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Lyon v. Morphew5/5/1997
Practice, Civil, Summary judgment. Corporation, Officers and agents, Liability of officers. Negligence, Safety railing. Duty to prevent harm, One owning or controlling real estate, Construction work, Independent contractor. Administrative Law, Regulations.
LYNCH, J. The plaintiff seeks to recover for injuries he sustained when he fell from the roof of a building owned by Brigham and Women's Hospital (hospital). Approximately one year prior to the accident, the roof had a safety railing, but it was removed by the hospital's engineering department. Among those named in the amended complaint are the hospital's director and assistant director of the engineering department at the time of the accident and the individuals holding those positions when the safety railing was removed. The plaintiff filed a separate action against the hospital's chief administrative officer during those periods, and the cases were consolidated in the Superior Court.
The Judge entered summary judgment for the defendants who worked at the hospital when the railing was removed and for the chief operating officer at the time of the accident, but denied summary judgment for the director and assistant director of engineering at the time of the accident. The Judge then reported the matter to the Appeals Court, pursuant to Mass. R. Civ. P. 64, 365 Mass. 831 (1974), and asked the following questions:
"(1) whether, in the circumstances of this case and in light of their respective employment responsibilities, the designated employees of the hospital at the time [the plaintiff] fell and was injured in 1991 may be found individually liable to him, see, e.g., Addis v. Steele, 38 Mass. App. Ct. 433, 439-440, 648 N.E.2d 773 (1995); cf. Mullins v. Manor College, 389 Mass. 47, 63-64, 449 N.E.2d 331 (1983); and
(2) whether the individuals who held the same designated employment positions at the hospital in 1989 -- when a railing around the roof of the hospital's B Building was removed -- may be found personally liable for [the plaintiff's] injuries."
We granted the plaintiff's application for direct appellate review.
The following facts were relied on by the Judge in disposing of the summary judgment motions as she did. The plaintiff was employed by John F. Shea Company (Shea), an independent contractor hired by the hospital to replace the roof on the "B" building. On the morning of October 31, 1991, the first day of work, the plaintiff fell while unloading bundles of roofing material being lifted to the roof by crane.
At some point in 1990, the hospital's director of engineering decided to remove the safety railing on the roof of "B" building because "[it was] old, worn and rusted, and created a false sense of security." The assistant director of engineering coordinated the removal efforts. The railing was never replaced, nor was any other fall protection device installed.
In 1991, the hospital had a new director and assistant director of engineering. As head of the engineering department, the director coordinates the repair and maintenance of the hospital's facilities. In addition, the director is responsible for developing safety procedures, inspecting departmental areas, and eliminating unsafe conditions. The director reports to the chief operating officer, who in turn oversees the department's maintenance and safety programs.
The assistant director is second in command of the department. When an outside contractor is required to do maintenance work, the director authorizes the assistant director to hire an independent contractor. The assistant director is responsible for monitoring the independent contractor's work. Both the directo
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