Corsetti v. Stone Co.

• Decision Date: 19 September 1985
• Citation: 483 N.E.2d 793,396 Mass. 1
• Parties: Domenic CORSETTI, et al. 1 v. The STONE COMPANY, et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 793

483 N.E.2d 793

396 Mass. 1

Domenic CORSETTI, et al. ¹ v. The STONE COMPANY, et al. ²

Supreme Judicial Court of Massachusetts Middlesex.

Argued Dec. 6, 1984.

Decided Sept. 19, 1985.

Thomas D. Burns, Boston (John J. McGivney, Boston, with him), for The Stone Co.

Frederic N. Halstrom, Boston (Peter A. Donovan, Boston, with him), for plaintiffs.

Allen N. David and Alexander H. Pratt, Jr., Boston, for Deal Products, Inc.

Jeffrey F. Jones, Steven L. Schreckinger and R. Lisa DiLuna, Boston, for Scaffold Industry Ass'n, amicus curiae, submitted a brief.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

Domenic Corsetti (Corsetti), a stone mason employed by the R.A. Salvucci Construction Company, Inc. (Salvucci), was seriously injured when a scaffolding side bracket supporting the platform on which he was working failed and he fell approximately forty feet to the ground. He brought this action against The Stone Company (Stone), the general contractor at the construction site where he was injured, and Deal Products, Inc. (Deal), a manufacturer of scaffolding products. His complaint alleged that Stone had negligently failed to require workers on the construction project to use appropriate safety equipment. The complaint also alleged that Deal had negligently designed, manufactured, and marketed a dangerous side bracket; that Deal had negligently failed to warn consumers of the dangerous character of the bracket; and that Deal had breached the implied warranty of merchantability. Margherita Corsetti, Corsetti's wife, also brought claims against the defendants for loss of consortium. ³ The defendants denied liability and cross-claimed against each other for contribution.

A jury found that both Stone and Deal had been negligent, but that Deal had not breached the implied warranty of merchantability. They found that no negligence on Corsetti's part contributed to his injuries, and they assessed damages in his favor in the sum of $840,000 and in Margherita's favor in the sum of $25,000. Both defendants filed motions for judgment notwithstanding the verdict, and for a new trial. The trial judge denied Stone's motions. The judge allowed Deal's motion for judgment notwithstanding the verdict, denied Deal's motion for a new trial, and granted judgment for Deal on Stone's cross-claim. Stone appeals from the judgments against it on the plaintiffs' claims and on its cross-claim against Deal. The plaintiffs appeal from the judgment against them in favor of Deal, and they appeal from the denial of their motion for sanctions against Stone for its failure to comply with discovery. Deal appeals from the denial of its motion for a new trial. We granted the plaintiffs' application for direct appellate review.

On appeal, Stone argues that the trial judge erred in denying its motion for judgment notwithstanding the verdict. Stone also argues that the judge erred in excluding evidence of the plaintiffs' collateral source income, and in failing to give certain requested instructions to the jury. We conclude that there was sufficient evidence to warrant a finding that Stone was liable to the plaintiffs and that the trial judge properly denied Stone's motion for judgment notwithstanding the verdict. We also find no reversible error in the judge's charge. We conclude, however, that the judge's exclusion of evidence of collateral source income was error and that Stone is entitled to a new trial limited to the question of the plaintiffs' damages.

The plaintiffs and Stone argue that the trial judge erred in granting Deal's motion for judgment notwithstanding the verdict. Deal argues that the judge should have granted its motion for a new trial because the verdicts on the negligence and breach of warranty counts were inconsistent. We conclude that there was insufficient evidence to warrant a finding that Deal was liable to the plaintiffs and that the trial judge properly granted Deal's motion for judgment notwithstanding the verdict. We therefore do not consider whether it was error to deny Deal's motion for a new trial. Finally, we affirm the denial of the plaintiffs' motion for sanctions against Stone.

1. Stone's motion for judgment notwithstanding the verdict. In support of its contention that it is entitled to judgment notwithstanding the verdict, Stone argues that, as the general contractor, it had no duty to the employees of Salvucci other than to provide a reasonably safe place to work, that it cannot be held vicariously liable for any injuries resulting from Salvucci's negligence in failing to instruct Corsetti on proper safety precautions, and that, as a matter of law, the safety regulations introduced in evidence by the plaintiffs did not apply to the facts of this case.

We summarize the evidence relevant to Stone's liability, viewed in the manner most favorable to the plaintiffs. In 1977, Computervision Corporation contracted with Stone for the construction of two buildings at the Computervision facilities in Bedford. Stone in turn contracted with Salvucci to perform the masonry work called for by the project. Corsetti, an experienced stone mason, was employed by Salvucci to work on the Computervision project. A stone mason's duties included laying and mortaring cement blocks in the construction of masonry walls. Much of this work was performed on scaffolding erected alongside the wall being constructed. The masons would work on a platform located between the main frame of the scaffolding and the wall being constructed. The platform consisted of boards or planks supported by triangular-shaped pieces of scaffolding called side brackets or outriggers. The side brackets hooked onto the side of the main frame of the scaffolding, and extended to within approximately one inch of the wall being built.

On September 26, 1978, Corsetti was working on the construction of an elevator shaft in one of the buildings. The platform on which he was working was between thirty-six and forty feet above the ground. One of the side brackets supporting the platform gave way, causing him to fall. He sustained serious injuries, including fractures of the right arm, leg, and ankle, facial lacerations, and back and head injuries. Corsetti was not wearing a safety belt when he fell, nor was he provided with such a belt or instructed to use one. There was no safety net beneath the platform to break his fall.

The general contract between Computervision and Stone provided that Stone, as general contractor, was responsible for initiating, maintaining, and supervising job site safety, and was to comply with all applicable safety regulations. ⁴ The subcontract between Stone and Salvucci provided that Salvucci was to take all reasonable safety precautions with respect to its work, and to comply with safety measures initiated by Stone and with all applicable safety rules and regulations. ⁵

There was evidence from which the jury could have found that the custom in the trade was that subcontractors would be responsible for their own equipment and needs, but that they would take direction from the general superintendent on the job. Thomas Burke, a Stone employee, was the general superintendent on the Computervision project. Burke, together with William O'Neill, Stone's project manager, was responsible for initiating, maintaining and supervising all safety precautions and progress on the project. The only safety program in place on the Computervision project was a requirement of compliance with OSHA rules and regulations. Burke testified that it was his responsibility to enforce those rules with regard to employees of subcontractors as well as employees of Stone. He had the authority and responsibility to require subcontractors to correct any unsafe practices or violations of the safety regulations. He also testified that he had inspected the scaffolding to see that it was set properly and to look for obvious deficiencies, although he never inspected the side brackets supporting the masons' platform. If he saw any safety violations, he would instruct the subcontractor to correct them. Burke conducted informal meetings with the subcontractor's foremen, at which safety requirements were discussed. Neither Burke nor O'Neill ever instructed Salvucci to require masons working on scaffolding to wear safety belts or to install safety nets below the scaffolding. There was evidence that safety belts and lines were commonly used by masons, but that they were not commonly used under the conditions in which Corsetti was working because he was protected by the masonry wall on one side and the main frame of the scaffold on the other. However, the plaintiffs' expert witness, a safety consultant, testified that in his opinion good safety management and administration dictated the use of safety belts under those conditions. He testified that the use of a safety net would not have been feasible because there was no place to put one, but the use of a safety belt and line was both feasible and practical under those conditions. He further testified that the belt could be tied in such a way as to pose no danger to the mason of tripping, and that the cost of providing such a belt would be approximately thirty-five dollars.

Stone's expert, an engineer, testified that a safety belt was not appropriate for masons under the circumstances of the case because there was no hazard of falling, and because a belt and line would pose a hazard of tripping. He further testified that the classic situation in which a safety belt would be used is when there is a hanging scaffold; in other words, a scaffold platform suspended against a building by two cables. He said that a safety belt was required on such a scaffold because if one of the cables broke, everyone and everything on the platform would fall.

The plaintiffs introduced in evidence a copy of Industrial Bulletin No. 12, Rules and Regulations for the Prevention of...