The plaintiff was an employees 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 "owned him the same duty is owned 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.
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.
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 of its contention that the causes of the accident was "totally speculative" and should not have been submitted to the injury 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
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
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) the general standard of care, which is limited to disclosing those hidden defects that reasonably could be discovered. The judge referred to this distinction when he admitted the AWWA standards in evidence and again when he charged the jury. His frequent and clear references
Other objections to the admission of evidence raised by the defendant have been reviewed by us and are equally without merit.
2. We are now in a position to address the contention of the defendant that the jury should not have been allowed to decide the issue of negligence, that is, that there was error in denying the defendant's motion for a directed verdict. The question is whether the evidence, construed most favorably to the plaintiff, could not support a verdict for the plaintiff. Grant v. Carlisle, 328 Mass. 25 (1951). More specifically, the test has been stated as whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). That the inferences be reasonable requires that they be based on "probabilities rather than possibilities" and not the result of "mere speculation and conjecture." Alholm v. Wareham, 371 Mass. 621, 627 (1976).
The defendant challenges the sufficiency of the plaintiff's proof regarding the existence of a "hidden defect." Avoiding, for the moment, any diversion into the controversy over the existence of a bolt, there appears to us to be ample evidence on which a jury could conclude that a hidden defect caused the accident. The plaintiff's coworker, Sherman, testified that the revolving ladder sprang out "like a jack-in-a-box" when the plaintiff put his weight upon it, thrusting the plaintiff backward and to the ground. According to Sherman, who was only a few feet beneath the plaintiff at the time of the occurrence, the plaintiff "didn't let go [of the ladder]. I guess he was knocked loose." Believing this testimony, as the jury were entitled to do, a reasonable person could well conclude that the ladder was not intended to act as a catapult and that whatever caused or allowed this unexpected action constituted a "defect." Moreover, the
On the evidence before it the jury properly could have found that (a) the plaintiff and his fellow workers were expected to paint the entire tank; (b) this work would require
Under this view, it is not necessary to inquire further into the precise nature of the defect. Even if such an inquiry were necessary, the jury could have found on the evidence that the sudden snapping of a rusted bolt allowed the two ladders to part under the strain of the plaintiff's weight. Sherman testified that he found part of a rusty bolt at the base of the ladder following the accident, on one end of which a nut was still in place and the other end of which tapered down to what appeared to be a recent cleavage. He further testified that there was a hole on each side of the revolving ladder near the bottom of the ladder, that the hole on the right side was smooth and painted on the inside, and that the hole on the left side was rusty on the inside, thereby raising the inference that the bolt had been inserted in the hole on the left side. That the bolt itself was not introduced in evidence, that no measurement of the bolt had been made and that no attempt had been made to insert the bolt into the hole in the ladder, all are factors going to the weight to be attached to the plaintiff's bolt theory. We cannot say that the inference that the ladders were bolted together is in the nature of "mere speculation and conjecture" so as to require that consideration of the question be withheld from the jury.
In addition to the burden of proving that his injury was caused by the defendant's failure to warn of a hidden defect, the plaintiff under the Afienko test has the burden of showing that the defendant, in the exercise of reasonable care, should have been aware that the defect existed. Hannon v. Hayes-Bickford Lunch Sys., Inc., 336 Mass. 268, 272 (1957). The plaintiff elicited testimony from the superintendent of the Plymouth water department that the town had not inspected the water tank during the five years preceding the accident. There was evidence that the proximity of the tank to the ocean subjected it to marine corrosion, and that high winds caused the tank to sway. The AWWA standards suggested that water tanks "be carefully inspected prior to ... painting," and periodically inspected at intervals of not more than five years. Further, the inspection should be undertaken only by qualified specialists. Although these evidentiary factors, taken separately or together, did not conclusively establish whether the defendant satisfied its duty to exercise reasonable care in becoming aware of any hidden defects, they were sufficient to allow the jury to make that determination; the jury could reasonably have concluded that the town was remiss in failing to inspect the tank prior to the painting assignment of the plaintiff and his coworkers. The question is then presented whether there was sufficient evidence to conclude that the
The Appeals Court, as a result of its considerations of these issues, held that the jury could have found that the sudden failure of a bolt allowed the revolving ladder to snap away from the side of the tank, throwing the plaintiff to the ground. 4 Mass. App. Ct. at 668. That court concluded, however, that such a finding was not sufficient to establish the existence of a defect as matter of law. It reasoned that the purpose of the bolt, or any other connection, could as well have been to prevent the ladder from revolving around the tank as to prevent the ladder from springing out. Therefore, the court concluded, neither purpose could be said to have been proven since the evidence tended equally to sustain each of two inconsistent propositions. Id. at 669-670.
We cannot accept this reasoning. Whatever its intended function, the connection failed when subjected to the foreseeable stress of a man's weight, thereby unleashing the force of the ladder. The defective condition thus was composed of two distinct elements: the fragility of the connection and the instability of the revolving ladder. The jury could thus reasonably find the defendant negligent in failing to prevent the dangerous condition presented by the inadequately secured ladder irrespective of the specific purpose for which the bolt or connection was intended.
3. The defendant raises an additional issue to which we now turn — whether the judge erred in refusing to charge the jury that provisions of the Workmen's Compensation Act, G.L.c. 152, present a bar to the plaintiff's recovery.
The scope of the common employer doctrine is limited, however, by the express language of § 18, from which the doctrine grew. "This section shall not apply to any contract
Applying these guidelines to the case at hand, we conclude that the services to be performed by the plaintiff fall squarely within the category of "ancillary" or "incidental" work. The task of sanding and grinding rust spots and then painting the water tank at a height of between thirty-five and fifty feet obviously calls for a specially equipped crew. It is easily distinguished from the type of routine painting of
4. Having reviewed all of the defendant's objections as well as the opinion of the Appeals Court, we conclude that the plaintiff has made out his case under the applicable existing law — the Afienko "hidden defect" test — and is entitled to have his verdict and judgment in the Superior Court reinstated. A majority of the Justices of this court are now willing to state that the close scrutiny we have given to the practical operation of the "hidden defect" test has for us brought into sharper focus its deficiencies and contradictions. Moreover, the policies underlying this common law test are revealed as markedly out of step with the recent and pronounced movement of this court in the reformation of duties of care in other areas of tort law. We have concluded, therefore, that to the extent Afienko stands for the proposition that a plaintiff has the burden of establishing that his injury was the result of a hidden defect of which the landowner defendent was aware or should have been aware through the exercise of reasonable care it is overruled.
The tort duty of care owed by an employer to his employee or to the employee of an independent contractor (in circumstances where G.L.c. 152 does not apply) is stated in terms of an exception — only where there is a hidden defect or danger does a duty of care exist at all. The general rule is that the employer owes no duty to alter the condition of his premises to make them safe for the employee. Burr v. Massachusetts Elec. Co., 356 Mass. 144, 147 (1969). Williams v. United Men's Shop, Inc., 317 Mass. 319, 320 (1944).
Much of this development of the common law doctrine occurred prior to the enactment of G.L.c. 152 which provided an alternative method of distributing the economic loss when an employee is killed or injured as a result of an injury arising out of his employment. See L. Locke, Workmen's Compensation §§ 21-31 (1968). The Workmen's Compensation Act effectively displaced the need to apply common law principles in most cases of employee injury, but the common law principles as to liability continue to have vitality where G.L.c. 152 does not apply. The "hidden defect" rule, where applicable, thus has defined in part the duty of an "employer" to an "employee" whether the relationship of the defendant and the plaintiff is that of employer-employee or whether, as here, the "employer" defendant is a landowner who engages an independent contractor whose employee is injured in the course of the employment. Thus the "employee" referred to in the "hidden defect" rule may in fact not be employed by the defendant. While we use here the customary term "employee" in our analysis of the relevant authorities, we limit our discussion to the factual situation before us, namely to that of an injury suffered by one not an employee of the defendant landowner but instead the employee of an independent contractor engaged by a defendant to do work on the property of the defendant.
Were there strong social policy reasons to maintain the hidden defect test, the hurdles thrown in the path of the injured employee of an independent contractor might be unobjectionable. Recent decisions of this court clearly reflect, however, a shift in philosophy with regard to status distinctions in tort standards of care, casting great doubt on the continuing relevancy of this aspect of the common law hidden defect test, at least in so far as it relates to a defendant landowner. A brief analysis of the decisions will serve to confirm this view.
In Mounsey v. Ellard, 363 Mass. 693 (1973), the plaintiff, a police officer, was injured on the defendant's premises. Because the plaintiff had been acting in his official capacity at the time of the injury, the existing common law rule classified the plaintiff as a licensee and therefore required that he establish wilful, wanton or reckless conduct, and not just ordinary negligence, on the defendant's part. Noting that the common law distinction between licensees and invitees
In a further reexamination of status distinctions in tort law, this court in Lindsey v. Massios, 372 Mass. 79 (1977), abolished the common law rule regarding the standard of care owed by a landlord to his tenant's visitors injured in common passageways. A landlord had been obliged to use reasonable care with regard to common passageways only to the extent of maintaining such common passageways in the same condition as they were or appeared to be in at the time
The anachronistic nature of the rule is somewhat obscured by its classification as a standard of care owed by the defendant. In philosophy and practical effect the rule might be more accurately viewed as a doctrine of assumption of the risk, or, perhaps, contributory negligence.
The early attitudes which gave birth to the doctrine of assumption of risk in employer-employee cases were explored by Mr. Justice Black in a case under the Federal Employers' Liability Act, 45 U.S.C. § 54 (1970): "Assumption of risk is a judicially created rule which was developed in response to the general impulse of common law courts ... to insulate the employer as much as possible from bearing the `human overhead' which is an inevitable part of the cost — to someone — of the doing of industrialized business." Tiller v. Atlantic Coast Line R.R., 318 U.S. 54, 58-59 (1943). Any other rule "`would not only subject employers to unreasonable and often ruinous responsibilities, thereby embarrassing all branches of business,' but would also encourage carelessness on the part of the employee." Id. at 59, quoting Tuttle v. Detroit, G.H. & M. Ry., 122 U.S. 189, 196 (1887). As one commentator has noted, this attitude "is almost the exact antithesis of the philosophy which underlies workmen's compensation acts," the intent of which is to
That the same outmoded philosophy regarding allocation of the cost of work-related injury forms the basis of the hidden defect rule is obvious from a statement of the premises of that rule. As we have already noted, the employee assumes all risks except those that he can prove were "hidden." Pettingill v. Porter & Son, 219 Mass. 347, 349 (1914). In general, the employer owes no duty of care to alter the condition of his premises to make them safe for the employee. Burr v. Massachusetts Elec. Co., 356 Mass. 144, 147 (1969). The employee thus may have no recovery in tort against an employer who has negligently created, or failed to correct, a dangerous condition which is not sufficiently obscured from a possible discovery by the employee to qualify as a hidden defect.
Moreover, an examination of the common law evolution of the hidden defect rule reveals it to be a corollary to, if not a derivative of, the doctrine of assumption of the risk. In the early case of O'Maley v. South Boston Gas Light Co., 158 Mass. 135 (1893), the plaintiff-employee had been injured as a result of a fall from a wheelbarrow run in one of the defendant-employer's coal sheds. Negligence in not providing guard rails was charged, and the action was brought under a statute (St. 1887, c. 270) providing a remedy for defects "which arose from, or had not been discovered or remedied owing to, the negligence of the employer...." Id. at 137. (The current version is G.L.c. 153, § 1.) This court held that the employer's negligence under the statute was circumscribed by the express or implied contract of employment, an essential element of which was the freedom of the employee to "take the risk of working where there are peculiar dangers from the arrangement of the place and from the kind or quality of the machinery used." Id. The court therefore concluded that there was "no doubt that one may
By "obvious risks," the court meant those attendant on a known danger, whether or not the employee "appreciates the particulars of the danger." The court was also careful to point out that assumption of the risk could not be presumed with respect to defects coming into existence after the making of the contract of employment if such future defects could not be deemed to have been contemplated at the time the contract was made. Id. at 137-138. The case could thus be read as limiting the employee's assumption of risks to those conditions of which he was aware and those risks which he voluntarily and knowingly undertook. This is, in essence, the distinction sometimes made between "ordinary" and "extraordinary" risks, categorizations to which we will return shortly. However, subsequent cases embellished the term "obvious risks" in the O'Maley formulation so that the employee was charged with assuming all risks that were "obvious or could have been discovered by a reasonable inspection." Pilling v. Hall, 251 Mass. 425, 427 (1925), and cases cited. This test is indistinguishable from the standard under the hidden defect test — that is, the defect is "hidden" when it could not have been discovered in the course of a reasonable inspection by the employee. Pettingill v. Porter & Son, supra at 349. In the one case the employee is deemed to have assumed the risks because the defect reasonably could have been discovered, while in the other case the employer owes him no duty of care because the defect reasonably could have been discovered and therefore was not "hidden."
Had the hidden defect test evolved in a manner that preserved the distinction between "ordinary" and "extraordinary" risks, it would have been unobjectionable. The ordinary risks of service are those that are not created by negligence or breach of duty on the part of the employer. 53 Am.Jur.2d Master and Servant § 220 (1970), and collected
We recognize that there are instances of hazardous employment where an independent contractor is engaged to do a particular task which presents inherent risk to the employees of that contractor. To some extent the hidden defect doctrine was developed to reflect an allocation of risk as between the employer (property owner) and the employee (independent contractor's employee) who accepts such employment. We do not here seek to preclude the continuation of such a proper allocation of risk between the parties nor to make the property owner an insurer against all loss. We feel the rule in its present form has obscured a proper allocation of such risks.
While it is theoretically possible that an employee could voluntarily transform an extraordinary risk into an ordinary risk by knowingly accepting the danger caused by the employer's negligence,
For the reasons stated, the judgment of the Superior Court is affirmed.
QUIRICO, J. (with whom Hennessey, C.J., and Wilkins, J., join, concurring in the result).
This action was tried by the parties and submitted to the jury on the plaintiff's claim that he was injured by reason of a hidden or concealed defect on the defendant's premises, of which defect the defendant was aware or should have been aware through the exercise of reasonable care. The jury returned a substantial verdict for the plaintiff. The defendant appealed, contending that there was insufficient evidence to support the verdict. The Appeals Court agreed, reversed the judgment and vacated the verdict. On the plaintiff's appeal therefrom this court is ordering that the verdict and judgment for the plaintiff be reinstated, holding that the evidence was sufficient to support the verdict. I concur with the result.
This case was briefed and argued by both parties before the Appeals Court and this court on the assumption that it was governed by the "hidden defect" rule, so called. It is my opinion that this court's holding that the evidence was sufficient to support a verdict for the plaintiff on that theory is dispositive of this appeal. However, the court has chosen to go beyond that and has declared, for the reasons discussed
I recognize that in an appropriate case expressly raising the issue, and in which we have the benefit of full briefing and argument on the subject, it may be advisable that we review our position on the "hidden defect" rule, and that much of the discussion contained in part 4 of the court's present opinion would be of significance in such a case. However, for all of the reasons stated above it is my opinion that this is not the appropriate case in which to abrogate the rule.
BRAUCHER, J. (concurring in the result).
I do not agree with point 2 of the opinion of the court. In my view liability in the present case cannot be reconciled with nonliability in such cases as Burr v. Massachusetts Elec. Co., 356 Mass. 144, 147 (1969), and Hannon v. Hayes-Bickford Lunch Sys., Inc., 336 Mass. 268, 273-274 (1957). But I join in the balance of the court's opinion and in the result, particularly the overruling of the doctrine of Afienko v. Harvard Club of Boston, 365 Mass. 320, 327-328 (1974), limiting liability to cases where the defendant fails to disclose "hidden or concealed defects" of which "it was aware or should have been aware through the exercise of reasonable care."
The elimination of the doctrine restricting liability in such cases as the present one will not operate unfairly. Under G.L.c. 152, § 15, in its present form, the workman is entitled to workmen's compensation benefits, and need not choose between those benefits and his claim against the defendant town as a third party. His recovery in an action against the third party will be in part for the benefit of the workmen's compensation insurer. The third party can protect itself by obtaining from the workman's employer — the "independent contractor" — an agreement that the tank will be properly inspected before it is painted and that the workman's employer will hold the third party harmless for any injury to workmen like the plaintiff. The third party
The restrictive doctrine is out of harmony with other developments. As the benefits provided by the workmen's compensation laws have come to seem inadequate in comparison with recoveries by tort claimants generally, courts have become increasingly tolerant of claims against third parties other than the employer. The Legislature has followed a similar policy in amending G.L.c. 152, § 15, to eliminate the requirement of election and the doctrine of common employment. St. 1971, c. 888 and c. 941. With the adoption of the doctrine of comparative negligence and the abolition of the defense of assumption of risk by G.L.c. 231, § 85, the Legislature has moved in the direction of the Federal Employers' Liability Act and other Federal statutes, under which juries are permitted to find employer negligence where fault is fictitious. See, e.g., Caddy v. Texaco, Inc., 363 Mass. 36, 38 (1973).
Under the second amendment to § 15 introduced by St. 1971, c. 941, § 1, the common employment doctrine was effectively abolished. Applicable to injuries arising on or after January 24, 1972 (St. 1971, c. 941, § 2), § 15 now provides that: "Nothing in this section, or in section eighteen or twenty-four shall be construed to bar an action at law for damages for personal injuries or wrongful death by an employee against any person other than the insured person employing such employee and liable for payment of the compensation provided by this chapter for the employee's personal injury or wrongful death and said insured person's employees." Cf. Brown v. Marr Equip. Corp., 355 Mass. 724 (1969).