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22-P-372 Appeals Court
RYAN WARD vs. CHRISTOPHER M. SCHNURR & others1
No. 22-P-372.
Bristol. May 11, 2023. - September 13, 2023.
Present: Henry, Desmond, & Englander, JJ.
Negligence, Duty to prevent harm, Open and obvious danger. Workers' Compensation Act, Settlement agreement, Exclusivity provision. Practice, Civil, Summary judgment, Amendment of complaint. Conflict of Laws.
Civil action commenced in the Superior Court Department on November 23, 2018.
A motion for leave to file an amended complaint was heard by Renee P. Dupuis, J.; the case also was heard by her on motions for summary judgment; and entry of separate and final judgment was ordered by Debra A. Squires-Lee, J.
Edward J. Mulligan for the plaintiff. John F. Brosnan for Julio Santana. Gail M. Ryan for Catherine Wilcox Schnurr.
1 Catherine Wilcox Schnurr and Julio Santana. As is our custom, we take the defendants' names from the underlying complaint. We note, however, that Christopher Schnurr was voluntarily dismissed from the case in November of 2020. 2
ENGLANDER, J. The plaintiff suffered serious injuries to
both his legs when the wall of a dilapidated and partially
collapsed garage fell on him. The standalone garage was on a
residential property located in Fall River and owned by one of
the defendants here, Catherine Schnurr. The plaintiff was on
Schnurr's property because Schnurr had hired the company for
which the plaintiff worked, Go Green Services, LLC (Go Green),
to demolish and remove the garage.
After seeking workers' compensation benefits from Go Green
in Rhode Island (where the plaintiff resided), the plaintiff
brought this negligence action in the Superior Court against
Julio Santana, the principal of Go Green, and against Schnurr.
Santana defended on grounds, among others, that he was released
and immunized from suit based upon the settlement of the
plaintiff's workers' compensation claim. Schnurr defended on
the ground that she owed no duty to the plaintiff, where the
plaintiff had been hired to remove the garage and where the
garage's hazardous condition was open and obvious. A Superior
Court judge dismissed the claims against both defendants on
summary judgment. We affirm the dismissal.
Background. The following facts are undisputed in the
summary judgment record, unless indicated otherwise.
In February of 2016, the roof of the garage on defendant
Schnurr's property collapsed, as the result of a snowstorm. 3
Schnurr thereafter contacted Go Green about demolishing and
removing the garage, and in March of 2016 received a proposal
from Go Green to perform those services. Schnurr agreed to the
contract, which set forth the "[s]cope of work" to include, in
particular, "[d]emo garage to concrete slab/ground level";
"[p]lace all debris in container/dumpster"; "[c]ontainer to be
kept on site and be provide[d] by Go Green Services"; and
"[r]emov[e] all debris from site."
The defendant Santana was one of the two principals of Go
Green, together with his wife; Santana was responsible for the
contracting side of the business. In April of 2016, Santana
directed the plaintiff to go to Schnurr's property, to wait for
a dumpster, and to complete the demolition of the garage.
The plaintiff arrived at the site on April 8, 2016, where
he saw that the garage was partially collapsed, that weeds and
vines were growing throughout the structure, and that the
structure contained rotting wood. The plaintiff then called
Santana and explained that he did not believe he could take down
the structure safely in its then-present condition, and that
additional equipment would be needed. Santana told the
plaintiff that the job needed to be done, and said that he
(Santana) would try to get to the location as soon as he could.
The plaintiff then walked around the outside of the
collapsed garage. The plaintiff encountered what he described 4
as a "2-by-4" -- a piece of wooden construction material --
protruding out of the collapsed structure through a window. He
reached for the protruding object, felt that he could move it
freely, and pushed it back toward the inside of the garage. The
garage then collapsed on top of the plaintiff, pinning his legs
underneath. The plaintiff sustained bilateral leg fractures,
which required surgery.
The record is in conflict as to whether the plaintiff was
an employee of Go Green, or an independent contractor, as of the
time of his injuries. As discussed below, the plaintiff's
actual status ultimately is not material to our ruling, but the
dispute is relevant background.
After being injured, the plaintiff applied for workers'
compensation benefits with the Rhode Island Workers'
Compensation Court. Go Green, through its insurer, denied
liability, claiming that the plaintiff was an independent
contractor and thus not entitled to workers' compensation under
Rhode Island law. A Workers' Compensation Court judge agreed,
and initially denied the plaintiff's petition. Pursuant to the
Rhode Island workers' compensation procedures, the plaintiff
sought a trial regarding whether he was entitled to workers'
compensation, but before the case went to trial the parties
agreed to settle the dispute for a lump-sum payment of $19,000.
Thereafter, the Workers' Compensation Court approved the 5
settlement, and entered an order providing that Go Green was
entitled to a release signed by the plaintiff. The plaintiff
signed such a release, which released Go Green and the insurer.
The release did not expressly cover Santana, or any of the
officers or employees of Go Green.
In November of 2018 the plaintiff initiated this complaint
in Superior Court. Count one is a negligence count against
Schnurr. Count two is a negligence count against Santana.2
After discovery, which included depositions of the plaintiff,
Santana, and Schnurr, the defendants each moved for summary
judgment. For his part, Santana argued that Rhode Island and
Massachusetts workers' compensation laws, as well as the release
that the plaintiff signed, barred the plaintiff's tort claim,
and that, in any event, Santana could not be held liable for the
plaintiff's injuries because he did not owe any duty to the
plaintiff. Schnurr similarly contended that she had not owed
any duty to the plaintiff, especially where the hazardous
condition that the plaintiff was tasked with remedying was open
and obvious and Go Green had been hired to remove it.
After the defendants filed the summary judgment motions,
the plaintiff moved to amend his complaint to add Santana's wife
and Go Green as defendants with respect to his negligence claim
2 There is also a count three, which alleges negligence against the defendants as joint tortfeasors. 6
against Santana, and to assert, among other things, an
additional claim for fraudulent and/or negligent
misrepresentation against those defendants. Santana opposed the
motion, arguing among other things that the plaintiff had unduly
delayed in seeking such an amendment.
The judge granted summary judgment, largely accepting the
arguments of each defendant. The judge also denied the
plaintiff's motion to amend. This appeal followed.
Discussion. 1. Santana. We first address the plaintiff's
claim against Santana, one of the principals of Go Green.
Although the judge cited several grounds for granting summary
judgment to Santana, we need rely only on one, which is that the
plaintiff is precluded from pursuing a negligence claim against
Santana as a result of the resolution of his workers'
compensation claim against Go Green. "Summary judgment is
appropriate where there is no material issue of fact in dispute,
and the moving party is entitled to judgment as a matter of
law." Berry v. Commerce Ins. Co., 488 Mass. 633, 636 (2021).
"Our review of a decision on a motion for summary judgment is de
novo." Id.
As noted, the plaintiff elected to pursue a workers'
compensation claim against Go Green in Rhode Island. At the
time of his injury the plaintiff resided in Rhode Island, and 7
Santana also resided in Rhode Island.3 The plaintiff was
represented by counsel. Although Go Green (through its insurer)
denied workers' compensation liability and was initially
successful in doing so, ultimately Go Green agreed to pay money
to the plaintiff as a result of his workers' compensation claim,
the plaintiff agreed to the settlement and provided a release,
and the workers' compensation judge approved the settlement as
provided by Rhode Island law.
These facts preclude the plaintiff from pursuing a
negligence claim against Santana in Massachusetts. Under the
circumstances, the first question we face involves a choice of
law issue. It is clear that Massachusetts law applies to the
plaintiff's tort claims -- the tort claims involve the condition
of a Massachusetts property, and the injury occurred in
Massachusetts, see Cohen v. McDonnell Douglas Corp., 389 Mass.
327, 333 (1983) -- but under Massachusetts law, what is the
effect of the settlement of the Rhode Island workers'
compensation claim?
In our view, applying Massachusetts law we must look first
to the preclusive effect that the settlement would be given
under Rhode Island law. The Restatement (Second) of Conflict of
3 The summary judgment evidence suggests that Go Green's headquarters were also in Rhode Island, at least as of the time the plaintiff began working for Go Green. 8
Laws § 184 (1971) says that "[r]ecovery for tort . . . will not
be permitted in any state if the defendant is declared immune
from such liability by the work[ers'] compensation statute of a
state under which the defendant is required to provide insurance
against the particular risk and under which . . . the plaintiff
has obtained an award for the injury." It is a basic precept of
workers' compensation schemes that an employee's remedy against
an employer for injuries suffered on the job is generally
limited to the remedy available under workers' compensation law.
See Estate of Moulton v. Puopolo, 467 Mass. 478, 483-484 (2014).
That is true under Rhode Island law as well, and thus by
pursuing a workers' compensation claim and accepting settlement
funds, the plaintiff forewent any additional claim against his
employer, Go Green. See Kulawas v. Rhode Island Hosp., 994 A.2d
649, 656-657 (R.I. 2010) ("exclusivity provision of the [Rhode
Island Workers' Compensation Act] preclude[d] a subsequent
negligence suit against plaintiff's employer" where plaintiff
had settled disputed workers' compensation claim).
The result is not different because here the plaintiff sued
Santana rather than Go Green. The Rhode Island Workers'
Compensation Act exclusivity provision states that "[t]he right
to compensation for an injury under [the act], and the remedy
for an injury granted by [it], shall be in lieu of all rights
and remedies as to that injury now existing, either at common 9
law or otherwise against an employer, or its directors,
officers, agents, or employees" (emphasis added). R.I. Gen.
Laws § 28-29-20. The Rhode Island exclusivity provision thus
establishes protection for "officers, agents, or employees," as
well as the company. And the Rhode Island case law makes clear
that a settlement of a disputed claim is not treated differently
for exclusivity purposes; such a settlement "falls squarely
within the [Rhode Island Workers' Compensation Act's]
exclusivity provision." Kulawas, 994 A.2d at 653. In short, by
accepting the settlement, the plaintiff released not only Go
Green but also Santana, as a matter of Rhode Island statutory
and decisional law.
We have little difficulty concluding that the plaintiff's
release of Santana under Rhode Island law also operates to bar a
tort suit in Massachusetts. In addition to the principle
articulated in the Restatement (Second) of Conflict of Laws,
quoted above, we note that Massachusetts law has similar
exclusivity rules. See G. L. c. 152, § 24. As the Supreme
Judicial Court said in Saab v. Massachusetts CVS Pharmacy, LLC,
452 Mass. 564, 570 (2008), "[i]f a work-related injury is
compensable under the act, then § 24 applies and the exclusivity
provision bars any other remedies against the employer."
Massachusetts law also "bars an employee injured in the course
of his or her employment by the negligence of a fellow employee 10
from recovering from that fellow employee." Anzalone v.
Massachusetts Bay Transp. Auth., 403 Mass. 119, 124 (1988).
Moreover, the plaintiff has not pointed us to any particular
Massachusetts policy that would be in conflict with the result
we reach.4 The purpose of the exclusivity provision is, in part,
to preclude exactly the type of tort litigation the plaintiff
seeks to pursue here. See, e.g., Saab, supra at 566-567 (noting
Massachusetts Workers' Compensation Act "was designed to replace
tort actions" [citation omitted]). Cf. Restatement (Second) of
Conflict of Laws § 6 ("policies of the forum" are "relevant to
the choice of the applicable rule of law").
The plaintiff appears to suggest, in his brief, that the
Rhode Island settlement can be ignored or avoided because it was
the product of the defendant's fraud. The plaintiff points in
particular to Go Green's assertion in the workers' compensation
proceedings that the plaintiff was not its employee, but rather
an independent contractor. On the summary judgment record,
however, the plaintiff's argument is unavailing. The plaintiff
4 Section 184 of the Restatement (Second) of Conflict of Laws, comment b, notes that "[i]t is uncertain" whether a forum State will follow another State's workers' compensation exclusivity bar where the defendant in the forum State is a fellow employee, rather than the employer. Here, however, given that both the Rhode Island and Massachusetts exclusivity provisions bar subsequent recovery in tort against fellow employees, we see no reason to deny the Rhode Island settlement preclusive effect. 11
did not make a showing of fraud in his opposition to summary
judgment. Moreover, the plaintiff was represented by counsel
before the Rhode Island Workers' Compensation Court, and he
knowingly entered into the settlement. In addition, it appears
that the plaintiff did sign, pursuant to R.I. Gen. Laws § 28-29-
17.1, a notice of designation as an independent contractor when
he first began working for Go Green, meaning that there was some
evidentiary support for Go Green's position.5 The plaintiff's
claims against Santana are thus barred as a result of the Rhode
Island workers' compensation settlement.
2. Schnurr. The judge granted summary judgment for
Schnurr on the ground that under the circumstances she owed no
duty of care to the plaintiff. Ordinarily, of course, a
landowner does owe a duty of care to those lawfully on his or
her property. That duty has been described as follows: "[A]n
owner or possessor of land owes a common law duty of reasonable
care to all lawful visitors. This duty includes an obligation
to maintain the premises in reasonably safe condition and to
warn visitors of any unreasonable dangers of which the landowner
5 We note, nevertheless, that we are troubled by Santana's assertion, in this litigation, that the plaintiff was an employee of Go Green -- an assertion directly at odds with the position Go Green previously took, with some apparent success, before the Rhode Island Workers' Compensation Court. As discussed above, however, given the legal effect of the Rhode Island settlement, the plaintiff's actual status as employee or independent contractor is not material. 12
is aware or reasonably should be aware" (citations omitted).
Davis v. Westwood Group, 420 Mass. 739, 743 (1995). Thus, if
the garage had injured an acquaintance whom Schnurr had invited
to the property, our analysis would be significantly different.
In this case, however, Schnurr claims that her situation
falls into a "narrow exception" to the above rule, where the
person injured was lawfully on the premises for the very purpose
of remedying the hazardous condition that caused the harm.
Schnurr relies in particular on Sparks v. Kepnes, 339 Mass. 349
(1959), and the Restatement (Second) of Torts §§ 343 and 343A
(1965). We agree with Schnurr that the circumstances here fall
within the previously recognized narrow exception.
In Sparks, the Supreme Judicial Court addressed the duty
owed by a property owner to the employee of a contractor that
the owner had hired to "repair and completely reconstruct [a]
burned building." Id. at 351-352. In conducting the work, the
plaintiff, an experienced carpenter, was supporting himself on a
wall and cornice; both gave way, and the plaintiff fell from the
roof of the building to the ground. See id. at 350, 352. The
court held that the defendant owed no duty to the plaintiff
under the circumstances -- despite the "general rule" that
property owners are typically "obliged to warn . . . of hidden
defects" of which they are or should be aware -- "because the 13
[dangerous] conditions [of the building] were obvious." Id. at
351-352.
That no duty is owed under such circumstances is supported
by the Restatement (Second) of Torts. According to the
Restatement, "[a] possessor of land is not liable to his
invitees for physical harm caused to them by any activity or
condition on the land whose danger is known or obvious to them,
unless the possessor should anticipate the harm despite such
knowledge or obviousness." Restatement (Second) of Torts
§ 343A. Accordingly, the duty of "[r]easonable care . . . does
not ordinarily require precautions, or even warning, against
dangers which are known to the visitor, or so obvious to him
that he may be expected to discover them." Id. at § 343A
comment e. See Dos Santos v. Coleta, 465 Mass. 148, 155-156
(2013) (discussing application of § 343A under Massachusetts
law).
The above authorities encompass the commonsense recognition
that a landowner who has a hazardous condition on his or her
property may need to invite onto the property another person or
persons to remedy that condition. The law, of course, wishes to
encourage behavior that remedies hazardous conditions. Cf.
Martel v. Massachusetts Bay Transp. Auth., 403 Mass. 1, 4-5
(1988) (noting rules should not "discourage owners from making
repairs to dangerous property" [citation omitted]). And the 14
person engaged to remedy such a hazardous condition differs
markedly from an ordinary invitee. For one thing, there usually
will be little question that such a person is aware of the
danger, and thus there should be no need for warning.
Furthermore, such a person will have held him- or herself out as
capable of remedying the condition. Under those circumstances,
it is reasonable for the law to reallocate the risk of harm from
the property owner to the person who has sought to take on, and
to alleviate, the hazard. See Lapointe v. Silko Motor Sales,
Inc., 926 F.3d 52, 55 (1st Cir. 2019) (one "hired to remedy a
hazard would reasonably be expected to exercise a different
level of 'minimum care' concerning the danger than an individual
who entered the property for a different reason and was unaware
of the risk").6
We acknowledge that since Sparks was decided, there have
been some adjustments to the tort law relating to "open and
obvious" hazards. It is now clear that a landowner is not
necessarily insulated from liability because an injury is caused
6 To be clear, our decision is not based upon the now- abolished defense of assumption of the risk. See G. L. c. 231, § 85. Instead, it is based upon established case law that a landowner does not owe a duty to a person it hires to remedy hazardous conditions. As the United States Court of Appeals for the First Circuit put it, the law has "retained a carve-out for risks 'that are inherent in the job and of which the employee is fully aware.'" Lapointe, 926 F.3d at 55, quoting Poirier v. Plymouth, 374 Mass. 206, 227 (1978). 15
by an "open and obvious" hazardous condition, and that a duty to
remedy the condition may nevertheless exist. In Dos Santos, for
example, the court held that the defendant property owners could
be liable for failing to remedy a hazardous condition -- a
trampoline located near an inflatable pool -- that injured an
invitee who attempted to flip from the trampoline into the pool.
465 Mass. at 149. Drawing from the Restatement (Second) of
Torts § 343A, the court reasoned that a duty to remedy could
exist, "despite the open and obvious nature of the danger," if
(as in the facts of that case) "the landowner should anticipate
the harm despite such knowledge or obviousness." Id. at 156,
163.7 See Soederberg v. Concord Greene Condominium Ass'n, 76
Mass. App. Ct. 333, 339 (2010) (landowner could be held liable
for injury caused by accumulation of ice and snow, despite open
and obvious nature of the hazard).
The facts of this case, however -- as with the facts in
Sparks -- are readily distinguishable from those in Dos Santos
and Soederberg. In particular, here there are no facts in the
There is a Restatement (Third) of Torts: Liability for 7
Physical and Emotional Harm (2010), which was published before Dos Santos was decided in 2013. The Supreme Judicial Court followed the Third Restatement with respect to a different issue, in Doull v. Foster, 487 Mass. 1 (2021). As to the issues presented here, however, we perceive no material difference between the Third Restatement and the Restatement (Second) of Torts. See Restatement (Third) of Torts § 51 comment k ("The duty imposed in this Section . . . is consistent with § 343A . . ."). 16
record that indicate that Schnurr either did or should have
anticipated the harm that befell the plaintiff. To be sure,
Schnurr was aware that there could be a risk; but in retaining
Go Green, she was appropriately seeking to remedy that risk.
And on this record, it is not disputed that both Go Green and
the plaintiff were also aware of the risk. Indeed, by
contracting with Schnurr to demolish and remove the garage, Go
Green both demonstrated its knowledge of the hazardous condition
and held itself and its employees out as competent to safely
remediate it.8 Under the case law and the Restatement (Second)
of Torts, Schnurr owed no duty to the plaintiff.
3. Motion to amend. The plaintiff also argues that the
judge erred in denying his motion to amend his complaint under
Mass. R. Civ. P. 15 (a), 365 Mass. 761 (1974) (rule 15 [a]). We
disagree. Although rule 15 (a) provides that "leave shall be
freely given when justice so requires," "the decision to grant
such a motion lies within the broad discretion of the trial
judge." Harvard Law Sch. Coalition for Civ. Rights v. President
8 The plaintiff appears to suggest that Schnurr negligently delayed remedying the condition, citing the fact that she did not obtain Go Green's services until approximately two months after the garage initially collapsed. The plaintiff cites no facts, however, that indicate that any delay (even assuming it was unreasonable), somehow impacted the open and obvious nature of the danger associated with the partially collapsed garage. Cf. Sparks, 339 Mass. at 350 (concluding defendant owed no duty under circumstances in which the defendant delayed remedying a burned building for approximately four to five months). 17
& Fellows of Harvard College, 413 Mass. 66, 72 (1992). "Good
reasons for denying such a motion include 'undue delay . . .
[and] futility of the amendment'" (citation omitted). Kennie v.
Natural Resource Dep't of Dennis, 451 Mass. 754, 766 (2008).
Here, the plaintiff's delay, coupled with the advanced
stage of the proceedings, provided a sound basis for the judge
to deny the motion. The plaintiff waited until July of 2021 --
over two years after he filed his original complaint, and after
discovery had been taken and the defendants had moved for
summary judgment -- to seek amendment, and he did not explain
below (or in his brief on appeal) why he could not have done so
earlier. See Libby v. Commissioner of Correction, 385 Mass.
421, 428 (1982). Given the stage of the litigation, there was
no abuse of discretion. See Castellucci v. United States Fid. &
Guar. Co., 372 Mass. 288, 292 (1977) ("A liberal amendment
policy does not justify overriding the rights of a person who
would be prejudiced by the last minute allowance of a motion to
amend").
Judgment affirmed.