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Posts Tagged ‘Massachusetts’

No Control, No Duty Owed

Posted on: January 13th, 2021

By: Thomas Hay

In a Massachusetts trial court action, Timothy Lyons v. Phillip C. Farmer Development, Inc., Docket No. 1781-cv-01156, Freeman, Mathis & Gary, LLP prevailed on a motion for involuntary dismissal following the conclusion of the first civil bench trial held in Middlesex County Superior Court since the courts closed in March 2020 due to Covid-19.

The matter involved plaintiff, a thirty-five-year-old experienced framer, who brought a claim for negligence against the defendant, general contractor, resulting from an injury he sustained while performing framing work at a residential construction site. Plaintiff, an employer of the framing subcontractor, alleged the defendant owed him a duty of care to supervise the framing and safety measures utilized by his employer. Specifically, plaintiff claimed the defendant had a non-delegable duty to inspect, supervise, and ensure all appropriate safety regulations and OSHA standards were being utilized, including those set forth in 454 CMR § 10.00 (the “State Regulation”).

The plaintiff, an experienced carpenter and framer, severely injured his left foot and knee after stepping off the end of a saw-horse scaffold (the “scaffold”) while marking the roof’s ridge beam for the installation of the single-family home’s roof. The plaintiff alleged permanent disability preventing him from any meaningful employment. The scaffold was constructed a day or days prior by the plaintiff’s employer and stood no more than six feet above the floor below. The scaffold, which met the definition of a scaffold under the Occupational Safety and Health Administration’s regulations,[1] had no guard rails and the plaintiff was not using fall protection. Fall protection, however, was made available by the plaintiff’s employer who also supplied all tools and equipment necessary to frame the home.

No Duty Owed Through Contract or Control

Under Massachusetts case law, a general contractor has a duty to its subcontractor’s employees if it “retains the right to control the [subcontractor’s] work in any of its aspects, including the right to initiate and maintain safety measures and programs[.]” Corsetti v. Stone Co., 396 Mass. 1, 10 (1985)(adopting the Restatement (Second) of Torts § 414). Thus, only by retaining sufficient control over the subcontractor’s framing work, or the safety of that work, would the defendant owe a legal duty to the plaintiff.

Here, the defendant had no written contract with the plaintiff’s employer and the oral agreement between the parties did not establish any obligation on the defendant to direct or control subcontractor’s work or the safety of that work. Moreover, the evidence at trial established the defendant did not retain control, by contract or in practice, the work of plaintiff’s employer. The defendant did not give direction to the plaintiff, his employer, or any of its employees. In sum, the framing subcontractor was responsible for the means, manner, and methods of its work as well as the safety measures employed.  

Nondelegable Duty?

The plaintiff additionally argued the defendant, as general contractor, had a nondelegable duty of care for the overall safety of persons on the jobsite under the State Regulation. However, the State Regulation applies in the context of the employer-employee relationship. Accordingly, the State Regulation cited by the plaintiff, at Section 10.03(9), is inapplicable as the plaintiff was not an employee of the defendant. Thus, the court found the State Regulation did not impose a duty of care for supervision of safety on the defendant general contractor.

The Superior Court’s decision reaffirms the principle set forth in Corsetti and its progeny that a general contractor may only be held liable to a subcontractor’s injured employer where it exercised or retained meaningful control through contract or its actions on the jobsite.


[1] Additionally, the court, agreeing with the defendant, found the State Regulation governing safety requirements for scaffolds to be in conflict with the applicable OSHA scaffold safety regulation, 29 C.F.R. § 1926.451(g)(1) (the “OSHA Regulation”). The court found the State Regulation, requiring guardrails to be used for scaffolds more than four feet above the floor below, was in conflict with the OSHA Regulation that only required guardrails or fall protection for scaffolds at heights greater than ten feet above the floor below. The court reasoned that the OSHA Regulation, a federal standard, addresses the same safety and health issues as the State Regulation. Because the State Regulation directly, clearly, and substantially conflict with OSHA standards, the court found the State Regulation was preempted by the OSHA Regulation. 

If you have questions or would like more information, please contact Thomas Hay at [email protected].

Massachusetts Statute of Repose Applies One Building At a Time

Posted on: December 22nd, 2020

By: David Slocum

The Massachusetts Supreme Judicial Court (the “SJC”) recently issued an important decision addressing the previously unanswered question of when the Massachusetts 6-year statute of repose for defective design, planning, or construction is triggered for purposes of alleged defects in the common areas of a multi-building, multi-phase condominium construction project.

In D’Allessandro v. Lennar Hingham Holdings, LLC, 156 N.E.3d 197 (Mass. 2020), the Massachusetts high court held that irrespective of how many phases of development there are or how many buildings are within each phase, where a condominium project is comprised of multiple buildings, each individual building constitutes a discrete improvement for purposes of Massachusetts’ six-year statute of repose. In D’Allessandro, the Hewitts Landing Condominium project located in Hingham, Massachusetts (the “Project”) was comprised of 150 condominium units spread across twenty-eight separate buildings. The Project was built over the course of nearly two-dozen separate phases between 2008 and 2015. During the course of construction, the architect submitted affidavits of substantial completion and the town issued certificates of occupancy for the individual units and separate buildings as they were completed.

In 2017, the Condominium’s trustees filed a complaint seeking damages from the developer and others for alleged defects to the common areas of the Project. Because six of the twenty-eight buildings had been completed more than six years before the complaint was filed, the defendants argued the claims as to those buildings were barred by the statute of repose, which provides no tort action “arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property” may be brought more than six years after “(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,” whichever date occurs earlier. Mass. Gen. Laws ch.260 § 2B.

The question before the Court was whether the statute of repose was triggered only upon the substantial completion of the entire condominium project, or whether instead the statute was triggered multiple times as each individual building was open to use or substantially completed. In answering that question, the Court wrote: “[w]here a condominium development is comprised of multiple buildings, regardless of how many phases of the development there may be or how many buildings are within each phase, each building constitutes a discrete ‘improvement’ for purposes of [Mass. Gen. Laws ch. 260] § 2B, such that the opening of each individual building to its intended use, or the substantial completion of the individual building and the taking of possession of occupancy by the owner or owners, triggers the statute of repose.” D’Allessandro v. Lennar Hingham Holdings, LLC, 156 N.E.3d. at 203-04.

Under the holding in D’Allessandro, the substantial completion of each individual building and the taking of possession of that building for occupancy by the owner triggers the statute of repose as to the common areas of that individual building. Thus, in the context of a complex condominium project with multiple buildings and phases, the protection afforded to design professionals, developers, contractors and the like by the Massachusetts statute of repose does not have to wait until six years after substantial completion of the entire project. Rather, the statue will be held to apply one building at a time.

If you have questions or would like more information, please contact David Slocum at [email protected].

Slip and Fall Damages: A Changing Landscape For Residential Landlords In Massachusetts

Posted on: September 2nd, 2020

By: Marc Finkel

In an important development for Massachusetts based residential landlords, the Massachusetts Supreme Judicial Court (“SJC”) recently narrowed the availability of certain claims tenants may bring against landlords for slip and falls arising out of the accumulation of snow and/or ice. In Goreham v. Martins, 485 Mass. 54 (2020), the SJC determined that a tenant may not recover damages from a landlord following a slip and fall on ice under a theory of breach of warranty of habitability. The SJC also clarified that a landlord may not assert comparative negligence as a defense to a claim by a tenant based on the statutory right of quiet enjoyment (M.G.L. c. 186, § 14). 

In Goreham, a tenant asserted three claims against his landlord after suffering a significant leg and ankle injury following a slip and fall on ice in the driveway of a home he rented. In his complaint, the tenant alleged that his landlord was negligent in permitting an unreasonable amount of ice to accumulate in the driveway and that the accumulation of ice also constituted a breach of both the warranty of habitability and statutory covenant of quiet enjoyment. Ultimately, a jury in the Northeast Division of the Housing Court found that the tenant was over 50% negligent in causing his own injuries and, accordingly, was barred under Massachusetts law from recovering damages for negligence. Thereafter, the trial judge found that the tenant was barred as a matter of law from seeking personal injury damages under his claim for breach of warranty of habitability. The trial judge also determined that the landlord could assert comparative negligence as a defense to the tenant’s claim for statutory quiet enjoyment and that the tenant was barred from recovering such damages because the jury had found him to be more than 50% at fault for his injuries.      

The SJC affirmed the trial court’s finding that personal injury damages for slip and fall incidents are not available under a warranty of habitability claim. Specifically, the SJC determined that where a tenant is permitted to bring a direct cause of action for negligence arising out of a slip and fall, a tenant cannot seek similar relief by alleging a breach of the warranty of habitability—which is otherwise a claim that sounds in contract. The SJC also noted that the warranty of habitability generally applies to conditions within the dwelling unit itself rather than the condition of a driveway or other common area. Therefore, the tenant’s warranty of habitability claim in this instance would likely have failed regardless.   

As to the tenant’s statutory breach of quiet enjoyment claim, the SJC affirmed the trial court’s judgment on different grounds. The SJC found that comparative negligence is not an available defense to the statutory right of quiet enjoyment, because a landlord can be subjected to both civil and criminal liability for negligent acts committed under the statute. Accordingly, where a tenant’s own negligence cannot be used to absolve a landlord of possible criminal violations and penalties under the statute, a tenant’s own negligence cannot similarly be used to absolve a landlord of civil liability under the statute either. In this case, however, the SJC found that the tenant did not establish an actionable claim for breach of the statutory quiet enjoyment. While the jury may have attributed some fault to the landlord in bringing about the tenant’s injuries, the tenant was unable to prove that such negligence caused a “’serious interference with his tenancy’ by ‘acts or omissions that impair[ed] the character and value of the’ leased premises.” Goreham, 485 Mass. at 68. 

Overall, this important decision further clarifies the changing landscape of premises liability law for residential landlords in Massachusetts. 

For further information on this case of for inquiries involving hospitality or premises liability law, please contact Marc Finkel at [email protected].

Massachusetts’ Highest Court Rules No Double Recovery Allowed for Back Wages

Posted on: August 5th, 2020

By: Zinnia Khan

On July 14, 2020, the Supreme Judicial Court (“SJC”) of Massachusetts held employees cannot recover unpaid back wages under two different Massachusetts wage laws because doing so would amount to a double recovery with the same set of allegations.

The ruling in Donis v. American Waste Services LLC, et al. (SJC-12842) reversed a lower court’s decision and differed from guidance issued by Massachusetts Attorney General Maura Healy.  The SJC looked at whether the plaintiffs, “shakers” who operated waste trucks and hydraulic levers for American Waste Services LLC, were entitled to damages under both the Prevailing Wage Act (G.L. c. 149, §§ 26-27) and the Commonwealth’s more general Wage Act (G.L. c. 149, § 148).  While the Wage Act has a broader application, the Prevailing Wage act applies only to employees working on certain public works projects.

The Donis plaintiffs claimed that the defendant employers failed to pay them at the rates required by the Prevailing Wage Act.  There was, however, no basis provided for a violation of the Wage act other than this specific violation of the Prevailing Wage Act.  Before the matter reached the SJC, the Massachusetts Appeals Court found the language in the Wage Act was broad enough to allow the plaintiffs to recover money under that statute.  Defendant American Waste Services appealed on the question of whether the plaintiffs could recover under both the Wage Act and the Prevailing Wage Act.

Breaking with the Appeals Court, the SJC noted the Prevailing Wage Act “already provides its own remedy.”  Accordingly, it held the plaintiffs were entitled to damages only under the Prevailing Wage Act.  They could not recoup damages under the Wage Act, which would have enabled them to also hold the defendants’ officers liable for the back pay owed.

The SJC’s decision also looked to legislative intent.  The SJC noted that, since the legislature specifically carved out the Prevailing Wage Act as a separate law with certain remedies for the types of claims the plaintiff employees brought against American Waste Services, that was the only law under which they could recover the back pay they were owed.

The court also disagreed with the Office of Attorney General Maura Healy, which filed a brief in support of the workers stating that employers must comply with both the Wage Act and any other relevant employment laws and obligations.

The SJC’s decision to curtail double recovery under the two statutes and confirm that the Prevailing Wage Act has its own comprehensive scheme for regulating payments will be reassuring to employers.  Even so, we advise businesses to exercise caution and ensure compliance with all applicable wage and hour laws, including the more broadly tailored Wage Act. 

If you have questions or would like more information, please contact Zinnia Khan at [email protected].

Massachusetts Superior Court Rules Non-Compete Agreement Fully Enforceable Despite Minor Change in Job Duties Between Signing and Enforcement of Agreement

Posted on: June 22nd, 2020

By: Janet Barringer and Zinnia Khan

The Massachusetts Superior Court’s recent decision in Now Business Intelligence, Inc. v. Sean Donahue, et al., held minor changes in an employee’s job duties will not create a “new employment contract” so as to invalidate or obviate the employee’s existing non-compete agreement with the employer. This decision reveals the best course of action for employers is to require employees to sign new non-competes in connection with substantial job changes. If there is any doubt or ambiguity as to whether a job change is “substantial” or “material,” we recommend consulting with counsel.

The decision in Now Business Intelligence, Inc. v. Sean Donahue, et al., centered on whether the employer, Now Business Intelligence, Inc. (“NBI”), may hold its former employee, Sean Donahue (“Donahue”), liable for breaching a non-compete agreement, thereby interfering with NBI’s business relations or whether the nature of Donahue’s job had transformed since he had first been hired and entered into the non-compete agreement so as to now invalidate the agreement under the “material change” doctrine. NBI maintained its former employee breached the non-compete agreement, thereby violating the Massachusetts Consumer Protection Law (Chapter 93A).

By way of background in a case from more than fifty years ago, F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585 (1968), Massachusetts law declares the “material change” doctrine may be invoked by a former employee to support that a restrictive covenant in an employment agreement, such as a non-compete clause, is no longer enforceable because substantial changes to the nature of the employee’s job have occurred since the time the employee entered into the employment agreement. 

In the recent NBI case, Donahue was a former Project Manager at NBI, a technology-based consulting company placing information technology specialists inside of client companies to assist with, manage or solve their technology issues. Immediately prior to his first day on the job at NBI, Donahue executed a non-compete and confidentiality agreement. During his first year at NBI, Donahue was assigned to assist NBI client Raytheon with its implementation of SharePoint, a proprietary Microsoft technology requiring specialized knowledge to implement and operate. 

In or about July 2016, approximately eleven months after he signed his non-compete agreement, Raytheon cut short Donahue’s assignment due to its decision to pause SharePoint implementation. At this stage of Donahue’s employment, Donahue and NBI’s respective accounts of his ensuing job duties began to differ. NBI maintained Donahue was experiencing a slow work period while his job title, key job duties and rate of pay did not change. In contrast, Donahue claimed his position with NBI changed entirely from a Project Manager to a Sales Representative and included new duties such as recruiting customers for NBI and attending sales meetings.  In or about August 2017, Donahue voluntarily left NBI to start his own consulting business.  When NBI discovered Donahue, after his departure from NBI, provided SharePoint services to NBI’s former clients, including Raytheon, NBI sued Donahue to enforce the non-compete agreement. As a defense to NBI’s claims, Donahue invoked the “material change” doctrine and claimed the changes to his job beginning in July 2016 were material thereby invalidating his non-compete agreement with NBI. 

The Superior Court agreed with NBI there were no material changes to Donahue’s job while at NBI which would invalidate his non-compete agreement. The Court noted after his Raytheon assignment concluded, Donahue’s job title at NBI did not change, he was not asked to sign a new non-compete agreement, he was nether promoted nor demoted, his rate of pay remained the same and SharePoint-related tasks remained a significant portion of his billable work. Additionally, the NBI court determined certain changes to Donahue’s regular job duties, such as the need for occasional client pitches, were not a basis for finding the non-compete enforceable under Bartlett Tree. Further, NBI emphasized changes to an employee’s job must be material for the “material change” doctrine to apply, and cited Bartlett Tree as an example. In Bartlett Tree, the employee’s job changed significantly over an eighteen year period, including a promotion, different employment titles, different job duties, changes in remuneration and changes in sales area. These changes, taken together, showed a clear new employment contract and that the original employment contract was “abandoned and rescinded by mutual consent.”

The NBI v. Donahue decision is helpful for employers because it reaffirms only “material” job changes invalidate an existing employment agreement. Even so, employers must remain aware of the “material change” doctrine and the potential it holds for invalidating employment agreements. As a practical matter, it can be burdensome to require employees to enter into a new non-compete each time his or her position changes. Yet, if employees do not sign new agreements following a change in job duties or circumstances that is later deemed to be “material,” then a pre-existing non-compete may be deemed unenforceable.  

The best course of action for employers is to require key employees to sign new non-competes in connection with substantial job changes. If there is any doubt or ambiguity as to whether a job change is “substantial” or “material,” we recommend consulting with counsel.

If you have questions or would like more information, please contact Janet Barringer at [email protected] or Zinnia Khan [email protected].