Vintimilla v. National Lumber Company (Lawyers Weekly No. 11-134-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1101 Appeals Court MIGUEL VINTIMILLA vs. NATIONAL LUMBER COMPANY. No. 12‑P‑1101. Plymouth. April 5, 2013. ‑ November 6, 2013. Present: Vuono, Carhart, & Agnes, JJ. Negligence, Entrustment, Forklift truck. Contract, Equipment lease. Bailment. Practice, Civil, Summary judgment. License. Civil action commenced in the Superior Court Department on April 10, 2008. A motion to amend the complaint was heard by Thomas F. McGuire, Jr., J., and the case was heard by him on a motion for summary judgment. Douglas Smith for the plaintiff. Joseph G. Yannetti (Christian A. Young with him) for the defendant. CARHART, J. The plaintiff appeals from the allowance of the defendant’s motion for summary judgment on his claim for negligent entrustment and the denial of his motion to amend his complaint. We affirm. Background. The plaintiff, Miguel Vintimilla, filed a complaint against National Lumber Company (National Lumber) alleging negligent entrustment. Subsequently, Vintimilla moved to amend his claim by adding a count alleging unfair or deceptive acts or practices pursuant to G. L. c. 93A. The judge, in a detailed memorandum, allowed summary judgment in favor of National Lumber. At the same time, the judge denied Vintimilla’s motion to amend the complaint to add a c. 93A count on the grounds that the motion was futile in light of his allowance of summary judgment on the negligent entrustment count. The facts are not in dispute and in order to frame the issue on appeal, we recite them as stated by the judge in his memorandum of decision: “On November 26, 2007, National Lumber leased a forklift to Vermont Construction [Company (Vermont Construction)]. The lease agreement stated that the lessee ‘shall use the equipment in a careful and proper manner and shall comply with all national, state, municipal, police and other laws, ordinances and regulations in anywise [sic] relating to the possession, use, or maintenance of the equipment.’ This was the first time National Lumber leased equipment to Vermont Construction. National Lumber’s officers and employees did not know, and did not inquire, whether Vermont Construction’s employees had a license to operate the forklift or whether they were competent to operate forklifts. National Lumber’s officers and employees were unaware of any practice of using a forklift to lift a person into the air. Michael Gosselin, a sales representative of National […]