Opinion
No. 030693.
Memorandum Dated March 4, 2005.
After hearing, and upon review and consideration, the defendant Gutierrez Company's motion for summary judgment is ALLOWED.
The plaintiffs, Jeanine and Anthony Rolli, brought this action against multiple defendants alleging negligent construction and maintenance of a building located at 30 Mall Road, Burlington, MA (the "building") and owned by defendant Burlington Residences, LLC ("Burlington"). The plaintiffs contend that the defendants' negligence in installing and maintaining the building's gutter system resulted in an unnatural accumulation of ice on which Jeanine Rolli slipped and fell, and sustained physical injuries. The plaintiffs argue that one of the defendants, the Gutierrez Company ("Gutierrez"), was responsible for facilitating the construction of the building, and, therefore, is liable for any injuries that can be attributed to the negligent installation of the gutter system. Gutierrez maintains that the plaintiffs' negligence claim against it is barred because it had no duty to third parties while acting as an agent for Burlington during the course of construction of the building. The plaintiffs counter that Gutierrez's contractual right to stop unsatisfactory work imposed upon it a duty to insure that the building was constructed in a manner that would not cause injury to a third party.
Gutierrez also argues that it was at no time responsible for the maintenance and care of the building after the completion of construction. This argument appears to be in response to the plaintiffs' assertion that Gutierrez was the owner of the building. However, at the hearing on this motion the plaintiffs conceded that Gutierrez was not the owner of the building, and, therefore, there is no claim of negligent maintenance.
As an agent, Gutierrez is not relieved of liability for its tortious acts simply because it acted on account of its principal or at its command. Lyon v. Morphew, 24 Mass. 828, 832 (1997), citing Restatement (Second) of Agency § 343 (1958). If an agent's conduct involves a duty imposed by law to a third person, then the third person has a right of action against the agent. Coe v. Ware, 271 Mass. 570, 573 (1930). However, "[a]bsent a common law or statatory duty, an agent may not be held individually liable to a third person." Lyon, 24 Mass. at 832, citing Leavitt v. Glick Realty Corp., 362 Mass. 370, 374 (1972); Restatement (Second) of Agency § 343 (1958).
The issue here is whether Gutierrez, acting as an agent for Burlington, had a legal duty to the plaintiffs. Whether a duty exists is a question of law for the court to resolve. Davis v. Westwood Group, 420 Mass. 739, 743 (1995). In its role as Burlington's agent, Gutierrez was in charge of facilitating the construction of the building. The Standard Form of Agreement between the "Owner" (Gutierrez in the role of owner for Burlington) and "Contractor" (the General Contractor) outlined the responsibilities of each party. Gutierrez retained in the agreement a right to stop any unsatisfactory work, while the General Contractor was responsible for work site safety.
Gutierrez is designated as the "Owner" in the agreement, but, as noted above, was in fact the agent of the actual owner, Burlington.
In general, an employer of an independent contractor is not liable for harm caused to another by the independent contractor's negligence, unless the employer retained some control over the manner in which the work was done. Lyon, 24 Mass. at 834, citing St. Germaine v. Pendergast, 411 Mass. 615, 623 (1992). The retention of control must be sufficient to prohibit the contractor from freely performing the work. McNamara v. Massachusetts Port Authority, 30 Mass.App.Ct. 716, 719 (1991), review denied, 410 Mass. 1104 (1991). A general right to stop unsatisfactory work does not constitute enough control to impose a tort liability. McNamara, 30 Mass.App.Ct. at 719, citing Foley v. Rust Int'l., 901 F.2d 183, 185 (1st Cir. 1990).
Here, the only control that Gutierrez retained over the construction and installation of the building's gutter system was the right to stop work. There is no evidence in the summary judgment record that Gutierrez retained any control over the actual installation or design of the gutter system, or that it retained any responsibility to maintain the gutter system after the construction was complete. In the absence of such evidence, Gutierrez did not retain the kind of control over the actions of the contractors who installed the gutter system which would warrant the imposition upon Gutierrez of a legal duty to a third party. Accordingly, Gutierrez cannot be held liable for any damages to the plaintiffs that resulted from the alleged negligent construction.
ORDER
Based on the foregoing, it is hereby ORDERED that the defendant Gutierrez Company's motion for summary judgment is ALLOWED.