Afienko v. Harvard Club of Boston

Decision Date20 May 1974
Citation312 N.E.2d 196,365 Mass. 320
PartiesMichael R. AFIENKO v. HARVARD CLUB OF BOSTON and Consolidated Service Corporation et al., Third-Party Defendants.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Joseph J. Hurley, Boston (Thomas E. Cargill, Jr., Boston, with him), for plaintiff.

Philander S. Ratzkoff, Boston, and Thomas R. Morse, Jr., Boxborough (Leo V. Boyle, Boston, with them), for Harvard Club of Boston.

Daniel A. Lynch, Boston, for Industrial Window Cleaning Corp.

William J. McCluskey, Boston, for Consolidated Service Corp., submitted a brief.


QUIRICO, Justice.

On April 20, 1966, Michael Afienko (the plaintiff) was employed as a window washer by the Industrial Window Cleaning Corporation (Industrial) and in such capacity was washing windows on the Commonwealth Avenue premises of the Harvard Club of Boston, Inc. (the club). Devices sometimes called 'anchor bolts' were secured in the masonry on each side of the exterior of the windows in the club's building. They were similar to large metal hooks and were intended to act as supports to which a window washer attaches the ends of his safety belt to hold him secure while standing on a windowsill outside the building. While the plaintiff was washing the exterior of a window on the fourth floor of the club's main building, with his safety belt attached to the anchor bolts on each side of the window, one of the bolts broke. The plaintiff fell to a roof about thirty-five feet below and was injured.

At the time of the accident the club had a written contract with Clean-Rite Company (later known as Consolidated Service Corporation and hereinafter referred to as 'Consolidated') under which Consolidated agreed to perform janitorial services for the club, including window washing. Consolidated, in turn, had an oral contract with Industrial under which the latter agreed to wash the club's windows as Consolidated's subcontractor. The club, Consolidated, the Industrial were all 'insured persons' within the meaning of the Workmen's Compensation Act, G.L. c. 152, § 1(6), and as a result of the accident the plaintiff received benefits under the statute from Industrial's insurer.

In June, 1967, the plaintiff began this action of tort against the club to recover for the personal injuries he sustained from his fall. In a third-party action the club impleaded Consolidated and Industrial, seeking indemnification. Before trial the parties entered certain stipulations of fact concerning primarily their workmen's compensation coverage and the plaintiff's status in relation thereto. By order of the trial judge, none of the stipulations was read to the jury. At the conclusion of the evidence, the club filed a motion for a directed verdict, which the judge denied. He submitted the case to the jury with special questions. The jury returned a verdict for the plaintiff against the club in the amount of $200,000 and found in favor of Consolidated and Industrial in the club's action for indemnification against them and in favor of Industrial in Consolidated's action for indemnification against it.

Both the tort action and the club's action for indemnification are before us on the club's bill of exceptions. The principal questions raised concern (1) the propriety of the judge's denial of the club's motion for a directed verdict in the plaintiff's tort action and (2) the correctness of certain evidentiary rulings.


The club contends that it was entitled to a directed verdict on two different grounds: first, that under the terms of G.L. c. 152, § 18, the plaintiff's exclusive remedy against it was under the Workmen's Compensation Act, and he is barred by the doctrine of common employment from bringing a common law action of tort, and, second, that as a matter of law the plaintiff failed to establish that the club was negligent. We discuss each ground separately.

A. Defence of Common Employment.

General Laws c. 152, § 18, provides in effect that an employer who is an 'insured person' under the act must furnish compensation coverage to an independent contractor he hires and to the contractor's employees if the employer would be obligated to pay compensation to his own employees had they performed the same work for him. 1 The corollary to the extended obligation imposed on such a 'common employer,' established by judicial construction of § 18, is an immunity from liability in tort under c. 152, § 15, with respect to any employee who comes within the scope of the common employment. 2 However, both the statutory obligation and the related immunity in tort are expressly limited by the terms of § 18, which provides that '(t)his section shall not apply to any contract of an independent or sub-contractor which is merely ancillary and incidental to, and is no part of or process in, the trade or business carried on by the insured . . . (person, i.e., the employer).'

Thus, if in the present case the window washing work in which the plaintiff was engaged at the time he fell was 'part of or process in' the club's business of operating a club or hotel facility, its obligation to the plaintiff, an employee of anindependent contractor, would be governed by § 18, as the parties stipulated that the club was an 'insured person' under G.L. c. 152. Since the plaintiff did not reserve his rights to bring a common law action against Industrial pursuant to G.L. c. 152, § 24, his potential remedies against Industrial and also against the club would be limited to workmen's compensation benefits, and he could not maintain the present action in tort. Cozzo v. Atlantic Ref. Co., 299 Mass. 260, 262--263, 12 N.E.2d 744 (1938); McPadden v. W. J. Halloran Co., 338 Mass. 189, 190, 154 N.E.2d 582 (1958); Stewart v. Roy Bros, Inc., 358 Mass. 446, 454--455, 265 N.E.2d 357 (1970). If, however, the plaintiff's window washing work were considered 'merely ancillary and incidental' to the club's business, then the club would not be protected by G.L. c. 152, § 18, and under § 15 of that chapter the plaintiff would be entitled to bring a common law action for personal injuries. 3 Our cases have clearly established that it is ordinarily a question of fact whether particular work performed by an independent contractor or his employees is or is not 'part of or process in' a principal employer's business. Cozzo v. Atlantic Ref. Co., supra, 299 Mass. at 264, 12 N.E.2d 744; Cannon v. Crowley, 318 Mass. 373, 377, 61 N.E.2d 662 (1945); Dubois v. Soule Mill, 323 Mass. 472, 476, 82 N.E.2d 886 (1948). MacKay v. Ratner, 353 Mass. 563, 565, 233 N.E.2d 745 (1968). Only where the circumstances of a particular case indicate that such work is 'plainly' a part of the employer's business have we considered this question to be one of law. McPadden v. W. J. Halloran Co., supra, 338 Mass. at 192, 154 N.E.2d 582; Tindall v. Denholm & McKay Co., supra, 347 Mass. at 101, 196 N.E.2d 631. Cf. Stewart v. Roy Bros. Inc., supra, 358 Mass. at 455--456, 265 N.E.2d 357. It is the club's contention that this case falls within the latter category. It argues that the window washing performed by the plaintiff at the time of the accident was part of the 'routine maintenance and cleaning' of its facilities which this court has recognized 'as matter of law are part of the business of a mercantile enterprise even when regularly performed by the employees of an independent contractor hired by the owner for that purpose,' and concludes that the trial judge erred in denying its motion for a directed verdict on this ground and in submitting the issue to the jury in the form of special questions. 4 We disagree.

'1. Was the window washing to be done by Consolidated Service Corporation under its contract with Harvard Club of Boston a part of or process in the trade or business of Harvard Club of Boston?

We review the evidence in the light most favorable to the plaintiff. Carr v. Arthur D. Little, Inc., 348 Mass. 469, 471, 204 N.E.2d 466 (1965); Stewart v. Roy Bros. Inc., 358 Mass. 446, 448, 265 N.E.2d 357 (1970). Industrial washed the club's windows from 1961 through 1966, always as a subcontractor or Consolidated, and was the 'person responsible' for cleaning the windows at the time of the accident in 1966. Industrial had five or six window washers on its payroll, and its president hired only experienced washers who were 'union men.' Industrial furnished its employees with all their window washing tools--safety belts, pails, sponges, squeegees, and ladders--and the plaintiff was using a bucket, sequeegee, and belt supplied by Industrial on the day of the accident. There were no window washers on the club's payroll from at least 1963 up to the time of the accident, and the club owned no window washer's safety belts. The club had three shifts of its own employees to conduct the operation of the club at the time of the accident, which included two full time maintenance men for 'the usual carpentry, plumbing and electrical work,' a painter, and maids and housemen. On occasion it was necessary for one of these employees to clean a window when the 'contract window cleaners' were not there but the club's manager had never seen one of its employees use a window washer's belt, and none of them participated in the window cleaning operation described in the club's contract with Consolidated. The contract between the club and Consolidated in effect at the time of the accident required that all windows on the first and second floors be washed on a monthly basis and all other windows in the building be washed semi-annually. The plaintiff was engaged in one such semi-annual washing at the time he fell. In the opinion of the club's manager, window washing was a very minor part of the overall operation of the club.

We believe the jury could find on this evidence that the window washing done by Industrial on...

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