United States Court of Appeals

For the First Circuit

No. 21-1257

THOMAS FORBES, as he is the Personal Representative of the 

Estate of GEORGE J. FORBES,

Plaintiff, Appellant,

v.

BB&S ACQUISITION CORP.,

Defendant, Appellee,

B & C TIMBERS LLC; GREGORY TRUCKING COMPANY, INC.; WILEY LENUE 

HOOKS; BSG LEASING, INC.; MAC COMPANY, INC.; GREGORY LEASING 

COMPANY, INC.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Mark G. Mastroianni, U.S. District Judge]

Before

Lynch, Thompson, and Barron,

Circuit Judges.

Dino M. Tangredi for appellant.

John B. Stewart, with whom Thomas P. Schuler, Law Offices of 

Steven B. Stein, and Murphy & Manitsas, LLC were on brief, for 

appellee.
December 28, 2021
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LYNCH, Circuit Judge. After completing a lumber 

delivery for his employer Gregory Trucking Co., Inc. ("Gregory 

Trucking"), under contract with BB&S Acquisition Corp. ("BB&S"), 

Wiley Hooks allegedly caused a fatal accident killing George 

Forbes. Thomas Forbes ("Forbes"), the personal representative of 

George Forbes's estate, sued in federal court alleging that BB&S's 

negligence in selecting Gregory Trucking as an independent 

contractor was the proximate cause of the accident. 

Forbes appeals from entry of summary judgment in favor 

of BB&S. The district court concluded that BB&S could not be 

liable under Massachusetts common law for the actions of an 

independent contractor that occurred after the completion of the 

job. The court also concluded that BB&S was not the "statutory 

employer" of Hooks. See 49 C.F.R. § 390.5. 

We affirm.

I.

A.

On August 22, 2016, B & C Timbers LLC contracted with 

Gregory Trucking to transport lumber from North Carolina to BB&S 

in Rhode Island. BB&S is a company that buys lumber in its raw 

form, treats it, and resells the pressure-treated lumber. Hooks 

was the employee of Gregory Trucking who was assigned to the 

transportation job, and the tractor-trailer truck he drove was 

registered and leased to Gregory Trucking. 
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On August 23, after Hooks delivered the lumber to BB&S 

in Rhode Island, BB&S contracted with Gregory Trucking to transport 

a separate load of its treated lumber from its Rhode Island 

facility to L.P. Adams, a lumberyard in Dalton, Massachusetts. 

The load was transported pursuant to a bill of lading, which

identified the quantity and weight of the lumber, and the 

destination of the delivery at L.P. Adams in Dalton. 

On August 24, sometime before 7:00 a.m., Gregory 

Trucking, through its employee Hooks, delivered the lumber to L.P. 

Adams in Dalton. After Hooks completed Gregory Trucking's 

contractual obligation to BB&S, Gregory Trucking then directed him 

to fulfill another company's transportation contract. That 

contract for the different company (not BB&S) required Hooks to 

pick up lumber from Eagle Logistics in Monson, Massachusetts, and 

transport it to North Carolina. Forbes alleges that during this 

trip to pick up lumber from Eagle Logistics in Monson, Hooks ran 

a red light, hitting the pick-up truck driven by George Forbes. 

George Forbes died two days later from injuries sustained in the 

crash. 

B.

On December 13, 2017, Forbes filed a federal lawsuit 

under diversity jurisdiction in the District of Massachusetts. He 

alleged under Massachusetts common law that BB&S had negligently 

selected Gregory Trucking as an independent contractor to 
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transport its lumber. He also alleged that BB&S was liable as the 

true employer of Hooks because BB&S was the "statutory employer" 

under 49 C.F.R. § 390.5.1 

On June 9, 2020, after briefing and oral argument, the 

district court entered summary judgment for BB&S. It held that 

Massachusetts courts have not adopted Restatement (Second) of 

Torts § 411 and that it is not the role of a federal court sitting 

in diversity to expand state law. The court independently held 

that BB&S's duty of care necessarily ended with the delivery of 

its lumber pursuant to its contract with Gregory Trucking. The 

court also rejected Forbes's argument that BB&S was the "statutory 

employer" of Hooks.

On March 17, 2021, the court denied Forbes's motion for 

reconsideration. In the motion for reconsideration, Forbes raised 

for the first time the argument that the court should certify to 

the Massachusetts Supreme Judicial Court ("SJC") the question of 

whether Massachusetts courts have adopted § 411. 

Forbes timely appealed.

1 In the same complaint, Forbes also sued Gregory Trucking 

and Hooks. Counsel for Forbes informed our court at oral argument 

that Forbes had tried those claims before a jury in September 2021. 

The jury returned a verdict in favor of Forbes against Gregory 

Trucking and Hooks. 
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II.

We review de novo a district court's grant of summary 

judgment. See Foss v. Marvic Inc., 994 F.3d 57, 64-65 (1st Cir. 

2021).

A.

Forbes's case is predicated on several assumptions, the 

first of which is that Massachusetts courts will adopt Restatement 

(Second) of Torts § 411. Section 411 provides:

An employer is subject to liability for 

physical harm to third persons caused by his 

failure to exercise reasonable care to employ 

a competent and careful contractor

(a) to do work which will involve a risk of 

physical harm unless it is skillfully and 

carefully done, or

(b) to perform any duty which the employer 

owes to third persons.

Forbes further assumes that Massachusetts courts would interpret 

§ 411 to extend liability beyond the period of any contractual 

relationship.

Under the Erie doctrine, see Erie R.R. Co. v. Tompkins, 

304 U.S. 64 (1938), "we apply 'state substantive law' as that law 

has been applied by the state's highest court," Torres-Ronda v. 

Nationwide Mut. Ins. Co., 18 F.4th 80, 84 (1st Cir. 2021) (quoting 

Philibotte v. Nisource Corp. Servs. Co., 793 F.3d 159, 165 (1st 

Cir. 2015)). Where a state's highest court has not spoken 

directly, federal courts are restrained. See Aronstein v. Mass. 

Mut. Life Ins. Co., 15 F.4th 527, 534 (1st Cir. 2021). "The 
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plaintiff, who made a deliberate choice to sue in federal court 

rather than in a [Massachusetts] state court, is not in a position 

to ask us to blaze a new trail that the [Massachusetts] courts 

have not invited." Jones v. Secord, 684 F.3d 1, 11 (1st Cir. 

2012).

Forbes concedes that the SJC has never explicitly 

adopted § 411. As to § 411, he asks that we "anticipate how the 

state court would proceed." Packgen v. BP Expl. & Prod., Inc., 

754 F.3d 61, 73 (1st Cir. 2014). We have no need to address or 

resolve that § 411 question. That is because his argument fails 

at the next step.

Forbes conceded at oral argument that he cites no case 

law, from Massachusetts or any other jurisdiction, to support the 

argument that BB&S could be held liable to Forbes for Hooks's 

conduct after he had completed the job for which BB&S had 

contracted Gregory Trucking to do. We see no basis in 

Massachusetts law to predict that the SJC would impose common law 

liability on BB&S based on these facts. 

Massachusetts courts have held that under Massachusetts 

common law, a duty assumed under contract is limited to the 

obligations under that contract. See Anderson v. Fox Hill Vill. 

Homeowners Corp., 676 N.E.2d 821, 823-24 (Mass. 1997); Parent v. 

Stone & Webster Eng'g Corp., 556 N.E.2d 1009, 1012 (Mass. 1990). 

Here, BB&S's contractual relationship with Gregory Trucking ended 
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once Hooks delivered the lumber to L.P. Adams. The bill of lading 

included no additional obligations extending beyond the 

contracted-for delivery of lumber, and Hooks was free to proceed 

to his next job upon delivery. 

Further, the SJC has rejected a finding of proximate 

cause in a case where a defendant no longer had control over the 

party that caused harm to a plaintiff.2 See Kent v. Commonwealth, 

771 N.E.2d 770, 777 (Mass. 2002) (holding that the Commonwealth's 

decision to parole inmate did not proximately cause third party's 

injuries because the parolee's actions occurred after the 

Commonwealth had transferred control of the parolee to the federal 

government). 

State courts in other jurisdictions have rejected 

Forbes's argument. In Brettman v. M&G Truck Brokerage, Inc., the 

intermediate appellate court of Illinois, a jurisdiction which has 

adopted § 411, considered a similar factual scenario and expressly 

2 In Massachusetts, the SJC has stated:

As a practical matter, in deciding the 

foreseeability question, it seems not 

important whether one defines a duty as 

limited to guarding against reasonably 

foreseeable risks of harm or whether one 

defines the necessary causal connection 

between a breach of duty and some harm as one 

in which the harm was a reasonably foreseeable 

consequence of the breach of a duty.

Whittaker v. Saraceno, 635 N.E.2d 1185, 1187-88 (Mass. 1994).
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rejected Forbes's argument on proximate cause grounds, even 

assuming arguendo that the defendants had breached a duty of care. 

127 N.E.3d 880, 891-92 (Ill. App. Ct. 2019). In Brettman, a 

producer and broker hired an independent contractor carrier to 

transport a load of cucumbers; the tractor-trailer driver employed 

by the carrier was involved in an accident shortly after delivering 

the cucumbers. Id. at 883. The Illinois court held that any 

alleged breach of duty by the producer and broker did not 

proximately cause the plaintiff's injuries. Id. at 892-95. The 

court held that "it was the worker, not the work, who went on, 

posttermination, to injure a third party. Illinois does not have 

a policy of making those who select independent contractors become 

insurers for the independent, posttermination actions of those 

contractors." Id. at 895 (emphasis in original). For the same 

reasons, even assuming arguendo that BB&S breached a duty of care, 

this breach was not a proximate cause of the accident because the 

accident occurred after Gregory Trucking had completed the 

contracted-for work.

BB&S cites to Valdez v. Yates Petroleum Corp., 155 P.3d 

786, 790 (N.M. Ct. App. 2007), and Forbes attempts to distinguish 

the case. In Valdez, the intermediate appellate court of New 

Mexico expressly rejected the argument that Forbes makes here, 

that the duty of care extends after the completion of a delivery 

contract. 155 P.3d at 790. In Valdez, the defendant employer 
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hired an independent contractor truck driver to deliver water to 

its work site; after the last delivery of the day, the truck driver 

was involved in a fatal accident. Id. at 788. The New Mexico 

court held that, even assuming arguendo that § 411 was viable 

substantive state law, the § 411(b) claim would fail because the 

truck driver "was not performing any duty owed by Defendant at the 

time of the accident. The undisputed material facts establish 

that the fatal accident, underlying Plaintiff's claims, occurred 

after [the truck driver] had completed his last water delivery of 

the day . . . ." Id. at 790. So too here. The accident occurred 

after Hooks had completed the delivery for BB&S and was driving to 

his next pickup for a different company.

B.

Forbes separately argues that the district court erred 

in holding that BB&S was not the "statutory employer" of Hooks 

under the Federal Motor Carrier Safety Regulations ("FMCSR"). 49 

C.F.R. § 390.5. Forbes argues that BB&S was a "motor carrier" as 

defined by the FMCSR and thus the "statutory employer" of Hooks 

and owed a duty to hire drivers that would operate vehicles in a 

safe manner.

Forbes's argument fails because it is contrary to the 

statutory definitions set forth in the FMCSR. The FMCSR provides 

the following definitions:
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Employer means any person engaged in a 

business affecting interstate commerce who 

owns or leases a commercial motor vehicle in 

connection with that business, or assigns 

employees to operate it,

. . .

Motor carrier means a for-hire motor carrier 

or a private motor carrier. The term includes 

a motor carrier's agents, officers and 

representatives as well as employees 

responsible for hiring, supervising, 

training, assigning, or dispatching of drivers 

and employees concerned with the installation, 

inspection, and maintenance of motor vehicle 

equipment and/or accessories.

. . . 

Shipper means a person who tenders property to 

a motor carrier or driver of a commercial 

motor vehicle for transportation in interstate 

commerce, or who tenders hazardous materials 

to a motor carrier or driver of a commercial 

motor vehicle for transportation in interstate 

or intrastate commerce.

49 C.F.R. § 390.5.

The district court correctly held that BB&S was the 

"shipper," and Gregory Trucking was the "employer" and "motor 

carrier."3 BB&S tendered lumber to Hooks for transportation and 

delivery. During the delivery, Hooks was acting as a Gregory 

Trucking employee. The truck used by Hooks was registered and 

leased to Gregory Trucking; BB&S did not lease any equipment or 

motor vehicles to Gregory Trucking or Hooks. BB&S did not have 

any control over the delivery route or manner of delivery. As 

3 Judge Barron would not address the issue of whether BB&S 

is a statutory employer and so does not join this portion of the 

opinion that concludes that BB&S is not.
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such, under the FMCSR, BB&S was the "shipper" and owed no duty 

under the regulations. See Harris v. FedEx Nat'l LTL, Inc., 760 

F.3d 780, 785 (8th Cir. 2014) ("[T]he FMCSR applies to motor 

carriers, not to shippers who engage independent contractors to 

transport goods.").

Even assuming dubitante that BB&S was the "statutory 

employer" of Hooks, Forbes does not offer any authority to support 

the argument that BB&S could be liable for conduct that, as here, 

occurred after it no longer had control over Hooks. Any potential 

employer-employee relationship between BB&S and Hooks terminated 

upon delivery of the lumber to L.P. Adams. Massachusetts courts 

have found that an employer cannot be liable for negligent hiring 

of an employee whose actions occurred outside the scope of 

employment. See Ledet v. Mills Van Lines, Inc., 150 N.E.3d 782, 

787 (Mass. App. Ct. 2020) ("As a matter of law, [the employee]'s

criminal acts, committed while [the employee] was off duty and not 

engaged in the work for which [the employer] employed him, against 

a person with whom [the employer] held no commercial or other 

relationship, was not a sufficiently foreseeable result of [the 

employer]'s hiring of [the employee], or its decision to allow him 

to drive a truck incident to the move to which he was assigned.").

III.

Affirmed.