St. Germaine v. Pendergast

• Decision Date: 14 January 1992
• Citation: 411 Mass. 615,584 N.E.2d 611
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Francis X. ST. GERMAINE, Third & others 1 v. Michael E. PENDERGAST & others. 2

Page 611

584 N.E.2d 611

411 Mass. 615

Francis X. ST. GERMAINE, Third & others ¹ v. Michael E. PENDERGAST & others. ²

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued Oct. 10, 1991.

Decided Jan. 14, 1992.

Paul W. Shaw, Boston (Dale C. Schneider with him), for plaintiffs.

Brian J. Mone, Brockton (George E. Clancy with him), for Michael E. Pendergast.

James W. Stone, Needham, for Edmund V. Lacey & another.

James H. Tourtelotte & Nancy Frankel Pelletier, Springfield, for Doane & Williams, Inc., amicus curiae, submitted a brief.

Before LIACOS, C.J., and WILKINS, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

The plaintiff, Francis X. St. Germaine, III (Kip), ³ brought an action in the Superior Court against the defendant, Michael E. Pendergast, seeking to recover damages for personal injuries received when a wall being erected in connection with the construction of a single family home for Pendergast fell on him. ⁴ Kip's parents, the plaintiffs Francis X. St. Germaine, Jr., and Bette J. St. Germaine (St. Germaines), sought in the action to recover for the loss of filial consortium of their son pursuant to G.L. c. 231, § 85X (1990 ed.), from Pendergast and his employer, Lacey & Lacey.

As far as now relevant, the plaintiffs sought recovery on three claims. The plaintiffs' first claim was based on common law and alleged essentially that Pendergast had negligently failed to ensure that the construction of the home was conducted in a safe manner. A second claim alleged liability based on violations of the State Building Code and related provisions of law. In this claim, the plaintiffs asserted that Pendergast was liable for damages under the provisions of G.L. c. 143 § 51 (1990 ed.). In addition, the plaintiffs asserted that Pendergast, by acting as his own contractor and obtaining a building permit and other documents, in his own name to construct the home, voluntarily assumed the role of a [licensed] "construction supervisor" and "general contractor," which made him responsible for any violations by Lacey & Lacey of the State Building Code and related regulations. In a third claim, the St. Germaines alleged that Lacey & Lacey's negligence and violations of law had caused them the loss of filial consortium.

A judge of the Superior Court allowed Pendergast's motion for summary judgment as to the theories encompassed in the second claim described above. The remaining common law negligence and consortium claims were tried to a jury before a different judge of the Superior Court. The jury found that Pendergast had not been negligent, and that Lacey & Lacey had been negligent and was liable to the St. Germaines for loss of filial consortium. The plaintiffs appeal from the entry of summary judgment and from the judgment on the jury verdict finding that Pendergast was not negligent. Lacey & Lacey appeals from the judgment finding it liable for loss of filial consortium. We transferred the case to this court on our own motion. We affirm the judgment for Pendergast and reverse the judgment against Lacey & Lacey.

The evidence provides the following background. On November 18, 1988, Pendergast filed both an application for a building permit and a homeowner license exemption form with appropriate officials of the town of Falmouth to construct a single family home on his property. The homeowner license exemption allowed Pendergast to proceed with the construction of his home without hiring a general contractor or a licensed construction supervisor. See 780 Code Mass.Regs. § 109.1.1. ⁵ Pendergast received his building permit in due course. He proceeded to hire several subcontractors to perform various aspects of the work, including Lacey & Lacey to perform the rough framing. As has been mentioned, Kip was employed by Lacey & Lacey as a laborer. On June 15, 1989, after about one week of work on the project, the Lacey & Lacey crew had completed framing and sheathing the end walls, with attached gable ends on the second floor. The eight-man crew lined up in a row and began to lift a wood frame gable end wall into place using the "curl and press" method. ⁶ As the crew began the process of lifting the wall, they noticed that it was top heavy and decided to bring it back down. While bringing the wall down, the crew lost control of it. The wall fell on Kip, trapping him beneath it. The accident rendered Kip a paraplegic.

1. Summary judgment--G.L. c. 143, § 51. Summary judgment for Pendergast removed the plaintiffs' claim that he was liable for damages under G.L. c. 143, § 51 (1990 ed.). ⁷ The plaintiffs argued, in substance that Pendergast as "the owner" of a "building" was liable for violations of the State Building Code and other regulations allegedly committed by Lacey & Lacey by reason of its failure to provide a safe workplace and working conditions for their employees. See 780 Code Mass. Regs. § 3000.6; 454 Code Mass.Regs. § 10.03(1)(a) and (b).

General Laws c. 143, § 51, can, in appropriate circumstances, provide a basis for civil liability in damages. See Repucci v. Exchange Realty Co., 321 Mass. 571, 74 N.E.2d 14 (1947). It is apparent, however, from the specific types of structures mentioned in § 51 ("place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment"), and the definition contained in G.L. c. 143, § 1 (1990 ed.), for the general term "building," ⁸ that § 51 is not meant to apply to a single family home that is under construction. Summary judgment was correctly granted on this claim. ⁹

2. Summary judgment--State Building Code and other provisions. There was also removed from the case by summary judgment for Pendergast the plaintiffs' claim that provisions of the State Building Code allowing a homeowner an exemption from the requirement of hiring a licensed construction supervisor, see note 5 supra, and the terms of the homeowner license exemption received by Pendergast imposed all of the duties of such a supervisor on him, and further that, by taking out a building permit in his own name, Pendergast assumed all of the duties imposed on a general contractor under the State Building Code, including the duty to provide a safe workplace. Thus, the plaintiffs argue (according to their reply brief) that "these [provisions and documents] ... defined the scope of the duty owed by the person who assumes the role of a construction supervisor or contractor and impose on those persons a non-delegable duty to assure compliance with the State Building Code.... As such, the regulations expand on the common law duty of a homeowner to maintain property in a safe condition...."

We reject, as an initial matter, the notion that any of the provisions of the Building Code and other rules and regulations relied on by the plaintiffs create a new duty making a homeowner liable for violations of the State Building Code. "We do not construe a safety statute to establish a new civil cause of action without express terms or clear legislative intent to that effect." Lindsey v. Massios, 372 Mass. 79, 84, 360 N.E.2d 631 (1977), citing Richmond v. Warren Inst. for Sav., 307 Mass. 483, 485, 30 N.E.2d 407 (1940). See also Perry v. Medeiros, 369 Mass. 836, 841, 343 N.E.2d 859 (1976); Dolan v. Suffolk Franklin Sav. Bank, 355 Mass. 665, 667, 246 N.E.2d 798 (1969). Nor do violations of a statute or regulations constitute negligence per se; they are only some evidence of negligence. See MacDonald v. Ortho Pharmaceutical Corp., 394 Mass. 131, 139-140, 475 N.E.2d 65 (1985); LaClair v. Silberline Mfg. Co., 379 Mass. 21, 28, 393 N.E.2d 867 (1979); Perry v. Medeiros, supra at 841, 343 N.E.2d 859.

The various provisions of the State Building Code and other rules and regulations relied upon by the plaintiffs could be considered as evidence of negligence with regard to duties imposed by common law on Pendergast, a point recognized by the trial judge and explained in his jury instructions (which we shall discuss in a moment). Those sources, however, did not create a new "non-delegable duty" to assure compliance with the State Building Code.

Language in the homeowner license exemption that the homeowner is "responsible" for compliance with the State Building Code, is to be understood in light of the additional provision in the document that the homeowner act as a "supervisor" of the construction and "agree[ ] to be present on the site at some point to approve construction ... involving ... Rough framing [and] Finished framing...." This language also does not create a new "non-delegable" duty, or impose on Pendergast the role of a licensed construction supervisor. As the regulations governing a licensed construction supervisor make clear, see 780 Code Mass.Regs. §§ 1.1-3.5, a person holding such a license is a highly trained individual, with at least three years of experience, whose practice is regulated by the Board of Building Regulations and Standards. A homeowner building his own home under an exemption is recognized by the State Building Code as a nonexpert, see note 5, supra, who is involved only in periodic supervising of a less complex construction job. The terms of the homeowner license exemption constituted evidence as to whether Pendergast acted properly in monitoring his subcontractors. Similarly, the building permit did not impose on Pendergast any duties that might apply to an experienced general contractor. Summary judgment for Pendergast was proper on the plaintiffs' claims discussed above, and the case was correctly put to the jury on theories of common law negligence.

3. Jury instructions. The plaintiffs claim that the trial judge erred in refusing to instruct the jury to hold Pendergast to the standard of a reasonable contractor and licensed construction supervisor. The plaintiffs also argue that the judge should not have instructed the jury in accordance with the principles set forth in Corsetti v. Stone Co., 396 Mass. 1, 483 N.E.2d 793 (1985), concerning the...