NATURE OF CASE:

Premises liability; Failure to safely secure front entrance door; vicarious liability of homeowner for handyman's negligence.

INJURIES ALLEGED:

Herniated disc at L4-5.

NAME OF CASE:

Withheld.

AMOUNT OF AWARD / SETTLEMENT:

$175,000.00

ATTORNEYS FOR PLAINTIFFS:

Eric J. Parker, Susan M. Bourque; PARKER | SCHEER LLP, Boston, Massachusetts

CASE SUMMARY:

On November 6, 1997, the plaintiff, a 52 year old, United States Postal Service letter carrier, visited the defendant's 25 room home, located on High Street in Dedham, Massachusetts, to deliver mail. As the plaintiff attempted to open the large wood and glass storm door which protected the main entry door and mail slot, the door suddenly separated from the door frame and fell backward toward the plaintiff. As the 80 pound door fell, the plaintiff attempted to deflect the door away from his body, and suffered a herniation of his L4-5 disc.

Through discovery, the plaintiff learned that just prior to the plaintiff's arrival at the defendant's home, a handyman had been engaged in the process of installing the storm door, as he had many times in prior years, in anticipation of winter. The handyman had determined that the existing wood screws were too short to adequately support the heavy storm door and left the door, partially secured, to locate longer wood screws. It was during the handyman's absence that the plaintiff visited the plaintiff's home and attempted to open the partially secured front door.

The case was complicated by defense arguments that the handyman responsible for the leaving the front door in a partially secured condition, was not an employee for whom the defendant homeowner was legally responsible. Rather, the defense argued, the handyman (who was uninsured and not a party to the action) was an independent contractor for whom the defendant homeowner was not legally liable under the theory of vicarious liability.

Over the course of the two day arbitration, the plaintiff offered considerable evidence that that the handyman had a long-term working relationship with the defendant homeowner, and had regularly performed a wide range of unskilled services, including painting, landscaping, odd jobs, errands, and other home related services, identical in scope to those performed by the defendant's prior live-in house staff.

The plaintiff argued that according to the Restatement of Agency, and controlling Massachusetts case law, whether the handyman was an employee or an independent contractor turned on whether the defendant homeowner had the right to control the work performed by the handyman. The plaintiff successfully established the defendant's right to control by demonstrating that the defendant, an elderly widow who lived alone in a 25 room, 10,000 square foot home, utilized the services of the handyman on virtually a daily basis. The plaintiff demonstrated that the handyman regularly used tools and equipment belonging to the homeowner in the performance of his tasks; was paid by the homeowner on an hourly basis; took direction from the homeowner with respect to certain delegated tasks, and otherwise qualified as an employee under the language of the Restatement of Agency and leading Massachusetts case law.

The plaintiff argued that as a direct and proximate result of the injuries he sustained an L4-5 disc herniation and was a candidate for laminectomy (which had not been performed as of the date of the arbitration). The plaintiff further argued that as a result of his injuries he was unable to perform his work-related duties as a letter carrier, and opted instead for early retirement, resulting in a diminution in earning capacity. The plaintiff's incident-related medical expenses totaled approximately $30,000.00.

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