Skip to main content


Reset A A Font size: Print

Appeals Court of Massachusetts.



Decided: February 24, 2021

By the Court (Kinder, Henry & Lemire, JJ.2)


The plaintiff, the Barnstable Mutual Insurance Company (BMI), brought the underlying subrogation action to recover money paid to its insured for damages from a leak of home heating oil. The damage was discovered following an oil delivery by the defendant, Trojan Oil Company, Inc. (Trojan). Trojan moved for summary judgment on BMI's negligence claim, arguing that it had no duty to inspect the insured's above-ground fuel oil tank (tank) before making a delivery. The motion judge passed over the question of duty, concluding that “the record lacks any evidence that Trojan's breach of its duty, if it occurred, caused the harm at issue.”

On appeal, BMI claims that it had no notice that the judge would consider the element of causation, and that its motion for reconsideration, supported by expert affidavits on causation, should have been allowed. We need not decide whether the judge abused her discretion in denying BMI's motion for reconsideration and in allowing Trojan's motion to strike the affidavits, because we agree that Trojan had no duty to inspect the tank. See Augut, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991) (appellate court may consider any ground supporting judgment). Accordingly, we affirm.

Background. We summarize the undisputed material facts. At all relevant times, Virginia Brennan owned a multifamily property in Taunton that was insured by BMI. In or around 1987, Brennan installed the tank in the basement of the property. Brennan was responsible for having the tank serviced annually by a certified licensed technician. She never did so.

Trojan is in the business of delivering heating oil to customers including Brennan's tenants. During deliveries, Trojan does not inspect tanks for corrosion or other potential failures, and does not assess the integrity of customers' systems or hardware. After each delivery, Trojan leaves its customers with a receipt and disclaimer which states, “Trojan ‘[i]s a heating oil/fuel delivery company only and does not provide any heating system or equipment maintenance or inspection services.’ ” The disclaimer further states that the customer is solely responsible for the condition and maintenance of their equipment.

On October 21, 2016, Trojan delivered approximately 200 gallons of oil ordered by one of Brennan's tenants. The delivery driver connected a hose from the truck to the fill pipe on the exterior of the building, programmed a computer, and distributed 200 gallons of oil. The delivery driver then placed the receipt and disclaimer in the tenant's mailbox. Later that day, the tenant notified Trojan that there was oil on the basement floor. Approximately 200 gallons of oil had leaked from a hole in the bottom of the tank. It is undisputed that the hole in the tank was the result of corrosion.

Brennan filed a claim for damages and BMI paid Brennan $251,000 for property damage and remediation fees. Acting as Brennan's subrogee, BMI then sued Trojan for negligence, alleging that Trojan owed a duty of care to Brennan which it breached when its employee failed to inspect the tank before delivering oil to the tenant on October 21, 2016.

Discussion. Summary judgment is appropriate if the record “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). “We review the allowance of a motion for summary judgment de novo to determine whether the moving party has established that, viewing the evidence in the light most favorable to the opposing party, ‘there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law’ ” (citation omitted). Scarlett v. Boston, 93 Mass. App. Ct. 593, 596-597 (2018).

To prevail on its negligence claim, BMI was obligated to prove that Trojan owed a duty of reasonable care, breached that duty, damage resulted, and there was a causal link between Trojan's breach of duty and the damage BMI suffered. See Jupin v. Kask, 447 Mass. 141, 146 (2006), citing J.R. Nolan & L.J. Sartorio, Tort Law § 11.1 (3d ed. 2005). Generally, negligence claims are not resolved through summary judgment because the question of negligence is one of fact to be determined by the jury. See Roderick v. Brandy Hill Co., 36 Mass. App. Ct. 948, 949 (1994). “However, the existence of a duty is a question of law, and is thus an appropriate subject of summary judgment.” Jupin, supra. “If no such duty exists, a claim of negligence cannot be brought.” Remy v. MacDonald, 440 Mass. 675, 677 (2004).

In Samuel v. White Fuel Corp., 332 Mass. 264 (1955), the Supreme Judicial Court observed that “[i]t is common knowledge that in the delivery of fuel oil to a building it is customarily pumped from a delivery truck into a basement tank through a pipe or hose to an opening on the outside of the building. Ordinarily there is no occasion to inspect the receiving tank for possible defects.” Id. at 266. Where an order is for a specific amount of oil rather than to fill the tank, “there [is] no duty on the driver of the truck to inspect the tank ․ to ascertain if it [is] functioning properly.” Id. BMI cites no authority, and we have found none, which alters this basic principle.3

Here, as in Samuel, Trojan's employee simply connected a hose to the exterior fill pipe and programmed a computer to deliver a certain amount of heating oil. He did not have access to the tank in the basement. Based on these undisputed facts, and the principle articulated in Samuel, Trojan's delivery driver had no duty to inspect the tank. Therefore, as a matter of law, BMI could not prevail on its negligence claim and summary judgment was properly allowed in favor of Trojan.

Judgment affirmed.


3.   We are not persuaded by BMI's argument that the guide for installation and maintenance of heating oil storage tanks, prepared by the National Oilheat Research Alliance (NORA), sets the standard of care for the oil heat industry in Massachusetts. Nor are we persuaded by BMI's experts, who rely on that guide to support their opinions. NORA's guide has not been adopted by the Commonwealth of Massachusetts or by the city where the leak occurred. Rather, with respect to above ground storage tanks, the Commonwealth has adopted the National Fire Protection Act, see G. L. c. 148, § 10C; 527 Code Mass. Regs. § 1.04 (2018), which places responsibility for inspections of such tanks on the “owners or operators” of the tanks, not on delivery persons. G. L. c. 148, § 37; 502 Code Mass. Regs. § 5.05 (2017).

Was this helpful?

Thank you. Your response has been sent.

Copied to clipboard