JACKSON J. WERNER & Others v. ZIPCAR, INC., & 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-475

JACKSON J. WERNER & others1

vs.

ZIPCAR, INC., & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A judge of the Superior Court granted summary judgment to

the defendants, 57 East Pleasant Street, LLC, and Zipcar, Inc.

(Zipcar),3 ruling that they did not owe a common-law duty of care

to the plaintiffs, Jackson J., James P., and Elizabeth B.

Werner. The plaintiffs appeal, contending that the judge erred

because the defendants owed or assumed a duty of care to the

plaintiffs and the defendants violated that duty. We affirm.

1 James P. Werner and Elizabeth B. Werner.

2 57 East Pleasant Street, LLC.

3We refer to these two entities collectively as the
defendants. Two additional defendants were dismissed pursuant
to a stipulation of dismissal in the trial court.
1. Background. On the evening of October 21, 2017,

Jackson rented a car from defendant Zipcar.4 The car was located

at the garage at 57 East Pleasant Street, Amherst (garage).

Zipcar sent an e-mail message to Jackson with instructions on

how to return the car to the garage, which required entry

through a remote-controlled overhead door:

"The Zipcars are located . . . on the corner of Triangle
Street and East Pleasant Street, directly across from
Kendrick Park. Your car may be equipped with . . . a gate
button located on the visor of each vehicle. Depress the
button upon exit/entrance to open the door.

"If your car does not have a pass, park in front of the
gate, walk down the concrete path between the Kendrick
building and Bertucci's, and enter the access door with the
Zipcar signage. Tap your [Z]ipcard against the black card
reader, and then drive your car inside.

"Upon return, look for the Zipcar logos and the black
garage door on [T]riangle [S]treet."

After picking up the car, Jackson noticed it was not equipped

with a remote door opener (also referred to as a parking pass).

To drive the car from the garage, Jackson got out of the car and

used a wall button to open the overhead garage door.

Later that evening, Jackson sought to return the vehicle.

As he approached the garage, he concluded that if he followed

the instructions provided in the e-mail message and parked in

front of the gate, the rear end of his car would extend into the

4 As several members of the family share the same last name,
we refer to them by their first names for ease of reference.

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street. Because of this concern, Jackson decided on an

alternate plan. He moved the car to a parking lot across from

the garage on Triangle Street. He then attempted to cross the

street to reach the access door on the side of the 57 East

Pleasant Street building. A drunk driver struck Jackson while

he was crossing the street, severely injuring him.

The plaintiffs brought claims for negligence and loss of

consortium against the garage owner (57 East Pleasant Street,

LLC) and Zipcar. The motion judge granted the defendants'

motions for summary judgment, ruling that neither defendant owed

a duty of care to protect Jackson from injury in a public way.

The plaintiffs moved for reconsideration, asserting that the

defendants assumed a duty of care by providing return

instructions for situations where the car did not have a parking

pass to open the garage door. The motion judge denied the

motion for reconsideration. Separate and final judgments then

entered in favor of Zipcar and the garage owner. The plaintiffs

appealed.

2. Discussion. "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 a judgment

as a matter of law.'" Juliano v. Simpson, 461 Mass. 527, 529-

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530 (2012), quoting Augat, Inc. v. Liberty Mut. Ins. Co., 410

Mass. 117, 120 (1991).

Before a defendant can be found liable for negligence,

"there must first be a legal duty owed by the defendant to the

plaintiff, and a breach of that duty proximately resulting in

the injury." Davis v. Westwood Group, 420 Mass. 739, 742-743

(1995). Whether such a duty exists is a question of law. See

Wallace v. Wilson, 411 Mass. 8, 12 (1991). "[W]e look to

existing social values and customs, as well as to appropriate

social policy" to determine whether the defendants owed a duty

of care. Cottam v. CVS Pharmacy, 436 Mass. 316, 320 (2002),

quoting Davis, supra at 743.

a. Scope of the duty of care. "[A]n owner or possessor of

land owes a common law duty of reasonable care to all lawful

visitors." Davis, 420 Mass. at 743. "Although a landowner or

possessor typically is not held to any duty with respect to

public highways adjacent to or crossing [their] land, [they]

must exercise reasonable care in the use of [their] land so as

not to injure a traveler on the highway." Id. Because

Jackson's injury occurred on an adjacent public roadway, the

controlling question is whether the defendants' use of their

land created the conditions that caused his injury.

The plaintiffs contend that the defendants owed a duty to

provide a remote garage door opener or to instruct on a

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reasonably safe alternative way of returning the car. We are

not persuaded. Jackson sustained his injury while deviating

from the instructions provided by Zipcar, and it was not

Zipcar's instructions that put him in harm's way as he crossed

the street. Compare Davis, 420 Mass. at 742-743 (dog track

owner owed no duty when patron was struck by drunk driver while

crossing public highway between dog track and parking lot, both

owned by the same entity), with Pritchard v. Mabrey, 358 Mass.

137, 140 (1970) (property owner owed duty when her failure to

stop water dripping from her building onto adjacent public

sidewalk created dangerous physical condition that caused

plaintiff's injury).

Given our conclusion, it follows that the plaintiffs'

alternative claim that, in the absence of remote openers, Zipcar

owed a duty to arrange for parking on the same side of Triangle

Street as the garage also fails. Zipcar had no duty to protect

against the hazards inherent in an adjacent public road. In

Davis, the Supreme Judicial Court declined to expand a duty of

care to such hazards, as it "would make the line which cuts off

landowner liability 'nearly impossible to draw.'" 420 Mass. at

744, quoting Wofford v. Kennedy's 2nd St. Co., 649 S.W.2d 912,

914 (Mo. Ct. App. 1983).

b. Assumed duty of care. "If a person voluntarily assumes

a duty or undertakes to render services to another that should

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have been seen as necessary for [their] protection, that person

may be liable for harm caused because of the negligent

performance of [their] undertaking." Thorson v. Mandell, 402

Mass. 744, 748 (1988). The scope of an assumed duty is limited

to the "specific task" undertaken to assume the duty. Davis,

420 Mass. at 746. "[A] duty voluntarily assumed must be

discharged with due care." Id.

"[T]he mere fact that [a defendant] had voluntarily
undertaken to render a service is not sufficient to impose
a duty. It must also be shown that either (a) the failure
to exercise due care increased the risk of harm, or (b) the
harm is suffered because of the [plaintiff's] reliance on
the undertaking."

Mullins v. Pine Manor College, 389 Mass. 47, 53-54 (1983).

Jackson did not suffer his injury while following Zipcar's

instructions. Instead, his tragic injury occurred while he

chose a different method for returning the car. The plaintiffs

contend that by including vehicle return instructions to be used

in the absence of a remote garage opener, Zipcar assumed a

general duty to provide a safe way for its patrons to return

rented vehicles. We are not persuaded. See Mullins, 389 Mass.

at 53-54. See also Davis, 420 Mass. at 747 & n.13 (defendant

that hires and pays municipal police officer to direct traffic

at crosswalk does not assume "unreasonably onerous" duty to

ensure pedestrians' safe passage across highway; to impose such

duty "would penalize [the defendant] for having arranged and

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paid for municipal police officers to monitor the pedestrian

crossing"). Because we conclude that neither defendant owed a

duty to Jackson to provide safe passage across the street when

he chose not to follow the instructions provided by Zipcar, the

judge correctly granted summary judgment in favor of the

defendants.

Judgments dated August 22,
2023, and March 25, 2024,
affirmed.

By the Court (Vuono,
Hershfang & Tan, JJ.5),

Clerk

Entered: May 1, 2025.

5 The panelists are listed in order of seniority.

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