Croall v. Massachusetts Bay Transp. Authority

• Decision Date: 16 August 1988
• Docket Number: No. 87-544,87-544
• Citation: Croall v. Massachusetts Bay Transp. Authority, 526 N.E.2d 1320, 26 Mass.App.Ct. 957 (Mass. App. 1988)
• Parties: Marie CROALL, et al. 1 v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, et al. 2
• Court: Appeals Court of Massachusetts

Page 1320

526 N.E.2d 1320

26 Mass.App.Ct. 957

Marie CROALL, et al. ¹ v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, et al.²

No. 87-544.

Appeals Court of Massachusetts Norfolk.

Argued April 8, 1988.

Decided Aug. 16, 1988.

Stephen T. Keefe, Jr., Weymouth, for Walter Reed Corp.

Martin W. Cohen, Falmouth, for Massachusetts Bay Transp. Authority.

Carol C. Kearns (Robert W. Langlois, Quincy, with her), for plaintiffs.

Before GRANT, KASS and SMITH, JJ.

RESCRIPT.

On the morning of April 6, 1979, a fierce gust of wind ripped from its moorings the parking attendant's booth at the North Quincy station of the Massachusetts Bay Transportation Authority (MBTA). Marie Croall, the attendant on duty, had the misfortune to be in the booth when it blew over. She suffered permanent injuries to her neck, legs, and back. Croall brought a negligence action which, after third and fourth party complaints and amendment of the original complaint, involved the following: Croall's employer, Allright Boston Parking, Inc.; the contractor which built the parking facility and erected the booth, Walter Reed Corporation; the manufacturer of the booth, Par Kut International, Inc.; and the MBTA. Her husband claimed loss of consortium. A jury returned verdicts of $340,000 for Croall and $50,000 for her husband against Walter Reed and the MBTA. ³

Judgments were entered on those verdicts for the plaintiffs against the MBTA, and a judgment of $390,000 plus $19,461.40 in attorney's fees was entered in turn in favor of the MBTA against Walter Reed on a theory of indemnification. On appeal, Walter Reed challenges the determination that it is obligated to indemnify the MBTA, and both defendants make multiple claims of error in the conduct of the trial. We conclude that Walter Reed was not bound to indemnify the MBTA. As to the other claims of error, we are unpersuaded.

1. Indemnification. ⁴ Generally the obligation to indemnify another against its own negligence flows from express language. Great Atl. & Pac. Tea Co. v. Yanofsky, 380 Mass. 326, 334, 403 N.E.2d 370 (1980). Rathbun v. Western Mass. Elec. Co., 395 Mass. 361, 363, 479 N.E.2d 1383 (1985). Neither the construction contract nor the specifications for the parking facility job contained an indemnification or hold--harmless clause. The MBTA does not contend otherwise and falls back on an implied obligation of indemnity. See the Rathbun case, at 363, 479 N.E.2d 1383, and Shea v. Bay State Gas Co., 383 Mass. 218, 222, 418 N.E.2d 597 (1981). In the Shea case an obligation of a general contractor to indemnify and hold harmless the design engineer, even against the latter's negligence, was drawn from broad language which appeared in a form of insurance certificate which had been prescribed in the contract documents. The decisive provision in the insurance certificate in the Shea case read as follows: "The Contractor shall at all times indemnify and save harmless the OWNER, CAMP DRESSER & McKEE Inc. [the design engineer] ... on account of any and all claims, damages, losses, ... arising out of injuries ... caused in whole or in part by the acts, omissions, or neglect of the contractor...." Id. at 221, 418 N.E.2d 597.

No similar language appears in the contract documents between the MBTA, as owner, and Walter Reed, as contractor, or in the insurance certificate furnished by Walter Reed to the MBTA. See Fireside Motors, Inc. v. Nissan Motors Corp. in U.S.A., 395 Mass. 366, 375, 479 N.E.2d 1386 (1985). Contrast the indemnity clauses which appear in Aho v. Blanchette, 18 Mass.App.Ct. 149, 150, 463 N.E.2d 1203 (1984), and Speers v. H.P. Hood, Inc., 22 Mass.App.Ct. 598, 600 n. 4, 495 N.E.2d 880 (1986). Lacking any language of indemnity in the documents to construe, the MBTA asks that indemnity be implied from the circumstance that the contract documents required the contractor to buy general liability insurance. What is the point, the argument runs, of requiring the contractor to buy insurance if that insurance does not cover liability incurred by the owner? The answer is that the contractor's general liability insurance at least assures that, should both contractor and owner be negligent, the contractor will be able to meet its burden of any joint liability. Nothing in the Shea case or other authority of which we are aware stands for the remarkable proposition that requiring a contractor to carry general liability insurance imports an indemnity in favor of an owner against liability incurred by reason of the owner's negligence.

In a search for more suggestive language, the MBTA points to a clause in the construction contract under which the contractor agrees to accept the contract price as full compensation, including "all loss or damages arising out of the nature of the work...." By any reasonable construction, that language refers to losses or damages which the contractor has sustained. Any doubt on that score would be resolved against the party who drafted the instrument, in this case the MBTA. See Massachusetts Turnpike Authy. v. Perini Corp., 349 Mass. 448, 454, 208 N.E.2d 807 (1965).

Occasions exist where a right to indemnification may be inferred from "unique special factors demonstrating that the parties intended that the putative indemnitor bear the ultimate liability," Decker v. Black & Decker Mfg. Co., 389 Mass. 35, 38, 449 Mass. 35 (1983), or "when there is a generally recognized special relationship between the parties." Araujo v. Woods Hole, Martha's Vineyard, Nantucket S.S. Authy., 693 F.2d 1, 2-3 (1st Cir.1982). Fireside Motors, Inc. v. Nissan Motors Corp. in U.S.A., 395 Mass. at 375, 479 N.E.2d 1386. See also Oates v. Diamond Shamrock Corp., 23 Mass.App.Ct. 446, 447, 503 N.E.2d 58 (1987). Here there was a conventional owner-contractor relationship, devoid of "unique special factors" or elements of "generally recognized special relationship."

2. Evidence of negligence. Both the MBTA and Walter Reed timely moved for a directed verdict and for judgment notwithstanding the verdict. We examine the record for evidence from which a reasonable inference could be drawn in favor of the plaintiff, without weighing that evidence. Forlano v. Hughes, 393 Mass. 502, 504, 471 N.E.2d 1315 (1984). Roddy & McNulty Ins. Agency, Inc. v. A.A. Proctor & Co., 16 Mass.App.Ct. 525, 530, 452 N.E.2d 308 (1983). There was evidence that: the parking attendant booth had been bolted onto an asphalt island and that this was grievously deficient workmanship; it was like bolting the booth in sand; the original specifications had required the booth to be anchored on a concrete island; a change order from the MBTA had altered the position of the island but failed to specify that the relocated island should be of concrete; there was a "punch list" order to "re-bolt collector's booth" but it failed to specify how; the MBTA's construction inspector admitted responsibility for overseeing compliance with construction specifications, but he did not inspect the booth and certified the job as complete. That evidence of inadequate construction, inadequate specification, inadequate direction, and inadequate inspection was enough to take the case to the jury as to both the MBTA and Walter Reed.

3. Exclusion of evidence of allegedly similar occurrence. On the same day that Walter Reed had anchored the parking attendant's booth in asphalt, it had anchored a passenger shelter in concrete. The shelter blew over in a winter storm on January 9, 1978, some seventeen months before high winds swept the parking attendant's booth from its moorings. Evidence of the blowing over of the passenger shelter was excluded upon allowance of a motion in limine made by the plaintiffs. What Walter Reed sought to prove in offering evidence concerning the earlier event was that bolting a structure to concrete would not have helped in the face of extraordinary gusts of wind. The use of evidence of similar occurrences, however, is suspect and subject to rigorous standards for the laying of a foundation that the circumstances were, indeed, substantially identical. Robitaille v. Netoco Community Theatre of N. Attleboro, Inc., 305 Mass. 265, 266-269, 25 N.E.2d 749 (1940). Here the structures were not the same in size, shape, or material. It appeared from the offer of proof, for example, that the passenger shelter did not topple over, but that the enclosing material parted from its pedestal. The pedestal, in turn, was bolted into concrete and did not part; the anchor bolts remained securely in place--the opposite of what had occurred later in the case of the parking attendant's booth. Testimony concerning the earlier 1978 incident was rightly excluded.

4. The...