LUCY A. SANTELLA vs. DOUGLAS P. WHYNOTT & another. [Note 1]

PERRETTA, J. Sustaining serious injury when he fell on the sidewalk abutting the defendants' building, the plaintiff brought this action in negligence in the Superior Court. The defendants moved for summary judgment on the basis that, if the plaintiff's fall was caused by negligence, any such negligence was attributable to their independent contractor, over whom they had

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no control. The judge allowed the motion; judgment was entered pursuant to Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), and the plaintiff appealed. [Note 2] Although the judge gave no reason for his ruling, we think it clear from the memoranda of law submitted to him and included in the record appendix before us that he did so on the basis that, as matter of law, the defendants could not be held vicariously liable for the negligence of their independent contractor. We conclude that the issue of the defendants' vicarious liability raises questions of fact for the jury and reverse.

I. The Negligence.

If the pleadings, affidavits, answers to interrogatories, depositions, and exhibits do not demonstrate a genuine issue of material fact concerning the claimed negligence of the independent contractor, DiCenzo Bros. Construction Corp. (DiCenzo), then the issue of the defendants' vicarious liability is immaterial. We, therefore, relate the facts pertaining to DiCenzo's negligence as they appear in the various documents that were before the judge when he ruled on the motion.

Sometime prior to June, 1981, the defendants entered into a contract with DiCenzo for repair work on the exterior of their two-story stone building. There was a bakery shop on the ground level of the building and offices on the upper level. The repair work included chiseling cement from the wall surface to repoint joints, recaulking and painting windows, and painting the stone facade with a cement-colored paint. Scaffolding was erected along the wall where work was being performed. One of the purposes of the scaffolding was to protect the public. Another safety practice imposed by DiCenzo was the requirement that the last worker to leave the job site for the day had the chore of sweeping any and all debris from the sidewalk abutting the building.

At about 5:30 P.M., on June 24, 1981, the plaintiff fell on the sidewalk as she was walking towards the building to enter the bakery shop. The plaintiff described her fall at her deposition:

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"I . . . walked over . . . here, and my right foot got caught in this hole. That was to the right of the door to . . . [the bakery], and I tried to get my foot out of the hole and not realizing at the time until I looked down that there was all sand on the sidewalk here and I couldn't make any traction here to get my foot out of the hole here . . . . [I]f the sand was not there, then I could have moved this foot, the left foot over to get myself straightened up to get my foot out of this hole."

According to the deposition testimony of DiCenzo's treasurer, his work crew was "off the premises by 3:30 [P.M.]." When DiCenzo's president was asked to describe the condition of the sidewalk at the time the repairs on the building were commenced, he answered that "[i]t wasn't a new sidewalk" and that it had "cracks" or a "depression" in it.

Keeping in mind that "summary judgment is rarely granted on the merits of a negligence action because of the jury's `unique competence in applying the reasonable man standard to a given fact situation,'" Foley v. Matulewicz, 17 Mass. App. Ct. 1004, 1005 (1984), quoting from 10A Wright & Miller, Federal Practice and Procedure Section 2729, at 194 (2d ed. 1983), we conclude that the question of DiCenzo's negligence presents a genuine issue of fact. See Golub v. Milpo, Inc., 402 Mass. 397, 400 (1988). [Note 3]

II. The Defendants' Liability.

It is the general rule that the "employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants." Restatement (Second) of Torts Section 409 (1964). However, because there are so many exceptions to this general rule, the rule itself has been described as a "`preamble to the catalog of its exceptions.'" Id., comment b, quoting from Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co., 201 Minn. 500, 503 (1937). See

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also Whalen v. Shivek, 326 Mass. 142, 150 & n.1 (1950); Vertentes v. Barletta Co., 16 Mass. App. Ct. 463, 466 n.3 (1983), S.C., 392 Mass. 165 (1984).

Of the many recognized exceptions to the general rule, the plaintiff specifically relies upon Restatement (Second) of Torts (1964); (1) Section 416, "Work Dangerous in Absence of Special Precautions"; (2) Section 424, "Precautions Required by Statute or Regulation"; (3) Section 427, "Negligence as to Danger Inherent in the Work"; and (4) Section 427B, "Work Likely to Involve Trespass or Nuisance." Whether the defendants' conduct and DiCenzo's work fall within the circumstances described in these various exceptions are questions of fact for the jury to determine upon sufficient evidence. [Note 4] See Corsetti v. Stone Co., 396 Mass. 1, 11 (1985); Vertentes v. Barletta Co., 16 Mass. App. Ct. at 466 n.4. Compare Restatement (Second) of Torts Section 520 (1977), and comments thereto discussing the various policy reasons which make the question whether an activity is abnormally dangerous (a claim not made in the present case) one of law and not fact. See also Vertentes v. Barletta Co., 392 Mass. at 174-175 & n.3 (Abrams, J., concurring).

Whether the defendants are liable to the plaintiff for her injuries is a question which turns upon disputed factual issues. It was, therefore, error to grant the defendants' motion for summary judgment.

Judgment reversed.