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14-P-928                                            Appeals Court

  MICHAEL A. LIND, coadministrator,1 & another2    vs.    DOMINO'S
                     PIZZA LLC & another.3


                            No. 14-P-928.

           Hampden.     March 12, 2015. - July 29, 2015.

             Present:   Grainger, Meade, & Fecteau, JJ.


Practice, Civil, Summary judgment, Change of ruling,
     Instructions to jury, New trial. Rules of the Superior
     Court. Negligence, Vicarious liability. Contract,
     Franchise agreement, Third party beneficiary. Negligence,
     Vicarious liability, Duty to prevent harm, Expert opinion.
     Evidence, Expert opinion. Witness, Expert.



     Civil action commenced in the Superior Court Department on
June 16, 2009.

     A motion for summary judgment was heard by Constance M.
Sweeney, J., and was reconsidered by Richard J. Carey, J.; the
case was tried before him, the entry of separate and final
judgment was directed by him, and a motion for a new trial was
considered by him.



    1
        Of the estate of Corey M. Lind.
    2
        Lisa A. Bishop, coadministrator of the estate of Corey M.
Lind.
    3
        Domino's Pizza, Inc.
                                                                       2


     John J. Egan for the plaintiffs.
     Paul G. Boylan (Kevin G. Kenneally & John F. Burke, Jr.,
with him) for the defendants.


     FECTEAU, J.      Plaintiffs Michael Lind and Lisa Bishop,

coadministrators of the estate of their son, Corey M. Lind

(Corey), appeal from separate and final judgments entered in the

Superior Court resolving all claims in favor of the defendants

Domino's Pizza LLC and Domino's Pizza, Inc., in connection with

the plaintiffs' wrongful death action filed pursuant to G. L.

c. 229, § 2.4   The plaintiffs challenge as error the

reconsideration and partial allowance by the judge, on the eve

of trial, of the defendants' motion for summary judgment.5       The

plaintiffs also challenge rulings made by the judge during trial

excluding certain testimony and declining to give a particular

jury instruction.     Finally, the plaintiffs contend the judge

erred in denying their motions for reconsideration and a new

trial.   We affirm.



     4
       The ten-count complaint for wrongful death and conscious
pain and suffering alleged the following causes of action
against these defendants: breach of voluntarily assumed duty
(Counts I and II); general negligence (Counts III and IV);
third-party beneficiary (Counts V and VI); negligent supervision
(Counts VII and VIII); and vicarious liability (Counts IX and
X).
     5
       All counts, with the exception of those that alleged
breach of a voluntarily assumed duty (Counts I and II), were
dismissed as a result.
                                                                   3


     Background.   The relevant facts are largely undisputed.

In June, 2003, David Jenks, the president of Springfield Pie,

Inc. (Springfield Pie), entered into a "Standard Franchise

Agreement" (franchise agreement) with Domino's Pizza LLC,6

providing that Springfield Pie, the franchisee, would operate a

Domino's Pizza Store at 624 Boston Road in Springfield (Boston

Road store or store).   The franchise agreement generally

provided that Springfield Pie would be bound by basic

operational standards as set forth by Domino's, but would

otherwise exercise control over the day-to-day operations of the

store.

     Springfield Pie hired Corey as a delivery driver in 2007 to

work in the Boston Road store.   At about 2:30 A.M. on December

8, 2007, a Saturday, a man named "Alex," later identified as

Alex Morales, telephoned the Boston Road store and reached

Cassandra, the wife of the store's manager, Carl Johnson.

Morales placed an order, and provided his telephone number and

requested a delivery to 104 Arnold Avenue in Springfield.

Around 2:50 A.M., Corey left to make the delivery at that

address, but he returned a few minutes later because the address

was not valid.   Cassandra telephoned Morales and told him that


     6
       Defendant Domino's Pizza LLC is the operating company and
wholly owned subsidiary of defendant Domino's Pizza, Inc. We
refer to them collectively as "Domino's."
                                                                    4


the delivery driver could not find the address.    Morales said he

was farther down Arnold Avenue toward Christopher Drive.

Cassandra relayed this information to Johnson, who, believing

that Christopher Drive ran parallel to Arnold Avenue (not

perpendicular, as Morales had indicated), decided to telephone

Morales himself.   Johnson asked Morales exactly where he was;

Morales gave a different, more specific address and claimed that

he was in a house.   Johnson asked Morales to leave the front

porch light on and wait in the doorway for the delivery driver;

Morales agreed and Johnson ended the call.

    Johnson explained to Corey where the house was located, and

showed him the location on the store map.    Corey left the store

to make the delivery to Morales and a second, separate order

after that.   Around 3:34 A.M., Morales telephoned the store and

said he had not yet received his food.   Johnson explained to him

that the driver (Corey) did not have a cellular telephone, but

that Johnson would make sure that Morales received his order.

Johnson left the store to look for Corey, but was unable to find

him after searching for about an hour.   In the meantime, Johnson

telephoned the store and spoke to Cassandra, who told him that

Morales had telephoned the store at 3:44 A.M. and said that he

no longer wanted the order delivered.

    It was eventually discovered that Morales had kidnapped,

robbed, and murdered Corey after Corey attempted to deliver the
                                                                      5


order to him.   Morales, who confessed to police in varying

stages, was convicted of murder in the first degree, armed

robbery, and kidnapping, and those convictions were affirmed by

the Supreme Judicial Court.   See Commonwealth v. Morales, 461

Mass. 765 (2012).7

     1.   Summary judgment ruling.    "The standard of review of a

grant of summary judgment is 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).     The moving party bears the

burden of demonstrating affirmatively the absence of a triable

issue and entitlement to judgment as a matter of law.      Pederson

v. Time, Inc., 404 Mass. 14, 16-17 (1989).      In determining

whether a genuine issue of material fact exists, the judge must

draw all inferences from the underlying facts in the light most

favorable to the party opposing the motion.      Attorney Gen. v.


     7
       Morales initially was a defendant to this instant action
but has since been defaulted pursuant to Mass.R.Civ.P. 55(a),
365 Mass. 822 (1974). He invoked his Fifth Amendment privilege
against self-incrimination at the instant trial and did not
testify. No final judgment has entered against him in this
case. In light of this, the judge issued two separate and final
judgments pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974),
in favor of Domino's on the claims disposed of by the jury
verdict and the motion for summary judgment.
                                                                     6


Bailey, 386 Mass. 367, 371 (1982).    An appellate court reviewing

summary judgment must examine its allowance de novo and based on

same record as the motion judge.     Fortenbacher v. Commonwealth,

72 Mass. App. Ct. 82, 85 (2008).

    "We note at the outset that the trial judge had the

authority to reconsider the motion for summary judgment sua

sponte."   Riley v. Presnell, 409 Mass. 239, 242 (1991).

Although judges "should . . . hesitate to undo the work of

another judge," Peterson v. Hopson, 306 Mass. 597, 603 (1940),

we do not agree with the plaintiffs that it was error for the

trial judge, sua sponte, to reconsider Domino's summary judgment

motion after it had been denied by another judge.    Although this

practice might not follow recommended procedures, see Superior

Court Rule 9D, "there is no lack of power" to do so, and, until

final judgment is entered, a judge is free to do so.    Peterson

v. Hopson, supra.   See Dolan v. Von Zweck, 19 Mass. App. Ct.

1032, 1034 (1985) ("An order merely denying a motion for summary

judgment . . . does not amount to a final judgment and may be

modified or changed at any time prior to final judgment").

Here, there was additional evidence entered in the record

following the initial November 8, 2012, denial of the motion,

and before the May, 2013, partial allowance of the motion.

Moreover, this is not a case where the judge's reconsideration

of a motion previously denied "further exacerbated" a party's
                                                                       7


predicament by, for example, forcing it to alter entirely its

defense on the eve of trial without the benefit of a requested

continuance.    See Barbosa v. Hopper Feeds, Inc., 404 Mass. 610,

622 (1989).    We turn now to the merits of each claim pleaded by

the plaintiffs and dismissed on summary judgment.

     a.     Vicarious liability.   The parties agree that the

controlling decision where a plaintiff seeks to hold a

franchisor vicariously liable for an alleged tort of its

franchisee is Depianti v. Jan-Pro Franchising Intl., Inc., 465

Mass. 607 (2013) (Depianti).8      In Depianti, the Supreme Judicial

Court noted that the usual rules of agency do not transfer

easily to the franchisor-franchisee context because, although

franchisors are required under the Lanham Act, 15 U.S.C.

§ 1064(5)(A) (2006), to maintain baseline controls and standards

relating to their trademarks, Federal rules concerning trademark

protection were "not intended to 'create a [F]ederal law of

agency.'"    Id. at 615, quoting from Oberlin v. Marlin Am. Corp.,

596 F.2d 1322, 1327 (7th Cir. 1979).      The mere fact that

franchisors set baseline standards and regulations that

franchisees must follow in an effort to protect the franchisor's


     8
       Depianti was issued approximately one month after the
defendants' summary judgment motion was allowed in part. Both
the plaintiffs and Domino's urge its application on appeal. We
note that the judge below cited nearly identical law in
resolving the vicarious liability claims against the plaintiffs.
                                                                   8


trademarks and comply with Federal law, does not mean that

franchisors have undertaken an agency relationship with the

franchisee such that vicarious liability should apply.    See

ibid.   Ultimately, the Supreme Judicial Court, referencing with

approval the analysis of Kerl v. Dennis Rasmussen, Inc., 273

Wis. 2d 106 (2004) (Kerl), held that "a franchisor is

vicariously liable for the conduct of its franchisee only where

the franchisor controls or has a right to control the specific

policy or practice resulting in harm to the plaintiff."

Depianti, supra at 617.   The specific policy or practice should

"be understood broadly, as the particular practice of the

franchisee that led to the plaintiff's injury."   Id. at 617

n.11.

     Other jurisdictions have applied similar tests and, in

doing so, have consistently ruled that, as matter of law,

franchisors are not vicariously liable for the alleged torts of

their franchisees.   See, e.g., Wendy Hong Wu v. Dunkin' Donuts,

Inc., 105 F. Supp. 2d 83, 88 (E.D.N.Y. 2000) (determining as

matter of law that franchisor not vicariously liable for

franchisee's security deficiencies because franchise agreement

did not give franchisor "considerable control . . . over the

specific instrumentality at issue"); Kerl, supra at 131-134

(restaurant franchisor not vicariously liable for franchisee's

negligent supervision of employees where franchisor had no
                                                                     9


control or right of control over daily hiring and supervision of

franchisee's employees).   But see Butler v. McDonald's Corp.,

110 F. Supp. 2d 62, 67-68 (D.R.I. 2000) (denying franchisor's

summary judgment motion because franchisor required franchisees

to conform to comprehensive system, inspected franchisee

premises and operations frequently, took profits, and had a

right to terminate agreement in event of franchisee breach).9

     Applying the Depianti test here, we conclude that the

plaintiffs failed to establish a genuine issue of fact whether

Domino's either controlled or had the right to control the

specific policy or practice that resulted in harm to Corey.     We

note initially that the "specific policy or practice resulting

in harm to the plaintiff" is difficult to ascertain in a context

such as here, where the harm was caused by a third party acting

     9
       See also Viches v. MLT, Inc., 127 F. Supp. 2d 828, 832
(E.D.Mich. 2000) (granting summary judgment on basis that hotel
franchisor not vicariously liable for franchisee's negligent use
of pesticides where franchise agreement only ensured "uniformity
and standardization . . . of services" [citation omitted]);
Pizza K., Inc. v. Santagata, 249 Ga. App. 36, 37-39 (2001)
(franchisor not vicariously liable for franchisee delivery
driver's accident because franchisor did not supervise day-to-
day activities of franchisee's employees); Vandemark v.
McDonald's Corp., 153 N.H. 753, 763 (2006) (restaurant
franchisor not vicariously liable for attack on franchisee's
employee because franchisor established uniformity and
standardization of products and services, but did not exercise
control over security operations). But see Miller v. McDonald's
Corp., 150 Or. App. 274, 281 (1997) (franchisor could be
vicariously liable where franchisee's patron bit into sandwich
that contained stone because franchise agreement provided
"precise methods" of food handling and preparation).
                                                                   10


malevolently.   However, inasmuch as actions by Springfield Pie

or Domino's "resulted in harm" or, in other words, caused or

contributed to the harm to Corey, the focus is correctly placed

on the instrumentality of pizza delivery under the circumstances

presented in the early morning hours of December 8, 2007.    The

plaintiffs seek to define the specific policy or practice more

broadly as pizza delivery in general, but this ignores that the

circumstances presented on December 8, 2007 -- including the

fact that it was around 3 A.M. when Corey left the store, and in

response to a caller who provided three different addresses, two

of them not valid -- were inherently more dangerous than other

potential deliveries, such as mid-day deliveries to customers

who provide a correct address that bear no relation to the

circumstances at bar.   Therefore, the specific policy or

practice here is properly defined as pizza delivery at 3 A.M.,

following a series of calls that, when viewed in a light most

favorable to the plaintiffs, were reasonably suspicious.

    When viewed in the proper context however, it is clear that

the plaintiffs failed to proffer evidence that Domino's

controlled or had the right to control this specific policy or

practice of the Boston Road store.   Although Domino's mandated

that all franchisees remain open until 1 A.M. on Fridays and

Saturdays, it was solely Springfield Pie's decision to remain

open until 3 A.M.   Moreover, although Domino's -- pursuant to
                                                                  11


the franchise agreement as well as the "Delivery Area Security

Procedure Manual" -- generally required franchisees to deliver

all orders, Domino's explicitly left it to the discretion of the

franchisee whether to deliver under circumstances that appeared

dangerous.   For example, the franchise agreement states that

franchisees are "not required to offer delivery service in areas

which might present a danger to you or your employees."

Additionally, Domino's required that store telephones have a

caller identification system in place or use "security

callbacks" in the absence of caller identification to follow up

on suspicious or late-night orders, or in response to first-time

callers.   In an affidavit, Johnson, the manager that night,

confirmed that the store was, in fact, solely responsible for

deciding to send Corey out on the delivery in question ("the

taking of the pizza order by phone, the calls back to 'Alex,'

the person making the order, and the process recounted for the

delivery of the pizza by [Corey], were all done pursuant to

policies developed and implemented by Springfield Pie in the

time I had been working there").

    Despite the foregoing, the plaintiffs aver that Domino's

mandatory requirements that franchisee employees not carry

weapons of any type or money in excess of twenty dollars on

deliveries, not resist in the event of attempted robbery, and

wear Domino's uniforms and place a lighted rooftop Domino's sign
                                                                    12


on their vehicles, caused Corey's harm, or at least contributed

to it.   However, Domino's requirements that drivers wear a

specific uniform and place the rooftop sign on their vehicles

are precisely the type of operational standards that courts have

recognized for protection of a trademark and are insufficient to

establish control over a franchisee.   See Kerl, 273 Wis. 2d at

126-127 ("[T]he clear trend in the case law in other

jurisdictions is that the quality and operational standards and

inspection rights contained in a franchise agreement do not

establish a franchisor's control or right of control over the

franchisee sufficient to ground a claim for vicarious liability

as a general matter or for all purposes").    Moreover, it is not

reasonable to suggest that the uniform and vehicle sign related

in any way to the harm that befell Corey, in light of the fact

that Morales specifically placed an order with the store and,

therefore, was expecting a Domino's driver.

    We acknowledge that Domino's nonresistance policy,

prohibition on weapons, and prohibition on drivers carrying more

than twenty dollars cannot reasonably be classified as trademark

controls, but are rules clearly designed, at least in part, for

employee safety.   In theory, therefore, these policies provide

more of a basis to establish vicarious liability because they

are indicative of an intent to assert control over delivery

safety protocol.   However, when viewed in this particular
                                                                   13


context, it cannot be said that those mandatory policies

resulted in the harm suffered by Corey.   As to the nonresistance

policy, that policy did not apply where an employee was

assaulted or otherwise presented with physical danger, such as

the case here.   Domino's specifically left it to franchisees to

train employees to respond to assaults or other physical

dangers.   Moreover, we do not view this record as demonstrating

the existence of a genuine issue whether the prohibition on

drivers' carrying weapons contributed to the harm suffered by

Corey; more significantly, when viewed in the instant context,

in a light most favorable to the plaintiffs, the causal link is

speculative at best.10

     Even if the instrumentality or specific policy were to be

viewed more broadly as delivery under any and all circumstances,

as the plaintiffs urge, the record is clear that Domino's

neither controlled nor had the right to control delivery

generally at the store.   As discussed supra, Springfield Pie had

the exclusive authority and responsibility to train and

supervise drivers concerning safety during deliveries, decide to

remain open past 1 A.M., decide to suspend temporarily delivery

or refuse to make individual deliveries where dangerous, and

     10
       The plaintiffs have not articulated, and the summary
judgment record is silent on, how Domino's policy that drivers
carry no more than twenty dollars on their person when
delivering food resulted in harm to Corey.
                                                                  14


design and implement additional safety protocols, where

necessary, over and above the basic requirements imposed by

Domino's.11   Even more generally, the franchise agreement clearly

provided that no agency relationship existed between Domino's

and Springfield Pie and that the latter was solely responsible

for the day-to-day operation of the Boston Road store.     See

Kerl, 273 Wis. 2d at 132 (noting that license agreement between

franchisor and franchisee disclaimed agency relationship, which

is "informative but not dispositive" information).12

     The plaintiffs also place emphasis on § 15.1 of the

franchise agreement, which provides that Springfield Pie agrees

fully to "comply with all specifications, standards and

operating procedures" prescribed by Domino's, including those

related to delivery of customer orders, arguing that this

     11
       There is evidence in the summary judgment record that
Springfield Pie did take additional measures to ensure safety.
For example, the Boston Road store locked its doors during
business hours, necessitating that customers "buzz" in.
     12
       Although Domino's retained an inspection right, which it
occasionally exercised, and the right to terminate the franchise
agreement if Springfield Pie did not comply with mandatory
requirements set by Domino's, the right to inspect did not
extend to safety issues. Moreover, these types of provisions
have been deemed insufficient by other courts to warrant the
imposition of vicarious liability on a franchisor. See Kerl,
273 Wis. at 125 ("[B]ecause many franchise relationships include
a license to use the franchisor's trade or service mark, the
detailed quality and operational standards and inspection rights
specified in the franchise agreement are integral to the
protection of the franchisor's trade or service mark under the
Lanham Act").
                                                                  15


provision created a genuine issue of material fact concerning

Domino's right to control deliveries.   However, the plaintiffs

overstate the importance of this provision which, read in

context, requires Springfield Pie only to comply with the

provisions set out more specifically in other portions of the

franchise agreement.   The plaintiffs claim that the judge

weighed evidence improperly for summary judgment purposes by, in

effect, comparing different sections of the franchise agreement;

however, the analysis of these issues is essentially contract

interpretation, which is a legal, not factual, inquiry proper at

the summary judgment stage.   See Lumber Mut. Ins. Co. v. Zoltek

Corp., 419 Mass. 704, 707 (1995).

    In sum, Domino's, via the franchise agreement, disclaimed

an agency relationship with Springfield Pie and left it

exclusively in Springfield Pie's purview to supervise, train,

and direct employees as to delivery and safety issues, and to

implement safety measures above the baseline standards imposed

by Domino's.   To the extent that any policy or practice relating

to delivery "resulted in" or caused Corey's harm, it was one

exclusively controlled by Springfield Pie.   Simply put, the harm

that ultimately occurred would not have occurred but for the

decision by Springfield Pie to send Corey on the delivery in

question, despite the possible danger inherent in such a

delivery.   There is no genuine issue of material fact whether
                                                                       16


any policy or practice of Domino's, including the weapon

prohibition, is directly and causally related to the harm.        In

light of the foregoing, the judge's summary judgment ruling on

the vicarious liability claim was correct.

    b.   Direct negligence.   The plaintiffs sought to hold

Domino's directly liable under the theory that Domino's created

an unreasonable risk of harm to Corey from third parties.     In

order to succeed on a claim of negligence, a plaintiff must

establish that the defendants owed him a legal duty of care.

The existence or nonexistence of such a duty is question of law

and is thus an appropriate subject of summary judgment.     See

Remy v. MacDonald, 440 Mass. 675, 676-677 (2004).     "As a general

principle of tort law, every actor has a duty to exercise

reasonable care to avoid physical harm to others."     Id. at 677.

A precondition to this duty is, of course, that the risk of harm

to another be recognizable or foreseeable to the actor.    See

Foley v. Boston Hous. Authy., 407 Mass. 640, 646 (1990).      "[A]s

a general rule, there is no duty to protect another from the

criminal conduct of a third party."   Kavanagh v. Trustees of

Boston Univ., 440 Mass. 195, 201 (2003).     However, such a duty

may arise where the plaintiff has reasonable expectations and

reliance that a defendant will anticipate harmful acts of third

parties and take appropriate measures to protect the plaintiff

from such harm.   Ibid.
                                                                    17


    The parties cite no Massachusetts cases relating to direct

negligence principles concerning a franchisor's duty of care to

its franchisees' employees.     The most analogous Massachusetts

case law is that of tort liability in the context of independent

contractors, as set out in Corsetti v. Stone Co., 396 Mass. 1

(1985).   In Corsetti, the issue was whether a general contractor

owed a duty of care to an employee of its subcontractor, who had

been injured on the job.   See id. at 3, 9-10.    The relevant

inquiry was whether the employer maintained "sufficient control

over part of the work of an independent contractor to render him

liable under [Restatement (Second) of Torts § 414 (1965)]."        Id.

at 11.    However, § 414 is "usually, though not exclusively,

applicable when a principal contractor entrusts a part of the

work to subcontractors, but himself or through a foreman

superintends the entire job."     Id. at 10, quoting from

Restatement (Second) of Torts § 414 comment b.     Clearly, that is

a much different situation than the one presented here.     Section

414, as interpreted by Corsetti, has not been adopted in this

jurisdiction in whole or in part in the franchisor context.

Consequently, Corsetti is instructive to our inquiry, but is not

binding or even entirely analogous.

    Other jurisdictions that have considered the issue have

applied modified versions of § 414 and focused the inquiry on

the "extent of the franchisor's control of the daily operation
                                                                     18


of the [franchisee's] business."   Hoffnagle v. McDonald's Corp.,

522 N.W.2d 808, 814 (Iowa 1994).   See Helmchen v. White Hen

Pantry, 685 N.E.2d 180, 181-182 (Ind. Ct. App. (1997)

(franchisor liability depends on level of control over

franchisee operations); Folsom v. Burger King, 135 Wash. 658,

673 (1998) ("In order to retain sufficient control, a franchisor

must retain the ability to make decisions concerning the daily

operation of the franchised restaurant").

    Here, the inquiry we make is very similar to that applied

in the vicarious liability context, but to a different end.      The

issue is not to determine whether Domino's should be vicariously

liable for a tort committed by Springfield Pie.   We ask how much

control Domino's exercised over Springfield Pie's daily

operations to determine whether Domino's assumed a duty to

protect Corey from this practice. The result is the same.      The

plaintiffs did not establish a genuine issue whether Domino's

exercised control over the daily operations of Springfield Pie

such that Domino's, as matter of law, had a duty to protect

Corey from the harm that befell him.   Most baseline requirements

imposed by Domino's on the Boston Road store and other

franchisees were clearly intended for protection of the Domino's

trademark.   Otherwise, franchisees were wholly responsible for

the day-to-day operations of their stores, whether in matters of

hiring employees, training employees, managing conflicts, or, as
                                                                     19


most pertinent here, ensuring the safety of employees.

Therefore, the judge correctly determined that, as a matter of

law, the plaintiffs did not present a triable issue whether

Domino's had a legal duty to Corey to protect him against the

harm that he suffered.

    c.    Third-party beneficiary.13    When two people enter a

contract for the direct benefit of a third person, that third

party is an intended beneficiary.      See Ayala v. Boston Hous.

Authy., 404 Mass. 689, 699 (1989).     To maintain a cause of

action for breach of contract, a third party must therefore

"show that he was an intended beneficiary" of a contractual

obligation.   Ibid.   "Under Massachusetts law, only intended

beneficiaries, not incidental beneficiaries, can enforce a

contract."    Harvard Law Sch. Coalition for Civil Rights v.

President & Fellows of Harvard College, 413 Mass. 66, 71 (1992).

The intent of the parties to the contract "determines whether a

third party is an incidental or intended beneficiary."      Markel

Serv. Ins. Agency, Inc., v. Tifco, Inc., 403 Mass. 401, 405

(1988).


    13
       The plaintiffs did not reference this claim or the
negligent supervision and training claim, see infra, in their
appellate briefs on appeal or at oral argument. Thus, those
claims would ordinarily be considered waived. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975). However, because
waiver makes no difference to the outcome, we consider the
claims on the merits.
                                                                    20


    In their complaint, the plaintiffs alleged that Corey was a

third-party beneficiary of an agreement between Domino's Pizza

LLC and the United States Department of Justice.   That agreement

concerned procedures Domino's would use in limiting delivery

areas so as to ensure that any decision to restrict deliveries

was not discriminatory.

    Assuming that a claim sounding in contract may properly be

pleaded in a wrongful death action, we agree with the judge's

decision that summary judgment was warranted on this claim.     A

plain reading of the agreement between Domino's Pizza LLC and

the Department of Justice, and the "Limited Delivery Service

Standard" and "Delivery Area Security Procedures Manual" that

Domino's promulgated in response, clearly indicates that the

parties did not manifest an intent to contract for the benefit

of Corey specifically or employees of franchisees generally.

Compare Ayala v. Boston Hous. Authy., 404 Mass. at 700-702

(primary purpose of contract between parties was to directly

benefit plaintiffs).   Rather, the Department of Justice

agreement, and the Domino's policies created in response

thereto, were clearly intended to prevent racial discrimination

when limiting deliveries to certain geographical areas.

Employee safety was accounted for in Domino's newly created

policies, but that was not the primary purpose of the agreement,
                                                                  21


such that franchisee employees can be said to be intended

beneficiaries of the agreement.

    d.   Negligent supervision and training.   The plaintiffs

contended that Domino's had a duty to supervise its franchisees

"with respect to the store's adoption and implementation of the

policies and procedures promulgated and approved by [Domino's] .

. . concerning the safety and protection of delivery employees

and the training of franchise owners and employees with respect

to those policies and procedures."   To the extent that this

claim depends on an allegation that, because Domino's was

negligent in its supervision of Springfield Pie, Springfield Pie

did not comply with Domino's baseline safety requirements (i.e.,

requiring that drivers not carry more than twenty dollars or a

weapon), the plaintiffs did not allege in the complaint or argue

in their pleadings that Springfield Pie did not follow those

requirements.

    To the extent that this claim alleged that Domino's acted

negligently in the sense that it failed to provide more

comprehensive safety regulations that franchisees such as

Springfield Pie could have followed, the record as developed at

the summary judgment stage showed that Domino's had the right,

but not the duty, to promulgate additional safety regulations.

This is not a distinction without a difference; the franchise

agreement was narrowly prescribed to provide only that Domino's
                                                                      22


imposed on franchisees certain baseline safety requirements,

contractually obligating Springfield Pie (and other franchisees,

given their greater local knowledge), to provide additional

safety measures to ensure the safety of their employees.         Since

it retained no right to demand more specific and comprehensive

safety rules to be followed by all franchisees, it had no duty,

either under the franchise agreement or otherwise required by

law, to do so.

     2.     Trial issues.   a.   Exclusion of testimony.   The

plaintiffs first contend that the judge improperly excluded

putative testimony from Springfield Deputy Chief of Police

Robert McFarlin concerning the relative danger of the city of

Springfield in 2007, compared to the rest of the United States.

McFarlin had been allowed to testify that "Sector G," where the

Boston Road store is located and where Morales's crimes against

Corey began, was in the "mid-range of reported criminal

activity" compared to other sectors of Springfield.

     We discern no abuse of discretion or other error in the

judge's exclusion of this testimony on the basis that Deputy

Chief McFarlin lacked qualification to testify about this

matter.14    McFarlin had testified that he had not reviewed the


     14
       We review the judge's exclusion of the testimony for an
abuse of discretion or other error of law. See Aleo v. SLB Toys
USA, Inc., 466 Mass. 398, 406 (2013).
                                                                   23


Federal Bureau of Investigation's reports "concerning the

comparative statistics between Springfield and other areas," but

asserted that "I have a pretty good idea of where [Springfield's

crime rate is relative to other locations], and I have a pretty

good idea of [the same] in [2007]."     As the proponents of the

evidence, the plaintiffs failed to demonstrate that the witness

had a specific basis of knowledge to testify concerning

statistics gleaned from those reports.    See Aleo v. SLB Toys

USA, Inc., 466 Mass. 398, 406 (2013), quoting from Sevigny's

Case, 337 Mass. 747, 751 (1958) ("Expert opinion testimony may

be excluded 'where it amounts to no more than mere speculation

or a guess from subordinate facts that do not give adequate

support to the conclusion reached'").    Prejudice to the

plaintiffs resulting from the exclusion of this testimony, if

any, would likely be mitigated by the general knowledge of

jurors about their locale and any relative danger, especially

considering the testimony that the deputy chief did provide.

See Commonwealth v. Fitzgerald, 376 Mass. 402, 420 (1978)

(discerning no error in prosecutor's remark that there was "fear

. . . in those projects" despite lack of evidence on that point

because "it was proper for the jury to take into consideration

their common knowledge concerning the projects"); Commonwealth

v. Kingsbury, 378 Mass. 751, 753 (1979) ("Jurors are entitled to

rely on their general knowledge of matters commonly known within
                                                                     24


the community").   Additionally, even if exclusion of this

putative testimony were error, we view any possible prejudicial

effect as slight, because the testimony would not have addressed

the type of specific crimes that occurred here.

     Second, the plaintiffs argue that the judge erroneously

excluded testimony from their expert security witness, Donald

Greene, as improper opinion testimony.     Greene was permitted to

testify to his opinion of numerous deficiencies in Domino's

security plans but was not allowed to provide legal conclusions

whether these plans were negligent.15    The judge did not err in

excluding this proffered testimony.     Although expert witnesses

may offer an opinion on the ultimate issues that the jury must

decide, see Simon v. Solomon, 385 Mass. 91, 105 (1982), those

witnesses generally may not testify as to whether a defendant

was negligent or to other matters which "touch[] on reasonable

care, an issue properly left for the jury."     Welch v. Keene

Corp., 31 Mass. App. Ct. 157, 165 n.10 (1991).

     b.   Requested jury instruction.    Finally, the plaintiffs

contend that the judge erred in not giving their requested jury

instruction on Corey's common-law right to self-defense.     Citing

     15
       The judge made the ruling prior to the start of Greene's
testimony. Later, the plaintiffs' attorney clarified that
Greene would have testified, if allowed, that "the security plan
[was] willful, wanton, reckless, gross negligence. He found it
to be one of the worst corporate security plans he had ever
reviewed, and those matters were excluded by the Court."
                                                                    25


Tyson v. Booth, 100 Mass. 258, 265 (1868), the plaintiffs

requested the following instruction: "A person has a right to

protect himself from attack provided that no more force than is

reasonably necessary for that purpose is used."   The judge

declined to give the requested instruction.

    We disagree with the plaintiffs that this was error.      The

requested instruction did not speak to the use of weapons, and

therefore was not applicable to the plaintiffs' argument that

Domino's restricted Corey's right to self-defense by preventing

him from carrying a weapon.   Moreover, while the Domino's policy

prohibited resistance to a robbery, it did not restrict drivers

from resisting in the event of violence against their person;

therefore, the instruction was not pertinent.   It was within the

discretion of the judge to determine whether to refer to parts

of the evidence, and to determine that reference to self-defense

was unnecessary.   See Poole v. Boston & Maine R.R., 216 Mass.

12, 15 (1913) (within judge's discretion to determine that

emphasis on plaintiffs' family businesses would have been

disproportionate and unnecessary to proper determination of

case); Goldman v. Mahony, 354 Mass. 705, 711 (1968) (within

discretion of judge to determine whether to refer to parts of

evidence).
                                                                    26


    3.      Denial of motion for new trial.16   The plaintiffs

contend that the verdict was against the weight of the evidence.

A trial judge may set aside a jury verdict and order a new trial

if the verdict is against the clear weight of the evidence.

Oldham v. Nerolich, 389 Mass. 1005, 1005-1006 (1983).      This

requires that the judge "is satisfied that the jury have failed

to exercise an honest and reasonable judgment in accordance with

the controlling principles of law."     Ibid., quoting from

Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60

(1948).     We review for an abuse of discretion.   Hartmann, supra

at 60-61.

    The plaintiffs have not met their high burden to show that

the verdict was against the weight of the evidence.      Based on

evidence that Domino's provided basic safety guidelines for use

in franchisee stores, such as requirements that drivers not

carry more than twenty dollars or weapons on their person,


    16
       The plaintiffs also challenge the judge's decision
declining to alter or amend the partial allowance of summary
judgment, in light of Depianti, supra. The judge allowed the
plaintiffs' motion for reconsideration, acknowledging that
Depianti was issued after his summary judgment ruling but, on
reconsideration, ruled that his prior decision would stand
unaltered. For the reasons stated supra, the judge correctly
denied the plaintiffs' motion for reconsideration in light of
Depianti because he did, in fact, cite case law identical to the
rule later announced in Depianti at the time he granted the
summary judgment motion in part, and his ruling that summary
judgment was warranted on the vicarious liability claim was not
erroneous.
                                                                   27


provided franchisees with training materials to train their

employees, generally monitored franchisees to determine whether

they complied with mandatory guidelines, and reserved the right

to terminate the franchise relationship in the event of

noncompliance, the jury could have found that Domino's

reasonably discharged any duty it voluntarily assumed to protect

Corey from the foreseeable harm of a third party.

    Finally, the plaintiffs advance several related arguments

concerning the effect of the judge's partial allowance of the

motion for summary judgment just prior to opening statements.

The plaintiffs essentially contend that the summary judgment

ruling unfairly altered the course of trial.   However, allowance

of summary judgment by which some claims are dismissed will

often alter the course of trial.   Other than the issues already

discussed above, the plaintiffs point to no exclusion of

testimony, disallowance of any argument, or other restriction on

the plaintiffs' presentation at trial on the remaining claim of

voluntary assumption of duty.   Moreover, although the plaintiffs

complain that the summary judgment decision freed Domino's to

employ an "empty chair" defense -- blaming the party not at

trial, Springfield Pie -- such a tactic would have been

available to Domino's in some fashion regardless whether other

counts, such as vicarious liability, were also tried.    In short,

although the summary judgment ruling clearly removed some of the
                                                               28


plaintiffs' claims vis-a-vis trial, the plaintiffs have shown no

error either in the summary judgment ruling or the effect of

that ruling on trial such to warrant a new trial.

                                   Judgments affirmed.

                                   Orders denying motions for
                                     reconsideration or to alter
                                     or amend the judgment and
                                     for new trial affirmed.
