Opinion
09-P-2030
09-14-2011
NICHOLE KURKER, executrix, v. WINCHESTER REALTY ASSOCIATES & others ; KONE, INC., & FROMMELT DOCK & DOOR, INC., third-party defendants.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Nichole Kurker, executrix of the estate of Phyllis Kurker, appeals from a judgment entered pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 820 (1974), dismissing her negligence claims against various defendants upon their motions for summary judgment in Superior Court. On appeal, the plaintiff argues that summary judgment was improper with respect to all of the defendants, since each had a duty to either disable, maintain, or repair the vertical reciprocating conveyor (VRC or lift) involved in the decedent's accident or to warn Stop & Shop supermarket of the hazard.
The VRC in question was located at the back of a Stop & Shop supermarket in Winchester and was used to transport stock between the first floor and the basement. The car of this lift consisted of a platform and two side walls with a gap of approximately four feet between the platform of the lift and the back of the elevator shaft. At the time of the accident, there was no rear barrier on the platform. A warning sign affixed to the lift read, 'PERSONNEL PROHIBITED: This conveyor is designed and intended for the transporting of material only. Personnel are prohibited from riding.'
At the time of the lift's installation, the supermarket was named Purity Supreme.
Phyllis Kurker was an employee at the Winchester Stop & Shop. While at work on December 21, 2004, Kurker fell off of the VRC and down the lift's shaft, suffering severe head injuries. Kurker tragically died from those injuries on March 31, 2005.
On the decedent's behalf, the plaintiff brought negligence actions against each of the defendants, including Winchester Realty Associates (Winchester); Southworth Products Corporation (Southworth); Hontz Lift Company, Inc. (Hontz) ; and United Properties Group (United). Stop & Shop contracted with Hontz to make repairs on the lift as needed. Winchester was the owner of the property and had leased it to Stop & Shop, while United was responsible for managing the property. Southworth was the designer of the VRC. Summary judgment was allowed in favor of all four defendants.
Hontz, in turn, brought KONE, Inc., and Frommelt Dock & Door, Inc., into the case as third-party defendants.
The plaintiff originally brought suit against Stop & Shop Supermarket Co. However, the plaintiff's claims against Stop & Shop were dismissed (with leave to amend) because they were barred by workers' compensation law.
Discussion. We review a grant of summary judgment de novo, to determine 'whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.' District Attorney for the N. Dist. v. School Comm. of Wayland, 455 Mass. 561, 566 (2009), quoting from Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). In doing so, 'We may consider any ground supporting the judgment.' Augat, Inc., supra.
To sustain her negligence claim against each defendant, the plaintiff needs to establish that the defendant owed her a duty of reasonable care, that the defendant breached this duty, and that the breach proximately caused her injuries. See Jupin v. Kask, 447 Mass. 141, 146 (2006); Docos v. John Moriarty & Assocs., 78 Mass. App. Ct. 638, 640 (2011). Whether such a duty exists is a question of law. Jupin, supra. We will address the plaintiff's arguments against each of the defendants in turn.
1. Hontz. The plaintiff contends that Hontz had an obligation to inform Stop & Shop of the lift's hazardous condition or to disable the VRC. We note the general principle that a 'contractor . . . must conform to . . . industry standard practices, rules set by applicable Federal or Massachusetts regulations, and its own company policies on safety, including any contractually assumed obligations.' Docos, 78 Mass. App. Ct. at 642 n.8. As a preliminary matter, the question is whether Hontz owed the plaintiff a duty of care, and, if so, the scope of that duty.
While the plaintiff claimed in the trial court that there was a regulatory and statutory source of Hontz's duty, that argument has been waived on appeal.
Hontz's obligation to the plaintiff was measured by the terms of its contract with Stop & Shop. See Banaghan v. Dewey, 340 Mass. 73, 80 (1959); Parent v. Stone & Webster Engr. Corp., 408 Mass. 108, 113-114 (1990). According to its service agreement with Stop & Shop, Hontz was to 'provide elevator maintenance . . . and such other services as assigned by Stop & Shop . . . in a good and workmanlike manner.' Nothing in the agreement specifically required Hontz to inspect for safety hazards or to advise Stop & Shop of the lift's design defects. Contrast Banaghan, 340 Mass. at 76 (elevator company had agreement to 'maintain, repair and inspect the elevator' and 'orally agreed with the owners [of the building] to maintain the elevator in 'A-1 safe condition''). Moreover, Hontz was not retained to provide general maintenance on a periodic basis. Contrast ibid. (elevator company 'rendered monthly statements to the [building owners] for 'oiling and inspection'').
The contract did, however, further specify that 'Hontz agrees to perform elevator maintenance . . . in accordance with the highest quality standards in its industry.' Thus, evidence of custom or trade practice is relevant to a determination whether Hontz complied with the legal standard of 'reasonable or ordinary care under the circumstances.' Upham v. Chateau de Ville Dinner Theatre, Inc., 380 Mass. 350, 354 (1980). While Hontz contends that it did not have a duty to warn of any danger presented by the gap or to take other action because it was an open and obvious condition, the plaintiff presented expert evidence that under industry practice, there was such a duty. , See Docos, 78 Mass. App. Ct. at 642 n.8 ('If the summary judgment record contains specific facts showing a failure to comply with standard industry practices . . . then a general contractor . . . cannot rely on the open and obvious danger rule to negate its duty of care'). Indeed, the motion judge, referencing American Society of Mechanical Engineers (ASME) standard B20.1-2003, 'Safety Standards for Conveyers and Related Equipment,' noted that 'Hontz may or may not have strayed from the industry standard.'
The plaintiff does not argue that the problem with the lift was latent or otherwise difficult to discover, instead describing the gap as a 'clear safety hazard posed by the lift.'
We note that 'there is, in general, no duty to warn unless the person on whom the duty would be cast has some reason to suppose that a warning is needed.' Currie v. Lee Equip. Corp., 362 Mass. 765, 769 (1973), quoting from Cadogan v. Boston Consol. Gas Co., 290 Mass. 496, 499-500 (1935). See Currie, supra (mechanic 'was under no obligation to instruct . . . company experienced in the operation of the hoist[] in the use of safety precautions against hazards unrelated to the defect which he was called upon to repair'). See also Slate v. Bethlehem Steel Corp., 400 Mass. 378, 382 (1987) ('plaintiffs failed to present evidence that [repairer] knew of a danger that [employee] did not appreciate'); Ramcharran v. Carint, S.R.L., 823 F. Supp. 63, 66 (D. Mass. 1993). Contrast Rosado v. Boston Gas Co., 27 Mass. App. Ct. 675, 679-680 (1989) ('When the gas company is on notice of a defect with potential for carbon monoxide poisoning it has a duty to call the defect to the customer's attention, to describe the consequences, and to turn off the gas until the appliance is fixed').
The plaintiff presented an affidavit from Joseph E. Morrissey, an elevator consultant and past president of the Massachusetts Elevator Safety Association, with over forty years of experience in the industry, who stated:
'In my opinion, any licensed elevator mechanic, or other person engaged in the repair, installation or servicing of a VRC, such as the VRC located at Stop and Shop, should have recognized that the VRC was unsafe because it lacked any fall protection at the rear of the platform to prevent personnel from falling into the shaftway. Such a person servicing this VRC should have recognized that the VRC did not meet the minimum requirements of ASME B20.1 because there was no adequate back-stop panel located at the rear of the platform when positioned at the first floor to prevent personnel from falling into the shaftway. Such a person servicing this VRC should have shut the VRC down, i.e., pulling fuses, and notified Stop and Shop, in writing, of the unsafe conditions of the VRC.'For the reasons set forth above, in my opinion, Hontz's employees failed to exercise the degree of care and skill of a licensed elevator mechanic or other person qualified to provide repair and service to VRCs, such as the VRC located at Stop and Shop, in accordance with the standards and practices of the profession and industry standards, and failed to recognize that the VRC did not meet the minimum requirements of ASME B20.1 and OSHA standards regarding fall protection' (emphasis added).
James Galante, the director of business development at Southworth, and vice chair of an American Society of Mechanical Engineers committee that deals with safety standards for VRCs, testified in his deposition that 'The VRC at Stop & Shop was not meeting the requirements of the standard ASME B20.1 for the industry accepted guidelines. . . . It is obvious to anyone walking on the platform, and especially to such service technicians that would work in the industry, in the material handling industry, that there was a hazard without a back-stop panel on this platform at the upper landing. . . . I can't imagine someone not seeing this platform as dangerous without a back-stop panel.'
Galante further testified that in the course of his work he had seen other VRCs that were not properly guarded on all sides and that he disabled these lifts by pulling fuses out of the panels and advised the relevant parties that this was unsafe. In his view, pursuant to industry practice, a company servicing the VRC here 'knew, or should have known, that [it] was in the presence of a piece of equipment that had been installed in an unsafe manner and should have taken action to bring the unsafe condition to the attention of Stop & Shop' (emphasis added).
Based on our review of the record, we conclude that the plaintiff presented sufficient expert evidence on Hontz's failure to comply with the standard of reasonable conduct in the elevator repair industry to survive summary judgment. Contrast Pongonis v. Saab, 396 Mass. 1005, 1005 (1985) (directed verdict in legal malpractice case appropriate where no expert testimony was presented that attorney failed to meet the standard of care). Since the summary judgment record reveals that there is a fact question as to whether Hontz complied with the relevant industry standard of care, the judgment against Kurker must be vacated insofar as it dismissed Kurker's claims against Hontz.
The summary judgment record also presents the question whether Hontz's own internal safety policy supports a duty to warn or disable. Stephen Gibbs, the former general manager at Hontz, testified that it was Hontz's standard operating procedure, albeit unwritten, that if a Hontz mechanic during a service visit, saw 'a situation that . . . someone [using the equipment] could be injured or worse, . . . they would shut it down, advise the office, and notification would begin.'
Since Hontz's third-party claims for contribution from Frommelt Dock & Door, Inc. (Frommelt), and KONE, Inc. (KONE), were dependent upon a finding of negligence by Hontz, the judgments for Frommelt and KONE on Hontz's contribution claims also must be vacated.
2. Winchester and United. The plaintiff contends that Winchester, as owner of the property, had a duty to maintain the lift in a safe condition. The plaintiff also alleges that United, as Winchester's agent, had the same duties as Winchester. '[A] lessor of commercial premises is liable in tort for personal injuries only if either (1) he contracted to make repairs and made them negligently, or (2) the defect that caused the injury was in a 'common area,' or other area appurtenant to the leased area, over which the lessor had some control' (emphasis added). Humphrey v. Byron, 447 Mass. 322, 328-329 (2006), quoting from Chausse v. Coz, 405 Mass. 264, 266 (1989). There is no indication that Winchester or United contracted to make repairs to the lift in question. Furthermore, as correctly noted by the motion judge, Winchester leased the entire premises to Stop & Shop, and did not retain control over the lift or the area in which the accident occurred. This 'net lease' placed the burdens of ownership, including the responsibility to keep the premises safe, on Stop & Shop. See Agustynowicz v. Bradley, 25 Mass. App. Ct. 405, 408 (1988). There was therefore no error in the allowance of summary judgment in favor of Winchester and United.
The plaintiff contends that the precepts of Humphrey do not apply here, since Winchester and United had a statutory duty under 524 Code Mass. Regs. § 7.01 (1998) to maintain the lift. However, assuming arguendo that these elevator maintenance regulations applied to the VRC in question, any duty to maintain the lift imposed on Winchester and United was passed on to Stop & Shop by the terms of the lease. See G. L. c. 143, § 62A, as appearing in St. 1985, c. 687, § 1 (fees for inspections shall be paid by '[t]he owner or person in control of a building in which an elevator is operated'); G. L. c. 143, § 64, as appearing in St. 2004, c. 149, § 182 ('[t]he owner or person in control of a building in which the elevator is located shall arrange for . . . inspection[s]').
3. Southworth. The plaintiff argues that the motion judge erred in determining that Southworth was a protected actor under the statute of repose in G. L. c. 260, § 2B. Specifically, the plaintiff contends that Southworth did not provide 'particularized services' with respect to the VRC. '[Section 2B] was intended not to apply to mere suppliers of standardized products, but only to the kinds of economic actors who perform acts of ' individual expertise' akin to those commonly thought to be performed by architects and contractors -- that is to say, to parties who render particularized services for the design and construction of particular improvements to particular pieces of real property.' Rosario v. M.D. Knowlton Co., 54 Mass. App. Ct. 796, 800 (2002), quoting from Dighton v. Federal Pac. Elec. Co., 399 Mass. 687, 696, cert. denied, 484 U.S. 953 (1987). We must therefore determine whether Southworth 'acted as a materialman or supplier rather than an architect, engineer, contractor, surveyor or some other protected actor.' Snow v. Harnischfeger Corp., 12 F.3d 1154, 1159 (1st Cir. 1993), cert. denied, 513 U.S. 808 (1994). See Rosario, supra at 800-801. In making this determination, we 'must consider the motivation of the actor in producing the improvement. If the actor designed the improvement for public sale or for general use, then the actor is not protected because the actor is engaged in the activity of creating a fungible product. If, however, the improvement is produced for a particular project and to the specifications of an architect or an engineer, [G. L.] c. 260, § 2B[,] may protect the actor as someone engaged in the activity of designing a particularized improvement.' Id. at 801, quoting from Snow, supra at 1160.
General Laws c. 260, § 2B, as amended through St. 1984, c. 484, § 53, provides in relevant part:
'Action of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property . . . shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner.'
Here, the VRC was produced by Southworth for a particular project, namely the installation of the lift at a specific Purity Supreme supermarket. Furthermore, the VRC was designed in accordance with specifications supplied to it by Loading Dock Equipment, Inc., its distributor. The lift was not designed for general use, evidenced by the fact that its capacity, power options, and vertical travel capabilities were all tailored for use at Purity Supreme. Thus, much like the defendant in Rosario, Southworth provided a 'custom-designed product' that was not 'off the shelf.' Rosario, supra at 801. Accordingly, although the platform appears not to have been tailored to and did not completely fill the elevator shaft, we are constrained by Rosario to conclude that Southworth 'rendered particularized services in connection with the design and construction of the lift,' and therefore is entitled to protection under the statute of repose. Ibid.
Conclusion. The judgment dismissing Kurker's complaint is vacated as to Hontz; in all other respects, the judgment is affirmed. The judgments dismissing Hontz's third-party complaints as to Frommelt and KONE are vacated. The matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Trainor, Katzmann & Rubin, JJ.),