a question of law." Hubert v.

Melrose-Wakefield Hosp. Ass'n, 40 Mass. App. Ct. 172, 176

(1996). On appeal of a directed verdict, we "examine the

evidence in the light most favorable to the plaintiff," to

determine "whether 'anywhere in the evidence, from whatever

source derived, any combination of circumstances could be found

from which a reasonable inference could be drawn in favor of the

plaintiff.'" Forlano, 393 Mass. at 504, quoting Poirier v.

Plymouth, 374 Mass. 206, 212 (1978).

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2. Breach of warranty. We are not persuaded by the

plaintiff's contention that her payment for the exclusive use of

the washing machine created a commercial transaction sufficient

to include an implied warranty of merchantability. "[I]n

Massachusetts, under G. L. c. 106, § 2-314, a warranty of

merchantability is implied in present sales of goods and in

contracts for . . . future sale[s] of goods, and, as a result of

judicial extension of warranty liability sanctioned by the

Legislature, § 2-318, a warranty of merchantability is implied

in leases of goods." Mason v. General Motors Corp., 397 Mass.

183, 189 (1986). Here, the plaintiff does not contend, nor

could she maintain, that her use of the washing machine

constituted a sale of goods or a contract for the sale of goods.

See G. L. c. 106, § 2-106. Instead, she argues that the

transaction constituted a lease or bailment.

The plaintiff's use of the washing machine was not a lease.

A lease involves the "transfer of the right to possession and

use of goods for a term in return for consideration . . . ."

G. L. c. 106, § 2A-103 (j). Here, the plaintiff paid a fee to

use the machine, but the judge correctly found that no

possessory interest was transferred to the plaintiff upon such

payment. There was no evidence at trial to show that the

plaintiff assumed any responsibility for the maintenance of the

washing machine; that the plaintiff had any right to move,

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tamper with, or destroy the machine; or that Laundromax could

not have limited the plaintiff's choice among the available

machines at its facility. The transaction at issue is better

understood as a bailment or license to use, see Marques v.

Bellofram Corp., 28 Mass. App. Ct. 277, 281 (1990) (transaction

"amount[ed] to a bailment or something on that order" because

the defendant "retained ownership of the [product] and lent it

to [the plaintiff]"), neither of which support the imposition of

an implied warranty of merchantability. See Mason, 397 Mass. at

190.

We are not persuaded by the plaintiff's argument that we

should extend warranty liability to bailments by adopting

Restatement (Third) of Torts: Products Liability § 20,

specifically comment f.3 The Supreme Judicial Court has already

concluded that there is nothing in the statutory language of

G. L. c. 106, §§ 2-314 or 2-318 "that reasonably may be

Comment f states that "[e]ven when a sale of a product is
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not contemplated, the commercial bailor is subject to strict
liability if a charge is imposed as a condition of the
bailment." Restatement (Third) of Torts: Products Liability
§ 20 comment f (1997). Citing to Garcia v. Halsett, 3 Cal. App.
3d 319 (1970), the reporters' note to comment f states, "[t]hus,
a laundromat is subject to strict liability for a defective
clothes dryer." Restatement (Third) of Torts: Products
Liability § 20 reporter's note to comment f (1997). Our reading
of Garcia suggests that the reporter's reliance on that case is
misplaced; the Court of Appeal concluded that the user of a
coin-operated washing machine "merely had a license and cannot
be considered a bailee of the machines." Garcia, supra at 422.

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construed as either creating or sanctioning the judicial

creation of a warranty in connection with a bailment." Mason,

397 Mass. at 189. In coming to this conclusion, the Court

recognized that it had made statements in the past about

warranty liability in Massachusetts being "as comprehensive as

that provided by § 402A of the Restatement [(Second) of Torts

(1965)]" (citation omitted), but specifically noted that these

statements applied only to "contracts of sale and leases" and

not to bailments. Mason, supra, at 189-190. Applying the same

reasoning, we decline to adopt Restatement (Third) of Torts:

Products Liability § 20 comment f (1997) to create an implied

warranty of merchantability for bailments.

Thus, the judge did not err in directing a verdict in

Laundromax's favor on the breach of warranty claim based on the

plaintiff's failure to establish that she had a possessory

interest in the washing machine.

3. Unfair and deceptive business practices. Next, the

plaintiff argues that the judge improperly directed a verdict on

her 93A claim against Laundromax because (1) her breach of

warranty claim conclusively established a violation of c. 93A,

§ 2, see 940 Code Mass. Regs. § 3.08(2) (1993) ("[i]t shall be

an unfair and deceptive act or practice to fail to perform or

fulfill any promises or obligations arising under a warranty");

and (2) even without the warranty claim, the jury's finding of

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negligence alone was enough in the circumstances of this case to

prove a 93A violation. We disagree.4

First, as discussed supra, the judge properly directed a

verdict on the breach of warranty claim, so a 93A violation

cannot be proved on that ground. See Nemirovsky v. Daikin North

America, LLC, 488 Mass. 712, 726 (2021) ("Because the breach of

warranty claim fails . . . that claim cannot support a G. L.

c. 93A violation"). Second, even characterized in the light

most favorable to the plaintiff, the evidence did not support a

finding that the defendant's negligence amounted to an "unfair

or deceptive act" under G. L. c. 93A, § 2. See Patterson v.

Christ Church in the City of Boston, 85 Mass. App. Ct. 157, 164

(2014). It is well established that a "negligent act standing

by itself does not give rise to a claim under c. 93A (citation

omitted.) There must, in addition, be evidence that the

negligence was or resulted in an unfair or deceptive act or

practice." Id. at 163-164. See Darviris v. Petros, 442 Mass.

274, 278 (2004) ("a violation of G. L. c. 93A requires, at the

very least, more than a finding of mere negligence"); Poly v.

Moylan, 423 Mass. 141, 151 (1996), cert. denied, 519 U.S. 1114

(1997) (affirming judge's conclusion that defendant did not

4 While we consider it a close question, we are not
persuaded that the plaintiff waived any argument that her 93A
claim could succeed absent support for her breach of warranty
claim, as Laundromax argues in its brief.

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violate 93A where, "although [he] was negligent, he did not

engage in conduct involving dishonesty, fraud, deceit or

misrepresentation").

Here, although the jury found that Laundromax had been

negligent, no view of the evidence would support a finding that

this negligence amounted to "immoral, unethical, oppressive, or

unscrupulous" behavior. See H1 Lincoln, Inc. v. South

Washington Street, LLC, 489 Mass. 1, 14 (2022), quoting PMP

Assocs., Inc. v. Globe Newspaper Co., 366 Mass. 593, 596 (1975).

There is no evidence to suggest that the defendant was aware of

the defective lock mechanism on the particular washing machine,

see O'Connor v. Merrimack Mut. Fire Ins. Co., 73 Mass. App. Ct.

205, 217 (2008), or, to the extent that the defendant should

have been aware of the problem, that it intentionally blinded

itself to a defect or otherwise intended to mislead or defraud

the plaintiff. See Poly, 423 Mass. at 151. Cf. Glickman v.

Brown, 21 Mass. App. Ct. 229, 235 (1985) ("negligent

misrepresentation of fact the truth of which is reasonably

capable of ascertainment is an unfair and deceptive act or

practice within the meaning of c. 93A, § 2 [a]"); Lowell Gas Co.

v. Attorney Gen., 377 Mass. 37, 51 (1979) ("a practice is

'deceptive' if it could reasonably be found to have caused a

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person to act differently from the way he otherwise would have

acted" [quotation omitted]).5

Where the plaintiff failed to survive a motion under Mass.

R. Civ. P. 50 (a), 365 Mass. 814 (1974) on her breach of

warranty claim against Laundromax and likewise failed to present

"'evidence . . . from which a reasonable inference could be

drawn in favor of the plaintiff,'" Forlano, 393 Mass. at 504,

quoting Poirier, 374 Mass. at 212, to support her 93A claims,

5 The plaintiff's reliance on American Shooting Sports
Council, Inc. v. Attorney Gen., 429 Mass. 871, 877-878 (1999),
is misplaced. In that case, the Supreme Judicial Court
concluded that the sale of a product will constitute an unfair
or deceptive act "[i]f, during ordinary use in keeping with
directions, the product performs in a deviantly unsafe or
unexpected way," especially when the danger "cannot be detected
by the average user or cannot be avoided by adequate disclosures
or warnings." Id. at 877. Where, as here, there was no sale,
and the danger of putting one's hand inside of a washing machine
during a spin cycle was obvious, there was no unfair or
deceptive act.

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the judge properly directed verdicts in favor of Laundromax on

those claims.

So much of the final judgment
entered May 10, 2023, as
concerned the plaintiff's
claims against Laundromax
are affirmed.

By the Court (Desmond, Hand &
Grant, JJ.6),

Clerk

Entered: September 12, 2024.

6 The panelists are listed in order of seniority.

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