LeBlanc v. Venture

• Decision Date: 30 August 2012
• Docket Number: SJC–11008.
• Citation: 463 Mass. 316,974 N.E.2d 34
• Parties: Kelly A. LeBLANC, administratrix, v. LOGAN HILTON JOINT VENTURE & others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

463 Mass. 316

974 N.E.2d 34

Kelly A. LeBLANC, administratrix,¹

v.LOGAN HILTON JOINT VENTURE & others.²

SJC–11008.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued April 2, 2012.

Decided Aug. 30, 2012.

Kenneth B. Walton (Patricia B. Gary with him), Boston, for Cosentini Associates–MA, LLP.

Matthew M. O'Leary (Jay S. Gregory with him), Boston, for Cambridge Seven Associates, Inc.

Curtis L.S. Carpenter, Boston, for Logan Hilton Joint Venture.

William P. Rose, New York, NY, for Broadway Electrical Co., Inc.

Present: IRELAND, C.J., SPINA, BOTSFORD, & GANTS, JJ.

GANTS, J.

On August 4, 2004, Roger M. LeBlanc (LeBlanc), an electrician employed by the Massachusetts Port Authority (Massport), was killed by electrocution while attempting to repair an electrical transformer at the Logan Airport Hilton Hotel (hotel) in Boston. Kelly A. LeBlanc (plaintiff), as administratrix of her husband's estate, filed suit in the Superior Court against, among others, the owner of the hotel, the Logan Hilton Joint Venture (Hilton); the architect that designed the hotel, Cambridge Seven Associates, Inc. (Cambridge Seven); the consultant Cambridge Seven retained to provide electrical engineering services, Cosentini Associates–MA, LLP (Cosentini); and the construction subcontractor for electrical services, Broadway Electrical Co., Inc. (Broadway), alleging negligence, gross negligence, and breach of warranty. Hilton and Broadway filed cross claims against Cambridge Seven and Cosentini for indemnification and contribution. On October 12, 2007, a judge in the Superior Court granted the motion for summary judgment brought by Cambridge Seven and Cosentini as to the complaint and cross claims, and ordered the entry of separate and final judgment. The plaintiff, Hilton, and Broadway moved for reconsideration; their motions were denied on May 7, 2008. After separate and final judgment entered on August 21, 2008, Hilton and Broadway timely appealed from the grant of summary judgment as to their cross claims. The Appeals Court affirmed the grant of summary judgment as to Broadway's cross claim for indemnification, but reversed as to the remainder of the cross claims and remanded to the Superior Court. LeBlanc v. Logan Hilton Joint Venture, 78 Mass.App.Ct. 699, 713, 942 N.E.2d 970 (2011)( LeBlanc ). We granted Cambridge Seven's and Cosentini's applications for further appellate review.³ We affirm the judge's grant of summary judgment on behalf of Cambridge Seven and Cosentini as to the cross claims brought by Hilton and Broadway for indemnification but reverse as to the cross claims for contribution.

Background. In reviewing the grant of a motion for summary judgment, we conduct a de novo examination of the evidence in the summary judgment record, see Miller v. Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007), and view the evidence in the light most favorable to the parties opposing summary judgment, here, Hilton and Broadway. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). Therefore, we recite the facts in the light most favorable to Hilton and Broadway.

1. Facts. a. Agreement to provide architectural services. Hilton and Cambridge Seven executed an agreement in which Cambridge Seven was to provide architectural services to Hilton for construction of the hotel (agreement). Under the agreement, Cambridge Seven was to provide various professional services, including architecture, technical specification writing, coordination of consultants' services, and electrical engineering. It was to prepare “Design Development Documents” for the hotel consisting of “drawings, specifications and other documents which fix and describe the expected final size and character of [the] Project,” including “electrical systems materials.” Among the “Design Development Documents” it was to deliver were a “[p]reliminary layout of switchgear, transformer and generator placement,” and “[o]utline [s]pecifications.” Based on the “Design Development Documents,” it was to prepare final “Construction Documents,” including plans for the design of electrical systems and “[f]inal electrical specifications.”

Once the construction phase of the project began, Cambridge Seven was to “visit the site at intervals appropriate to the stage of construction to become familiar with the progress and quality of Work and to determine, in general, if Work is being performed in accordance with the Construction Documents.” The agreement specified that Cambridge Seven was not required “to make exhaustive or continuous on-site inspections to check quality or quantity of Work.” ⁴ Cambridge Seven was required to “[s]ubmit written reports to Hilton every two weeks recording [Cambridge Seven's] observations at the construction Site as to the progress and quality of the Work.” In addition, the agreement stated: “In particular, [Cambridge Seven] shall promptly inform Hilton in writing of any deficiencies in Work and/or deviations from the requirements of the Construction Contract which come to [Cambridge Seven's] attention.”

When the project was substantially completed, Cambridge Seven was to “prepare a punch list of all incomplete and/or unacceptable systems and/or construction items for all trades, which must be corrected prior to Final Completion.” It was then to “ascertain the satisfactory completion by [the general contractor] of all punch list items for purposes of Final Completion.”

Cambridge Seven was entitled to retain the professional consultants it deemed necessary to provide the services required under the agreement, but was responsible for their proper performance of services as if these services were performed by its own employees.

The agreement included the following provision, § 2.1.9, limiting Cambridge Seven's responsibilities:

“Notwithstanding anything in this Agreement which may indicate otherwise, [Cambridge Seven] shall not be deemed to have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with Work being performed at Site. [Cambridge Seven] shall not be responsible for [the general contractor's] schedules or [the general contractor's] failure to carry out Work in accordance with the Construction Contract. [Cambridge Seven] shall not have control over or charge of acts or omissions of [the general contractor], its subcontractors, vendors or their respective agents or employees, or of any other persons performing portions of Work on behalf of [the general contractor]....”

The agreement also provided that Cambridge Seven would indemnify Hilton from and against all claims “arising out of and to the extent caused by the negligent acts, errors or omissions during the performance of professional services” under the agreement by it or its consultants provided that the claims did not “result from the negligent acts or omissions of the Indemnitees or other parties for whom [Cambridge Seven] is not responsible.” ^5,6

b. The switchgear. The Appeals Court ably described the electrical transmission equipment known in the industry as the “switchgear” at the hotel, and how the absence of instruction regarding its operation led to LeBlanc's death:

“For commercial consumers of high voltage electricity, it provided surge protection, measurement of current, and, in the configuration employed at the hotel, it switched or converted the flow of electricity from one distribution source to an alternate distribution source in the event of a power outage. Two transformers served the hotel. They reduced high voltage to low voltage as the electricity entered the building. A transformer failure could cause an outage. If one distribution line became inoperable, the gear switched the incoming flow to anotherline so as to preserve delivery and measurement of the supply.

“At the hotel, ten cabinets housed the switchgear. From left to right, they carried numbers 1 through 10. Cabinet 1 at the left end of the formation contained a main incoming feeder and an external parallel cable connection to a ‘tie switch’ in cabinet 9. Cabinet 10 at the right end of the row contained a main incoming feeder and an external parallel cable connection to a ‘tie switch’ in cabinet 2. In normal operation, electricity ran from the incoming feeder to cabinet 1, through cabinet 1, and through the external connection to cabinet 9. Electricity ran also from the incoming feeder to cabinet 10, through cabinet 10, and through the external connection to cabinet 2. The electricity would then pass through metering devices and into the hotel. The external connections enabled the alternate routes of flow.

“The switchgear brought with it the danger of two live currents of electricity known as the ‘backfeeder hazard.’ Without adequate warning of the presence of two live lines of power, an electrical worker might assume that the suppression of one line eliminated all live flow through the equipment. As one safety measure, a switchgear cabinet system could employ an interlocking key system designed to prevent access to an energized cabinet. As a separate warning system, the face of the cabinets could bear an explanatory diagram known as a ‘mimic bus' and signage text alerting workers to the presence of the hazard. Here, the switchgear cabinets had an interlocking key system designed to prevent access to energized compartments. When LeBlanc arrived at the switchgear for maintenance purposes on August 4, 2004, all the doors on the switchgear cabinet were opened, so as to bypass the interlocking key system. No warning diagram or text appeared on the face of the switchgear cabinets. LeBlanc suffered electrocution when he opened cabinet 1 and touched the gear.”

LeBlanc, supra at 703–704, 942 N.E.2d 970.

c. Specifications for the warning signage. One specification for the switchgear required that it have a stenciled “mimic bus” diagram on the face of the cabinets that showed...