Opinion
16-P-766
03-10-2017
Rigoberto MENDEZ & another v. NORTHEAST CAPITAL GROUP, INC. & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this personal injury action, plaintiff Rigoberto Mendez, individually and on behalf of his infant son (collectively, plaintiff), appeals from a Superior Court judgment entered in favor of defendant Northeast Capital Group, Inc. (NECG) on the plaintiff's amended complaint. We affirm.
Background . The following material facts are undisputed. In March, 2013, the eighteen year old plaintiff was working for P.R. Contracting (P.R.) on the roof of an eight-unit residential building owned and managed by NECG. NECG had contracted with Gregory Clark for repairs to the roof, listing P.R. as a contractor, but using Clark's license numbers. On March, 16, the untethered plaintiff was carrying a bundle of roof shingles up to the roof when he fell from the top of a ladder. The plaintiff was severely injured and now is wholly dependent on others for daily activities.
Clark had no roofing experience. When the accident occurred, Clark had neither worker's compensation nor liability insurance. Clark ordered all materials used on the job and arranged for the roofing shingles to be delivered to the jobsite. NECG made no arrangements for the shingles to be hoisted onto the roof, and it did not provide any tools, equipment, or materials for the job. NECG had no knowledge of how the shingles would be transported from the ground to the roof, and it did not provide supervision, oversight, or direction to Clark or any member of the roofing crew.
The plaintiff brought suit, and as to NECG, alleged that NECG was negligent in its supervision and performance of the work as well as in its hiring of the general contractor, and was strictly liable under G. L. c. 143, § 51. NECG moved for summary judgment. A judge (first motion judge) allowed so much of the motion as to negligent supervision and performance and as to strict liability under § 51, but denied the motion as to negligent hiring. The judge held that NECG could not be liable as a matter of law for negligent supervision or performance of Clark's or P.R.'s work, "[b]ecause NECG entirely ceded control over the manner in which the roofing repair work was done"; and that § 51 was inapplicable to NECG. He denied summary judgment on the negligent hiring claim without prejudice, allowing the plaintiff to "supplement his expert disclosure to address the sole remaining claim" that NECG's "extreme ... lack of any vetting in selecting a contractor to do dangerous work ... was a substantial contributing factor in causing [the plaintiff's] injury."
That statute "imposes strict liability on the property owner (among others) for injuries resulting from building code violations." Banushi v. Dorfman , 438 Mass. 242, 242 (2002).
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A second motion judge analyzed NECG's renewed motion for summary judgment under a theory of negligent selection of a contractor as defined in the Restatement (Second) of Torts § 411, and concluded that the record supported an inference that NECG was negligent under that section. However, he did not see "any evidence that an adequate inquiry into Clark's qualifications would have cast doubt on his suitability for the job, thereby averting the chain of events leading to the plaintiff's accident." The judge allowed NECG's renewed motion for summary judgment.
Pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), judgment dismissing all claims against NECG entered after the plaintiff's motion for relief from the judgment, pursuant to Mass.R.Civ. 60(b), 365 Mass. 828 (1974), was denied. The plaintiff timely appealed.
Discussion . Summary judgment is appropriate where "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). "In reviewing a grant of summary judgment, ‘we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party.’ " Pugsley v. Police Dept. of Boston , 472 Mass. 367, 370-371 (2015), quoting from Bulwer v. Mount Auburn Hosp ., 86 Mass. App. Ct. 316, 318 (2014).
At any trial in this case regarding the negligence claims, the plaintiff would "bear the burden of proving that [NECG] committed a breach of the duty to use reasonable care, that [he] suffered actual loss, and that [NECG's] negligence caused th[at] loss." Glidden v. Maglio , 430 Mass. 694, 696 (2000). "[S]ummary judgment is rarely appropriate with respect to the merits of a negligence case," Appleby v. Daily Hampshire Gazette , 395 Mass. 32, 37 (1985) ; to be entitled to judgment, NECG was required to demonstrate that the plaintiff "has no reasonable expectation of proving an essential element of [his] case." Kourouvacilis v. General Motors Corp ., 410 Mass. 706, 716 (1991).
Upon our review of the record in this case, we determine that the summary judgment motions were properly allowed. "There is nothing to indicate that the [building] is public or commercial in the sense of the words of [ G. L. c. 143, § 51 ]," Banushi v. Dorfman , 438 Mass. 242, 245 (2002), and it is clear that NECG "retained [no] control over the manner in which the work was done." Lyon v. Morphew , 424 Mass. 828, 834 (1997). Thus, NECG could not be "subject to liability for physical harm to [the plaintiff]" because it owed the plaintiff no "duty to exercise reasonable care." Id . at 835 n. 11, quoting from Restatement (Second) of Torts § 414 (1965). See Harrison v. Mattapoisett , 78 Mass. App. Ct. 367, 371 (2010) (Summary judgment appropriate where "there was insufficient evidence in the ... record to establish that [the] entities [being sued] participated in" the tortious activity). There is no evidence of "a special relationship between [NECG] and [the] plaintiff," Luoni v. Berube , 431 Mass. 729, 731 (2000), such that the plaintiff could have had "reasonable expectations and reliance that [NECG would] anticipate harmful acts of third persons and take appropriate measures to protect the plaintiff" therefrom. Id . at 732. Nor is there "proof that [NECG] knew or had reason to know of a threat to the safety of persons lawfully on the premises against which [NECG] could have taken reasonable preventive steps." Whittaker v. Saraceno , 418 Mass. 196, 200 (1994).
It is true that "[n]egligence in hiring or retaining a person to perform given tasks who is unfit for the job" provides "a ground of liability for the harmful effects of the choice upon related persons." Or v. Edwards , 62 Mass. App. Ct. 475, 483 (2004). However, even assuming that NECG was negligent in failing adequately to inquire into Clark's qualifications, nothing in the summary judgment record supports an inference that such an inquiry would have shown that Clark was unfit to contract with P.R. or that P.R. was unfit to perform the roofing work. "Causation is an essential element of" a negligence claim, Glidden v. Maglio , supra , and the record does not support an inference that the plaintiff's injury "was a foreseeable result of" any negligence by NECG in hiring Clark. Kent v. Commonwealth , 437 Mass. 312, 320 (2002). "The plaintiff[ ] point[s] to nothing of substance to suggest that [either motion] judge erred" in ordering summary judgment. Glidden v. Maglio , supra .
Judgment entered April 7, 2016, affirmed .