Aulson v. Stone

Decision Date19 June 2020
Docket NumberNo. 19-P-714,19-P-714
Citation97 Mass.App.Ct. 702,150 N.E.3d 798
Parties William AULSON v. Lisa V. STONE.
CourtAppeals Court of Massachusetts

David E. Hoyt for the plaintiff.

Michael J. Sherry, Raynham, for the defendant.

Present: Hanlon, Wendlandt, & Englander, JJ.


An employer of an independent contractor generally is not liable for physical harm caused to another by the negligent act of the contractor. The exceptions to this principle "are so numerous" and "have so far eroded the ‘general rule,’ that it can now be said to be ‘general’ only in the sense that it is applied where no good reason is found for departing from it." Restatement (Second) of Torts § 409 comment b, at 370 (1965). This case exemplifies that the general rule, while eroded, is not dead.

The defendant, Lisa V. Stone (homeowner), retained a general contractor, AD Construction (AD or general contractor), to renovate her single-family home. AD, in turn, hired the plaintiff, William Aulson (Aulson or employee), as a carpenter for the project. The employee severed his thumb while improperly using his own table saw. He maintained that his injury was caused by the unduly crowded construction area located in the garden level of the homeowner's five-story home.

The employee appeals from the allowance of the homeowner's motion for summary judgment on his negligence claim against the homeowner. Because, inter alia, the record on summary judgment was insufficient, as a matter of law, to show that the homeowner retained the type of control over the operative details and safety protocols of the renovation required for liability, and because the employee's speculation provided insufficient basis for a jury to find the requisite causation, we affirm.

Background. We set forth the facts in the light most favorable to the nonmoving party. See LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318, 974 N.E.2d 34 (2012). In July 2013, the homeowner hired the general contractor to convert a five-level, single-family home into a two-family home.1 The contract between the general contractor and the homeowner required the contractor to furnish all materials and perform all the work pursuant to the proposed specifications and drawings.2 The contractor was responsible for obtaining all permits and agreed that "[a]ll work shall be completed in a workman-like manner and in compliance with all building codes and other applicable laws." Further, the contract provided that the contractor, in its sole discretion, could hire subcontractors and that, "in all instances" the contractor shall "remain responsible for the proper completion" of the project. In contrast, the homeowner was "not entitled to engage or solicit in any way or form any of the sub-contractors involved in [the] project ... without the [c]ontractor's awareness and written approval."3

Throughout the renovation, including at the time of the incident at issue in this case, AD was the general contractor.4 It hired subcontractors to complete the work and hired the employee, a carpenter.5 The homeowner did not control the timetable for any of the stages of construction.6

By the time of the incident, in January 2014, the rental unit was largely complete, and the homeowner was renting it periodically on a short-term basis. As set forth supra, the bottom three floors comprised the second unit, and the homeowner had moved a mattress into the top floor of this second unit and would "occasionally stay in the house." Construction continued on the project with the garden level of the second unit both serving as the area for the storing of construction tools and being actively under renovation. The employee attempted "to create a safe space to perform" his work, but was "often hindered." He spoke to the homeowner "on a number of occasions about the lack of safe space to perform work at the project."7

On January 27, 2014, the employee, along with a painter and a "tile guy" were working on the garden level. The employee was using his table saw on the floor rather than on a table. Both of his hands were holding a piece of pine wood, which he was "freehand cutting" at an angle.8 The employee believed that an extension cord was pulled, causing the saw, which was not mounted on a table or otherwise restrained, to move and to sever his thumb.9

The employee brought a negligence claim against the homeowner. As set forth supra, the homeowner's motion for summary judgment was allowed.10

Discussion. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, 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, 571 N.E.2d 357 (1991), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). Summary judgment "make[s] possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts or if only a question of law is involved" (citation omitted). Kourouvacilis v. General Motors Corp., 410 Mass. 706, 715, 575 N.E.2d 734 (1991). Where the nonmovant ultimately would bear the burden of proof at trial, the moving party "is entitled to summary judgment if [she] demonstrates ... that [the nonmovant] has no reasonable expectation of proving an essential element of [his] case" (citation omitted). Butcher v. University of Mass., 483 Mass. 742, 747, 136 N.E.3d 719 (2019). Our review is de novo. See LeBlanc, 463 Mass. at 318, 974 N.E.2d 34.

"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, 849 N.E.2d 829 (2006). "[T]he existence [or nonexistence] of a duty is [generally] a question of law, and is thus an appropriate subject of summary judgment." Id. The other three elements generally are considered "the special province of the jury." Id. However, where no rational finder of fact could find based on the evidence in favor of the plaintiff on the element of causation, summary judgment is proper. See, e.g., Glidden v. Maglio, 430 Mass. 694, 697, 722 N.E.2d 971 (2000).

1. Duty of homeowner.11 The employee advanced two theories pursuant to which he contended that the homeowner owed him a duty of care as the employee of the general contractor. First, he maintained that the homeowner's duty arose because she retained control over the renovation. Second, he contended that the homeowner owed him (a lawful visitor) a duty of reasonable care, which included a duty to remedy the obvious hazard of using a table saw in the crowded workspace. We address each in turn.

a. Retained control. The employee contended that the homeowner retained control over the renovation project such that she is liable for the general contractor's failure to provide a safe working environment for him. As set forth supra, the general rule is that "an employer of an independent contractor is not liable for harm caused to another by the independent contractor's negligence." Lyon v. Morphew, 424 Mass. 828, 834, 678 N.E.2d 1306 (1997). Under this principle, "it is to be regarded as the contractor's own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it." Corsetti v. Stone Co., 396 Mass. 1, 10, 483 N.E.2d 793 (1985), quoting Restatement (Second) of Torts § 409 comment b (1965).

In Corsetti, however, the court adopted the "retained control" exception to this general rule, pursuant to which, "if the employer retains the right to control the work in any of its aspects, including the right to initiate and maintain safety measures and programs, [s]he must exercise that control with reasonable care for the safety of others, and [s]he is liable for damages caused by [her] failure to do so." 396 Mass. at 10, 11, 483 N.E.2d 793. See Restatement (Second) of Torts § 414 (1965). To fall within the exception:

"[T]he employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that [s]he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. 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, at 388 (1965). See St. Germaine v. Pendergast, 411 Mass. 615, 622, 584 N.E.2d 611 (1992).

Whether an employer has retained control over the work of an independent contractor to render her liable is usually a question of fact for the jury. See, e.g., Corsetti, 396 Mass. at 11, 483 N.E.2d 793. See also St. Germaine, 411 Mass. at 622, 584 N.E.2d 611. However, where the evidence of control is insufficient as a matter of law, summary judgment is appropriate. See, e.g., Lyon, 424 Mass. at 835-836, 678 N.E.2d 1306.

Two cases -- Corsetti and Lyon -- are instructive. In Corsetti, the question whether the defendant, a general contractor, retained sufficient control presented a question for the trier of fact. 396 Mass. at 11, 483 N.E.2d 793. In that case, a subcontractor's employee was injured while using scaffolding and sued the general contractor. Id. at 3, 483 N.E.2d 793. The evidence included that, despite having retained the subcontractor, the general contractor (i) had responsibility to initiate, maintain, and supervise all safety...

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