Rodrigues v. Tribeca Builders Corp.

32 Mass. L. Rptr. 535
CourtMassachusetts Superior Court
DecidedMarch 6, 2015
DocketNo. SUCV201300730C
StatusPublished

This text of 32 Mass. L. Rptr. 535 (Rodrigues v. Tribeca Builders Corp.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rodrigues v. Tribeca Builders Corp., 32 Mass. L. Rptr. 535 (Mass. Ct. App. 2015).

Opinion

Gordon, Robert B., J.

This negligence action arises out of injuries that Plaintiff Marciel Rodrigues (“Plaintiff’) sustained on November 10, 2012 while performing work on a construction project for the development of a restaurant and concert venue in Cambridge, Massachusetts. Plaintiff claims to have been injured when a handicap chair-lift he was helping to move across a stage at the construction site fell to the ground and struck his left thigh and ankle. Plaintiff has brought claims against Defendants Tribeca Builders Corp. (“Tribeca”), the project’s general contractor, and Cilywide Contracting, Inc. (“Citywide”), a subcontractor hired by Tribeca to perform certain construction services. Plaintiff has additionally asserted a negligence claim against Stys Hospitality, Inc. (“SHI”), a project management firm engaged by the subject property’s landlord to provide project management services on its behalf.1 Presented for decision is SHI’s Motion for Summaxy Judgment, by which it seeks the dismissal of all claims against it by the Plaintiff.

BACKGROUND

The summary judgment record discloses the following undisputed material facts. These facts are drawn from the parties’jointly filed Rule 9A(b)(5) Statement, and any factual conflicts have been resolved in favor of the non-moving Plaintiff.

Plaintiff was employed as a laborer by CCP Enterprises (“CCP”), a construction subcontractor that provided demolition, extraction and clean-up work on the subject restaurant project. Bowery Presents, LLC (“Bowery”) was at all times relevant the landlord of the project’s underlying property. Bowery engaged Tribeca to serve as general contractor for the project, and Tribeca subcontracted with Cilywide to perform carpentry and drywall services during the construction phase.

Bowery additionally retained SHI to provide “Owner’s Project Management” services during the project. The contract signed by Bowery and SHI contemplated that SHI would carry out (as its representative) a variety of logistical, managerial and administrative functions related to the construction, most of which involved monitoring the project’s adherence to its agreed budget and schedule. SHFs role was, in essence, that of a conventional “Clerk of the Works,” functioning as the eyes and ears of the owner in respect to the administration of the project. More specifically, the contract called upon SHI to furnish the following construction-related services:

Construction
* Final Pricing ■
= Solicit bids from General Contractors and Owner Vendors
= Review and level all bids
= Advise on selection of each contractor/vendor
= Review all and any value engineering suggestions
* Permit, work with designated permit agency
[536]*536* Construction Administration
= Attend all job meetings
= Visit site weekly or as needed
= Inspect site for QC/QA issues
= Assess schedule progress
= Coordinate necessary parties for site related issues
= Manage and coordinate owner vendors with GC
= Review pay applications and lien releases
= Act as liaison between Landlord and the project
* Update Project Budget Control Document Monthly
* Facilitate and comment on Punch List.

Although the Owner’s Project Management contract required SHI to attend job meetings and visit the project site on a periodic basis, the terms of the agreement imposed no duly on SHI to oversee the means or methods of construction and were altogether silent on the subject of safety. SHI did not attend safety meetings held by Tribeca and its subcontractors, did not direct or instruct any construction laborers on the job-site regarding how their work should be performed, and did not by either contractual commitment or voluntary action undertake any duty to monitor the mechanics of construction or ensure the safety of site workers.2 Although Plaintiff insists that a number of the administrative functions SHI carried out had “safety implications,” he cites no evidence that SHI either bore contractual responsibility for project safety or actually performed any safety-related role in its management of the project.3

Matters concerning the means of project construction, and the methods adopted to ensure site worker safety, appear to have been vested exclusively in Tribeca (as general contractor) and its duty-delegated subcontractors (including, but not limited to, Citywide). The Bowery/Tribeca General Contract4 thus includes the following pertinent “General Conditions”:

Article 3.3. Supervision and Construction Procedures
Section 3.3.1. The Contractor [Tribeca] shall supervise and direct the Work, using the Contractor’s best skill and attention. The Contractor shall be solely responsible for, and have control over, construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the Contract. . .
Article 3.18.1. To the fullest extent permitted by law the Contractor [Tribeca] shall indemnify and hold harmless the Owner, Architect, Architect’s consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney’s fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.
Article 10.1. Safety Precautions and Programs
The Contractor [Tribeca] shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract.
Article 10.2.1. The Contractor [Tribeca] shall designate a responsible member of the Contractor’s organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor’s superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect.

(Emphasis added.)

Further to the terms of its General Contract with Boweiy, Tribeca’s Subcontract with Citywide reinforced the primary responsibility for j ob-site.safety borne by this general contractor — a responsibility that Tribeca delegated (with indemnification) to Citywide for matters falling within the carpentry and drywall-related scope of its project work. Thus, the Tribeca/Citywide Subcontract provided in pertinent part as follows:

Article 4.3.1.

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Bluebook (online)
32 Mass. L. Rptr. 535, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodrigues-v-tribeca-builders-corp-masssuperct-2015.