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01/10/78 FRANCIS POIRIER v. TOWN PLYMOUTH

January 10, 1978

FRANCIS POIRIER
v.
TOWN OF PLYMOUTH



Plymouth. Tort. Writ in the Superior Court dated December 19, 1966. The action was tried before Lappin, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, Wilkins, Liacos, & Abrams, JJ. Quirico, J., with whom Hennessey, C.j., and Wilkins, J., join, Concurring in the result. Braucher, J., Concurring in the result.

SYLLABUS BY THE COURT

Evidence, Relevancy and materiality. Negligence, Ladder, Toward employee of independent contractor. One owning or controlling real estate, Duty to warn. Workmen's Compensation Act, Common employment, Action against third person.

The opinion of the court was delivered by: Liacos

In a tort action for injuries sustained by the plaintiff in falling from a ladder on the side of a town's water tank when an interconnection between a stationary ladder and a revolving ladder allegedly broke, there was no error in the admission of evidence that one of the plaintiff's co-workers had found part of a broken bolt in the grass beneath the ladder after the accident [209-210]; nor was there error in admitting in evidence certain plans for the construction of the tank [210-211]; nor was there error in the admission of certain standards for the inspection and repair of water storage tanks promulgated by the American Water Works Association [211-212].

In a tort action for injuries sustained by the plaintiff in falling from a ladder on the side of a town's water tank, there was sufficient evidence to warrant a finding that the plaintiff's fall was due to a "hidden defect" and that the defendant, in the exercise of reasonable care, should have been aware that the defect existed. [212-216] Braucher, J., Concurring in the result.

The painting of a town's water tank by an independent contractor was, as matter of law, "merely ancillary and incidental to . . . the trade or business carried on by" the town's water department within the meaning of G. L. c. 152, § 18. [216-219]

The hidden defect rule, as expressed in Afienko v. Harvard Club of Boston, 365 Mass. 320 (1974), is no longer to be applied in cases involving tort actions against landowners; the duty and standard of care owed by the property owner to the employee of an independent contractor is the same as that owed all other lawful visitors on the premises. [219-228] Quirico, J., with whom Hennessey, C.J., and Wilkins, J., joined, Concurring in the result.

The plaintiff was an employee of an independent contractor engaged by the town of Plymouth (defendant) to paint the defendant's water tank. The plaintiff was climbing the tank on a stationary ladder affixed to one of its supporting legs and was thrown about thirty-five feet to the ground while attempting to continue his climb by going up onto a second ladder suspended from the top of the tank. The plaintiff brought this action of tort and had verdict and judgment for $60,000 on the trial Judge's charge that the defendant "owed him the same duty it owed its own employees -- to disclose hidden or concealed defects on the premises of which it was aware or should have been aware through the exercise of reasonable care." Afienko v. Harvard Club of Boston, 365 Mass. 320, 327-328 (1974), and cases cited. The Appeals Court set aside the verdict and entered judgment for the defendant on the ground that the plaintiff had failed to sustain his burden of introducing evidence sufficient to warrant a finding of a hidden defect on the defendant's premises. Poirier v. Plymouth, 4 Mass. App. Ct. 665, 670 (1976).

We allowed the plaintiff's application for further appellate review. We now order that the judgment for the plaintiff entered by the Superior Court be affirmed. In so doing, we conclude that the plaintiff did sustain his burden of introducing evidence sufficient to warrant a finding of a hidden defect on the defendant's premises. Additionally, a majority of the Justices conclude that the hidden defect rule as presently understood is not consistent with recent decisions of this court and no longer is to be applied in cases involving tort actions against landowners (see part 4, (infra)).

The Appeals Court did not reach several evidentiary questions raised by the defendant which, under our Disposition of the case, require some consideration. To put these questions in context, we proceed first to a summary of the facts.

The record shows that the water tank was supported by four legs extending to a height of about thirty-five feet, on one of which was attached a fixed ladder. This fixed ladder was utilized by the plaintiff to make his ascent on the day of his accident. This ladder, referred to in the evidence as the "stationary ladder," ended approximately two feet below the bottom edge of the body of the water tank. The only aid in proceeding up the body of the tank was provided by a "revolving ladder," which was attached to a pivot at the top of the tank and then proceeded downward, following the slope of the tank, until the bottom of the revolving ladder was at the same level as the top of the stationary ladder. Due to the pivotal attachment at the top of the tank, the revolving ladder was capable of being rotated around the circumference of the tank.

On December 20, 1965, the plaintiff and two other members of the painting crew arrived at the tank. The stationary and revolving ladders were observed to be vertically aligned, and one of the plaintiff's coworkers, Milton Sherman, proceeded up both ladders to the top of the tank and then descended without incident. Subsequently the plaintiff began his ascent of the stationary ladder with Sherman climbing two or three rungs behind. The accident occurred at the time the plaintiff reached the juncture of the two ladders. The plaintiff was standing with his feet on the upper rungs of the stationary ladder and his hands on the lower rungs of the revolving ladder when the revolving ladder "sprung out," according to the testimony of Sherman, striking the plaintiff in the chest and throwing him away from the tank and to the ground. The plaintiff suffered severe injuries.

A great deal of effort was expended in the trial court to determine the precise nature of the connection, if any, between the stationary and revolving ladders just prior to the mishap. The plaintiff's theory was that a single bolt had been inserted through corresponding holes in the two ladders but had broken off when the plaintiff transferred his weight to the revolving ladder. The defendant insisted that there could not have been any kind of permanent connection between the two ladders since that would have negated the purpose of the rotating ladder, and that there was insufficient evidence of the existence of a bolt, or any other means of connection. In addition to its contention that the cause of the accident was "totally speculative" and should not have been submitted to the jury for determination, the defendant raises several claims of error as to the admission of evidence which we now consider.

1. The plaintiff's coworker, Milton Sherman, testified over the defendant's objection that he had returned to the site of the accident later in the day and discovered a part of a bolt in the grass beneath the ladders. The whereabouts of the bolt at the time of trial was unknown. The defendant insists that it is "sheer guesswork" to conclude that the broken bolt had ever connected the ladders, or that if so, that it had broken at the time of the plaintiff's ascent on the ladders. The question of the sufficiency of this evidence, which the defendant raises, is a distinct question from that of the propriety of its admission in evidence. The general rule to be followed in this Commonwealth is that all relevant evidence is admissible unless within an exclusionary rule. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence. Green v. Richmond, 369 Mass. 47, 59 (1975). Crowe v. Ward, 363 Mass. 85, 89 (1973). Evidence may be sufficiently relevant to be admitted if it "tends to establish the issue" or "constitutes a link in the chain of proof." Commonwealth v. Abbott, 130 Mass. 472, 473 (1881). Sherman's testimony concerning his discovery of the broken bolt was properly admitted as tending to support the plaintiff's theory; the probative value to be attached to the testimony was a matter for the jury.

The defendant's next claim of error involves the admission in evidence of several exhibits consisting of plans for the construction of the water tank in question. The defendant notes that revisions had been entered on the plans as late as 1941, subsequent to the actual construction of the tank in 1932. The defendant also notes that the plaintiff's engineering expert, relying on the plans as revised, testified that the two ladders were capable of being bolted together. This testimony, according to the defendant, was therefore unreliable and prejudicial. Again, the defendant's argument is more properly aimed at the weight to be given the evidence than at its admissibility. The trial Judge was most careful in assuring that a proper foundation for the construction plans was laid under the business records exception to the hearsay rule, G. L. c. 233, § 78. In the course of that inquiry he took specific note, at the defendant's insistence, of the fact that revisions had been made. The Judge, in his discretion, admitted the revised plans for whatever probative value they carried. The relevance of such plans for purposes of admission is a matter within the sound discretion of the Judge. See Boucher v. Robeson Mills, 182 Mass. 500 (1903); Blair v. Pelham, 118 Mass. 420 (1875). We see no reason on this record to disturb the Judge's ruling as to the admissibility of the plans. Sellew v. Tuttle's Millinery, Inc., 319 Mass. 368 (1946).

Next, the defendant charges error in the admission in evidence of certain standards for the inspection and repair of water storage tanks promulgated by the American Water Works Association (AWWA). There was evidence that the superintendent of the Plymouth water department was aware of the AWWA standards and that the standards had been approved by the regional water works association to which the superintendent belonged. The Judge allowed the AWWA standards in evidence as bearing on the issue whether the defendant had failed in its duty to periodically inspect the water tank and, in particular, the ladders attached thereto. This inquiry is entirely consistent with the standard of care imposed by Afienko v. Harvard Club of Boston, 365 Mass. 320, 327-328 (1974), that the defendant disclose hidden or concealed defects of which it was aware or should have been aware through the exercise of reasonable care. The AWWA standards, being evidence of preferred methods of operation and accepted trade practice, tend to establish the custom with regard to inspection. These standards are probative in determining whether the defendant was negligent in not being aware of any hidden defects. Stewart v. Roy Bros., 358 Mass. 446, 452 (1970). The defendant objects, however, that the requirements of the AWWA standards that an inspection determine if a ladder is "safe" go beyond the Afienko standard which would impose no duty on the defendant if the defective condition of the ladder were obvious. The Judge was aware of the potential for confusion on the part of the jury when asked to distinguish between (1) the employer's duty to become aware of hidden defects, a duty measured by ordinary reasonableness, and (2) ...


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