The plaintiff, Joao Vertentes, seeks further appellate review pursuant to G.L.c. 211A, § 11, after a decision of the Appeals Court.
The defendant, The Barletta Company, Inc. (Barletta), contracted with the Department of Public Works (department) to reconstruct a ten-mile length of Route 24 between Brockton and Bridgewater. Route 24, as the contract stated, is a high-speed and high-volume major highway. In connection with this contract, Barletta subcontracted portions of the work to several independent contractors, including Richard F. Lyons, Inc. (Lyons). Vertentes was an employee of Lyons.
On the afternoon of September 26, 1974, Vertentes was struck by a truck driven by a person not connected with the construction. At the time of impact, Vertentes was removing orange marker barrels from the highway. These barrels had not been placed in accordance with department regulations. Although Lyons' personnel were working within the area, neither Barletta nor Vertentes introduced direct evidence indicating which subcontractor working in the area had placed the
The trial judge found as a matter of law that the removal of barrels on a four-lane highway was an inherently dangerous activity. She instructed the jury that Barletta could be vicariously liable for the negligence of a subcontractor who placed the barrels in the roadway without adequate signs warning about the construction. The judge further instructed that Barletta could be found directly negligent for failing to supervise the safety precautions taken by its subcontractors in placing the barrels on the road. The jury returned a verdict finding Barletta 90% negligent and Vertentes 10% negligent. However, the special questions answered by the jury failed to designate the theory upon which Barletta was found negligent. On appeal from the denial of Barletta's motion for judgment notwithstanding the verdict, the Appeals Court reversed the judgment.
1. Direct liability. We have reviewed the evidence further and conclude that a verdict based upon a finding that Barletta negligently caused Vertentes' injuries by failing properly to supervise the safety procedures undertaken by its subcontractors in the placement of the barrels would "rest in surmise and conjecture." Currie v. Lee Equip. Corp., 362 Mass. 765, 768 (1973). Vertentes merely established that Barletta retained the authority and responsibility to supervise the safety procedures employed by the subcontractors in the placement of the barrels. The evidence does not reveal any facts which would give rise to an inference that Barletta performed this duty negligently.
2. Vicarious liability. Vertentes requests that we extend the duty of care owed by an employer of an independent contractor who is performing inherently dangerous work to employees of the independent contractor.
Generally, an employer of an independent contractor is not liable for harm caused to another by an act or omission of the contractor or his employees. Whalen v. Shivek, 326 Mass. 142, 150 (1950). However, we held in Whalen that one who hires an independent contractor to perform work which is inherently dangerous is liable for failure to take precautions. Id.
Vertentes asserts that because the authors of the Restatement (Second) of Torts did not adopt a specific exclusion for employees of independent contractors, they intended employees to fall within the protections under §§ 416 and 427, which are set forth in the margin.
In the introductory notes to c. 15 of the Tentative Draft No. 7 (1962), of the Restatement (Second) of Torts, the authors indicated that employees of independent contractors should be expressly excluded from recovery under all exceptions to the general rule of nonliability. However, this special note was not included in the final 1965 draft. Vertentes suggests that the failure to include this special note in the final draft implies
While some courts have found this omission significant, Hagberg v. Sioux Falls, supra, we do not. We believe that the authors intentionally left unclear the question whether an employee of an independent contractor should recover. We also note that all illustrations following §§ 416 and 427 deal only with members of the general public.
Second, Vertentes argues that if we exclude employees from recovery under this exception, we would be violating the "public policy" of our decisions in Poirier v. Plymouth, 374 Mass. 206 (1978), and Mounsey v. Ellard, 363 Mass. 693 (1973). Vertentes claims that Poirier, supra, which abolished the "hidden defect" rule as applied to employees of independent contractors, imposed a single duty of care under all circumstances. Thus it eliminated any distinctions based upon the status of the plaintiff. His argument continues that to deny relief to employees of independent contractors in this case would derogate from this rule.
Poirier, supra, sought to impose direct liability for the negligence of an employer or hirer of an independent contractor in failing to provide a safe work environment. Id. at 228. Poirier differs significantly from the instant case because Vertentes seeks to impose vicarious liability on the employer, a species of liability which is not predicated on the employer's direct negligence. We believe this difference renders the Poirier holding inapplicable.
Moreover, denial of recovery for an employee of an independent contractor does not encourage an employer to evade liability through the device of a contract with an independent contractor. See Davis v. John L. Whiting & Son, 201 Mass. 91, 93 (1909). An employer, Barletta in this case, does not escape liability either directly or indirectly because the contract price takes into account the independent contractor's potential workmen's compensation liability. Welker v. Kennecott Copper Co., 1 Ariz.App. 395, 403-404 (1965). The employer of the independent contractor, in effect, pays the workmen's compensation premiums through the contract price. Vagle v. Pickands
If we were to permit recovery in this case on the basis of vicarious liability, an employee of an independent contractor would collect more compensation than an injured employee of Barletta, who would be limited to workmen's compensation benefits. This would impose a heavier burden upon employers who must rely on the services and expertise of independent contractors to perform hazardous work. See Vagle v. Pickands Mather & Co., supra. Furthermore, if we impose liability in cases such as this, employers of independent contractors who perform inherently dangerous work may demand indemnity from those contractors for any recovery obtained by the contractor's employees. This would expose independent contractors to potential liability far greater than that of other employers covered by workmen's compensation statutes. See Anderson v. Chancellor W. Oil Dev. Corp., 53 Cal.App.3d 235, 242 n. 2 (1975).
We have considered the other arguments of Vertentes and find no merit in them. For all these reasons we hold that Barletta, as the general contractor, is not vicariously liable to the plaintiff, an employee of a subcontractor.
Judgment of the Superior Court reversed.
ABRAMS, J. (concurring).
I agree with the result reached by the court in this case. I believe a few additional comments will more fully place this decision in proper perspective.
In recent years, this court has scrutinized various common law barriers to recovery in negligence cases that focused on the status of the plaintiff or the defendant, and has eliminated several such status distinctions that were anachronistic and unduly confusing and which did not promote tort law objectives of fairly allocating the costs and risks of human injuries. Notwithstanding this salutary trend toward the elimination of invidious status distinctions, cases arise that call for the preservation
In prior decisions, we rejected the notion that certain plaintiffs are less worthy than others for purposes of the standard of care for their personal safety to which a property owner should be held. Thus, in Mounsey v. Ellard, 363 Mass. 693 (1973), we jettisoned the licensee-invitee distinction, noting that "[an] owner's conduct in maintaining his premises does not depend on whether his visitor is a social or business acquaintance," and that "[a] visitor's safety does not become less worthy of protection by the law because he is a social guest and not a business invitee." Id. at 706. We also took note that the "ancient and largely discredited common law distinction" between licensees and invitees involved such minute subtleties that its application engendered confusion and inconsistent decisions on similar facts. Id. at 705-706. The distinction, we concluded, was not an equitable one and operated unnecessarily to prevent juries from "determining the fundamental question whether the defendant has acted reasonably in light of all the circumstances in the particular case." Id. at 707.
For similar reasons, we subsequently discarded our common law rule that a landlord owed a lesser duty of care in the maintenance of common areas to persons visiting a tenant than was owed to others lawfully on the property, finding "no logical basis for distinguishing among persons who enter private property for various legitimate purposes" in measuring the quantum of legal protection available. Lindsey v. Massios, 372 Mass. 79,
In the aftermath of the King decision, a property owner's duty to licensees, invitees, tenants, and tenants' guests was homogenized into a general duty to exercise reasonable care to prevent injury to such persons.
More recently, the court faced the question whether foreseeable adult trespassers, who remained second class citizens in the realm of tort law despite our movement away from status distinctions,
Thus, our decisions for the most part indicate a readiness to eradicate illogical or inequitable status distinctions among tort plaintiffs. The cases demonstrate that the soundness of a given distinction must be analyzed on an individual basis. See Soule v. Massachusetts Elec. Co., 378 Mass. 177, 185-186 (1979); id. at 187 (Hennessey, C.J., concurring). See also Schofield v. Merrill, supra at 258-259 (Liacos, J., dissenting). The origins of the distinction, its conformity with contemporary societal attitudes and public policy, and its consistency with predictable results are all factors to be evaluated.
The rule of law rendering one who employs an independent contractor to perform inherently dangerous work vicariously liable for damages to persons injured by the independent contractor's negligence imposes, like other vicarious liability doctrines, a duty to pay unrelated to any breach of duty to the plaintiff by the liable party. In the case before us, the evidence was insufficient to establish any negligence by the company
The imposition of vicarious liability on the employer of an independent contractor who fails to take reasonable precautions in performing inherently dangerous work
An employee of an independent contractor who engages in inherently hazardous labor differs from a member of the general public in two significant aspects. First, the employee has contracted to perform the work, and generally obtains higher compensation precisely because of such risks. See Poirier v. Plymouth,
An equally fundamental distinction between employees injured on the job and passersby or other members of the general public is that employees are insured for their injuries under our workmen's compensation law. Thus, employees are assured of recovery whereas members of the general public are relegated to the hazards of litigation. The concern that persons injured through the negligence of an independent contractor performing inherently dangerous work might go uncompensated, on which the vicarious liability doctrine is founded, is simply not applicable in the case of an employee.
Under the "common employment" doctrine, the employee of a subcontractor was barred from a negligence action against the general contractor. Clark v. M.W. Leahy Co., 300 Mass. 565, 568-569 (1938). In response to criticisms that the "common employment" doctrine focused exclusively on the availability of financial relief to the victim while ignoring "the moral idea that the ultimate loss from wrongdoing should fall upon the wrongdoer," 2A A. Larson, Workmen's Compensation § 71.10 (1983), the Legislature by statutory amendment abolished the common employment rule so as to permit, inter
For these reasons, I view the distinction, in the context of the vicarious liability doctrine we here consider, between an employee and a nonemployee, as one based on real, rather than archaic or illogical, differences. Further, a rule that encompassed an independent contractor's employee in the class of victims entitled to recover from the third-party employer for the independent contractor's failure to take reasonable precautions would create an indefensible status distinction between employees of an independent contractor and employees working directly for the general contractor. I can think of no justifiable reason for limiting employees in the latter category to workmen's compensation benefits while permitting those in the former category to obtain a higher measure of recovery for injuries sustained in identical circumstances. Because a person's status as an employee or nonemployee is the result of conscious choice, and only fortuity distinguishes employees of independent contractors from those working directly for the party for which inherently dangerous work is performed, I agree with the court's conclusion.
The following are jurisdictions which have not extended the rule to employees of independent contractors: Welch v. Heat Research Corp., 644 F.2d 487, 489 (5th Cir.1981) (applying Texas law); Nelson v. United States, 639 F.2d 469, 479 (9th Cir.1980) (applying Federal maritime law); Sloan v. Atlantic Richfield Co., 552 P.2d 157, 159 (Alaska 1976); Welker v. Kennecott Copper Co., 1 Ariz.App. 395, 403 (1965); Jackson v. Petit Jean Elec. Co-op., 270 Ark. 506, 510 (1980); Florida Power & Light Co. v. Price, 170 So.2d 293, 298 (Fla. 1964); Conover v. Northern States Power Co., 313 N.W.2d 397, 404 (Minn. 1981); Donch v. Delta Inspection Servs. Inc., 165 N.J.Super. 567, 574-575 (1979); Humphreys v. Texas Power & Light Co., 427 S.W.2d 324, 330 (Tex. 1968); Epperly v. Seattle, 65 Wn.2d 777, 783 (1965).