Massachusetts High Court Revives Contractor Liability Claim Over ‘Half Inch’ Defect

Whether a half-inch granite protrusion on a crosswalk under repair is sufficient to support a negligent claim is a matter for a jury to decide, not a court granting summary judgment for a contractor doing work for a municipality.

Furthermore, a private contractor hired by a city is not protected by the state’s statute limiting the liability of municipalities for defects in public ways.

That’s the instruction from the Massachusetts Supreme Judicial Court, which has reversed and remanded a Superior Court granting of summary judgment to Newport Construction Corp., a street contractor hired by the city of Cambridge that is facing an injury suit.

Newport Construction placed a granite block as part of a decorative margin for a crosswalk. The granite should have been flush with the surrounding roadway, but it protruded above the roadway by one-half inch. The contractor intended to repair the defect months later when applying the final course of asphalt. It posted no warning or caution signs to pedestrians at the time of the incident.

While walking into the crosswalk with her granddaughter at dusk, Joan Arruda caught her foot on the protruding granite block, fell, and sustained injuries.

After Arruda filed a complaint alleging negligence, a Superior Court judge allowed Newport Construction’s motion for summary judgment and concluded that the one-half inch defect was “too minor or insubstantial” to support a negligence claim.

On Arruda’s appeal, the state’s high court noted that summary judgment is not ordinarily an appropriate means to resolve negligence cases, because usually the question of negligence is one of fact. It happens only in rare cases and, the high court said, this is not one of the rare instances where summary judgment is appropriate.

Contrary to Newport Construction’s claim, the height of the defect, standing alone, is not determinative of the negligence claim as a matter of law, the court said. Newport Construction contended that the half-inch protrusion was “too minor or insubstantial to support a negligence claim.” But the high court countered that rather than focusing on the height of the protrusion, the “necessary inquiry is whether the defect is so minor or insubstantial that a reasonable person would not have anticipated injury and guarded against it.”

According to the court, the record contained factual support for the negligence claim. Newport Construction knew about the protruding “lip” of the granite margin and planned to eliminate it in the spring through the application of additional asphalt that would make the roadway surface flush with the granite. At the time of the incident, the granite protrusion lacked any traffic cones, warning signs, or paint. As Newport’s construction manager put it, he believed paint was not necessary because the protrusion was “not in a pedestrian path of travel.”

The court said that jurors “need to sift through these facts and weigh the evidence” to decide whether Newport Construction’s conduct amounted to a breach of its duty of care and caused the injury to Arruda.

Based on the record, the court said a jury could conclude that Newport Construction was aware or should have been aware, of the defect and should have anticipated a potential injury, but “nonetheless failed to take steps to eliminate this risk” through adequate warnings or other remedial action. Whether such a conclusion should ultimately be drawn is a factual question within “the special province of the jury.”

The court also found that this case is distinguishable from cases cited by Newport Construction involving municipalities. Municipal defendants enjoy limited liability for injuries resulting from defects in public ways. That statute embodies the public policy that municipalities “should not be liable for slight or trivial imperfections in public ways which might be caused by weather conditions or traffic patterns.”

Newport Construction asked the court to extend the road-defect statute and standards of limited municipal liability to its own conduct “because the burden placed on a contractor will inevitably be passed along to a municipality through a higher contract price.” But the high court declined to extend the statute. For one, the alleged defect was caused by Newport, not weather conditions or traffic patterns. But even more important, it declined because Newport Construction is not a municipality. The road-defect statute “applies only to those entities that have a public duty to maintain the way, not to private parties causing particular defects,” the court stated.

Topics Liability Massachusetts Contractors