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08/11/77 DONALD BULPETT v. DODGE ASSOCIATES

August 11, 1977

DONALD BULPETT
v.
THE DODGE ASSOCIATES, INC. & ANOTHER (AND TWO COMPANION CASES)



Middlesex. Two actions of tort. Writs in the Superior Court dated February 7, 1968, and March 17, 1969, respectively. Tort or contract. Writ in the Superior Court dated January 7, 1972. The actions were tried before J. P. Sullivan, J.

Keville, Grant, & Brown, JJ.

SYLLABUS BY THE COURT

Workmen's Compensation Act, Common employment. Negligence, Duty to warn, Repair, Skyworker.

The opinion of the court was delivered by: Keville

Where a subcontractor furnished a specialized form of vehicle and an operator to a principal contractor for use on a construction project, and the operator worked under the general direction of the contractor's supervisor, the subcontractor's activities were, as matter of law, a "part of or process in" the contractor's construction work within the meaning of G. L. c. 152, § 18. [595-598]

In actions of tort by two construction workers who were injured in falls from two "buckets" of a skyworker when the boom suspending the buckets collapsed because of a defective piston rod connection, against a company which had done repairs on the skyworker for its owner, there was sufficient evidence to warrant a finding that the company was under a duty to the owner to inspect the entire skyworker and make any necessary repairs, thus making it liable to third persons not parties to the contract who would foreseeably be injured as the result of its negligent failure to carry out its obligations [598]; in the circumstances, the Judge did not err in instructing the jury that they could find alternatively that the company had violated a duty to warn the owner of the skyworker about possible defects in the design of the skyworker [598-599].

In an action of tort by two construction workers who were injured in falls from two "buckets" of a skyworker when the boom suspending the buckets collapsed because of a defective piston rod connection, where it was firmly established that the breakdown of the piston rod connection caused the accident and that the threads of the mechanism had been distorted before the skyworker was sent to a service company for repairs, a finding was warranted that either the company's failure to repair the mechanism or its failure to warn the owner of the skyworker about possible defects in its design was the proximate cause of the plaintiffs' injuries. [599-600]

Donald Bulpett (Bulpett) and Wilfred Owen (Owen) were seriously injured in falls from two "buckets" of a hydraulic aerial mechanism called a skyworker when the boom suspending the buckets collapsed. At the time of the accident Bulpett was employed as an electrician by M. B. Foster Electric Company (Foster), an electrical contractor engaged in the erection and insulation of a power substation for the Boston Edison Company (Edison). Owen was a self-employed welder hired by Foster as an independent contractor to do aluminum welding at the substation construction site. Essentially, Bulpett's function was to hold sections of a prefabricated aluminum structure from his perch in one of the buckets while Owen welded the sections together from the other bucket. The accident occurred on December 18, 1967, when the steel piston rod holding the upper boom of the skyworker aloft pulled out of the aluminum block into which it was screwed.

Both men brought actions for negligence against The Dodge Associates, Inc. (Dodge), the owner of the skyworker, Consolidated Utilities Equipment Service, Inc. (CUES), the company which had repaired the skyworker for Dodge on two occasions in 1967, and Transairco, Inc. (Transairco), the manufacturer and distributor of the skyworker. The actions were consolidated for trial along with a third-party claim by Dodge against Transairco.

At trial there was substantial evidence that the piston rod connection ultimately came apart due to thread distortion in the screw mechanism caused initially by a Dodge maintenance man prior to March, 1967, and that Dodge sent the skyworker to CUES for repairs on two occasions between the time that Dodge's maintenance man damaged the screw mechanism and the accident which injured Bulpett and Owen. After the Judge denied Dodge's and CUES's motions for directed verdicts, the jury returned verdicts in favor of Bulpett against Dodge and CUES and in favor of Owen against Dodge and CUES. The jury returned verdicts for Transairco in all three cases. The Judge denied motions by Dodge and CUES for judgment notwithstanding the verdict and for a new trial.

Dodge appeals from the judgment entered against it in favor of Bulpett while CUES appeals from the judgments in favor of both plaintiffs. *fn1 We discuss their appeals separately.

Dodge.

The only issue raised by Dodge on appeal is whether it was error for the Judge to deny Dodge's motion for a directed verdict on the basis of the "common employment" defense. The parties stipulated that Bulpett received workmen's compensation for his injuries from his employer Foster pursuant to G. L. c. 152. Dodge contends that a directed verdict in its favor should have been entered in Bulpett's case *fn2 because Dodge had established as matter of law that it was engaged in common employment with Foster so as to remove Dodge from the category of "person other than the insured" who may be held liable under G. L. c. 152, § 15. Campinha v. James J. Devine, Inc., 1 Mass. App. Ct. 482, 483 (1973), citing Clark v. M.W. Leahy Co., 300 Mass. 565, 568-569 (1938). *fn3 Although St. 1971, c. 941, amended c. 152, § 15, to eliminate the common employment defense for injuries occurring on or after the amendment's effective date, Bulpett's accident occurred in 1967 so we apply the law as it existed prior to the amendment. See Campinha, supra, at 483, n.1; Locke, Years of Change: Recent Development in Massachusetts Workmen's Compensation Law, 60 Mass. L.Q. 55, 74 (1975). See also Brown v. Marr Equip. Corp., 355 Mass. 724, 727 (1969).

Central to the common employment defense was whether work performed by an independent contractor or subcontractor was a "part of or process in" or merely "ancillary and incidental to" a principal contractor's business. G. L. c. 152, ยง 18, as appearing in St. 1939, c. 93. Afienko v. Harvard Club of Boston, 365 Mass. 320, 323-324 (1974). Here, following the submission of special questions to the jury on ...


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