Opinion
21-P-163
04-11-2022
Timothy LYONS v. PHILIP C. FARMER DEVELOPMENT, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Timothy Lyons, was injured when he fell from a scaffold at a residential construction site. Lyons sued the defendant, Philip C. Farmer Development, Inc. (Farmer Development), alleging that Farmer Development's negligence caused the injuries. After the plaintiff presented his case at a jury-waived trial, Farmer Development filed a motion for involuntary dismissal, arguing that it did not owe Lyons a duty of care and that the evidence did not establish a breach of duty that caused Lyons's injuries. A Superior Court judge agreed, and, in a comprehensive written decision, dismissed the complaint pursuant to Mass. R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974). On appeal, Lyons claims error in the judgment of dismissal, principally arguing that the judge erred in concluding that Farmer Development did not owe him a statutory, regulatory, or common law duty of care. We affirm.
The judge heard argument on the motion but deferred ruling until after the presentation of all the evidence and closing arguments.
Background. We summarize the relevant facts found by the judge. Farmer Development primarily performed excavation work, but occasionally built homes as a general contractor. In 2014, Philip Farmer (Farmer), Farmer Development's principal, purchased an undeveloped lot in Carlisle for the purpose of building his own home. To that end, Farmer executed and submitted a building permit application as owner of the property. The application listed Farmer's father, who held a construction supervisor license, as the contractor on the project. A building permit issued on November 26, 2014, after Farmer paid the application fee with a company check.
Farmer Development performed excavation work at the site and hired approximately forty independent contractors to perform other work on the project. Relevant here, Farmer Development hired Webster Building Associates (Webster Building) to frame the house. There was no written agreement for the framing work; "[r]ather, Farmer Development gave Webster Building the building plans, Webster Building provided a written estimate ..., the parties agreed to a price and the principals, Brad Webster and Mr. Farmer, shook hands."
Webster Building began work shortly thereafter; it supplied all the tools and equipment for the job and had materials delivered to the site. Webster Building also brought a trailer to the property which contained harnesses and other fall protection equipment. The framing job was supervised by Brad Webster (Webster), who had over three decades of construction experience. Webster was on the job site each day that framing work was performed and directed the day-to-day activities of his employees. Farmer Development did not supervise the framing work, direct Webster Building, or control any of Webster Building's employees, one of whom was Lyons.
On April 6, 2015, while marking overhead beams, Lyons fell from a scaffold and injured his leg and foot. At the time, Lyons was standing on a sawhorse scaffold that Webster Building had constructed days earlier. The surface of the scaffold was eighteen inches wide and sixteen feet long. There were no guardrails on the scaffold and Lyons was not using any fall protection equipment. "The standing surface of the scaffold was no more than six feet above the attic floor." Lyons accidentally stepped off the end of the scaffold and fell to the deck below, sustaining injuries to his left knee and foot. Lyons, an experienced framer, was not distracted at the time, and weather conditions were clear.
Discussion. In a jury-waived trial, a motion for involuntary dismissal pursuant to rule 41 (b) (2) allows the judge, acting as the finder of fact, to decide the case on the merits. "In granting a motion to dismiss at the close of evidence in a nonjury trial, a judge is entitled to weigh the evidence and resolve all questions of credibility, ambiguity, and contradiction in reaching a decision" (quotation and citation omitted). Delano Growers’ Coop. Winery v. Supreme Wine Co., 393 Mass. 666, 676 (1985). In reviewing a rule 41 (b) (2) dismissal, we accept the judge's findings of fact absent clear error, see Mattoon v. Pittsfield, 56 Mass. App. Ct. 124, 139 (2002), but we review the judge's conclusions of law de novo. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1997).
"To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage." Jupin v. Kask, 447 Mass. 141, 146 (2006). A general contractor is typically not liable for physical injuries to an employee of a subcontractor unless the general contractor "gives directions for the work, furnishes equipment for it, or retains control over any part of it" (quotation and citation omitted). Corsetti v. Stone Co., 396 Mass. 1, 10 (1985). See also Restatement (Second) of Torts §§ 409, 414.
Here, the trial judge assumed that Farmer Development was the general contractor on the project and Webster Building was the subcontractor. The trial judge found, and Lyons does not dispute, that Farmer Development did not exercise sufficient control of the framing work to be liable under a retained-control theory of liability. Rather, Lyons argues that Farmer Development owed him nondelegable duties under the State building code and State occupational safety regulations. Alternatively, Lyons argues that Farmer Development, as the entity in control of the premises, owed a duty of care to all lawful visitors.
In support of his first argument, Lyons relies on Restatement (Second) of Torts § 424, which states:
"One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions."
Assuming, without deciding, that § 424 applies in Massachusetts, we are not persuaded that the regulations Lyons cites imposed nondelegable duties on Farmer Development in the circumstances of this case.
Although Massachusetts cases have referred to § 424, see Thompson v. Auto Credit Rehabilitation Corp., 56 Mass. App. Ct. 1, 8 (2002) ; Cheschi v. Boston Edison Co., 39 Mass. App. Ct. 133, 138-139 (1995) ; Vertentes v. Barletta Co., 392 Mass. 165, 168 n.3 (1984), we have found none that applied it directly.
First, Lyons argues that Farmer Development owed a duty of care based on the building permit and Massachusetts Building Code. Specifically, Lyons claims a duty is imposed by the certification on the building permit application "that the work shall be executed in accordance with the Mass State Building Code, Carlisle Bylaws, and all other applicable laws." We agree with the judge that Lyons did not plead this theory of duty in his complaint, did not amend his complaint to include it, and did not present any evidence at trial to prove a building code violation. The judge was not required to consider an argument raised for the first time in a posttrial pleading. See Cheschi v. Boston Edison Co., 39 Mass. App. Ct. 133, 138-139 (1995) ; Harrington-McGill v. Old Mother Hubbard Dog Food Co., 22 Mass. App. Ct. 966, 968 (1986) ; Mass. R. Civ. P. 15 (b), 365 Mass. 761 (1974).
Lyons claims that the following provisions of the building code are relevant to his accident: Responsibility for Work, 780 Code Mass. Regs. § 110.R5.2.15.1 (2010); Responsibility to Supervise Work, 780 Code Mass. Regs. § 110.R5.2.15.2 (2010); and Permit Applications, 780 Code Mass. Regs. § 110.R5.2.16 (2010).
Lyons's argument on this point is premised on his claim that "the Company" certified that the work would be executed in compliance with the building code. The judge found, however, that Farmer signed the certification as the owner, not as a representative of Farmer Development. We see no reason to question this finding.
Second, Lyons maintains that Farmer Development, as the general contractor, owed a nondelegable duty under State occupational safety regulations then in effect, 454 Code Mass. Regs. §§ 10.00, to ensure that workers on the project were reasonably and adequately protected from unsafe working conditions. In particular, Lyons relies on 454 Code Mass. Regs. § 10.104(2)(d), which, unlike the corresponding Federal regulation, had required guardrails on scaffolds higher than four feet. Compare 29 C.F.R. § 1926.451(g) (requiring guardrails only for scaffolds higher than ten feet).
The Massachusetts Rules and Regulations for the Prevention of Accidents in Construction Operations, 454 Code Mass. Regs. §§ 10.00, were repealed in 2016.
We agree with the judge that 454 Code Mass. Regs. § 10.104(2)(d) does not apply because it is preempted by Federal regulation. "Under the supremacy clause in art. 6 of the Constitution of the United States, we are obligated to declare invalid any State statute or regulation that purports to regulate a field that Congress has reserved exclusively to itself." Commonwealth v. College Pro Painters (U.S), Ltd., 418 Mass. 726, 728 (1994). In enacting the Occupational Safety and Health Act (OSH Act), Congress intended to "promote occupational safety and health while at the same time avoiding duplicative, and possibly counterproductive, regulation." Gade v. National Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 102 (1992). To that end, "[t]he OSH Act authorizes the Secretary of Labor to promulgate federal occupational safety and health standards[,]" and it "precludes any state regulation of an occupational safety or health issue with respect to which a federal standard has been established, unless a state plan has been submitted and approved." Id. at 92, 102. Because Federal regulations have been promulgated addressing the need for guardrails on scaffolding and "Massachusetts has not adopted an approved State plan," Chadwick v. Board of Registration in Dentistry, 461 Mass. 77, 87 (2011), the duplicative provisions of 454 Code Mass. Regs. § 10.104(2)(d) are preempted. ,
Indeed, the provisions of 454 Code Mass. Regs. §§ 10.00 were repealed in their entirety "because [this regulation] is superseded by the federal Occupational Safety and Health Act." 1322 Mass. Reg. 177 (Sept. 23, 2016).
We agree with the judge that the OSH Act's "savings clause" does not revive the State regulation in this circumstance. The savings clause, by its terms, preserves "common law or statutory rights, duties, or liabilities." 29 U.S.C. § 653(b)(4). We also agree with the judge that the State and Federal regulations are in conflict under Gade. See Chadwick, supra at 87 & 90.
Finally, Lyons argues that Farmer Development owed him a common-law duty of reasonable care because it was in control of the property. A person in control of land owes a duty "to maintain the property in a reasonably safe condition in view of all the circumstances" (quotations and citation omitted). Aulson v. Stone, 97 Mass. App. Ct. 702, 709-710 (2020). This includes a duty to warn visitors of unreasonably dangerous conditions that are known or should be known to the person in control of the property. Id. It may also include a duty to remedy open and obvious hazards where one "can and should anticipate that the dangerous condition will cause physical harm to [a lawful visitor]" despite its obviousness. Id. These duties extend to all lawful visitors, including employees of subcontractors. See Poirier v. Plymouth, 374 Mass. 206, 228 (1978). One does not owe a duty to an employee of a subcontractor, however, where the danger to the employee is inherent in his job and the employee is fully aware of the danger. Id. at 227. See also Aulson, supra at 711.
The trial judge found that "the scaffolding conditions on the day of the accident objectively presented an open and obvious danger." However, the judge also found that "[t]he risk of falling off the saw-horse scaffold was inherent in the framing work Lyons was engaged in" and Lyons "readily understood" the danger at the time of the accident. Based on these findings, which are supported by the record, Farmer Development did not owe Lyons a duty to warn of or remedy the hazard posed by the scaffold.
We note that, even if the judge erred in concluding that Farmer Development did not owe Lyons a duty of care, there was no prejudice. After weighing the evidence, the judge found that "the trial record did not show that the defendant did anything, or failed to do anything, that constituted a breach of [the general duty to supervise safety on the worksite]. There is no evidence that the actions or inaction of anyone present, other than the plaintiff himself, caused or contributed to Lyons stepping off the end of the scaffolding." This finding that there was no evidence of a breach of duty was supported by the record and precluded a verdict that Farmer Development was negligent.
Judgment affirmed.