Lind v. Domino's Pizza LLC , 87 Mass. App. Ct. 650 ( 2015 )


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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.