Almeida v. Pinto

115 N.E.3d 574, 94 Mass. App. Ct. 540
CourtMassachusetts Appeals Court
DecidedDecember 6, 2018
DocketNo. 17-P-1403
StatusPublished

This text of 115 N.E.3d 574 (Almeida v. Pinto) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Almeida v. Pinto, 115 N.E.3d 574, 94 Mass. App. Ct. 540 (Mass. Ct. App. 2018).

Opinion

RUBIN, J.

*541Ildemaro Vieira tragically fell to his death while repairing the siding of a three-story house. The plaintiff, Ana Almeida, as personal representative of his estate,3 brought this wrongful death and negligence action against the homeowners, Giovanni Pinto and Chelsea Pinhancos Pinto, and Victor Pinto, who was involved in Ildemaro's hiring.4 A judge of the Superior Court granted summary judgment in favor of the defendants. The plaintiff now appeals.

Background. Summary judgment is proper only if "all material facts have been established and the nonmoving party is entitled to judgment as a matter of law," where all the evidence is "view[ed] ... in the light most favorable to the nonmoving party," here, Almeida. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991). In this light, the record reveals the following.

Giovanni and Chelsea purchased a three-unit, three-story house in New Bedford in 2010, which, according to the plaintiff's expert, has a volume of over 35,000 cubic feet, something we must assume is true given the procedural posture of this case. The couple lived in the second-story unit and rented out the other two.

In the fall of 2012, winds from Hurricane Sandy blew off some of the vinyl siding near the second- and third-story windows. Although the summary judgment record contains conflicting evidence on how much siding needed repair, the plaintiff's expert calculated and opined that it was over one hundred square feet, and, since we must take the evidence in the light most favorable to the nonmoving party, *577we must accept that as well for purposes of decision.

Victor, Giovanni's father, told Giovanni that he should repair the siding because "winter is coming." Giovanni, a commercial fisherman, did not believe he could do the repairs himself, and concluded that "there was a need for a professional person." He asked Victor if he knew anyone who could fix the house. Victor did not, so he asked his landscaper, John Vieira, if he "knew anyone that did vinyl." Initially John responded that he did not *542know of any such person, but he called Victor back a day or two later and said, "[M]y brother ... does it." John's brother was the decedent, Ildemaro Vieira. According to Almeida, although Ildemaro had occasionally done siding projects, he had never done one higher than the first story of a house on his own and did not have a contractor's or home improvement license. John testified that Ildemaro "did lots of work like [this]." Nobody applied for a building permit.

Victor met with Ildemaro on December 8 to show him the house. Ildemaro offered to do the job for $200, which Victor understood to include the cost of the equipment, as he was never asked to provide any equipment or advance money for expenses. Victor conveyed Ildemaro's offer to Giovanni and asked Giovanni if he wanted Ildemaro to do the work. Giovanni said, "[Y]es." Giovanni testified that he did not know who would be doing the siding, but that he agreed upon a price of $200. Giovanni also testified that he did not know when the work would be performed; Victor testified that he knew only that it would be performed on weekends.

On December 9, Ildemaro met John at a coffee shop and asked to borrow John's ladders for the job. John agreed, and the two of them brought the ladders to the house. John and Ildemaro put one of the ladders against the wall. Ildemaro climbed up, took some measurements, climbed down to cut some of the siding pieces, and climbed up again with two or three pieces of vinyl. He was wearing a tool belt with a screwdriver in it, but no helmet, harness, or other safety equipment. As he was "snapping vinyls together" with the screwdriver, he stretched to his left to finish a piece, and the ladder shifted to the right, causing him to fall. He hit his head first on an iron fence, then on the cement. Two women were walking by, and John yelled at them to call 911, which they did. An ambulance brought Ildemaro to Providence Hospital, where he remained on life support for five days without regaining consciousness.

Discussion. Our review of a grant of summary judgment is de novo. See Federal Nat'l Mtge. Ass'n v. Hendricks, 463 Mass. 635, 637, 977 N.E.2d 552 (2012).

"When reviewing a grant of summary judgment we consider the pleadings, depositions, answers to interrogatories, and responses to requests for admission ... together with the affidavits, and ask if there is any genuine issue as to any material fact.... We view the evidence in the light most *543favorable to the nonmoving party.... If all material facts have been established and the moving party is entitled to judgment as a matter of law, then the 'judgment sought shall be rendered forthwith.' "

Id., quoting Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). Otherwise, the judgment must be reversed.

The defendants argue that summary judgment was appropriate because the defendants did not owe Ildemaro a duty, and if they did, they did not breach any such duty, or any such breach did not cause Ildemaro's death. See Jupin v. Kask, 447 Mass. 141, 146, 849 N.E.2d 829 (2006) ("To prevail on a negligence claim, a plaintiff must prove that the defendant owed the *578plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage").5

1. Duty and breach. "[T]he existence [or nonexistence] of a duty is a question of law, and is thus an appropriate subject of summary judgment." Jupin, 447 Mass. at 146, 849 N.E.2d 829.

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Bluebook (online)
115 N.E.3d 574, 94 Mass. App. Ct. 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/almeida-v-pinto-massappct-2018.