Contract – Residency agreement – Assisted living

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Where an assisted living residence was awarded summary judgment, that judgment should be affirmed because (1) the plaintiffs’ contract theory is contradicted by the plain language in a residency agreement and (2) the plaintiffs’ failure to proffer expert testimony precludes them from recovery on a negligence count.

“The plaintiffs, Margaret L. Donovan and Gail D. Hartwell, as the personal representative of the estates of Constance Dodge and John Dodge, filed a complaint against the defendants, Brightview Senior Living, LLC, and SHP IV Concord River, LCC, doing business as Brightview Concord River (collectively, Brightview or defendants). In their amended and substituted complaint, the plaintiffs raised claims of violations of G.L.c. 93A, breach of contract, negligence, wrongful death, and infliction of emotional distress in connection with the Dodges’ residency at the Brightview Concord River community. A Superior Court judge allowed the defendants’ motion for summary judgment as to all claims except the G.L.c. 93A claim. Following the dismissal of the c. 93A claim at trial, judgment on the directed verdict entered, and the plaintiffs appealed. We affirm. …

“In 2014, the Dodges sought residency at Brightview Concord River, an assisted living residence (ALR), and, after medical screenings and assessments, were accepted. Prior to moving in, the Dodges executed an ‘Assisted Living Residency and Service Agreement’ containing many attachments and exhibits (residency agreement), the ‘Assisted Living & Wellspring Village Disclosure Statement,’ and a ‘Disclosure’ form acknowledging that they had received a number of documents, including ‘Assisted Living in Massachusetts: A Consumer’s Guide’ (consumer guide). …

“… On appeal, the plaintiffs challenge only the judge’s dismissal of their claims for breach of contract, negligence, and infliction of emotional distress on summary judgment. …

“The plaintiffs argue that the judge erred in granting summary judgment on their breach of contract claim because the contract was ambiguous as to whether Brightview promised that the Dodges would be able to ‘age in place’ together regardless of their medical needs, and thus extrinsic evidence was admissible to address this ambiguity. Specifically, the plaintiffs argue that, where the consumer guide was integrated into the parties’ agreement and informed residents that they should consider certain questions before signing a residency and service agreement, the ‘answers’ to those questions are also integrated in the agreement, rendering the contract language ‘ambiguous’ and in need of extrinsic evidence. The parol evidence rule, however, bars introduction of antecedent or contemporary oral agreements to contradict, vary, or broaden the terms of an integrated, unambiguous writing. … The hypothetical answers to the questions posed in accordance with the consumer guide would necessarily be oral agreements that could contradict, vary, or broaden the terms of the written residency agreement. Accordingly, these hypothetical answers would be barred by the parol evidence rule. …

“Supporting our conclusion that the parties intended to be bound by the unambiguous terms of the contract, the residency agreement includes an integration clause, which states: ‘This Agreement (which includes all exhibits and attachments) contains the entire agreement between Resident and [Brightview], and supersedes all prior agreements and representations[.]’ ‘Generally, contracting parties are understood to have included an integration clause in their written agreement with the intent to preclude the subsequent introduction of evidence of preliminary negotiations or side agreements’ (quotation and citation omitted). Realty Fin. Holdings, LLC v. KS Shiraz Manager, LLC, 86 Mass. App. Ct. 242, 247-248 (2014). Thus, at least in the absence of any evidence to the contrary, the integration clause establishes that the parties intended to prohibit the consideration of parol evidence to contradict, vary, or broaden the terms of unambiguous language in the contract. …

“Because the contract unambiguously contradicted the plaintiffs’ claim that the Dodges would be able to age in place regardless of their needs, and parol evidence was inadmissible on that issue, the judge did not err in granting summary judgment for the defendants on the breach of contract claim. …

“Although the plaintiffs’ pleading and briefing of the negligence claim was sparse, they claim that Brightview owed the Dodges ‘a duty of care to provide competent custodial care and services,’ Brightview breached that duty, which caused the Dodges to suffer ‘repeated incidents and harm,’ and expert testimony was not required on the standard of care and any deviation from it. On this record, the plaintiffs have failed, as a matter of law, to create any genuine issue of material fact regarding a negligence claim.

“The judge analogized the duty owed by the defendants to the standard of care a university health care facility owes its student patients, citing Goldberg v. Northeastern Univ., 60 Mass. App. Ct. 707, 710 (2004). …

“On appeal, the plaintiffs urge us to distinguish Goldberg on the basis that the facility in Goldberg was a medical provider and the plaintiffs’ complaint against Brightview did not stem from ‘medical judgment[s].’ To be sure, the plaintiffs’ amended and substituted complaint alleged that the defendants breached a duty ‘to provide competent custodial care and services,’ not medical treatment. The plaintiffs argue that ‘competent custodial care and services’ of an ALR are within the common knowledge of the average layperson. On the facts of record before us in the present case, we disagree. …

“The plaintiffs’ negligence claim alleges that Brightview breached a duty of care to the Dodges relating to the provision of services and staffing. This claim hinges on an understanding of, among other things, the existence and adequacy of the Dodges’ individualized service plans, whether Brightview’s staffing levels were reasonable and appropriate, and whether the staff was properly qualified to execute the Dodges’ service plans. Given that these issues are all the subject of the ALR statute and State regulations, which are designed to ensure reasonable and appropriate care of residents, it is necessary to determine whether Brightview complied with this statute and these regulations in its care for the Dodges to determine whether Brightview breached its duty of care to the Dodges. We believe these issues are a matter of ‘specialized knowledge,’ … that is ‘beyond the ken of an ordinary juror’ and therefore requires expert testimony. … Because the plaintiffs did not proffer expert testimony on this subject, the allegation of negligence was ‘merely speculative,’ and thus summary judgment properly entered on the negligence claim. …

“The plaintiffs argue that the defendants owed Donovan a duty of care because she was the Dodges’ health care proxy and agent and had ‘first hand’ dealings with Brightview about their care. They further argue that the defendants breached that duty thereby causing Donovan emotional distress. The plaintiffs assert generally and without elaboration that the source of this duty is ‘existing social values and customs.’ …

“… On this record, there is no basis to conclude that the defendants owed Donovan a duty of care arising out of their relationship with and obligation to care for her parents.

“First, the plaintiffs have cited no legal precedent for their claim that an ALR like Brightview owes a duty to the family members of residents. Second, the plaintiffs have cited to no specific social value, custom, or social policy to support their argument. Third, the plaintiffs do not specify in the summary judgment record any acts or omission by the defendants that violate this alleged duty of care. … Accordingly, we affirm summary judgment on this claim.

“The October 25, 2022 order allowing the defendants’ motion for summary judgment on all counts except the G.L.c. 93A count is affirmed. The November 27, 2023 judgment on the directed verdict on the c. 93A count is affirmed. The case is remanded to the Superior Court for the entry of a final judgment in favor of the defendants.”

Donovan, et al. v. Brightview Senior Living, LLC, et al. (Lawyers Weekly No. 81-082-25) (16 pages) (Docket No. 24-P-125) (May 28, 2025).

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