JOHN A. DESANTIS v. QUIRK CARS, 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

22-P-585

JOHN A. DESANTIS

vs.

QUIRK CARS, INC. & another.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, an employee and salesperson for the

defendant car dealership, was injured at work due to an assault

and battery committed upon him by his immediate supervisor. In

a verified complaint, the plaintiff brought a vicarious

liability claim against the defendants concerning the

supervisor's assault and battery. The plaintiff also advanced a

claim against the defendants for negligent supervision and

hiring of the supervisor.2 On cross motions for summary

judgment, a Superior Court judge ruled in favor of the

defendants. On appeal, the plaintiff claims the judge erred by

concluding that the plaintiff's personal injury claims against

1 Daniel J. Quirk.

2 The plaintiff raises no issue on appeal relative to this claim.
his employer fell within the ambit of the exclusivity provision

of the workers' compensation act, G. L. c. 152, § 24 (WCA). We

conclude there was no error and affirm.

The exclusivity provision has been the cornerstone of the

WCA, and it is very broad. "The Legislature has had

opportunities to narrow its scope, and [it] has not done so."

Berger v. H.P. Hood, Inc., 416 Mass. 652, 656 (1993), S.C., 424

Mass. 144 (1997).

"While an employee need not forgo the right to bring
common-law tort claims against [his] employer, and may
instead waive any compensation payments under the act, an
employee so choosing must notify the employer in writing,
at the time of hire, that [he] does not waive the common-
law right of action."

Estate of Moulton v. Puopolo, 467 Mass. 478, 483-484 (2014).3

See G. L. c. 152, § 24. In other words, an employee's common-

law action against his employer is barred where the plaintiff is

shown to be an employee; his condition is shown to be a

"personal injury" within the meaning of the WCA; and the injury

is shown to have arisen "out of and in the course of . . .

employment." Foley v. Polaroid Corp., 381 Mass. 545, 548-549

(1980) (Foley I), quoting G. L. c. 152, § 26. See Brown v.

Nutter, McClennen & Fish, 45 Mass. App. Ct. 212, 216 (1998) (WCA

3 The plaintiff does not allege that he submitted a qualifying
waiver.

2
provides employees injured on job exclusive remedy against

employers).

Here, there is no dispute that the plaintiff was injured at

work in the course of his employment. In support of their

positions, both parties rely on Doe v. Purity Supreme, Inc., 422

Mass. 563 (1996). In Doe, the plaintiff was an employee who was

raped at work by her supervisor, and sued her employer for

negligence, assault and battery, intentional infliction of

emotional distress, false imprisonment, and negligent infliction

of emotional distress. Id. at 564-565. The court affirmed the

motion judge's grant of summary judgment in the employer's favor

on the negligence, assault and battery, and other related

claims, because "injuries resulting from physical assaults by

one employee on another are compensable" exclusively under the

WCA. Id. at 565. See Zygmuntowicz v. American Steel & Wire Co.

of N.J., 240 Mass. 421, 424 (1922) ("It is settled that injury

caused by an assault upon an employee, which arises out of and

in the course of his employment, falls within" the WCA).

The plaintiff maintains that his claim is one for vicarious

liability or alter ego, which he asserts is not covered by the

WCA's exclusivity provision. In support, as noted above, the

plaintiff relies on Doe v. Purity Supreme, Inc., supra.

However, the plaintiff reads Doe too broadly. While the court

did discuss vicarious liability in Doe, it did so only as that

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theory related to the plaintiff's claim for false imprisonment

(and accompanying loss of consortium claims) which were not

barred by the exclusivity provision of the WCA. Doe, 422 Mass.

at 568. Here, the plaintiff's claim for the supervisor's

assault and battery, as was Doe's claim for assault and battery,

is barred by the exclusivity provision of the WCA. Id. at 565.

See Anzalone v. Massachusetts Bay Transp. Auth., 403 Mass. 119,

124 (1988) (intentional torts covered by WCA, even when

committed by coemployees); Dillon's Case, 324 Mass. 102, 106–107

(1949) (injuries resulting from physical assaults by one

employee on another compensable under the WCA).

To the extent there exists any uncertainty about a

vicarious liability exception to the WCA, the Supreme Judicial

Court (SJC) laid it to the rest in Green v. Wyman-Gordon Co.,

422 Mass. 551 (1996), which was decided the same day as Doe. In

Green, the SJC held that a court need not consider whether "the

employer was either directly or vicariously liable" if "the

injuries would be compensable under the workers' compensation

act." Id. at 559. This is because, to determine whether the

WCA bars common-law claims, "we look at the nature of the

claims, not the source of the injuries." Doe, 422 Mass. at 566.

See Foley v. Polaroid Corp., 400 Mass. 82, 93 (1987) (Foley II).

Accordingly, summary judgment properly entered for the

4
defendants.4

Judgment affirmed.

By the Court (Meade, Rubin &
Blake, JJ.5),

Clerk

Entered: February 8, 2023.

4 For the first time on appeal, the plaintiff claims that the
broad scope of the WCA's exclusivity provision violated public
policy. As this claim was not raised in the Superior Court, we
decline to entertain it. See Carey v. New England Organ Bank,
446 Mass. 270, 285 (2006). In any event, any change in the
scope of the WCA for public policy reasons would be a matter to
address to the Legislature. See Berger, 416 Mass. at 656;
Kniskern v. Melkonian, 68 Mass. App. Ct. 461, 465-466 (2007).

5 The panelists are listed in order of seniority.

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