Opinion
15-P-375
03-08-2016
FRANCISCO YEPES v. C.H. NEWTON BUILDERS, INC., & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff appeals from the dismissal of his claims on summary judgment. He raises only a single issue on appeal, namely that the judge erroneously discounted or set aside two affidavits pursuant to Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974). We agree with the plaintiff that rule 56(e) was not a proper basis upon which to set aside the affidavits in their entirety. However, the plaintiff does not challenge the motion judge's conclusion that, even considering the factual disputes raised by the affidavits, his "retained control" theory of liability fails as a matter of law. On that basis, we affirm.
The plaintiff was injured when he fell from scaffolding on which he had been working. At the time, he was employed by New England Architectural Finishing Company, LLC (NEAF), which had been hired by a Winchester homeowner to strip and refinish the woodwork in his home. NEAF was hired by the owner of the property. NEAF's work was performed pursuant to a written proposal dated February 2, 2009.
Approximately five months later, the property owner entered into a contract with the defendant C.H. Newton Builders, Inc. (C.H. Newton), to serve as the general contractor for a major renovation, including additions, to the home. C.H. Newton in turn subcontracted with the codefendants Classic Structures Contracting, LLC, and C. Edward Gugler to act as site supervisor. The contract with C.H. Newton specified that the owner retained the right to award separate contracts and to arrange for his "own forces" to perform other work and construction at the property.
Yepes brought this negligence suit against the defendants after he fell from scaffolding on September 7, 2010. On that morning, Yepes and a fellow NEAF employee had assembled the scaffolding in the living room. Yepes screwed in and locked the wheels on the scaffold, climbed up and began to sand the ceiling. After a few minutes, the scaffolding moved suddenly, Yepes fell about eight feet to the ground, and the scaffolding tipped onto him. Yepes suffered a fractured ankle.
The judge allowed the defendants' motions for summary judgment and, as part of his decision, declined to consider two affidavits submitted by the plaintiff. Those affidavits, submitted by two coworkers, who were on the site the day of the accident, averred (in broad summary) that the defendants were in charge of the worksite and all the trades, and gave instructions as to how the work should be performed. While acknowledging that the affidavits raised a "potential dispute in the facts," the judge concluded that they did not comply with rule 56(e), which requires that "affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The judge declined to consider the affidavits because they were not based on personal knowledge, were "conclusory," "largely irrelevant," and lacked "indicia of reliability" because no Spanish language interpreter was identified nor was there any certification authenticating the translation.
The affidavits on their face met the requirements of rule 56(e). They stated that they were made on the affiants' personal knowledge, and they were signed under the pains and penalties of perjury. Each also stated that the affiant had his affidavit translated for him into Spanish. The defendants have pointed to no authority (nor have we located any) requiring that an affidavit be certified or signed by an interpreter. Although that might be an advisable practice, we have not found any authority requiring it. Although it is certainly conceivable that an affidavit, while stating it is made on personal knowledge may internally somehow show that it is not, we are not presented with that case here. Each affiant worked on the job site and stated his first-hand observations of who was in charge and giving instructions. In these circumstances, the affidavits met the requirements of rule 56(e) and the judge strayed too close to making an impermissible credibility determination when he deemed them "unreliable."
That said, the plaintiff does not explain or argue on appeal how the factual disputes raised by the affidavits are material. The plaintiff's negligence claim requires him to prove, among other things, that each defendant owed him a duty. The motion judge considered three possible theories of duty: duty arising from a contract, duty under 454 Code Mass. Regs. § 10.03(9), and the "retained control" theory of duty, see Corsetti v. Stone Co., 396 Mass. 1, 9-10 (1985). The first two are unconnected to any matter contained in the affidavits, and the plaintiff does not contend otherwise. As to the last, the judge concluded that, even considering the affidavits, the plaintiff had not shown, as a matter of law, that the defendants had anything more than a general supervisory role. See Restatement (Second) of Torts § 414 comment c (1965). The plaintiff does not challenge this on appeal.
For these reasons, the judgment is affirmed.
So ordered.
By the Court (Cypher, Wolohojian & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 8, 2016.