Kostrzewa v. Suffolk Construction Co.
Kostrzewa v. Suffolk Construction Co.
Opinion of the Court
Jaroslaw Kostrzewa was injured when the scaffolding on which he was working fell.
Background. Suffolk was the general contractor for a project (project) to renovate the Saltonstall Building (building) at 100 Cambridge Street in Boston. Suffolk, in turn, subcontracted with North American Site Developers, Inc. (NASDI), to perform demolition and abatement work on the project, including asbestos abatement. NASDI further subcontracted with Superior to perform the asbestos abatement work on the project. Kostrzewa was employed by Superior as an asbestos worker.
Asbestos abatement took place only in contained areas to which access was restricted to licensed asbestos removal or air quality monitoring workers. On May 31, 2002, Kostrzewa and a coworker, Zdzislaw Zylinski (who was also employed by Superior), were removing asbestos within a containment area. The men were working on scaffolding that was approximately twenty feet high and mounted on wheels.
Additional facts from the summary judgment record are set forth in the sections of our discussion to which they pertain.
Discussion. 1. Duty. A general contractor has a duty to its subcontractors’ employees if it “retains the right to control the work in any of its aspects, including the right to initiate and
Viewed in the light most favorable to Kostrzewa, the summary judgment record showed the following:
The contract between Suffolk and the building owner conferred on Suffolk general responsibility and control for the project, including responsibility for safety. See Corsetti v. Stone Co., 396 Mass, at 11 n.8 (while a contract cannot vary or heighten any duty a contracting party may owe to a noncontracting party, it can be evidence of control). The contract provided that “[Suffolk] shall be solely responsible for and have control over construction means, methods, techniques, sequences and
In addition to the contract provisions, there was further evidence suggesting that Suffolk had more than minimal control over the safety aspects of the project. Suffolk had a project safety manager on site. Suffolk’s safety manual required its management to “maintain an interest and participate in the safety program by checking on safety when visiting a Job site,” placed responsibility on Suffolk’s director of safety to perform periodic safety inspections of the project site, and required Suffolk’s superintendent to conduct routine safety inspections and to address any safety issues.
With respect to the asbestos abatement work in particular, Suffolk, as required by the contract documents, created viewing windows so that supervisors could observe the work taking place in the containment areas, which were otherwise surrounded by an opaque barrier. It was not unusual for Suffolk employees to look through the windows. On the day of the accident, the
To be sure, Suffolk submitted evidence suggesting that it had little, if any, access to the containment areas or supervision over the asbestos removal work within those areas.
Finally, Suffolk argues that, even if it owed a duty to Kostrzewa, that obligation was contractually delegated to NASDI and Superior. We disagree. Suffolk’s subcontract with NASDI required NASDI to assume responsibility for the safety of its own (NASDI’s) employees.
2. Breach. We turn briefly to whether, as matter of law, Suffolk did not commit a breach of its duty towards Kostrzewa.
For the reasons set out above, we reverse the judgment.
So ordered.
Jaroslaw Kostrzewa died in 2005 for reasons unrelated to this case, and Ryszard Kostrzewa, as administrator of his estate, was substituted as plaintiff. References hereinafter to Kostrzewa are to Jaroslaw unless otherwise noted.
More specifically, Kostrzewa alleged that Suffolk was “negligent in that it failed to properly supervise the jobsite safety of the means, methods, techniques, sequences and procedures of the work performed by its [sub-]subcontractor.”
The wheels could be locked, but the two workers did not check to see if they were locked before the accident.
Although our previous cases have involved injured employees of subcontractors, we believe the principle is equally applicable here, where Kostrzewa was the employee of a sub-subcontractor. Liability should not turn on how many layers of subcontractors are involved (a matter over which the employee has no control and to which his ability to recover for his injuries should not be tied), but rather on the nature and extent of control retained or exercised by the general contractor.
We note that all three of the cases relied on by the parties and the motion judge arose out of motions for judgment notwithstanding the verdict, not motions for summary judgment. See Corsetti v. Stone Co., 396 Mass, at 4; Dilaveris v. W.T. Rich Co., 424 Mass, at 10; Foley v. Rust Inti., 901 F.2d 183 (1st Cir. 1990). Although we do not rest our decision on the procedural distinction, the later determination in those cases meant that the facts concerning control had been fully developed at trial, a circumstance that did not occur here.
This is not to suggest that we think the record on control was strongly in favor of Kostrzewa. Indeed, there was much evidence to the contrary. However, we think that the evidence was sufficient to defeat summary judgment.
Additional contractual provisions support the same conclusion: Under the subcontract between Suffolk and NASDI, Suffolk reserved the right to change the scope of the work performed by NASDI and to terminate the subcontract if NASDI failed to carry out the work in accordance with the contract documents (which included Suffolk’s safety manual). Suffolk required that NASDI receive permission from Suffolk’s superintendent prior to removing “any temporary rails or protection on the site.” Suffolk also reserved the right to approve the full-time project manager and lead foreman of the subcontractor.
Neither NASDI nor Superior is listed as having also performed duties relating to safety on that day, or on any other for which there is a log in the record.
Access to the containment areas was restricted to licensed workers. Suffolk employees had not been inside the containment area on the day of the accident. Zylinski (Kostrzewa’s coworker) had never seen a Suffolk employee looking through one of the viewing windows. It was Superior’s responsibility to monitor the asbestos abatement work taking place in the containment areas. After the Occupational Safety and Health Administration (OSHA) investigated the accident at issue here, it cited Superior for failing to train its employees to move scaffolding properly and for improper scaffolding relocation.
The subcontract stated: “Provision of a safe and healthy work site for
This issue was not reached by the motion judge because he found no duty.
Reference
- Full Case Name
- Ryszard Kostrzewa, administrator v. Suffolk Construction Company, Inc.
- Cited By
- 6 cases
- Status
- Published