Cottrell v. Laidley

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21-P-740 Appeals Court

SHAUNTOO COTTRELL vs. EDWARD LAIDLEY & another.1

No. 21-P-740.

Middlesex. July 17, 2023. - October 18, 2023.

Present: Green, C.J., Ditkoff, & Hodgens, JJ.

Negligence, Motor vehicle, Foreseeability of harm, Expert
opinion, Employer, Vicarious liability. Practice, Civil,
Summary judgment.

Civil action commenced in the Superior Court Department on
October 17, 2018.

The case was heard by Patrick M. Haggan, J., on a motion
for summary judgment.

Andrew R. Gould, of Texas (Benjamin H. Duggan also present)
for the plaintiff.
William J. Fidurko for the defendants.

DITKOFF, J. The plaintiff, Shauntoo Cottrell,2 appeals from

a grant of summary judgment dismissing his complaint against the

1 Colonial of Watertown, Inc.

2 Cottrell died during the pendency of this appeal, and the
personal representative of his estate was substituted as the
2

defendants, Edward Laidley and Laidley's employer, Colonial of

Watertown, Inc. (Colonial), arising out of the plaintiff's

personal injuries sustained when Laidley lost consciousness and

rear-ended the bus the plaintiff was driving. This case

requires us to examine the doctrine of a sudden medical

emergency negating negligence. Although there is no genuine

dispute of material fact that Laidley's untreated medical

condition that included severe sleep apnea caused him to lose

consciousness, we conclude that a genuine issue of material fact

remains as to whether Laidley should have foreseen the

emergency; specifically, whether he was aware of prior onsets of

sleepiness or had experienced drowsiness in the hours leading up

to the accident and thus was negligent in deciding to drive

nonetheless. We further conclude that, although the summary

judgment record does not raise as a triable issue that Colonial

was directly negligent in hiring or supervising Laidley, should

Laidley be found negligent, Colonial would be vicariously liable

for Laidley's negligence. Accordingly, we reverse the judgment

as to both defendants.

1. Background. "We recite the material facts in the light

most favorable to the nonmoving party." Matter of the Estate of

Urban, 102 Mass. App. Ct. 284, 285 (2023), quoting Docos v. John

plaintiff. For ease of reference, we refer to Cottrell as the
plaintiff.
3

Moriarty & Assocs., 78 Mass. App. Ct. 638, 639 (2011). In

January 2017, Laidley, then fifty-five years old, applied for a

position as a parts driver at Colonial, a car dealership in

Watertown. Laidley's wife worked there as a receptionist.

Because Colonial required its parts drivers to have "a clean

driving record," Laidley submitted his driver's license as part

of his application. Colonial then provided Laidley's license to

its insurance company so that the insurance company could "clear

it." Shortly thereafter, Colonial's insurance company informed

Colonial that Laidley was cleared to drive. Colonial did not

interview Laidley or conduct any further evaluation. In May

2017, Laidley's wife told him that he got the job.

As a parts driver, Laidley was responsible for driving to

various locations to deliver or pick up motor vehicle parts.

Laidley spent approximately half of each workday driving and the

rest of the day on various other tasks. Although Laidley was

overweight, Colonial's general manager, who saw Laidley three to

four times a day, testified at a deposition that he never

noticed Laidley having trouble breathing or needing to take an

extra break at work. Colonial's general manager testified that

Laidley was "a good employee" because, instead of sitting and

waiting around for the next parts delivery, Laidley was always

"looking to be busy."
4

Between May 2017, when Laidley was hired as a parts driver,

and January 3, 2018, Laidley did not see a doctor, either for

any medical problems or for annual physicals. In the days

leading up to Wednesday, January 3, 2018, Laidley had a

"productive cough."

On January 3, 2018, at approximately 12:30 P.M., Laidley

was driving a parts truck for Colonial. At the time, the

plaintiff was driving his usual bus route for the Massachusetts

Bay Transportation Authority (MBTA), which ran from the Lechmere

station in Cambridge to Clarendon Hill in Somerville. As the

plaintiff approached the final stop on his route, he pulled out

onto Broadway Street and waited for traffic to clear so that he

could turn left to drop off his last passenger. While the

plaintiff was waiting to turn left into the Clarendon Hill bus

stop, Laidley, who was traveling behind the plaintiff, rear-

ended the bus. At the moment of impact, the bus was not moving.

The impact from Laidley's vehicle pushed the bus forward

approximately seventy-five feet. When the bus came to a

complete stop, the plaintiff called dispatch to report that he

had just "been struck." When the plaintiff exited the bus, he

observed Laidley's vehicle traveling in reverse "[f]or at least

a couple of seconds" before it struck a parked vehicle. After

striking the parked vehicle, Laidley's vehicle traveled forward

"a couple of feet" before coming to stop. As a result of the
5

accident, Laidley's vehicle sustained substantial damage. The

bus sustained minimal damage.

Approximately fifteen minutes later, emergency medical

services arrived on scene. Emergency medical personnel observed

that Laidley had "labored breathing" and a "confused mental

status." Laidley "wasn't answering questions appropriately" and

stated that he was "trying to get [his] story straight." As

Laidley was being treated for his injuries, he stated that he

"was driving, felt a chest pain, and blacked out. [He] didn't

mean to hit the bus." Laidley complained of pain in his neck,

scapula, and foot as well as chest tightness, which he described

as if someone were "'hugging' him under his armpits." Laidley

stated that he "[did] not remember the accident nor [the] events

leading up to the accident."

The bus passenger reported that, after Laidley hit the bus,

Laidley "looked like he was having a seizure or a heart attack."

The plaintiff did not see Laidley until after the accident, when

Laidley was placed on a stretcher. No one observed Laidley's

physical appearance in the moments before the accident.

After the accident, Laidley was transported to the hospital

where he was placed in a medically induced coma for

approximately one month. Laidley's doctors suspected that "a

medical emergency caused the accident" when Laidley "lost oxygen

to [his] brain." When Laidley woke up, he had no recollection
6

of the accident and no recollection of the two to three weeks

leading up to the accident. Doctors suspected that Laidley

suffered from sleep apnea, scheduled a sleep study, and

"[s]trongly advised [him] against driving/working heavy

machinery until resolved."

After the accident, Laidley was diagnosed with severe

obstructive sleep apnea, high blood pressure, high cholesterol,

and diabetes.3 Laidley had never been diagnosed with sleep apnea

before. Again, his doctor advised him not to drive until the

"sleep apnea has improved with the treatment." After several

months using a continuous positive airway pressure device,

Laidley reported that "[h]is frequent nocturnal awakenings have

resolved to just 1" and that he "no longer is groggy in the

morning." Six months after the accident, the doctor approved of

Laidley's resuming driving after a successful week of driving

with his wife in the passenger seat.

Laidley testified at his deposition that prior to the

accident he never had difficulty breathing, shortness of breath,

chest pains, or trouble sleeping.4 Laidley testified that his

wife had complained about his snoring for their entire thirty-

3 When Laidley was diagnosed with sleep apnea, a sleep study
revealed that he woke up "91 times per hour."

4 The parties provided both us and the Superior Court with
the full deposition transcripts, rather than providing snippets.
This practice greatly eases our review of the evidence.
7

year marriage. Despite this, Laidley did not recall ever

leaving work early or starting work late because he was feeling

tired. Laidley testified that he did not feel lethargic except

"when [he] was sleepy at night." Laidley further testified that

he was never informed by a doctor that the conditions that he

was diagnosed with after the accident were a result of long-

standing medical issues. In addition, Laidley attested in his

affidavit that prior to the accident he was never told by a

doctor that it was unsafe to drive and he "had never experienced

a loss of consciousness." Laidley further attested that before

the accident he "had never experienced any medical issues while

[he] was driving that led [him] to believe that driving was

unsafe."

In the course of his treatments Laidley made several

statements to his sleep specialist, Dr. Michael Zaslow.5 Laidley

described "'horrible snoring,' gasping and non-refreshing

sleep." Laidley stated that, although he was fatigued "some of

the time" and was "apt to doze off watching television and in

the lunchroom at work," he "never had micro-sleeps at red

lights." In addition, Laidley stated that he was "never able to

sleep more than a few hours at a time consecutive[ly]" and that

he "takes 2 or 3 naps per week for between 90 and 120 minutes."

5 The statements are contained within Dr. Zaslow's report
dated April 12, 2018.
8

Subsequently, at a hospital follow-up, Laidley told his doctor

that he had suffered from "frequent nocturnal awakenings" and

had been "groggy in the morning" prior to sleep apnea treatment.

After the accident, the plaintiff sued the defendants

seeking damages for medical expenses and pain and suffering that

he incurred as a result of the accident.6 The plaintiff alleged

that Laidley negligently rear-ended him, that Colonial was

vicariously liable for Laidley's negligence and, inter alia,

directly liable for negligent hiring and negligent supervision.7

In their answer the defendants asserted that, inter alia, "the

accident in which the Plaintiff was injured was the result of a

sudden medical emergency and therefore the Defendants [were] not

liable." After the parties exchanged discovery, the defendants

moved for summary judgment on all of the plaintiff's claims.

The plaintiff opposed the motion asserting, among other things,

that there was a factual dispute as to whether Laidley suffered

from a sudden, unforeseeable medical emergency.

6 The plaintiff alleged that he sustained "serious injuries
to his neck, back, legs, head, shoulders, and other parts of his
body."

7 Contrary to normal practice, the complaint does not
include counts. Cf. Lane v. Winchester Hosp., 101 Mass. App.
Ct. 74, 76 (2022) (complaint contained several counts alleging
various theories of negligence). Instead, it includes various
theories of direct liability, only two of which the plaintiff
pursued in opposing the defendants' motion for summary judgment.
9

Both parties presented expert medical opinions. One of the

defendants' experts, Dr. Corey Hardin, opined that "Laidley lost

consciousness before the accident due to hypoxemia" as a result

of undiagnosed chronic obstructive pulmonary disease (COPD).8

Dr. Hardin further opined that Laidley's "co-existent sleep

apnea also played a role." The defendants' other expert,

Dr. Amy Fogelman, opined that there were no pre-accident medical

records where Laidley was told not to drive nor was Laidley

experiencing any symptoms that would have indicated that he

should not have been driving. Although Laidley had a

"productive cough" in the days leading up to the accident, as

well as elevated blood pressure and a history of smoking,

Dr. Fogelman opined that none of these issues were reasons not

to drive. Similarly, she opined that, although Laidley had a

history of snoring, "[s]noring, without symptoms of excessive

fatigue, is not an indication that one should not be driving."

She also recounted that Laidley had testified that he did not

recall "[d]aytime somnolence," nor was that noted in any of his

records. Ultimately, Dr. Fogelman concluded that "there was

8 No other medical professional, before or after, has
diagnosed Laidley with COPD. Although there is no genuine
dispute of material fact that Laidley suffered from severe sleep
apnea at the time of the accident, there is a genuine dispute
whether he suffered from COPD.
10

nothing to indicate to [Laidley] that he should not have been

driving."

The plaintiff's expert, Dr. Meir Kryger, agreed with the

defendants' expert evidence to the extent that Laidley's

untreated sleep apnea "ultimately caused the accident." But

unlike the defendants' experts, Dr. Kryger opined that Laidley

"knew or should have known that his excessive sleepiness made it

dangerous for him to operate a vehicle." Dr. Kryger opined that

"Laidley had experienced prior sudden onsets of sleepiness

because sleep apnea is not an acute condition and because

[Laidley's] symptomology [obesity and snoring] was significant."

Dr. Kryger explained that untreated sleep apnea is associated

with "excessive daytime sleepiness." In particular, patients

such as Laidley, "with an [apnea hypopnea index] of greater than

40 are at [an] increased risk." Dr. Kryger determined that,

"[t]o a reasonable degree of medical probability, Laidley would

have felt very drowsy while driving the vehicle on the date of

the subject incident" and that "[t]he drowsiness should have

compelled him not to drive further." Dr. Kryger also opined

that, "[g]iven the significant symptoms described [obesity9 and

snoring], the defendant's symptoms of apnea and his excessive

9 Dr. Kryger noted Laidley's body mass index (BMI) to be 38.
BMI refers to a relationship between a person's weight and
height. See Richardson v. Chicago Transit Auth., 926 F.3d 881,
884 (7th Cir. 2019).
11

sleepiness should have been apparent to both him and his

employer."

After a hearing, the judge allowed the defendants' motion

for summary judgment and dismissed the plaintiff's complaint.

The judge found that there was no genuine dispute of material

fact that Laidley suffered a sudden, unforeseeable medical

emergency when he rear-ended the plaintiff and that, because

Laidley was not liable, Colonial could not be held vicariously

liable. As to the plaintiff's direct liability claims against

Colonial, the judge determined that the summary judgment record

did not raise a triable issue of negligent hiring or negligent

supervision on the part of Colonial.10 This appeal followed.

2. Standard of review. "We review a grant of summary

judgment de novo to 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

judgment as a matter of law.'" Chambers v. RDI Logistics, Inc.,

476 Mass. 95, 99 (2016), quoting DeWolfe v. Hingham Ctr., Ltd.,

464 Mass. 795, 799 (2013). "In deciding a motion for summary

10The judge also found that Colonial could not be held
liable on the plaintiff's negligent entrustment claim. Because
the plaintiff does not contest the grant of summary judgment on
this claim on appeal, we need not address it. See Zoning Bd. of
Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 55
(2013) ("Because the board did not argue this issue in its
appellate brief, we need not reach it").
12

judgment the court may consider the pleadings, depositions,

answers to interrogatories, admissions on file, and affidavits."

Bank of N.Y. Mellon v. Morin, 96 Mass. App. Ct. 503, 506 (2019),

quoting Niles v. Huntington Controls, Inc., 92 Mass. App. Ct.

15, 18 (2017). "[A] judge may decide the issue as a matter of

law when no rational view of the evidence permits a finding of

negligence." Petrell v. Shaw, 453 Mass. 377, 381 (2009).

3. Sudden medical emergency. "To prevail on a negligence

claim, a plaintiff must prove that the defendant owed the

plaintiff a duty of reasonable care, that the defendant

[committed a breach of] this duty, that damage resulted, and

that there was a causal relation between the breach of the duty

and the damage." Nguyen v. Massachusetts Inst. of Tech., 479

Mass. 436, 448 (2018), quoting Jupin v. Kask, 447 Mass. 141, 146

(2006). Under the sudden medical emergency doctrine, however,

"a sudden and unforeseeable physical seizure rendering an

operator unable to control his motor vehicle cannot be termed

negligence." Ellingsgard v. Silver, 352 Mass. 34, 36 (1967),

quoting Carroll v. Bouley, 338 Mass. 625, 627 (1959).11 A

11For other cases recognizing the sudden medical emergency
doctrine, see Fain v. Benak, 205 Conn. App. 734, 743 (2021);
Patrick v. Henthorn, 184 N.E.3d 1195, 1199 (Ind. Ct. App. 2022);
Hagenow v. Schmidt, 842 N.W.2d 661, 675 (Iowa 2014); Karl v.
Terbush, 63 A.D.3d 1359, 1359-1360 (N.Y. App. Div. 2009); Norman
v. Pearson, 2022-Ohio-4317, ¶¶ 27, 44 (Ct. App.); Shiner v.
Ralston, 64 A.3d 1, 6 (Pa. Super. Ct. 2013); Simpson v. Rood,
178 Vt. 474, 476 (2005). See also Sutherlin v. Fenenga, 111
13

defendant who invokes the sudden medical emergency doctrine in

moving for summary judgment must "establish the existence of the

claimed medical emergency and its unforeseeable nature" with

"competent or expert medical evidence." Pitt v Mroz, 146 A.D.3d

913, 914 (N.Y. App. Div. 2017). See Carroll, supra (defendant

bears burden of proving sudden medical emergency). "[T]he

foreseeability inquiry in [these] cases . . . frequently amounts

to a consideration by the factfinder of whether the defendant

driver should have been driving at all." McCoy v. Murray, 2009-

Ohio-1658, ¶ 14 (Ct. App.), quoting Roman v. Estate of Gobbo,

2003-Ohio-3655, ¶ 51.

Here, although there is no genuine dispute of material fact

that a sudden medical emergency caused Laidley to lose

consciousness while driving, a genuine dispute of material fact

exists concerning whether Laidley was either aware of prior

onsets of sleepiness or had experienced drowsiness in the period

before the accident. See Dunlap v. W.L. Logan Trucking Co.,

2005-Ohio-2386, ¶ 6 (Ct. App.) (record indicated that "[the

defendant] knew or should have known that he had a propensity to

fall asleep at unpredictable times"). To be sure, the

defendants presented considerable evidence that Laidley's loss

N.M. 767, 774-775 (Ct. App. 1991) (defense of sudden emergency);
Wiggins v. East Carolina Health-Chowan, Inc., 234 N.C. App. 759,
766 (2014) (same).
14

of consciousness was not foreseeable. Laidley testified that

prior to the accident he never had difficulty breathing,

shortness of breath, chest pains, or trouble sleeping. In

addition, Laidley attested that before the accident he had never

been told by a doctor that it was unsafe to drive, he "had never

experienced a loss of consciousness," and he "had never

experienced any medical issues while [he] was driving that led

[him] to believe that driving was unsafe." See Cincinnati Ins.

Co. v. Allen, 2008-Ohio-3720, ¶ 43 (Ct. App.) ("There was no

evidence that [the defendant] had ever lost consciousness due to

the lightheadedness prior to the September 2004 accident").

Although Laidley had a "productive cough" in the days

preceding the accident, in addition to elevated blood pressure

and a history of smoking, Dr. Fogelman opined that none of these

would have impacted Laidley's ability to drive. Similarly,

despite Laidley's history of snoring for his "entire marriage,"

Dr. Fogelman opined that "[s]noring, without symptoms of

excessive fatigue, is not an indication that one should not be

driving," given that Laidley did not recall any pre-accident

symptoms of excessive lethargy. Moreover, Laidley did not

recall any "[d]aytime somnolence" nor was it noted in any of his

records.

Dr. Fogelman, however, did not review the treatment records

of the sleep specialist, Dr. Zaslow, or Laidley's other
15

treatment records after the initial hospitalization. Indeed,

she seemed to be unaware that Laidley suffered from severe sleep

apnea. Moreover, although she opined that "there was nothing to

indicate to [Laidley] that he should not have been driving," she

ignored the fact that Laidley had no recall of his symptomology

(or, indeed, anything) in the weeks leading up to the accident.

In any event, Dr. Fogelman's opinion was contested by

competent contrary medical evidence. Dr. Kryger opined that

"Laidley had experienced prior sudden onsets of sleepiness

because sleep apnea is not an acute condition" and Laidley had

"the main symptoms of sleep apnea (obesity [BMI=38], snoring)

for decades prior to the crash." Cf. Denson v. Estate of

Dillard, 116 N.E.3d 535, 542 (Ind. Ct. App. 2018) ("there is no

evidence that [the defendant] suffered any symptoms prior to his

decision to drive . . . which would have alerted him of the

impending physical incapacity"); Duchene v. Finley, 2015-Ohio-

387, ¶ 3 (Ct. App.) (underlying disease causing defendant's

sudden loss of consciousness while driving "was not clinically

apparent" and he "was asymptomatic until that moment"); McCoy v.

Murray, 2009-Ohio-1658, ¶ 22 (Ct. App.) ("there was nothing in

[the defendant's] history that would lead a reasonable person to

believe they were in danger of suffering a loss of

consciousness"). In an appropriate case, a competent medical
16

expert12 can determine from a postaccident diagnosis what

symptoms a patient must have been experiencing prior to the

accident. Cf. Meyers v. Shontz, 251 So. 3d 992, 998 (Fla. App.

2018) (medical expert "theorized that the findings from the

postaccident [magnetic resonance imaging] took decades to

develop and did not show any sign of being related to trauma,

such as would occur in a car accident").

Although Laidley testified that he was never lethargic

except "when [he] was sleepy at night," Laidley had no memory of

the weeks leading up to the accident and thus no memory whether

he was lethargic in the relevant time period. Dr. Kryger's

report (if credited) suggests that it was not possible or at

least highly unlikely that Laidley was not lethargic before the

accident, as untreated sleep apnea is associated with "excessive

daytime sleepiness." This opinion was supported by the

postaccident medical records that were not reviewed by

Dr. Fogelman. Dr. Zaslow's report reflects that Laidley stated

a few months after the accident that "he's never able to sleep

more than a few hours at a time consecutive," that "[h]e's apt

to doze off watching television and in the lunchroom at work,"

and that he had "'horrible snoring,' gasping and non-refreshing

12The defendants, although strongly asserting that
Dr. Kryger's opinion is not credible, raise no challenge to his
expertise or the admissibility of his opinion, at least for
summary judgment purposes.
17

sleep," and "wakes up frequently." Similarly, months after the

accident, Laidley told his doctor that he had suffered from

"frequent nocturnal awakenings" and had been "groggy in the

morning" prior to sleep apnea treatment. These facts all

support Dr. Kryger's opinion.

The fact that Laidley's medical records before the accident

do not mention sleep apnea symptoms may establish that he "did

not complain to his medical providers about [sleep apnea]

symptoms, and is certainly circumstantial evidence that supports

a finding that the [loss of consciousness] was unforeseen.

However, by no means does it conclusively establish that

[Laidley] never experienced symptoms prior to the date of the

collision." Shiner v. Ralston, 64 A.3d 1, 6 (Pa. Super. Ct.

2013). Although Laidley was not diagnosed with sleep apnea

until after the accident, Dr. Kryger opined that, on the day of

the accident, "Laidley would have felt very drowsy while driving

the vehicle" and that Laidley "knew or should have known that

his excessive sleepiness made it dangerous for him to operate a

vehicle." See Dunlap, 2005-Ohio-2386, ¶ 51 ("despite the fact

that [the defendant's] sleep apnea was not specifically

diagnosed until after the accident, [the defendant] was aware of

excessive fatigue and aware of falling asleep at inopportune or

unusual moments prior to the accident"). As Laidley had no

memory of the weeks leading up to the accident and the
18

defendants presented no medical expert testimony to the

contrary, a jury could credit Dr. Kryger's opinion. Even if

Laidley did not know why he was experiencing excessive

sleepiness, a jury could determine that he was negligent in

driving (assuming, of course, the jury credit Dr. Kryger's

opinion). Accordingly, a genuine issue of material fact exists

as to whether Laidley's loss of consciousness was reasonably

foreseeable and, thus, whether Laidley was negligent in driving

that day. See Roberts v. Boehl, 2018-Ohio-1118, ¶ 30 (Ct. App.)

("in a case of sudden medical emergency where . . . the issue of

foreseeability is doubtful, the question should be submitted to

the jury or factfinder").

4. Colonial's liability. Colonial acknowledges that, on

the day of the accident, Laidley was acting within the course

and scope of his employment as a parts driver. As such, if

Laidley is found liable at trial, Colonial will be vicariously

liable. See Lev v. Beverly Enters.-Mass., Inc., 457 Mass. 234,

238 (2010), quoting Dias v. Brigham Med. Assocs., 438 Mass. 317,

319-20 (2002) ("Under the doctrine of respondeat superior, 'an

employer . . . should be held vicariously liable for the torts

of its employee, or servant, committed within the scope of

employment'").

In addition to vicarious liability, the plaintiff advanced

theories of direct liability, including negligent hiring and
19

negligent supervision.13 See Doe v. Roman Catholic Bishop of

Springfield, 490 Mass. 373, 386 (2022). "The doctrine of

negligent hiring or retention provides that 'an employer whose

employees are brought in contact with members of the public in

the course of the employer's business has a duty to exercise

reasonable care in the selection and retention of his

employees.'" El Koussa v. Attorney Gen., 489 Mass. 823, 835

(2022), quoting Foster v. The Loft, Inc., 26 Mass. App. Ct. 289,

290 (1988). Under this doctrine, "[n]egligence in hiring or

retaining a person to perform given tasks who is unfit for the

job" provides "a ground of liability for the harmful effects of

the choice upon related persons." Or v. Edwards, 62 Mass. App.

Ct. 475, 483 (2004). Once an employee is hired, "[e]mployers

are responsible for exercising reasonable care to ensure that

their employees do not cause foreseeable harm to a foreseeable

class of plaintiffs." Helfman v. Northeastern Univ., 485 Mass.

308, 326 (2020), quoting Roe No. 1 v. Children's Hosp. Med.

Ctr., 469 Mass. 710, 714 (2014).

13 In the Superior Court, the defendants argued that the
existence of a viable claim for vicarious negligence negates any
claims for negligent hiring or negligent supervision. The
defendants do not press this theory on appeal, and therefore we
do not reach it. Cf. Trinh v. Gentle Communications, LLC, 71
Mass. App. Ct. 368, 376 n.9 (2008) (under certain circumstances,
punitive damages available for direct claim but not vicarious
claim).
20

Here, although the plaintiff presented evidence that

Colonial's hiring screening was minimal, there is no evidence to

suggest that a more thorough screening process would have

revealed that Laidley was unfit to drive. Cf. Or, 62 Mass. App.

Ct. at 488 ("Reasonable inquiry would have disclosed [the

employee's] shady background with criminal history, but only a

limited, hurried investigation was undertaken"). The summary

judgment record reflects that, at the time Laidley was hired,

Colonial required only that each parts driver have "a clean

driving record." There being no suggestion that an employer

hiring a truck driver has a duty to subject applicants to a full

physical (much less nocturnal polysomnography), given that

Laidley's sleep apnea was undiagnosed at the time and there were

no medical records stating that Laidley should not drive, the

plaintiff has presented no evidence that Laidley's unfitness

would have been discovered through more diligent screening.14

Similarly, there is no evidence that, at the time of the

accident, Colonial knew or should have known that it was unsafe

for Laidley to drive. See Nelson v. Salem State College, 446

Mass. 525, 527 (2006) (affirming summary judgment where "there

14The plaintiff agrees that Colonial had no independent
duty to require Laidley to submit to a physical examination.
The plaintiff properly makes no argument that an employer has a
duty to restrict employees from driving simply because they are
overweight.
21

was no negligent supervision or training of the defendants'

employees"). Colonial's general manager, who saw Laidley three

to four times a day, testified that he never noticed Laidley

having trouble breathing or needing to take an extra break at

work. To the contrary, he testified that, instead of sitting

and waiting for the next parts delivery, Laidley was always

"looking to be busy." Although Laidley told Dr. Zaslow several

months after the accident that he was "apt to doze off . . . in

the lunchroom at work," the mere fact that an employee naps

during a lunchbreak would not put an employer on notice that the

employee was unfit to drive.

To be sure, Dr. Kryger opined that Laidley's "symptoms of

apnea and his excessive sleepiness should have been apparent to

both him and his employer." Dr. Kryger, however, described

those symptoms as "obesity [BMI=38], snoring." Colonial had no

reason to know that Laidley snored, and we do not take

Dr. Kryger as opining that it should have been apparent to

Colonial merely from Laidley's obesity that he suffered from

sleep apnea or was unsafe to drive. In any event, Dr. Kryger's

nonmedical opinion concerning what an employer should know is

well outside his area of expertise and insufficient to create a

genuine issue of material fact. See Borella v. Renfro, 96 Mass.

App. Ct. 617, 627 (2019) ("The conclusory statements of

witnesses . . . cannot defeat summary judgment"). Accordingly,
22

there is no triable issue that Colonial was either negligent in

its hiring or in its supervision of Laidley. See Helfman, 485

Mass. at 326 (claim fails where "there is no evidence that any

of the defendants [were] negligent in training or supervising

its [employees]").

5. Conclusion. So much of the judgment that grants

summary judgment in favor of Colonial on the plaintiff's claims

of direct negligence is affirmed. In all other respects, the

judgment is vacated and remanded for further proceedings.

So ordered.