Fisher v. M. Spinelli & Sons Co.

Citation1999 MBAR 061
Decision Date09 February 1999
Docket Number974016
PartiesKenneth Fisher v. M. Spinelli & Sons Co., Inc. et al.
CourtSuperior Court of Massachusetts

Mass L. Rptr. Cite: 9 Mass. L. Rptr. 638

Venue Superior Court, Middlesex, SS

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): KOTTMYER

This is a civil action brought by Kenneth Fisher ("Fisher") against M. Spinelli & Sons Co., Inc. ("Spinelli") and Simpson Gumpertz and Heger, Inc. ("SGH"). Spinelli and SGH have filed cross-claims against each other. Spinelli has filed a third-party claim against Brisk Waterproofing Company ("Brisk"). Brisk has filed a fourth-party claim against Harvard Real Estate, Inc. ("Harvard"). SGH moves this Court to enter summary judgment in its favor on the claim brought against it by Fisher, the cross-claim brought against it by Spinelli, and its crossclaim against Spinelli. For the reasons given below SGH's motion is allowed in part and denied in part.


The summary judgment record establishes the following material facts.

In 1994, Harvard contracted with SGH, an architectural firm, to prepare contract documents for the repair and waterproofing of the Mission Park Garage, a Harvard-owned property at 835 Huntington Avenue in Boston, Massachusetts. In 1995, Harvard contracted with Spinelli to be general contractor for the repair and waterproofing work. Spinelli subsequently subcontracted portions of the repair and waterproofing work to Brisk. Fisher was employed by Brisk. On February 21, 1996, Fisher was shocked with electrical current when the jackhammer he was operating penetrated a concrete slab and came into contact with a live electrical conduit. Fisher filed this action on August 1, 1997.

Spinelli's contract incorporated contract drawings and other documents that stated that an electrical conduit was embedded in the slab. Spinelli's work specifically included locating and de-activating the conduit in the area undergoing repair before slab demolition. (Ex. 9.)1 Spinelli was required by the contract to furnish all labor, materials, equipment and supervision to de-energize circuits embedded in concrete slabs under repair. (Ex. 7.)

The Owner/Architect Agreement as well as Spinelli's contract documents stated that: SGH was responsible for the preparation of project plans, specifications, manuals, and other documents and ensuring that all of them were accurate and legible; SGH would conduct surveys, inspections, and site visits during the project to become generally familiar with the progress and quality of the work and to determine if the work was in accordance with the contract documents; SGH would administer the contract and act as a representative of Harvard with authority to act on Harvard's behalf as authorized in the Owner/Architect Agreement; and Harvard or an authorized agent had the right to stop Spinelli's work if it was not in accordance with the contract documents. (Ex. 2.)

The Owner/Architect Agreement as well as Spinelli's contract documents also stated that: SGH would not be responsible for and Spinelli had sole responsibility for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the work; Spinelli had sole control over or charge of acts or omissions of the contractor, subcontractors, or their agents or employees; SGH would not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the work; and SGH would not be responsible for Spinelli's schedules or failure to carry out the work in accordance with the contract documents. (Ex. 4.)

Spinelli's contract documents stated that:

[t]he actual determination as to whether [any] instructions may be safely and suitably carried out shall be the responsibility of the Contractor, and all... liability... arising from the employment of any construction means, methods, technique, sequences, or procedures shall be borne by the Contractor, notwithstanding that such construction means, methods, techniques, sequences, or procedures are referred to, indicated or implied by the Contract Documents, unless the Contractor has given timely notice to the Owner and Architect in writing that such means, methods, techniques, sequences or procedures are not safe or suitable and the Owner has then instructed the Contractor in writing to proceed. (Ex. 5.)

The contract documents also provided that Spinelli:

shall indemnify and hold harmless [SGH] from and against claims, damages, losses and expenses including, but not limited to, attorney's fees, arising out of or resulting from performance of the Work provided that such claim, damage, loss or expenses is attributable to bodily injury, sickness, disease or death... but only to the extent caused in whole or part by negligent acts or omissions of the Contractor, the Subcontractor, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss, or expense is caused in part by a party indemnified hereunder.

(Ex. 4.) The contract documents further stated that Spinelli's obligation to indemnify SGH did not extend to liability for "(1) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (2) the giving or failure to give directions or instructions by [SGH] provided such giving or failure was the primary cause of the injury or damage." (Id.)


This Court grants summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Cassesso v. Comm'r. of Correction, 390 Mass 419, 422 (1983); Mass.R.Civ.P. 56(c). The moving party bears the burden of affirmatively demonstrating that there is no genuine issue of material fact on every relevant issue. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). Once a party moving for summary judgment has shown that there is no genuine issue of material fact, the burden is then upon the opposing party to respond and allege specific facts showing that there is a genuine triable issue. John B. Deary, Inc. v. Crane, 4 Mass.App.Ct. 719, 722 (1976). A party who does not bear the burden of proof at trial may demonstrate the absence of a triable issue either by submitting affirmative evidence negating an essential element of the nonmoving party's case or by showing that the nonmoving party has no reasonable expectation of proving an essential element of its case at trial. Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). The court assumes that all of the facts set forth in the nonmoving party's affidavits are true and that any inferences favorable to the nonmoving party should be drawn. Coveney v. President & Trustees of College of Holy Cross, 388 Mass. 16, 17 (1983). In addition, a "court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had." Mass.R.Civ.P. 56(f).


In support of its motion for summary judgment on Fisher's claim against it, SGH argues that because SGH did not owe Fisher a duty of care, a necessary element of Fisher's negligence claim against SGH, summary judgment must be entered in favor of SGH. See generally Lyons v. Morphew, 424 Mass. 828 (1997). The existence of a duty of care is a question of law. Id. at 836; Yakubowicz v. Paramount Pictures Corp., 404 Mass. 624, 629 (1989), citing Thieriault v. Pierce, 307 Mass. 532, 533 (1940) ("there can be negligence only when there is a duty to be careful"); Ramsey Constr. Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315, 321 (10th Cir. 1980) (requiring proof that architect owed a duty to plaintiff, such as by managing and coordinating construction work, for plaintiff to prevail on negligence claim). In considering whether architects, engineers, or other design professionals have a duty with regard to the safety of workers on a construction project, courts look to the agreement between the design professional and the owner, as well as to other contract documents. Parent v. Stone & Webster Eng. Corp., 408 Mass. 108, 113 (1990).

SGH had no contractual relationship with Spinelli, Brisk, or Fisher. Under the terms of the Owner/Architect Agreement and other contract documents, SGH was not responsible for safety in connection with the work; safety was the sole responsibility of Spinelli, as was the specific responsibility for de-energizing the electrical conduit embedded in the concrete slab. (Exs. 2, 4, 5, 7.)

The majority of jurisdictions hold that a design professional on a construction project who has no privity with a contractor or subcontractor is not responsible for the safety of construction workers at the work site, absent additional elements not present in this case. See, e.g., Romero v. Parkhill, Smith & Cooper, 881 S.W.2d 522, 525-27 (Tex.Ct.App. 1994) (engineering firm did not owe duty to employee of subcontractor who was injured at work site where owner/engineer contract provided that engineer was not responsible for the means and methods of the contract and the construction contract specifically provided that the contractor was responsible for the means, method, and safety precautions of the project).2

Fisher responds that a party in the position of SGH owes a duty to workers at the site, if it had prior knowledge of a hazardous condition, and/or if its supervisory responsibility exceeded an obligation to inspect on behalf of the owner of a structure to assure compliance with plans and specifications. Fisher further argues that affirmative acts of misfeasance by an architect may create a duty of care. Frank D. Wagner Annotation, ...

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