United States District Court, D. Massachusetts
MEMORANDUM & ORDER
TALWANI UNITED STATES DISTRICT JUDGE.
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.
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.
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].
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].
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.
Summary Judgment Standard
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).
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
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
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 ...