40 Mass. App. Ct. 90 | Mass. App. Ct. | 1996
The plaintiff brought this action in the Superior Court for injuries suffered on June 15, 1989, when a scaffold on which he was working collapsed. The scaffold had been erected at a single family house owned by the defendant, Francisco A. Meneses, by the plaintiff’s employers, the defendants Bettencourt, who had been engaged by Meneses to install a new roof.
Aside from several claims against the Bettencourts, the
The defendant Meneses, in a motion for summary judgment and for separate entry of judgment, acknowledged the dangerousness of the “makeshift scaffold” but argued that he exercised no direction or control over the plaintiff or the roofing operation. A judge of the Superior Court allowed the motion on the ground that there was no evidence that Meneses exercised the level of control necessary to impose liability. He also indicated that he rejected the plaintiff’s claim of a “cause of action under G. L. c. 143, § 51.” The plaintiff appealed, and this court, in an unpublished memorandum entered without oral argument, affirmed the separate judgment dismissing the plaintiff’s complaint. The plaintiff then petitioned for a rehearing claiming that this court erroneously rejected his argument with respect to G. L. c. 143, § 51. That petition was allowed and the parties argued before a reconstituted panel.
Upon further consideration, we again affirm the separate judgment dismissing the plaintiff’s complaint against the defendant Meneses. As to the plaintiff’s common law negligence claim, we rest on the ground stated in our unpublished memorandum, namely that none of the summary judgment materials before us indicates that Meneses knew or should have known that the staging was dangerous.
General Laws c. 143, § 51, as amended through St. 1993,
We begin our analysis with the words of the statute serially listing places or structures to which it applies. Each of the elements of that series, other than the last (“building”), specifically describes a public or commercial use. The last element, “building,” is a general word that under either its common definition or its statutory definition takes a literal meaning that is substantially more extensive than the specific elements preceding it. Accordingly, under the doctrine of ejusdem generis, we treat the specific words as identifying a class of commercial and public uses and restrict the general word “building” to structures within that class. Haas v. Breton, 377 Mass. 591, 595 (1979) (“ ‘A general term in a statute or ordinance takes meaning from the setting in which it is employed. The literal meaning of a general term in an enactment must be limited so as not to include matters that, although within the letter of the enactment, do not fairly come within its spirit and intent.’ Kenney v. Building Commr. of Melrose, 315 Mass. 291, 295 [1943]”). See Powers v. Freetown Lakeville Regional Sch. Dist. Comm., 392 Mass. 656, 660 & n.8 (1984); 2A Singer, Sutherland Statutory Construction § 47.17 (5th ed. 1992). We need not define the class precisely except to note that it is characterized by public and commercial structures and that the context does not encompass a single family house.
The definition of the term “building” in G. L. c. 143, § 1, as appearing in St. 1972, c. 802, § 12, does not compel a different interpretation of § 51. By defining “building” as “a
The recent legislative history of G. L. c. 143, § 51, favors this interpretation. After the court in St. Germaine v. Pendergast, 411 Mass. 615 (1992) (St. Germaine I), held that the statute “is not meant to apply to a single family home that is under construction,” id. at 619, the Legislature enacted St. 1992, c. 66, which, in part, added to § 51 a provision that “[a]ny person who obtains a permit pursuant to the state building code to erect, construct, or demolish a building or structure shall be liable to any worker or other person for all injuries and damages that result from a failure to provide a safe work place . . . .” That legislation was enacted “[i]n a clear response” to St. Germaine I. St. Germaine v. Pendergast, 416 Mass. 698, 701 (1993) (St. Germaine II). In its decision holding that the amendment could not be applied retrospectively, the court in St. Germaine II, at 702, stated that “the statutory language compels the conclusion that § 51, as amended, embraces a single-family house.” Approximately two weeks after the decision in St. Germaine II, the Legislature deleted that language. See St. 1993, c. 495, § 35.
Nothing in the decided cases compels us to construe G. L. c. 143, § 51, as applying to a single family house. St. Germaine I, by limiting its holding to the precise facts presented, involving a single family house under construction, did not require application of § 51 to all single family houses not under construction. In Commonwealth v. Duda, 33 Mass. App. Ct. 922 (1992), the only other pertinent reported decision that has come to our attention, this court held that “a watchmen’s cottage in a commercial marina[ ] qualified as a building” under § 51 even if the cottage was considered to be residential. Id. at 923. We do not construe that decision, involving the reversal of criminal convictions for violation of
Judgment affirmed.
The complaint was not part of the record on appeal but was called up by us after the case was argued.
The plaintiff's petition for rehearing was filed and allowed after Justice Fine, a member of the original panel, had retired.
On appeal, the plaintiff contends that this claim is not based on control by Meneses of the roofing operation, but rather on his common law duty as a homeowner to warn of known or easily discoverable dangers.
Notwithstanding that this statute is not expressly mentioned in the plaintiffs complaint, it apparently was the subject of argument before the judge and was discussed in his decision. It also has been briefed to us, and the defendant, other than noting the absence of specific reference to it in