United States District Court, D. Massachusetts
KENNETH M. RIES and MARILYN J. RIES, Plaintiffs,
CAPONE IRON CORPORATION, E.A. COLANGELI CONSTRUCTION CO, INC., and JOHN DOE CORPORATION, Defendants, and CAPONE IRON CORPORATION, Third-Party Plaintiff,
D&S COMMERCIAL MASONRY, Third-Party Defendant.
MEMORANDUM AND ORDER
Denise J. Casper United States District Judge
Plaintiff Kenneth M. Ries (“Ries”) brings claims against defendants Capone Iron Corporation (“Capone”) and E.A. Colangeli Construction Co., Inc. (“E.A. Colangeli”) for personal injuries that he received at a construction site. D. 1. Capone has in turn sued D&S Commercial Masonry (“D&S”) for common law indemnification and contribution. D. 33. Capone now moves for partial summary judgment on Ries’s claims, D. 95, and D&S moves for summary judgment on Capone’s claims, D. 94. For the reasons below, the Court ALLOWS Capone’s motion and ALLOWS D&S’s motion.
II. Standard of Review
The Court grants summary judgment where there is no genuine dispute on any material fact and the undisputed facts demonstrate that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” García-González v. Puig-Morales, 761 F.3d 81, 87 (1st Cir. 2014) (quoting Newman v. Advanced Tech. Innovation Corp., 749 F.3d 33, 36 (1st Cir. 2014)). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Rosciti v. Ins. Co. of Pennsylvania, 659 F.3d 92, 96 (1st Cir. 2011). Once that burden is met, the non-moving party may not rest on the allegations or denials in his pleadings, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986), but “must, with respect to each issue on which [he] would bear the burden of proof at trial, demonstrate that a trier of fact could reasonably resolve that issue in [his] favor.” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010). The Court “view[s] the record in the light most favorable” to the non-moving party, “drawing reasonable inferences” in his favor. Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009). “Conclusory allegations, improbable inferences, and unsupported speculation, ” however, are “insufficient to establish a genuine dispute of fact.” Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 146 (1st Cir. 2013) (citation and internal quotation mark omitted).
III. Factual Background
Unless otherwise noted, the following facts are undisputed and drawn from Capone’s statement of material facts, D. 97, and Ries’s response, D. 104.
On September 27, 2012, Ries was working on a construction project at Lynnfield High School. D. 97 ¶ 1; D. 104 ¶ 1. Ries was an employee at John Turner Consulting, Inc. and a special inspector for masonry on the project. D. 97 ¶ 4; D. 104 ¶ 4. Ries made his own decisions and exercised independent judgment about his schedule and tasks. D. 97 ¶ 6; D. 104 ¶ 6.
Ries had been working at his company since 2005 and had obtained various certifications relevant to his line of work. D. 97 ¶ 4; D. 104 ¶ 4. He also had attended courses, training and seminars on jobsite safety and fall protection for construction jobs. D. 97 ¶ 4; D. 104 ¶ 4. In 2009, Ries completed an Occupational Safety and Health Administration (“OSHA”) 10 course on jobsite safety. D. 97 ¶ 4; D. 104 ¶ 4.
Ries arrived to the project site around 7:30 a.m. D. 97 ¶ 7; D. 104 ¶ 7. Capone had not yet begun installing steel beams. D. 97 ¶ 7; D. 104 ¶ 7. Capone supplied and installed the steel under a subcontract with the general contractor E.A. Colangeli. D. 97 ¶ 3; D. 104 ¶ 3.
Later that day, Ries observed a crane setting steel beams on the newly erected exterior concrete walls. D. 97 ¶ 8; D. 104 ¶ 8. He walked across the site to where the beams were being placed to conduct additional inspections. D. 97 ¶ 8; D. 104 ¶ 8. Ries climbed up scaffolding along the newly erected cement walls and ducked through an opening for a window. D. 97 ¶ 9; D. 104 ¶ 9.
Once there, Ries began inspecting the steel bearing plates on which the beams were resting. D. 97 ¶ 14; D. 104 ¶ 14. Ries knew that the steel beams were not yet welded to the steel bearing plates. D. 97 ¶ 14; D. 104 ¶ 14. Yet after completing his inspection, Ries descended from the structure by grabbing an unsecured steel beam with both hands and swinging through a window opening in the wall. D. 97 ¶ 15; D. 104 ¶ 15; see D. 106-12. The steel beam that Ries grabbed ultimately struck him, resulting in various injuries. D. 97 ¶ 2; D. 104 ¶ 2.
Ries acknowledges that his climb up the scaffolding violated general worksite safety rules and OSHA regulations, but he did it out of habit. D. 97 ¶ 10; D. 104 ¶ 10. He knew that the proper way to access scaffolding is by a stairway or a ladder. D. 97 ¶ 11; D. 104 ¶ 11. On the day of the accident, a ladder was at one end of the scaffolding that provided access to the entire perimeter. D. 97 ¶ 12; D. 104 ¶ 12. Ries knew about the ladder and had ...