NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-652
DIANNA GRACE REUTER
vs.
HOSTELLING INTERNATIONAL USA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Dianna Grace Reuter, appeals from an order
denying her motion for reconsideration or to vacate a judgment
dismissing her amended Superior Court complaint against the
defendant, Hostelling International USA. We affirm.
We recite the pertinent facts as alleged in the amended
complaint and accept them as true for purposes of this appeal.
See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676
(2011). The plaintiff enrolled as a first-year student at a
Boston law school for the fall 2022 semester. She arrived at
the defendant's Boston hostel on August 15, 2022, intending to
stay until she found a permanent apartment with roommates. The
plaintiff purchased an annual membership from the defendant and
bought, stored, and cooked food in the communal kitchen.
Soon after midnight on August 18, the plaintiff exited the
shower near her room and was still wrapped in a towel when a
male hostel employee approached without identifying himself.
The employee commanded her to leave immediately because she had
"slept on the floor." She tried to reach a compromise but was
ejected without even a chance to fully clothe herself or
retrieve her food from the communal kitchen. Worse yet, she was
due at the law school later that day for orientation, where she
arrived unkempt, in shock, and "with her belongings in tow."
The plaintiff fell behind in her studies at law school, which
she attributed to the defendant's conduct.
The plaintiff's amended complaint asserted tort claims
labeled as negligence per se and intentional infliction of
emotional distress. A Superior Court judge granted the
defendant's motion to dismiss, concluding that the plaintiff had
not plausibly pleaded a claim of intentional infliction of
emotional distress, that the alleged damages did not meet the
Superior Court's jurisdictional threshold, and that the damages
sought were barred by the economic loss doctrine. The plaintiff
moved for reconsideration, attaching to her motion (1) a
"Sidewalk Plan" to address homelessness and beautify the streets
of Boston and (2) a statement of monetary damages, which listed
$192,127.75 in various categories unrelated to any physical
injury or property damage caused by the defendant, except
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perhaps twenty-five dollars for food and milk "taken" by the
defendant and an amount "TBD" for counseling. The judge denied
the motion, and this appeal followed.
When reviewing a dismissal for failure to state a claim we
"proceed de novo and consider the same pleadings as the motion
judge," accepting all factual allegations as true and drawing
any reasonable inferences in the plaintiff's favor. Baker v.
Wilmer Cutler Pickering Hale & Dorr LLP, 91 Mass. App. Ct. 835,
842 (2017). "[W]e look beyond the conclusory allegations in the
complaint and focus on whether the factual allegations plausibly
suggest an entitlement to relief." Curtis, 458 Mass. at 676.
The facts alleged in the amended complaint suggest that one
of the defendant's employees inexplicably ordered the plaintiff
to leave the hostel, resulting in hardship to the plaintiff. On
appeal, however, the plaintiff does not argue that the motion
judge erred in dismissing the claim of intentional infliction of
emotional distress. Instead, the plaintiff asks us to conduct
"review of the amended complaint under the tort of negligence or
negligence per se." Negligence per se is not a recognized cause
of action in Massachusetts. See Juliano v. Simpson, 461 Mass.
527, 532 (2012). We therefore address whether the plaintiff
plausibly alleged a claim of negligence.
"As a general principle of tort law, every actor has a duty
to exercise reasonable care to avoid physical harm to others."
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Remy v. MacDonald, 440 Mass. 675, 677 (2004). Innkeepers "owe a
duty to take steps to protect their guests against unreasonable
risk of physical harm." Addis v. Steele, 38 Mass. App. Ct. 433,
436 (1995). See Bonafini v. G6 Hospitality Prop., LLC, 101
Mass. App. Ct. 612, 613-614 (2022).
The amended complaint lacked any allegations of physical
harm. "While detailed factual allegations are not necessary, to
be sufficient a complaint must nevertheless provide more than
labels and conclusions" (quotations and citation omitted).
Kelleher v. Lowell Gen. Hosp., 98 Mass. App. Ct. 49, 51 (2020).
Although the complaint alleges seemingly arbitrary misconduct by
an employee of the defendant, it alleges an intentional act.
Intentional conduct cannot also be negligent. See Waters v.
Blackshear, 412 Mass. 589, 590 (1992); Sabatinelli v. Butler,
363 Mass. 565, 567 (1973).
Moreover, the plaintiff failed to allege that the injuries
she suffered "involved physical harm or property damage, and not
solely economic loss." Cumis Ins. Soc'y, Inc. v. BJ's Wholesale
Club, Inc., 455 Mass. 458, 469 (2009). In a portion of the
amended complaint titled "proximate cause," the plaintiff
discussed being turned out into the street and the attendant
effects on her law school performance; the paragraph labeled
"harm" discussed the defendant's lack of altruism and failure to
address her response to its online survey; and under "remedy,"
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the plaintiff sought a variety of injunctive relief concerning
the defendant's future conduct. She did not allege injury or
seek damages based on harm to her person or property.
In her motion for reconsideration, the plaintiff attempted
to cure the insufficiency of her complaint by submitting a
statement of monetary damages. The judge correctly disregarded
the statement because, on a motion to dismiss, the judge may not
consider "extraneous materials." Mmoe v. Commonwealth, 393
Mass. 617, 620 (1985). "Pleadings must stand or fall on their
own." Id. Although a motion for reconsideration may be based
on newly discovered evidence or information, see Audubon Hill S.
Condominium Ass'n v. Community Ass'n Underwriters of Am., 82
Mass. App. Ct. 461, 470 (2012), nothing about the statement of
damages suggests that the information in it was discovered after
the amended complaint was dismissed. While "some leniency is
appropriate" for self-represented litigants, the rules of
procedure "bind a pro se litigant as they bind other litigants."
Mmoe, supra.
Because the judge properly dismissed the amended complaint,
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he did not abuse his discretion by denying the motion for
reconsideration or to vacate the judgment.
Order denying motion to
reconsider or vacate the
judgment affirmed.
By the Court (Meade,
Massing & Sacks, JJ.1),
Assistant Clerk
Entered: February 8, 2024.
1 The panelists are listed in order of seniority.
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