Opinion
10-P-2090
02-06-2012
HERCULANO MELO v. ARCHDIOCESE OF BOSTON & others.[FN1]
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Herculano Melo, an employee of Costa Professional Cleaning Services, was injured when he fell from a ladder while washing windows at the property leased by Concord Avenue Associates Limited Partnership (Concord). He sued the above-named defendants for negligence. Following the allowance of their summary judgment motions, Melo appealed.
Background. We summarize the facts in the light most favorable to Melo. Global NAPs, Inc. v. Awiszus, 457 Mass. 489, 499 n.16 (2010). In 1985, the Archdiocese of Boston (Archdiocese) leased its property at 160 Concord Avenue in Cambridge (property) to Concord for forty years. Since 2000, Camco Management Company (Camco), the property manager for Concord, engaged Hallmark Building Services, Inc. (Hallmark), an independent contractor, to wash the windows at the property.
In 2006, Hallmark orally agreed with Costa Professional Cleaning Services (Costa) that Costa would wash the windows at the property and bill Hallmark for the time spent on the job. Melo, who started washing windows in 1993 or 1994, was an employee of Costa. On August 28, 2006, Fernando Costa, Melo, and another Costa employee were at the property. The other employee was washing the windows from inside. Melo took the ladder from Costa's van, assembled it, and set it up. He told Fernando Costa that someone needed to hold the ladder. Costa replied that he would 'be right back.' Melo did not wait. He began washing the windows on the third floor, periodically moving the ladder. While washing one of the windows, he lifted one foot, leaned to the right to reach the corner of the window and lost his balance. The ladder disengaged from the hooks at the window and he fell.
Discussion. Archdiocese. As the Archdiocese leased all of the premises to Concord and Concord undertook to maintain the premises, the Archdiocese cannot be liable to Melo for his injuries. Sheehan v. El Johnan, Inc., 38 Mass. App. Ct. 975 (1995).
Camco, Cambridge, and Concord. There are no facts in the record that could support a liability finding against these defendants, who had no control over Costa.
Hallmark. 'Employers are typically not liable for the negligence of their independent contractors unless they have 'retained some control over the manner in which the work was performed." Kelly v. Foxboro Realty Assocs., LLC, 454 Mass. 306, 315 (2009) (Kelly), quoting from Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 407 (2003). The issue of whether Hallmark had sufficient control over Costa's work to be liable to Melo 'should not be determined on summary judgment unless, viewing the evidence in the light most favorable to [Melo], the undisputed material facts demonstrate, as matter of law, that [Hallmark] did not exercise any 'meaningful control, however minimal, over [Costa]." Kostrzewa v. Suffolk Constr. Co., 73 Mass. App. Ct. 377, 379 (2008) (Kostrzewa), quoting from Dilaveris v. W.T. Rich Co., 424 Mass. 9, 11 (1996) (Dilaveris). 'There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.' Restatement (Second) of Torts § 414 comment c (1965). A general right to order the work stopped is insufficient for imposition of liability. Kelly, supra at 316.
The agreement between Hallmark and Costa was that Costa would wash the windows and bill Hallmark. There was no evidence that the agreement included any retention of rights by Hallmark, including the right to initiate and maintain safety measures. Cf. Corsetti v. Stone Co., 396 Mass. 1, 10 (1985); Kostrzewa, 73 Mass. App. Ct. at 378-379. Nor is there evidence that Hallmark in fact retained control, i.e., that it controlled Costa as to its methods, work, or operative details. Hallmark and its employees did not instruct Costa regarding window washing, did not provide the equipment, did not supervise Costa, and were not at the property at any point during the washing of windows. See Dilaveris, 424 Mass. at 12-13 (where general contractor was on site and had 'opportunity' to prevent unsafe practices, it was potentially subject to liability). Moreover, the ladder was provided by Costa and there was no evidence that Hallmark had any control over the ladder, its use, placement, or subsequent change of placement.
. Even assuming that the work in question was inherently dangerous, Hallmark could not be held liable to Melo, an employee of an independent contractor. Vertentes v. Barletta Co., 392 Mass. 165, 168-170 (1984).
Melo's reliance on 454 Code Mass. Regs. § 19.06(2) (1993), which states that there should be a person at the bottom of a ladder over twenty feet high, is misplaced for the reason, if no other, that Hallmark was not on site and had no way of knowing if anybody was holding the ladder for Melo. In fact, the person who was aware both of the need for somebody to hold the ladder and of the fact that there was nobody doing so at the time of the accident was Melo himself.
We reviewed Melo's other arguments and find them to be without merit.] To the extent that we do not address the defendant's other arguments, 'they ' have not been overlooked. We find nothing in them that requires discussion." Department of Rev. v. Ryan R., 62 Mass. App. Ct. 380, 389 (2004), quoting from Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
For example, Melo's claim that Hallmark's summary judgment motion was untimely is without merit as Melo's own motion to extend the tracking order was allowed. Melo's claim that Hallmark did not comply with Superior Court Rule 9A because it did not submit a statement of undisputed facts is without merit as Hallmark submitted such a statement.
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Judgment affirmed.
By the Court (Rapoza, C.J., Mills & Graham, JJ.),