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Lewis v. Dimeo Construction Co.

United States District Court, D. Massachusetts

February 16, 2017

JAMES LEWIS and NICOLE LEWIS, Plaintiffs,
v.
DIMEO CONSTRUCTION COMPANY, HILTI, INC., and HILTI CORP., Defendants.

          MEMORANDUM & ORDER

          INDIRA TALWANI UNITED STATES DISTRICT JUDGE.

         Presently before the court is Defendant Dimeo Construction Company's (“Dimeo”) Motion for Summary Judgment [#93]. As set forth below, disputes as to material facts preclude summary judgment.

         I. Background

         This diversity action sounding in tort arose from an injury to Plaintiff James Lewis from an allegedly-malfunctioning Hilti DX 460 powder-actuated tool. Dimeo's Proposed Statement of Facts ¶ 5 [#95] [hereinafter “Dimeo's Facts”]. At the time of the incident, James Lewis worked as an ironworker for Structures Derek, Inc. (“SDI”), a subcontractor on a construction project at the University of Massachusetts, Amherst. Dimeo's Facts ¶ 6.

         Plaintiffs commenced a state-court action against Defendants Hilti Corp., the tool's manufacturer, Hilti, Inc., the distributor, and Dimeo, the general contractor on the project. See Summons & Complaint [#95-1]; Dimeo's Facts ¶¶ 2-4. As against Dimeo, Plaintiffs allege that negligence attendant to, inter alia, Dimeo's management of the construction project, injury-prevention protocols, training procedures, and the furnishing of equipment, proximately caused the physical injuries suffered by James Lewis and the loss of consortium suffered by his wife, Plaintiff Nicole Lewis. See Summons & Complaint [#95-1].

         After the state action was removed to this court [#1], Hilti, Inc. cross-claimed against Dimeo for contribution and indemnification [#6], and Dimeo cross-claimed against Hilti, Inc. and Hilti Corp. [#13].

         Dimeo now seeks summary judgment of all claims against it. [#93]. The motion is opposed both by Plaintiffs James and Nicole Lewis [#100] and Defendants Hilti, Inc. and Hilti Corp. [#105].

         II. Summary Judgment Standard

         In resolving a motion for summary judgment, the court takes all properly-supported evidence in the light most favorable to the non-movant and draws all reasonable inferences in the non-movant's favor. Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. A fact is material if it has the potential of determining the outcome of the litigation.” Patco Constr. Co. v. People's United Bank, 684 F.3d 197, 206-07 (1st Cir. 2012) (internal quotation marks and citations omitted).

         III. Discussion

         The Massachusetts Supreme Judicial Court has discussed at length the standards governing a general contractor's liability for injuries suffered by a subcontractor's employees. Corsetti v. Stone Co., 483 N.E.2d. 793, 797-99 (Mass. 1985). If the general contractor “retains the right to control the work in any of its aspects, including the right to initiate and maintain safety measures and programs, [it] must exercise that control with reasonable care for the safety of others, and [it] is liable for damages caused by [its] failure to do so.” Id., at 798 (“So far as [the general contractor] . . . retains control over any part” of the work, it must “exercise reasonable care . . . .”) (emphasis in original).

         Thus, even when a general contractor's degree of control falls short of that which would establish agency, the general contractor remains exposed to potential liability for negligence if it exercises any meaningful supervisory control-a situation typified by a general contractor's foreman superintending the project as a whole. Id.; see Dilaveris v. W.T. Rich Co., Inc., 673 N.E.2d 562, 564 (Mass. 1996) (the “critical factor” is whether “the general contractor had any meaningful control, however minimal, over the subcontractor . . . .”).

In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know that the subcontractors' work is being so done, and has the opportunity to prevent it by exercising the power of control which he has retained in himself.

Corsetti, 483 N.E.2d. at 798. This fact-based inquiry belongs to the jury, id., unless the record demonstrates the rare occasion where undisputed facts demand that the court declare an absence of said meaningful control. See, e.g., Lopez v. Equity Office Management, LLC., 597 F.Supp.2d 189, 194 (D. Mass. 2009), citing Kostrzewa v. Suffolk Constr. Co., Inc., 897 N.E.2d 1272, 1274-75 (Mass. App. Ct. 2008) (denying summary judgment to defendant on record demonstrating, inter alia, that the general contractor (i) “had a project safety manager on site, ” (ii) required its superintendent “to conduct routine safety inspections and to ...


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