Powers v. Bethlehem Steel Corporation, No. 72-1197

• Decision Date: 23 August 1973
• Docket Number: 72-1198.,No. 72-1197
• Citation: 483 F.2d 963
• Parties: Donald E. POWERS, Plaintiff, Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant, Appellee, v. McKIE LIGHTER CO., INC., Defendant, Appellee. Donald E. POWERS, Plaintiff, Appellant, v. McKIE LIGHTER CO., INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

483 F.2d 963 (1973)

Donald E. POWERS, Plaintiff, Appellant, v. BETHLEHEM STEEL CORPORATION, Defendant, Appellee, v. McKIE LIGHTER CO., INC., Defendant, Appellee.

Donald E. POWERS, Plaintiff, Appellant, v. McKIE LIGHTER CO., INC., Defendant, Appellee.

Nos. 72-1197, 72-1198.

United States Court of Appeals, First Circuit.

Submitted July 26, 1973.

Decided August 23, 1973.

Michael B. Latti, Boston, Mass., with whom Robert S. Wolfe and Kaplan, Latti & Flannery, Boston, Mass., were on brief, for appellant.

Leo F. Glynn, Boston, Mass., for appellee, McKie Lighter Co., Inc.

Charles E. Colson, Boston, Mass., with whom Cargill, Masterman & Cahill, Boston, Mass., was on brief, for appellee, Bethlehem Steel Corp.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

CAMPBELL, Circuit Judge.

Appellant has filed a motion for recall of mandate alleging that our decision of April, 1973, 477 F.2d 643 (1st Cir. 1973), denying relief for injuries incurred in the course of employment, should be reexamined in light of Mounsey v. Ellard, 1973 Mass.Adv.Sh. 871 (Sup.Jud.Ct. June 6, 1973), 297 N.E.2d 43, decided two months later by the Supreme Judicial Court of Massachusetts. Study of the Mounsey decision reveals that the mandate should stand.

We affirmed judgment for defendants on the basis of a longstanding Massachusetts doctrine maintaining that a landowner's duty to his employees or employees of an independent contractor is only to disclose hidden defects, not to repair obvious conditions in an unsafe work area. Burr v. Massachusetts Electric Co., 356 Mass. 144, 147, 248 N.E.2d 492, 495 (1969). Mounsey does not discuss employees or the duty owed to them.

The Supreme Judicial Court abolished the common law distinction between licensees and invitees, enlarging the class of persons toward whom the standard of reasonable care is owed. The plaintiff in Mounsey was an injured police officer denied recovery because public employees on private land have been considered licensees, and therefore, merely owed the duty to refrain from inflicting wanton and willful injury. The appellant in the instant case was, on the other hand, always regarded as an invitee.

Appellant relies on the Massachusetts court's formulation of one standard for all but trespassers: "reasonable care in all the circumstances", but this phrase according to the Mounsey court was not intended to change the traditional standards of negligence in the invitee area. 1973 Mass.Adv.Sh. at 886, 297 N.E.2d at 52. Furthermore, the court's own description of the duty now owed to an invitee would not justify reconsidering our opinion: ". . . it could be found that the defendants were under an obligation to warn the policeman of the dangers known to the defendants. . . ." 1973 Mass.Adv. Sh. at 887, 297 N.E.2d at 53.

Even if Mounsey had made a relevant change the Supreme Judicial Court did not indicate that the new rule should be applied retroactively. Courts generally do not abolish clear precedent retroactively when the parties may have relied upon the prior formulation of obligations. See Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); Trala v. Shea, 335 F.Supp. 81 (D.Mass.1971). The Massachusetts court rejected a rule dating back to English common law, and the interpretation advanced by appellant would force employers to compensate for obvious conditions, thereby imposing a radical change in their legal obligations —a change not explicitly discussed by the Supreme Judicial Court nor even implicit in its decision.

The Supreme Judicial Court's decision in Colby v. Carney Hospital, 356 Mass. 527, 254 N.E.2d 407 (1969), to abolish charitable immunity in the next relevant case that came before it was applied only with respect to injuries occurring after the date of the Colby decision, and not with respect to injuries that may have occurred after the date of the accident in Colby. Trala, supra. Yet appellant would have us apply Mounsey to his case because his injury occurred after the injury...