O'Brien v. Christensen

Citation422 Mass. 281,662 N.E.2d 205
CourtUnited States State Supreme Judicial Court of Massachusetts
Decision Date14 March 1996
PartiesPatrick J. O'BRIEN, Sr., & others 1 v. Jon E. CHRISTENSEN, trustee, 2 & others 3 (and a consolidated case 4 ).

John J. McGivney, Boston (Patricia B. Gary, with him) for Jon E. Christensen.

Mark Lowery, Boston (Paul G. Keough, with him) for Patrick J. O'Brien, Sr., & others.

David M. Hass, Malden, for Walter J. Rhilinger.

Before LIACOS, C.J., and WILKINS, O'CONNOR, GREANEY and FRIED, JJ.

GREANEY, Justice.

The plaintiffs, Patrick J. O'Brien, Sr., and Walter J. Rhilinger, were injured when a railing on a third-floor porch of a building gave way, and the two men fell more than twenty-five feet onto a neighbor's porch. Both men were tenants in condominium units in the building. O'Brien and Rhilinger brought separate personal injury actions in the Superior Court seeking damages from the defendants, Jon E. Christensen, as trustee of the City Point IV Condominium Trust (Christensen), Paul D. Bausemer, the carpenter who repaired the porch in 1986, and Michael G. Bausemer, Paul's brother, who had signed a contract with Christensen for the repair of the porch. 5 The two actions were consolidated, and tried and submitted to a jury, on the theory that Paul Bausemer had been negligent in repairing the porch and its railing and that Christensen and Michael Bausemer were liable for Paul Bausemer's negligence. The jury returned verdicts for the plaintiffs. 6 The defendants filed proper motions for judgment notwithstanding the verdict or for a new trial, see Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974). The judge granted Michael Bausemer's motion, dismissing the claims against him, and denied the motions made by Christensen and Paul Bausemer. Christensen 7 and the plaintiffs have appealed from the judgments that entered. We granted Christensen's application for direct appellate review. The principal issue on appeal is whether the judge erred in ruling that Christensen could be held liable for Paul Bausemer's negligence in repairing the porch from which the plaintiffs fell. We conclude that the judge was correct in his ruling on this point, and that the theory of liability should not have unfairly surprised Christensen when it was presented at trial. We discern no merit in the other issues argued on appeal. Accordingly, we affirm the judgments for the plaintiffs.

Viewing the evidence in the light most favorable to the plaintiffs, and drawing reasonable inferences in their favor, see Sullivan v. Brookline, 416 Mass. 825, 826, 626 N.E.2d 870 (1994), the jury could have found the following facts. The building at 801-813 East 4th Street in South Boston is a four-story structure with commercial condominium units on the first floor and nine residential condominium units on the second through fourth floors. At least some of the residential condominium units have access to a system of undivided wooden porches which span the rear of the building on the second, third, and fourth floors. These porches provide a required alternate egress from the building in case of fire.

Under a declaration of trust dated August 30, 1985, Christensen is the trustee of a real estate trust known as the City Point IV Condominium Trust which operates and manages the building at 801-813 East 4th Street. In the City Point IV Condominium master deed, the porches are designated "limited common elements." Under the declaration of trust, each unit owner possesses an easement appurtenant to the unit for the exclusive use of the porch, if any, to which there is direct access from the unit. Christensen, as trustee, is expressly obligated by the declaration of trust, "to be responsible for the proper maintenance and repair of the common elements."

In 1986, Christensen became aware that the building's porches needed to be repaired because their railings were defective. On June 6, 1986, Christensen entered into a contract with Michael Bausemer to remove and repair the building's rear porches. It was understood that Paul Bausemer, who had the appropriate licenses, 8 would be responsible for the work called for by the agreement. During June and July of 1986, Paul and Michael Bausemer, working together, replaced the porches on the building. Paul Bausemer made all of the design decisions with respect to the construction project, and he hammered in all of the nails.

In 1987, Patrick J. O'Brien, Sr., and his wife rented a third-floor condominium unit in the building from the owner, Alan Shapiro. The unit had access to the rear porch on the third floor of the building. On September 5, 1989, Rhilinger was visiting O'Brien. The two men were on the porch behind O'Brien's condominium. Rhilinger leaned on the railing of the porch, and O'Brien came over to him, slapped him on the back and leaned on the rail beside him. The top rail of the balustrade gave way, and the two men fell onto a neighbor's deck two stories below the porch. Both men suffered fractures and other injuries. O'Brien, the more seriously injured of the two, sustained a permanent injury to his shoulder that has diminished his lifetime earning capacity.

An expert witness for the plaintiffs testified that the construction of the porch railing had not complied with the requirements of the State Building Code, or with standard design practice in the industry. According to the expert witness, a single nail was used at each upright post to secure the top railing to the upright post. Each single-nail connection could withstand the application of less than sixty-two pounds of pressure. The State Building Code, meanwhile, required connections capable of withstanding the application of 200 pounds of pressure. The witness described two alternative methods of nailing together a porch railing, either of which would have increased the load resistance enough to insure compliance with the requirements of the State Building Code without greatly increasing the cost of construction. The chief building inspector for the city of Boston confirmed that a top porch railing secured by a single nail, as described by the plaintiffs' expert, would not have complied with the State's Building Code.

For their part, Christensen and the other defendants offered evidence tending to show that the porch railing had been properly repaired, and that the accident happened because the plaintiffs rammed into the porch railing with considerable force while wrestling.

1. Although the plaintiffs argued several theories to support their claim of liability, the judge concluded, after a lengthy charge conference, that the jury would be instructed simply that Christensen and Michael Bausemer should be held liable if the jury found Paul Bausemer negligent. In reaching this conclusion, the judge considered Massachusetts case law and had brought to his attention by the plaintiffs the principles expressed in § 422 of the Restatement (Second) of Torts (1965), set forth in the margin, concerning the liability of a possessor of land who entrusts to an independent contractor the job of constructing or repairing a structure on the land. 9

In keeping with his decision, the judge instructed the jury as follows:

"[T]he only person's conduct on the defendant's side that you have to really focus on is Paul Bausemer. And the reason for that is that if you find that Paul Bausemer was negligent, then the other major actors on the defendant's side of this are also liable, because they are liable under the principle of what we call vicarious liability."

"And the reason for that is that an owner of property is required to rehabilitate it, if you will, with due care and with regard to the safety of others, and he cannot escape that liability simply by hiring someone else. So that if you find negligence on behalf of Paul Bausemer, then the trustees of the City Point Condominium Trust are vicariously liable for that negligence. We're not going to ask any questions about the trustees' liability."

In a subsequent memorandum of decision on the motions filed by the defendants for judgment notwithstanding the verdict, the judge further explained his reasons for instructing the jury in the manner just set forth. The judge observed that Christensen was the person in control of the common area porches, which were in obvious need of repair, and that Christensen, "under a duty to do so," expressly undertook these repairs to ensure the safety of the building's occupants and their guests. Christensen proceeded to hire a contractor who, the jury found, had performed the repairs in a negligent manner. The judge concluded that Christensen had been "in a position to select a contractor who could provide an indemnity, backed up by insurance, for the careful performance of this task, the negligent performance of which could lead to easily foreseeable disastrous consequences."

Christensen argues that under Massachusetts law, liability for the acts of an independent contractor arises only in certain limited circumstances, none of which exist in this case. Accordingly, Christensen argues, the jury instruction given by the judge fails to comport with Massachusetts law. He further argues that this court should not adopt (as he suggests the judge did) the principles stated in § 422 to impose liability on a possessor of land for negligence committed by an independent contractor hired to perform routine (as opposed to inherently dangerous) construction or repairs on the land. Contrary to Christensen's contentions, we conclude that the instruction was proper.

Christensen's liability is determined by his express written obligations contained in the declaration of trust "to make repairs, additions and improvements to or alterations of the common elements," and "to be responsible for the proper maintenance and repair of the common elements." 10 Obligations created by contract can provide a basis for an action in tort. See Parent v. Stone & Webster Engr....

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    ...or nothing approach does not serve the basic aim of "fairly allocating the costs and risks of human injuries," O'Brien v. Christensen, 422 Mass. 281, 288, 662 N.E.2d 205 (1996), quoting Vertentes v. Barletta Co., 392 Mass. 165, 171, 466 N.E.2d 500 (1984) (Abrams, J., concurring).27 See King......
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