Obtaining just compensation for injured workers.Third-party liability increases the chance of a just recovery in construction accident cases.
Construction work is one of the nation's most hazardous occupations. Census figures compiled by the U.S. Department of Labor show that in 1995 alone, the construction industry accounted for 1,000 of the 6,210 on-the-job deaths reported that year.(1) Hundreds of thousands of construction workers are injured in the course of their employment annually in the United States United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. .(2)
In most cases, injured employees are entitled to collect workers' compensation workers' compensation, payment by employers for some part of the cost of injuries, or in some cases of occupational diseases, received by employees in the course of their work. benefits from their employers. Traditionally, however, these benefits do not fully compensate injured workers. Under most of the workers' compensation schemes in the United States, the employer responsible for making payments and any of the client's coworkers receive blanket immunity from tort liability. Just compensation occurs only if the employee can sue another responsible party. Third-party liability not only increases the chance of a just recovery but promotes greater workplace safety by imposing liability on those who are in the best position to prevent construction accidents.
Two authors have suggested that there should be a third-party case in most construction injuries and deaths.(3) This article focuses on the existing immunities and ways around them to enable trial lawyers to identify culpable Blameworthy; involving the commission of a fault or the breach of a duty imposed by law.
Culpability generally implies that an act performed is wrong but does not involve any evil intent by the wrongdoer. third parties and help clients achieve justice.
On construction jobs, typically there are varying levels of actors on the job site--owners, architects, engineers, general contractors, subcontractors, and suppliers. Many times, these entities will seek to insulate themselves from responsibility for workplace injuries through various stratification methods, such as indemnification agreements, delegation of duties to others, or legal immunities. These hurdles are universal, despite subtle differences in the various common law principles applicable in different states.
A recent case handled by my office, Padgett v. Dick Corp.,(4) illustrates many of the stratification issues involved in construction cases and illuminates the different levels of immunity. That case involved the following facts.
The Massachusetts Water Resources Authority The Massachusetts Water Resources Authority (MWRA) is a public authority in the Commonwealth of Massachusetts that provides wholesale drinking water and sewage services to certain municipalities and industrial users in the state, primarily in the Boston area. (MWRA MWRA Massachusetts Water Resources Authority
MWRA Mid-West Regional Authority (Ireland)
MWRA Married Women of Reproductive Age
MWRA Midwest Whippet Racing Association
MWRA Medical Waste Regulatory Act (Michigan) ), the owner of property in Boston, retained Dick Corp. as the general contractor for construction activities taking place at its Deer Island There are several Deer Islands in North America Canada
A set of guide walls, typically 1 metre (3.3 ft) deep and 0.5 metre (1. on the project.
Cynthia Padgett, an ICOS laborer, was placing a concrete-lined, 10-foot-long "tremie" pipe weighing hundreds of pounds in a rack. While she was holding the pipe, a crane operator and a fellow ICOS employee jerked the crane's boom, causing the pipe to go out of control. Padgett severely and permanently injured her back. She is unable to return to construction work. She received workers' compensation benefits through ICOS, leaving ICOS immune from suit.
Padgett sued Dick Corp. and the MWRA, alleging negligence and violations of the Massachusetts state building code. She claimed that Dick Corp. failed to provide a safe workplace and that the crane operator was inexperienced in the tremie pipe operation. Padgett argued Dick Corp. knew that the operator had had problems controlling pipes before the incident.
There were several obstacles in this case: (1) the injury was caused in part by a coworker's negligence; (2) the injury was caused in part by the negligence of the plaintiff's employer, whom the defendant argued was immune from suit; and (3) the contract between the general contractor and the subcontractor provided that the subcontractor was solely responsible for the means, methods, and materials in its operations.
Overcoming the general rule
The first hurdle in a construction case is the general rule of nonliability for the employer of an independent contractor A person who contracts to do work for another person according to his or her own processes and methods; the contractor is not subject to another's control except for what is specified in a mutually binding agreement for a specific job. . The person or entity employing the independent contractor may be referred to as the "employer," "principal," "hirer," or, depending on the circumstances of the case, as the "owner," "developer," or "general contractor."
Generally, the employer of an independent contractor--here, the MWRA and Dick Corp.--is not liable for harm caused to another by an act or omission of the subcontractor--here, ICOS--or its employees. The most commonly accepted reason for this rule is that
since the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor's own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it.(5)
The rule's validity has come into question in courts that have considered this issue. Consequently, there are exceptions that can be used to avoid the result of non-liability. Some of the most useful are:
* Negligence of the employer. If an injured worker can establish that the owner or general contractor retained the authority and responsibility to supervise subcontractors' safety procedures and performed this duty negligently, the general rule does not apply.
* Nondelegable duty arising by contract. In some cases, employers voluntarily assume contractual duties relating to relating to relate prep → concernant
relating to relate prep → bezüglich +gen, mit Bezug auf +acc job site safety. As one court said, "Obligations created by contract can provide a basis for an action in tort."(6) Often, construction contracts can be construed to impose a non-delegable duty to provide a safe workplace, particularly where the general contractor voluntarily assumes that duty in its contract with the owner or developer.
* Absolute liability for statutory violations. Many states impose statutory or regulatory obligations on owners, developers, and/or general contractors. Violation of these statutes and regulations can give rise to civil liability and, in some states, can result in the imposition of absolute liability. As discussed below, New York New York, state, United States
New York, Middle Atlantic state of the United States. It is bordered by Vermont, Massachusetts, Connecticut, and the Atlantic Ocean (E), New Jersey and Pennsylvania (S), Lakes Erie and Ontario and the Canadian province of , Washington, and Michigan are prime examples of how statutory liability is imposed.
In many instances, the exceptions overlap and shade into one another, and often the attorney can rely on more than one to defeat the general rule of nonliability.
Negligence of the employer
When a general contractor entrusts part of a job to subcontractors but supervises either the entire job or its safety aspects, the general contractor is liable if it (1) fails to prevent the subcontractors from working in a way that is unreasonably dangerous to others, (2) knows or should know that the subcontractors' work is being done in this manner, and (3) can prevent this by exercising the control it has retained.(7) In other words Adv. 1. in other words - otherwise stated; "in other words, we are broke"
put differently , the general contractor may be liable for any negligence in connection with the work if it directed the work, furnished equipment for it, or retained control over any part of it.(8)
To hold the employer liable, a plaintiff must show that the employer had more than just general control over the independent contractor. The employer must exercise enough control so that the "contractor is not entirely free to do the work his own way."(9) That the employer simply made "suggestions or recommendations which need not necessarily be followed" is insufficient to show the requisite control.(10)
The contract documents and construction safety manuals in use on the job are a good starting point Noun 1. starting point - earliest limiting point
terminus a quo
commencement, get-go, offset, outset, showtime, starting time, beginning, start, kickoff, first - the time at which something is supposed to begin; "they got an early start"; "she knew from the for examining the level and extent of control. For example, in Padgett, one of the job site safety manuals provided that the prevention of accidents and protection of property were of primary importance and should receive top priority, support, and participation by all parties. Under the contract, the general contractor, Dick Corp., was accountable for the safe, healthful health·ful
1. Conducive to good health; salutary.
healthful·ness n. performance of work by each of its subcontractors.
The contract in Padgett also dictated that the general contractor (1) appoint a safety representative to ensure that all subcontractors' employees comply with job site safety rules and regulations and (2) provide for continuous surveillance of the subcontractors' operations so that it would be aware of unsafe acts or conditions.
Other facts revealed at trial relating to duty included the following:
* The general contractor's safety representative testified that his sole function on this job was to monitor safety in a 300-by-300-foot area, supervising approximately 25 employees, including Padgett and the other ICOS employees.
* The general contractor's expert testified that if there was a hazardous condition on the job involving the subcontractor, the general contractor should have had it corrected. Indeed, he testified that on this job, if the safety representative saw the crane's boom moving erratically, he had a duty to correct that condition and stop the work.
* The safety officer testified that he did not continuously survey the site, despite the fact that he was contractually bound to do so.
* The general contractor's superintendent testified that Dick Corp. did not monitor the subcontractor's safety, despite the fact that the applicable construction safety manual specifically stated that it was required to do so.
These facts showed that Dick Corp. had the requisite duty and authority to act but failed to stop the ICOS crane operator who was jerking the boom. This failure led to the plaintiff's injury.
Nondelegable duty arising by contract
Written obligations in construction contracts impose a nondelegable duty on the employer of an independent contractor. These contractual obligations can provide a further basis for tort liability. This concept was reinforced recently by the Supreme Judicial Court of Massachusetts in O'Brien v. Christensen.(11)
In O'Brien, two men were seriously injured when they fell 25 feet from a porch attached to a condominium condominium
In modern property law, individual ownership of one dwelling unit within a multidwelling building. Unit owners have undivided ownership interest in the land and those portions of the building shared in common. building. They sued the building owner, who was contractually responsible for the proper maintenance and repair of the common elements of the building. Three years before the accident, the owner had the porch railings repaired by an independent contractor. The independent contractor performed the work negligently and failed to comply with the Massachusetts state building code.
The trial judge in the case instructed the jury that if they found the contractor was negligent in making the repairs, the owner would be vicariously vi·car·i·ous
1. Felt or undergone as if one were taking part in the experience or feelings of another: read about mountain climbing and experienced vicarious thrills.
2. liable. The owner's duty in O'Brien was predicated solely upon the nondelegability of his voluntarily assumed contractual duty. In seeking to impose liability in construction accident cases, similar arguments can be advanced based on the contract documents and the specifications.
The contract documents in Padgett directed Dick Corp. to comply with the state building code, the requirements of the U.S. Occupational Safety and Health Administration Occupational Safety and Health Administration (OSHA), U.S. agency established (1970) in the Dept. of Labor (see Labor, United States Department of) to develop and enforce regulations for the safety and health of workers in businesses that are engaged in interstate , and the Massachusetts "Rules and Regulations for the Prevention of Accidents in Construction Operations."(12) In that regard, the general contractor was required to have a "competent person"(13) on the site to monitor compliance with these safety requirements and to designate a person to prevent accidents.
The jury in Padgett was instructed that if the crane operator was negligent, the general contractor would be liable under the contract for failure to provide a safe workplace. The jury was also told to consider whether Dick Corp.'s safety representative was negligent in his surveillance duties and in failing to prevent the erratic crane operation, as directed by the contract's provisions.
Some courts have imposed liability in this context as vicarious liability The tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as Parent and Child, .(14) Under that theory, an owner or occupier of property is required to rehabilitate re·ha·bil·i·tate
1. To restore to good health or useful life, as through therapy and education.
2. To restore to good condition, operation, or capacity. it with regard to the safety of others and cannot escape liability simply by hiring someone else to perform the work.
Moreover, the Restatement (Second) of Torts [sections] 422 provides that a "possessor of land, who entrusts work to an independent contractor, is subject to the same liability as though he had retained the work in his own hands." This is a clear expression of the landowner's nondelegable duty to protect others from unsafe conditions.
Absolute liability for statutory violations
Several states have a statutory scheme giving general contractors primary responsibility for compliance with safety regulations on job sites. These states impose absolute liability on the general contractor when an independent contractor's employee is injured as a result of a violation of a statutory, administrative, or regulatory code related to workplace safety.
New York and Washington are two examples. In New York, Labor Law labor law, legislation dealing with human beings in their capacity as workers or wage earners. The Industrial Revolution, by introducing the machine and factory production, greatly expanded the class of workers dependent on wages as their source of income. [sections] 200 is a codification The collection and systematic arrangement, usually by subject, of the laws of a state or country, or the statutory provisions, rules, and regulations that govern a specific area or subject of law or practice. of the common law duty to maintain a safe construction site. As noted recently in Rizzuto v. L.A. Wenger Contracting Co., that provision places the duty on an owner or general contractor if it "ha[s] the authority to control the activity bringing about the injury to enable it to avoid or correct the unsafe condition."(15)
New York's Labor Law [sections] 240(1) requires contractors and owners to provide scaffolding, hoists, ladders, braces, ropes, and other devices to protect workers. This section, known as the "Scaffold scaffold
Temporary platform used to elevate and support workers and materials during work on a structure or machine. It consists of one or more wooden planks and is supported by either a timber or a tubular steel or aluminum frame; bamboo is used in parts of Asia. Law," has been applied in situations where workers are injured as a result of inadequate or missing safety equipment at elevated worksites.(16) Section 240(1) prescribes these safety precautions for workers in recognition of the extreme danger of working at heights.(17)
New York's Labor Law [sections] 241(6) imposes a nondelegable duty of reasonable care on owners and contractors "to provide reasonable and adequate protection and safety" to workers employed in all the areas where construction, excavation, or demolition work is being performed.(18) The legislative history of [sections] 241 expresses an intent by lawmakers to place the "ultimate responsibility for safety practices at building construction jobs where such responsibility actually belongs, on the owner and general contractor."(19)
Under the New York statute, once the negligence of a project party is established, the owner or general contractor is vicariously liable, regardless of its ability to direct, control, or supervise the construction site. Furthermore, given this vicarious liability, the "absence of actual or constructive notice constructive notice n. a fiction that a person got notice even though actual notice was not personally delivered to him/her. The law may provide that a public notice put on the courthouse bulletin board is a substitute for actual notice. sufficient to prevent or cure ... [is] irrelevant to the imposition of [this statutory] liability".(20)
In Washington, a specific duty is imposed on employers to comply with applicable Washington Industrial Safety and Health Act regulations. There, as reinforced by the Washington Supreme Court The Washington Supreme Court is the highest court in the judiciary of the U.S. state of Washington. The Court is composed of a Chief Justice and eight Justices. Members of the Court are elected to six-year terms. Justices must retire at the age of 75. in Stute v. P.B.M.C., Inc., a general contractor bears "primary responsibility for compliance with safety regulations" on a job site "because the general contractor's innate supervisory authority constitutes control over the workplace."(21) Such a rule recognizes that the general contractor is in the best position to coordinate work or provide expensive safety features to protect subcontractors' employees.
The rationale underlying liability in these contexts was set forth by the Michigan Supreme Court The Michigan Supreme Court is the highest court in the U.S. state of Michigan. It is known as Michigan's "court of last resort" and consists of seven justices, who are elected to eight-year terms. Candidates are nominated by political parties and are elected on a nonpartisan ballot. in Funk v. General
Placing ultimate responsibility on the general contractor for job safety in common work areas will, from a practical, economic standpoint, render it more likely that the various subcontractors being supervised by the general contractor will implement or that the general contractor will himself implement the necessary precautions and provide the necessary safety equipment in those areas?
As outlined in the New York and Washington examples, these statutes offer encouraging opportunities for recovery. Indeed, if there is a lack of evidence of the general contractor's direct negligence, these statutes may provide the only avenue for recovery.
Inherently dangerous work
One other exception to the general rule, which involves inherently dangerous work, has been problematic for independent contractors' employees. Generally, the Restatement (Second) of Torts [subsections] 413, 416, and 427 provide that the employer of an independent contractor who recognizes a peculiar unreasonable risk to others is liable for physical harm if the employer fails to take reasonable precautions. These rules impose on those who hire an independent contractor to perform inherently dangerous work a duty to ensure that the contractor takes special precautions to prevent harm to others.
The phrase "to others" has proved fatal to employees of the independent contractor. Courts that have construed these sections have found that employees who are injured by their employer's negligence in inherent-danger cases are barred from seeking recovery against the hiring person under the peculiar-risk doctrine.(23) Under this doctrine, liability is imposed when injuries might be expected to occur on the job absent special precautions.
Some courts have suggested that this limitation of liability is justified by the availability of workers' compensation benefits to the injured employee, obviating ob·vi·ate
tr.v. ob·vi·at·ed, ob·vi·at·ing, ob·vi·ates
To anticipate and dispose of effectively; render unnecessary. See Synonyms at prevent. the need for third-party liability.(24) In light of these cases, extreme caution should be exercised in pursuing a claim based on the peculiar-risk doctrine. Plaintiff lawyers should be prepared to advance other theories of liability if the court does not adopt the peculiar risk theory in their case.
Most defendants in these cases will try to escape liability by invoking an "empty chair" defense--that is, by pointing the finger at the injured person's employer or coworkers, who are immune from suit and, thus, not parties to the litigation An action brought in court to enforce a particular right. The act or process of bringing a lawsuit in and of itself; a judicial contest; any dispute.
When a person begins a civil lawsuit, the person enters into a process called litigation. .
Evidence suggesting the negligence of nonparties is irrelevant to the case and should therefore be excluded. Negligence of a nonparty "is not material" unless that party's negligence, "either standing alone or combined with the negligence of [the plaintiff], was the sole proximate cause An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred.
Proximate cause is the primary cause of an injury. of [the plaintiff's] injuries."(25)
A motion in limine motion in limine (limb-in-nay) n. from Latin for "threshold," a motion made at the start of a trial requesting that the judge rule that certain evidence may not be introduced in trial. is justified because, if evidence concerning nonparties is admitted, the jury could then apportion ap·por·tion
tr.v. ap·por·tioned, ap·por·tion·ing, ap·por·tions
To divide and assign according to a plan; allot: "The tendency persists to apportion blame as suits the circumstances" alleged negligence to them. Because the nonparties have not appeared and have also not been represented, this evidence would not accurately reflect their respective fault.
Further, it would be unduly burdensome and prejudicial prej·u·di·cial
1. Detrimental; injurious.
2. Causing or tending to preconceived judgment or convictions: to require the plaintiff to marshal evidence, make objections, argue the case, and examine witnesses from the standpoint of unrepresented unrepresented adj → nicht vertreten parties. Requiring plaintiff attorneys to serve in such a dual capacity is antithetical an·ti·thet·i·cal also an·ti·thet·ic
1. Of, relating to, or marked by antithesis.
2. Being in diametrical opposition. See Synonyms at opposite. to their primary obligation--proving the plaintiff's case.
Finally, the Montana Supreme Court The Montana Supreme Court is the highest court in the U.S. state of Montana. It is established and its powers defined by Article VII of the 1972 Montana Constitution. It is primarily an appellate court which reviews civil and criminal decisions of Montana's trial courts of general , in an enlightened opinion, found that the "empty chair" defense violates the rights of substantive due process The substantive limitations placed on the content or subject matter of state and federal laws by the Due Process Clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution. guaranteed to the plaintiff and the nonparties by the Fourteenth Amendment Fourteenth Amendment, addition to the U.S. Constitution, adopted 1868. The amendment comprises five sections. Section 1
Section 1 of the amendment declares that all persons born or naturalized in the United States are American citizens and citizens to the United States Constitution.(26)
Work for courts and legislatures
Most construction accidents can be eliminated. This will not happen, however, until courts and legislatures eliminate the immunities that allow dangerous practices to exist without recourse A phrase used by an endorser (a signer other than the original maker) of a negotiable instrument (for example, a check or promissory note) to mean that if payment of the instrument is refused, the endorser will not be responsible. . Trial lawyers must attack the immunities in court and overcome the various stratification issues. Doing so requires an understanding of often complex construction contracts and careful planning and execution during the discovery process.
Although a case may seem frustrating frus·trate
tr.v. frus·trat·ed, frus·trat·ing, frus·trates
a. To prevent from accomplishing a purpose or fulfilling a desire; thwart: at first, there are avenues for recovery and opportunities to obtain just compensation. If trial lawyers continue to pursue these, perhaps injured workers throughout the nation will achieve justice.
(1.) U.S. DEP'T OF LABOR, NATIONAL CENSUS OF FATAL OCCUPATIONAL INJURIES (1995). See Labor Departments Fatality fa·tal·i·ty
1. A death resulting from an accident or disaster.
2. One that is killed as a result of such an occurrence. Census Tells How Workers Died, TRIAL, Oct. 1996, at 105.
(2.) See generally NATIONAL SAFETY COUNCIL, ACCIDENT FACTS (published annually).
(3.) HARRY M. PHILO & HARRY M. PHILO JR., LAWYERS DESK REFERENCE [sections] 25.1, at 394 (8th ed. 1993).
(4.) No. 95-1937 (Mass., Suffolk County Suffolk County may refer to:
ATLA American Theological Library Association
ATLA American Trial Lawyers Association
ATLA Air Transport Licensing Authority (Hong Kong)
ATLA Avatar: The Last Airbender L. REP. 312 (1998).
(5.) W. PAGE KEETON Werdner Page Keeton (born in McCoy, Texas, August 22 1909, died January 10 1999) graduated first in his class at the University of Texas School of Law in 1931 and joined the University of Texas law faculty the following year at the age of 23. , PROSSER AND KEETON ON THE LAW OF TORTS [sections] 71, at 509 (5th ed. 1984 & Supp. 1988).
(6.) O'Brien v. Christensen, 662 N.E.2d 205, 208-09 (Mass. 1996); see Parent v. Stone & Webster Eng'g Corp., 556 N.E.2d 1009 (Mass. 1990), and cases cited.
(7.) Corsetti v. Stone Co., 483 N.E.2d 793, 798 (Mass. 1985).
(9.) Foley v. Rust Int'l, 901 F.2d 183, 184 (1st Cir. 1990) (quoting RESTATEMENT (SECOND) OF TORTS [sections] 414 cmt. c (1965)).
(10.) St. Germaine St. Germaine is the fictional town in North Carolina that is the setting for Mark Schweizer's mystery novel series (The Alto Wore Tweed, The Baritone Wore Chiffon, The Tenor Wore Tapshoes). v. Pendergast, 584 N.E.2d 611, 616 n.11 (Mass. 1992)(quoting RESTATEMENT (SECOND) OF TORTS [sections] 414 cmt. c (1965)).
(11.) 662 N.E.2d 205; see also Parent, 556 N.E.2d 1009, 1012, and cases cited.
(12.) MASS. REGS REGS Rural Employment Guarantee Scheme . CODE tit. 454, [sections] 10.03(1)(a) (1998) provides the following: "All places where employees are directed or permitted to perform work of any kind in construction work or demolition work shall be so constructed, equipped, arranged, operated, and conducted as to provide reasonable and adequate protection to the lives, health, and safety of employees and others." MASS. REGS. CODE tit. 454, [sections] 10.03(1)(b) (1998) provides the following: "Employers, owners, contractors sub-contractors, superintendents, or foremen in charge, and other persons obligated ob·li·gate
tr.v. ob·li·gat·ed, ob·li·gat·ing, ob·li·gates
1. To bind, compel, or constrain by a social, legal, or moral tie. See Synonyms at force.
2. To cause to be grateful or indebted; oblige. by law to adhere to adhere to
verb 1. follow, keep, maintain, respect, observe, be true, fulfil, obey, heed, keep to, abide by, be loyal, mind, be constant, be faithful
2. the requirements of 454 CMR CMR Crude mortality rate, see there 10.00 shall not direct or permit an employee to work under conditions which are not in compliance with or which are prohibited by 454 CMR 10.00." Washington has similar rules and regulations known as the Washington Industrial Safety and Health Act of 1973 (WISHA WISHA Washington Industrial Safety and Health Act ), WASH. REV. CODE [sections] 49.17.
(13.) "Competent person" is defined in MASS. REGS. CODE tit. 454, [sections] 10.01 (1998) as: "One who is capable of identifying existing and predictable hazards in the surroundings or working conditions which are unsanitary un·san·i·tar·y
Not sanitary. , hazardous, or dangerous to employees, and who has authorization to take prompt corrective measures to eliminate them." See also 29 C.F.R. [sections] 1926.32(f) (1993).
(14.) O'Brien, 662 N.E.2d 205.
(15.) 693 N.E.2d 1068, 1073 (N.Y. 1998) (quoting Russin v. Picciano & Son, 429 N.E.2d 805, 807 (N.Y. 1981)).
(16.) Rocovich v. Consolidated Edison This article is about the utility company in New York. For ComEd in Illinois, see Commonwealth Edison.
Consolidated Edison, Inc. NYSE: ED is one of the largest investor-owned energy companies in the United States. Co., 577 N.Y.S.2d 219 (1991).
(17.) Id. See also Ross v. Curtis-Palmer Hydro-Elec. Co., 601 N.Y.S.2d 49, 52 (1993).
(18.) N.Y. LAB. LAW [sections] 241(6) (Consol. 1998); see also Rizzuto, 693 N.E.2d 1068, 1072-73.
(19.) 1969 N.Y. LEGIS LEGIS Legislator . ANN. at 407-08.
(20.) Rizzuto, 693 N.E.2d 1068, 1072-73.
(21.) 788 P.2d 545, 550 (Wash. 1990).
(22.) 220 N.W.2d 641,646 (Mich. 1974), overruled in part on other grounds by Hardy v. Enviro-Chem Sys., 323 N.W.2d 270 (Mich. 1982).
(23.) Toland v. Sunland Housing Group, Inc., 955 P.2d 504, 506 (Cal. 1998); Vertentes v. Barletta Co., 466 N.E.2d 500, 501-03 (Mass. 1984).
(24.) E.g., Toland, 955 P.2d 504, 509.
(25.) Correia v. Firestone fire·stone
1. A flint or pyrite used to strike a fire.
2. A fire-resistant stone, such as certain sandstones.
Noun 1. Tire & Rubber Co., 446 N.E.2d 1033, 1039 (Mass. 1983).
(26.) Plumb v. Fourth Jud. Dist. Ct., 927 P.2d 1011, 1021 (Mont. 1996).
Jeffrey N. Roy is a member of the firm Ravech & Roy in Boston.