MARGARET L. DONOVAN & Another v. BRIGHTVIEW SENIOR LIVING, LLC, & Another.

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

24-P-125

MARGARET L. DONOVAN & another1

vs.

BRIGHTVIEW SENIOR LIVING, LLC, & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Margaret L. Donovan and Gail D. Hartwell,

as the personal representative of the estates of Constance Dodge

and John Dodge, filed a complaint against the defendants,

Brightview Senior Living, LLC, and SHP IV Concord River, LCC,

doing business as Brightview Concord River (collectively,

Brightview or defendants). In their amended and substituted

complaint, the plaintiffs raised claims of violations of G. L.

c. 93A, breach of contract, negligence, wrongful death, and

infliction of emotional distress in connection with the Dodges'

1Gail D. Hartwell, personal representative of the estate of
Constance Donovan Dodge and the estate of John Brooks Dodge.

2SHP IV Concord River, LCC, doing business as Brightview
Concord River.
residency at the Brightview Concord River community. A Superior

Court judge allowed the defendants' motion for summary judgment

as to all claims except the G. L. c. 93A claim. Following the

dismissal of the c. 93A claim at trial, judgment on the directed

verdict entered, and the plaintiffs appealed.3 We affirm.

Background.4 In 2014, the Dodges sought residency at

Brightview Concord River, an assisted living residence (ALR),

and, after medical screenings and assessments, were accepted.

Prior to moving in, the Dodges executed an "Assisted Living

Residency and Service Agreement" containing many attachments and

3 Although all claims have been adjudicated, no final
judgment entered in the Superior Court. The plaintiffs appealed
from the order granting summary judgment and from the November
27, 2023 judgment on the directed verdict on count I for the
defendants. Neither party raised the issue, and both treated
the November 27, 2023 judgment as the "final" judgment. Where
no meaningful purpose would be served by a remand, we proceed to
the merits. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 24
n.3 (1995); Tiger Home Inspection, Inc. v. Director of the Dep't
of Unemployment Assistance, 101 Mass. App. Ct. 373, 374 n.1
(2022).

4 The version of the "Joint Statement of Facts" filed in
support of the motion for summary judgment, and included in the
record appendix on appeal, does not contain the plaintiffs'
responses thereto. At oral argument the parties disputed
whether a version containing the plaintiffs' responses was filed
and considered by the motion judge in the Superior Court. In
any event, the only version included in the record appendix is
the unopposed version, and we need not look beyond the record
provided to us on appeal. See Chokel v. Genzyme Corp., 449
Mass. 272, 279 (2007) ("When a party fails to include a document
in the record appendix, an appellate court is not required to
look beyond that appendix to consider the missing document").

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exhibits (residency agreement), the "Assisted Living &

Wellspring Village Disclosure Statement," and a "Disclosure"

form acknowledging that they had received a number of documents,

including "Assisted Living in Massachusetts: A Consumer's

Guide" (consumer guide). The residency agreement stated two

things explicitly. First, residents could pay Brightview to

provide a limited amount of individual care for daily tasks

including bathing, dressing, dining, and eating. Second,

residents were responsible, at their own cost, for retaining

physicians and other appropriate medical care for their own

health needs. The parties agree that Brightview was not, and

currently is not, a medical provider or healthcare facility.

Some months after moving into the facility, Mrs. Dodge was

admitted to the hospital for chronic back pain and subsequently

moved to a rehabilitation center. Based on a reassessment of

her needs, Brightview informed Mrs. Dodge that she could not

return to Brightview unless she hired a private aide, as she

needed two people to assist her in transferring out of bed, to a

restroom, and into a chair, and Brightview did not provide two-

person assist services. Even with a private aide, Mrs. Dodge's

health continued to decline to the point where Brigthview could

not meet her needs. In 2015, Mrs. Dodge left Brightview for a

more appropriate facility, and Mr. Dodge moved out soon

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thereafter. The Dodges passed away sometime after moving out of

Brightview Concord River.

The plaintiffs subsequently brought various claims, which

were dismissed on the defendants' motion for summary judgment

and on the defendants' motion for directed verdict at trial. On

appeal, the plaintiffs challenge only the judge's dismissal of

their claims for breach of contract, negligence, and infliction

of emotional distress on summary judgment.5

Discussion. 1. Standard of review. "We review the

allowance of a motion for summary judgment de novo without

deference to the motion judge's reasoning." All Am. Ins. Co. v.

Lampasona Concrete Corp., 95 Mass. App. Ct. 79, 80 (2019). In

reviewing a motion for summary judgment, we must determine

"whether, viewing the evidence in the light most favorable to

the nonmoving party, all material facts have been established

and the moving party is entitled to a judgment as a matter of

law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120

(1991). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404

(2002). A "genuine" dispute about a material fact exists when

The plaintiffs stated in their brief that they do not
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appeal from the allowance of summary judgment on the wrongful
death claim. In addition, they do not address the allowance of
the motion for directed verdict on the G. L. c. 93A claim, and
thus that issue is deemed waived. See Sullivan v. Liberty Mut.
Ins. Co., 444 Mass. 34, 35 n.1 (2005).

4
"the evidence is such that a reasonable jury could return a

verdict for the nonmoving party" and a fact is "material" when

"it might affect the outcome of the suit under the governing

law" (quotations and citation omitted). Dennis v. Kaskel, 79

Mass. App. Ct. 736, 740-741 (2011).

2. Breach of contract. The plaintiffs argue that the

judge erred in granting summary judgment on their breach of

contract claim because the contract was ambiguous as to whether

Brightview promised that the Dodges would be able to "age in

place" together regardless of their medical needs, and thus

extrinsic evidence was admissible to address this ambiguity.

Specifically, the plaintiffs argue that, where the consumer

guide was integrated into the parties' agreement and informed

residents that they should consider certain questions before

signing a residency and service agreement, the "answers" to

those questions are also integrated in the agreement, rendering

the contract language "ambiguous" and in need of extrinsic

evidence. The parol evidence rule, however, bars introduction

of antecedent or contemporary oral agreements to contradict,

vary, or broaden the terms of an integrated, unambiguous

writing. See Winchester Gables, Inc. v. Host Marriott Corp., 70

Mass. App. Ct. 585, 591 (2007). The hypothetical answers to the

questions posed in accordance with the consumer guide would

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necessarily be oral agreements that could contradict, vary, or

broaden the terms of the written residency agreement.

Accordingly, these hypothetical answers would be barred by the

parol evidence rule. See id.

Supporting our conclusion that the parties intended to be

bound by the unambiguous terms of the contract, the residency

agreement includes an integration clause, which states: "This

Agreement (which includes all exhibits and attachments) contains

the entire agreement between Resident and [Brightview], and

supersedes all prior agreements and representations[.]"

"Generally, contracting parties are understood to have included

an integration clause in their written agreement with the intent

to preclude the subsequent introduction of evidence of

preliminary negotiations or side agreements" (quotation and

citation omitted). Realty Fin. Holdings, LLC v. KS Shiraz

Manager, LLC, 86 Mass. App. Ct. 242, 247-248 (2014). Thus, at

least in the absence of any evidence to the contrary, the

integration clause establishes that the parties intended to

prohibit the consideration of parol evidence to contradict,

vary, or broaden the terms of unambiguous language in the

contract. See id. See also Winchester Gables, Inc., 70 Mass.

App. Ct. at 591.

6
Because the contract unambiguously contradicted the

plaintiffs' claim that the Dodges would be able to age in place

regardless of their needs, and parol evidence was inadmissible

on that issue, the judge did not err in granting summary

judgment for the defendants on the breach of contract claim.6

3. Negligence. Although the plaintiffs' pleading and

briefing of the negligence claim was sparse, they claim that

Brightview owed the Dodges "a duty of care to provide competent

custodial care and services," Brightview breached that duty,

which caused the Dodges to suffer "repeated incidents and harm,"

and expert testimony was not required on the standard of care

and any deviation from it. On this record, the plaintiffs have

failed, as a matter of law, to create any genuine issue of

material fact regarding a negligence claim.

The judge analogized the duty owed by the defendants to the

standard of care a university health care facility owes its

student patients, citing Goldberg v. Northeastern Univ., 60

Mass. App. Ct. 707, 710 (2004). In Goldberg, a student visiting

a university healthcare facility on a Saturday was diagnosed and

6 The plaintiffs argue, alternatively, that putting aside
parol evidence, there is a disputed issue of material fact
regarding the plaintiffs' breach of contract claim. Because
that argument is raised for the first time on appeal, it is thus
not properly before us. See Carey v. New England Organ Bank,
446 Mass. 270, 285 (2006).

7
treated for influenza by a registered nurse. Id. at 708-709.

Less than two weeks later, the student died of acute anemia

triggered by acute myelogenous leukemia. Id. at 709. The

parents alleged negligence on the part of the university,

claiming that the director of the facility staffed the facility

with only registered nurses on the weekend despite knowing that

registered nurses were not allowed to make medical diagnoses.

Id. at 710. We concluded that "the subject of establishing,

staffing, and operating a health care center, including

determinations regarding adequate staff configurations on

weekends, involves quintessentially medical judgments that are

not matters with which a lay jury is likely to be acquainted,"

and therefore a claim of negligence required expert testimony.

Id. In comparing this case to Goldberg, the judge noted that

Brightview was not a healthcare provider, but found it

significant that ALRs like Brightview are "operated with

professional input from various healthcare providers" and are

"overseen by the Executive Office of Elder Affairs."

Accordingly, the judge concluded that "the standard of care

applicable to [ALRs], and whether Brightview breached that

standard in connection with the care and services it provided to

Mr. and Mrs. Dodge, is a matter beyond the ken of ordinary

layperson jurors." Therefore, the judge concluded that the

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plaintiffs' failure to proffer expert evidence on the standard

of care warranted summary judgment for the defendants.

On appeal, the plaintiffs urge us to distinguish Goldberg

on the basis that the facility in Goldberg was a medical

provider and the plaintiffs' complaint against Brightview did

not stem from "medical judgment[s]." To be sure, the

plaintiffs' amended and substituted complaint alleged that the

defendants breached a duty "to provide competent custodial care

and services," not medical treatment. The plaintiffs argue that

"competent custodial care and services" of an ALR are within the

common knowledge of the average layperson. On the facts of

record before us in the present case, we disagree.

a. The regulatory framework applicable to ALRs. The

Supreme Judicial Court has recognized that ALRs "fall within a

'spectrum of living alternatives for the elderly in the

commonwealth.'" Ryan v. Mary Ann Morse Healthcare Corp., 483

Mass. 612, 618 (2019), quoting St. 1994, c. 354, § 1. The

purpose of ALRs is to provide "services well beyond what would

be available at a regular apartment complex, but short of the

care and supervision at a nursing home." Ryan, supra.

We have similarly recognized that the "personal care

services" provided by ALRs are integral to the ALR purpose.

"Although we think the personal care services to be provided

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assisted living residents are less intensive than the services

provided in nursing home facilities[,] . . . [t]hese services

cannot be separated from the residential purpose of an assisted

living residence: If the services are not provided, the

facility is not an assisted living residence." APT Asset Mgt.,

Inc. v. Board of Appeals of Melrose, 50 Mass. App. Ct. 133, 142-

143 (2000). Moreover, the "personal care services" ALRs provide

are subject to various state regulations. For example, "ALRs

. . . must meet minimum management and staffing qualifications

and adhere to certain staff training requirements." Ryan, 483

Mass. at 619. See G. L. c. 19D, § 2 (ix); 651 Code Mass. Regs.

§§ 12.06, 12.07 (2006 & 2015). These qualifications include

experience working with elders or persons with disabilities,

knowledge of aging and disability issues, "appropriate

qualifications to perform the job functions assigned to them,"

and so forth. See 651 Code Mass. Regs. § 12.06 (2015).7 The

training must "reflect current standards of practice and care,"

and "[i]nstructors and facilitators shall be appropriately

qualified by training or demonstrated experience." 651 Code

Mass. Regs. § 12.07 (2006).

7 The quoted language from the regulation was added on
January 30, 2015.

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Finally, nurses must perform the initial screenings and

assessments of residents to determine whether they are a

suitable fit for the facility and then develop each resident's

individualized service plan alongside the facility's service

coordinator. See 651 Code Mass. Regs. §§ 12.04(6)(a), 12.04(7)

(2015). Such plans must describe the individualized needs of

each resident, including the frequency and duration of services,

and document the provision of such services through written

progress reports. See G. L. c. 19D, §§ 2, 12.

b. The purpose of expert testimony in negligence cases.

"The purpose of expert testimony is to assist the trier of fact

in understanding evidence or determining facts in areas where

scientific, technical, or other specialized knowledge would be

helpful." Commonwealth v. Pytou Heang, 458 Mass. 827, 844

(2011). Expert testimony is required for subjects that a lay

juror would not "be expected to understand in many circumstances

without guidance from an expert." Providence & Worcester R.R.

v. Chevron U.S.A. Inc., 416 Mass. 319, 323 (1993). However,

where information lies "within 'general human knowledge and

experience,'" expert testimony is not required. Bailey v.

Cataldo Ambulance Serv., Inc., 64 Mass. App. Ct. 228, 236 n.6

(2005), quoting Lovely's Case, 336 Mass. 512, 516 (1957).

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If a plaintiff's claim depends on an issue requiring expert

testimony, the plaintiff's failure to proffer such expert

evidence warrants dismissal on summary judgment. See Santiago

v. Rich Prods. Corp., 92 Mass. App. Ct. 577, 585 (2017)

(affirming summary judgment for defendants on negligence claim

because of failure to proffer expert evidence on medical

causation of harm).

c. Analysis. The plaintiffs' negligence claim alleges

that Brightview breached a duty of care to the Dodges relating

to the provision of services and staffing. This claim hinges on

an understanding of, among other things, the existence and

adequacy of the Dodges' individualized service plans, whether

Brightview's staffing levels were reasonable and appropriate,

and whether the staff was properly qualified to execute the

Dodges' service plans. Given that these issues are all the

subject of the ALR statute and State regulations, which are

designed to ensure reasonable and appropriate care of residents,

it is necessary to determine whether Brightview complied with

this statute and these regulations in its care for the Dodges to

determine whether Brightview breached its duty of care to the

Dodges. We believe these issues are a matter of "specialized

knowledge," Pytou Heang, 458 Mass. at 844, that is "beyond the

ken of an ordinary juror" and therefore requires expert

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testimony. Santiago, 92 Mass. App. Ct. at 585. Because the

plaintiffs did not proffer expert testimony on this subject, the

allegation of negligence was "merely speculative," and thus

summary judgment properly entered on the negligence claim. See

Goldberg, 60 Mass. App. Ct. at 710.

4. Infliction of emotional distress. The plaintiffs argue

that the defendants owed Donovan a duty of care because she was

the Dodges' health care proxy and agent and had "first hand"

dealings with Brightview about their care. They further argue

that the defendants breached that duty thereby causing Donovan

emotional distress.8 The plaintiffs assert generally and without

elaboration that the source of this duty is "existing social

values and customs." See Williams v. Stewart Health Care Sys.,

LLC, 480 Mass. 286, 291 (2018).

We note that whether a defendant owes a plaintiff a duty of

care in specific circumstances is a question of law. See Lanier

v. President & Fellows of Harvard College, 490 Mass. 37, 44-45

(2022) ("Whether a defendant has a duty of care to the plaintiff

8 In their complaint and opposition to summary judgment, the
plaintiffs did not specify whether they were alleging
intentional infliction of emotional distress or negligent
infliction of emotional distress. At oral argument, the
plaintiffs conceded that the evidence did not satisfy the
requirements of intentional infliction of emotional distress,
and we thus limit our discussion to negligent infliction of
emotional distress.

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in the circumstances is a question of law . . . , to be

determined by reference to existing social values and customs

and appropriate social policy [citation omitted]"). On this

record, there is no basis to conclude that the defendants owed

Donovan a duty of care arising out of their relationship with

and obligation to care for her parents.

First, the plaintiffs have cited no legal precedent for

their claim that an ALR like Brightview owes a duty to the

family members of residents. Second, the plaintiffs have cited

to no specific social value, custom, or social policy to support

their argument. Third, the plaintiffs do not specify in the

summary judgment record any acts or omission by the defendants

that violate this alleged duty of care. Accordingly, their

argument amounts to little more than a bald assertion of error

and "provide[s] an insufficient basis for this court [to]

reasonably consider [their] claims." Kellogg v. Board of

Registration in Med., 461 Mass. 1001, 1003 (2011) ("Further,

Mass. R. A. P. 16 [a] [4], as amended, 367 Mass. 921 [1975],

requires that briefs submitted to this court 'shall contain the

contentions of the appellant with respect to the issues

presented, and the reasons therefor, with citations to the

authorities, statutes and parts of the record relied on.' . . .

Briefs that limit themselves to 'bald assertions of error' that

14
'lack[] legal argument . . . [do not] rise[] to the level of

appellate argument' required by rule 16"). See Mass.

R. A. P. 16 (a) (9), as appearing in 491 Mass. 1628 (2019).

Accordingly, we affirm summary judgment on this claim.9,10

The October 25, 2022 order allowing the defendants' motion

for summary judgment on all counts except the G. L. c. 93A count

is affirmed. The November 27, 2023 judgment on the directed

verdict on the c. 93A count is affirmed. The case is remanded

9 The plaintiffs also argue that entry of summary judgment
was premature because discovery was not complete. Having
reviewed the arguments made by the plaintiffs on appeal, and
those made in the Superior Court pursuant to Mass. R. Civ. P.
56 (f), 365 Mass. 822 (1974), including the affidavit of counsel
submitted in support of that argument, we conclude that the
claim is unavailing. To prevail on such a theory, a plaintiff
is required, among other things, to "show to the best of his
ability what facts are within the movant's exclusive knowledge
or control; what steps have been taken to obtain the desired
information pursuant to the discovery procedures under the
[Massachusetts] Rules [of Civil Procedure]; and that he is
desirous of taking advantage of these discovery procedures."
Alphas Co. v. Kilduff, 72 Mass. App. Ct. 104, 109-110 (2008),
quoting A. John Cohen Ins. Agency, Inc. v. Middlesex Ins. Co., 8
Mass. App. Ct. 178, 183 (1979). Rather than meet this burden,
the plaintiffs simply asserted that "questions remain unanswered
as to the Defendants['] duties and breach, and the extent of
their negligence, and corresponding damages" and that "key
documents have still not been produced." We discern no abuse of
discretion. Cf. Carroll v. Select Bd. of Norwell, 493 Mass.
178, 195 (2024) (no abuse of discretion in granting summary
judgment without ordering further discovery where "the
plaintiffs' responses did not specify what additional discovery
they needed, nor how much time they needed to complete it").

10The defendants' request for costs for the expense
incurred in obtaining the transcript of the hearing on the
motion for summary judgment is denied.

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to the Superior Court for the entry of a final judgment in favor

of the defendants.

So ordered.

By the Court (Neyman,
Ditkoff & Wood, JJ.11),

Clerk

Entered: May 28, 2025.

11 The panelists are listed in order of seniority.

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