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Appeals Court of Massachusetts.

Brian R. BISHOP & another 1 v. Albert PROVOST & others.2


Decided: April 12, 2021

By the Court (Kinder, Henry & Lemire, JJ.3)


In this personal injury case we decide the question whether an insurer or reinsurer that performs a jurisdictional inspection of a boiler in a publicly-accessible building pursuant to the terms of an insurance policy providing breakdown coverage for the boiler owes a duty to business invitees to the premises to identify the hazard posed by an uncovered sump into which the boiler drains. Because we agree with the trial judge's conclusion that the insurer and reinsurer do not owe such a duty of care, we affirm the judgment of dismissal.

Background. Plaintiff Brian R. Bishop is a plumber who was seriously injured when he fell into a sump hole filled with scalding water in the basement of South Congregational Church, where Bishop was servicing a boiler. The sump is an open hole twenty-two inches in diameter and twenty-seven inches deep; it contains a mechanical pump to remove water the sump collects. When the boiler was installed in 2001, drain piping was connected to the boiler drain valves to allow the sump to collect any water drained from the boiler. On the day in 2016 that Bishop was injured, the sump overflowed because Michael Potter, another plumber from his employer, released hot water from the boiler at a rate exceeding that at which the sump pump could remove water from the sump hole.

After his injury, Bishop filed negligence and vicarious liability claims against defendants Preferred Mutual Insurance Company (Preferred) and Hartford Steam Boiler Inspection and Insurance Company (Hartford), which provided insurance and reinsurance to the church, and a negligence claim against Albert Provost,4 a boiler inspector employed by Hartford who had performed a jurisdictional inspection of the boiler in 2015. Bishop's spouse filed loss of consortium claims against the same defendants. The Bishops contend that Provost had a duty to identify the danger posed by the open sump as part of his jurisdictional boiler inspection. A Superior Court judge entered summary judgment in favor of the defendants concluding that the defendants did not owe any duty to Bishop as a matter of law and that Bishop could not establish causation because the intervening acts of the other plumber proximately caused Bishop's injuries. The Bishops appealed.

Discussion. “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). “We review such decisions de novo, and therefore accord no deference to the decision of the motion judge.” Correa v. Schoeck, 479 Mass. 686, 693 (2018).

To prevail on each of their claims, the plaintiffs must establish that Provost was negligent.5 “To prevail on a negligence claim, a plaintiff must prove that the defendant owed the plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and that there was a causal relation between the breach of the duty and the damage” (citation omitted). Williams v. Steward Health Care Sys., LLC, 480 Mass. 286, 290 (2018). In this case, the judge concluded that the plaintiffs could not establish two of the required elements: duty and causation. Thus, to reverse the judgment, we must conclude that the judge erred in both his duty and causation analysis. Because we hold that the defendants owed Bishop no duty, we affirm without reaching the plaintiffs’ causation argument.

“Duty is an allocation of risk determined by balancing the foreseeability of harm, in light of all the circumstances, against the burden to be imposed” (citation omitted). Vaughan v. Eastern Edison Co., 48 Mass. App. Ct. 225, 229 (1999). “Whether a party owes a duty of care to another is a legal question, determine[d] by reference to existing social values and customs and appropriate social policy” (quotations and citation omitted). Williams, 480 Mass. at 290. See Vaughan, supra at 226 (“Whether the defendant ․ had a legal duty to ․ the plaintiff is a question of law”). “The existence [or nonexistence] of a duty ․ is thus an appropriate subject of summary judgment.” Almeida v. Pinto, 94 Mass. App. Ct. 540, 543 (2018), quoting Jupin v. Kask, 447 Mass. 141, 146 (2006). The plaintiffs argue that the defendants owed Bishop three potential duties. We consider each in turn.

1. Statutory duty. First, the plaintiffs argue that the defendants owed Bishop a duty arising from G. L. c. 146, § 6, which mandates periodic inspections of “[a]ll steam boilers and their appurtenances.” Assuming that violation of a duty imposed by § 6 can form the basis of a negligence action -- a proposition that may be doubtful -- the question is whether § 6 imposed a duty to inspect the sump that injured Bishop. Cf. Reservoir Manor Corp. v. Lumbermens Mut. Cas. Co., 334 Mass. 620, 622 (1956) (holding that § 6 does not create private right of action for negligent inspection of boiler). The judge answered this question in the negative, concluding that the sump did not qualify as an “appurtenance” under § 6. On appeal, the plaintiffs argue that the judge usurped the jury's role as fact finder by deciding the meaning of the statutory term “appurtenance” and that the judge defined the term too narrowly.

The plaintiffs’ argument that the meaning of a statutory term was a jury question “reflects a basic misunderstanding of the function of the courts in performing statutory construction.” DiGiacomo v. Metropolitan Prop. & Cas. Ins. Co., 66 Mass. App. Ct. 343, 346 (2006). Interpreting the meaning of a statute and applying that definition to the facts “is a quintessential judicial responsibility, to be undertaken using well-established guiding principles.” Id. “Our overarching objective is to discern the intent of the Legislature, based on the words used and the evident purpose for which the statute was enacted.” U.S. Bank Trust, N.A. v. Johnson, 96 Mass. App. Ct. 291, 294 (2019). Thus, we “begin with the language of the statute.” Id.

Here, while a “boiler” is defined in c. 146, an “appurtenance” is not. G. L. c. 146, § 1. “When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose.” Bayless v. TTS Trio Corp., 474 Mass. 215, 219 (2016), quoting Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977). “We derive the words’ usual and accepted meanings from sources presumably known to the statute's enactors, such as their use in other legal contexts and dictionary definitions.” Id. See Eastern Point, LLC v. Zoning Bd. of Appeals of Gloucester, 74 Mass. App. Ct. 481, 486 (2009). Applying these principles, we conclude that appurtenances for purposes of § 6 are only those components added to the boiler that are necessary for its operation. Under this definition, the judge correctly concluded that the sump was not an appurtenance of the boiler.

Both the dictionary definition of “appurtenance” and the language of other statutes and regulations support that conclusion. First, the parties point us to a dictionary, which defines “appurtenance” as “1. Something added to a more important thing: ACCESSORY[; or] 2. appurtenance. Equipment, as clothing, tools, or instruments, used for a particular purpose or task: GEAR.” Webster's II New College Dictionary 56 (1995). While the first definition is more applicable in this context,6 applying the second definition, as the plaintiffs urge us to do, does not change our analysis. That is because, while it is undisputed that the sump actually was used to drain the boiler on the date of the accident, it is also undisputed that (1) the sump can be used for purposes other than to drain the boiler, and (2) the boiler could be drained through means other than the sump. Indeed, the sump predated the installation of the boiler, suggesting that its primary purpose was unrelated to the boiler's operation.

Next, it is significant that sumps are not mentioned anywhere in the Commonwealth's boiler laws or regulations but are mentioned in the plumbing laws and regulations. “When the Legislature has employed specific language in one statute but not in another, ‘the legislative language should not be implied where it is not present.’ ” Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40, 44 (2012), quoting Beeler v. Downey, 387 Mass. 609, 616 (1982). Had the Legislature intended to make boiler inspectors responsible for inspecting sumps, they could have adopted statutory language to that effect. Instead, the Legislature chose to regulate sumps within the plumbing laws, leaving responsibility for their inspection and maintenance to those trained to work with plumbing. See, e.g., 248 Code Mass. Regs. §§ 10.03, 10.06(2)(s), 10.12(3), and 10.15. We will not add language to c. 146 bringing sumps within its purview where the Legislature has omitted such language. See Doe v. Board of Registration in Med., 485 Mass. 554, 562 (2020) (“[W]e do not read into [a] statute a provision which the Legislature did not see fit to put there, whether the omission came from inadvertence or of set purpose” [quotation and citation omitted]); Buccaneer Dev., Inc., supra.

Finally, limiting a boiler inspector's obligations under § 6 to boilers and components added to boilers that are necessary for their operation is consistent with the legislative purpose of c. 146. Chapter 146 “was passed in the exercise of the police power for the protection and safety of persons and property.” Commonwealth v. Breakwater Co., 214 Mass. 10, 18 (1913). That public safety purpose is best accomplished by having boiler inspectors perform inspections within their area of expertise and training and leaving inspections of other types of equipment to those with relevant expertise and training.

The out-of-State cases on which the plaintiffs rely do not hold otherwise. Indeed, none of the cases decided the question of what is appurtenant to a boiler. See Leroy v. Hartford Steam Boiler Inspection & Ins. Co., 695 F. Supp. 1120, 1132 (D. Kan. 1988) (rejecting argument that inspector was required to examine only boiler's water tank and was not required to examine boiler's furnace); Hartford Steam Boiler Inspection & Ins. Co. v. White, 775 N.E.2d 1128, 1138 (Ind. Ct. App. 2002) (inspector's failure to note damage to bolts connecting boiler to burner raised triable issue as to his liability for boiler explosion); Board of County Comm'rs of Graham County v. Kansas Dep't of Labor, 41 Kan. App. 2d 936, 938 (2009) (four water heaters connected for purpose of providing heat in court house held subject to regulation as “heating boiler[s]”).

For all these reasons, we conclude that the sump was not an appurtenance of the boiler and thus hold that Provost did not have a duty to inspect the sump as part of his jurisdictional boiler inspection.

2. Contractual duty. The plaintiffs next argue that the equipment endorsement of the insurance contract between the church and Preferred imposed a duty on the defendants to inspect the sump. The plaintiffs cite to cases where a “contract created a relationship between the defendant and third parties, by reason of which the law recognized a duty of reasonable care in the performance of the obligation, that supported a tort action.” Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 368 (1997). However, the plaintiffs’ argument fails to recognize that, in such cases, the scope of the duty created by contract is measured by the contract's terms. See id.; Parent v. Stone & Webster Eng'g Corp., 408 Mass. 108, 114–115 (1990) (triable issue as to whether engineer breached duty of care where “broad language of the contract itself” required engineer to perform services including “ ‘necessary engineering and technical direction, design, estimates, cost control, procurement, scheduling, construction services, labor, materials, and equipment ․ [and other services]’ ․ including ‘[s]afety’ ”); Banaghan v. Dewey, 340 Mass. 73, 80 (1959) (defendant liable to tenants injured by faulty elevator where defendant assumed contractual obligation to inspect and maintain elevator). Here, the endorsement on which the plaintiffs rely required a “jurisdictional inspection” to “comply with state or municipal boiler and pressure vessel regulations.” And, as we have already held, the applicable boiler regulations set forth in G. L. c. 146 do not impose any duty on the defendants to inspect the sump. Moreover, “the plaintiff has shown neither the increased risk nor the detrimental reliance that” a negligence claim based on breach of a contract duty requires. Vaughan, 48 Mass. App. Ct. at 230 (discussing claims under rationale of Restatement [Second] of Torts §§ 323 and 324A). The plaintiffs’ argument that the insurance contract imposed a duty to inspect the sump thus fails.

3. Common law duty of care. Finally, the plaintiffs argue that the judge erred in concluding that the events leading up to Bishop's injuries were not foreseeable and that public policy does not support imposing a duty on the defendants to protect against the type of harm that Bishop suffered. While, as discussed supra, foreseeability and public policy concerns are relevant to any duty of care analysis, the judge considered these issues specifically to determine whether “considerations of policy” supported recognizing a duty owed separate from any duties the defendants owed pursuant to contract or statute. Jupin, 447 Mass. at 146. See Rafferty v. Merck & Co., 479 Mass. 141, 148–149 (2018) (describing Jupin, supra, as articulating basis for bringing “general negligence claim, relying on ‘a general principle of tort law’ ”). Because we agree that there are public policy reasons for declining to impose on the defendants a duty to inspect the sump, we find no error in the judge's analysis. See id. at 149.

“The concept of ‘duty’ ․ ‘is not sacrosanct in itself, but is only an expression of the sum total of ․ considerations of policy which lead the law to say that the plaintiff is entitled to protection.’ ” Correa, 479 Mass. at 693, quoting Jupin, 447 Mass. at 146. Accordingly, there may be “public policy justification for declining to impose a duty of care where ‘the imposition of a precautionary duty is deemed to be either inadvisable or unworkable’ ” (citation omitted). Rafferty, 479 Mass. at 149. For example, Massachusetts courts have declined to extend liability beyond defined limits where doing so would open the door to excessive litigation. See, e.g., Remy v. MacDonald, 440 Mass. 675, 678 (2004) (declining to recognize pregnant woman's legal duty of care in negligence to her unborn child because doing so “would present an almost unlimited number of circumstances that would likely give rise to litigation”); Luoni v. Berube, 431 Mass. 729, 734 (2000) (declining to recognize duty of social hosts “to supervise or prevent the discharge of the fireworks by others” because “[w]ere the rule otherwise, injuries to guests at parties would lead to considerable litigation, with plaintiffs claiming that social hosts should have supervised guests” engaged in any number of activities); Glick v. Prince Italian Foods of Saugus, Inc., 25 Mass. App. Ct. 901, 902 (1987), quoting Schatz v. 7–Eleven, Inc., 128 So. 2d 901, 904 (Fla. Dist. Ct. App. 1961) (holding that restaurant did not owe duty to protect patrons from car that veered off highway and crashed into dining room because “[i]f ․ such occurrences are held to be foreseeable and therefore to be guarded against, there would be no limitation on the duty owed by the owners of establishments into which people are invited to enter”).

Here, allowing the plaintiffs to sue based upon Provost's failure to inspect the sump would expand the liability of boiler inspectors in an inadvisable and unworkable manner. As the plaintiffs acknowledged at oral argument, recognizing a duty in this case would open the door to litigation against anyone who inspected the boiler and failed to identify the sump as a potential danger -- not just the most recent inspector. Moreover, because the boiler at issue could have been drained in any number of other ways, such as using a bucket or hose, a logical consequence of accepting the plaintiff's argument would be to impose a duty on boiler inspectors to inspect anything that might be used to drain a boiler under inspection. Nothing in the Commonwealth's case law or statutes suggests that it would be prudent or desirable to expand the role of boiler inspectors in this manner or to impose upon them unlimited and open-ended liability for injuries caused by items that might be used to drain a boiler. Indeed, the safety of the public is best protected by limiting a boiler inspector's inspection obligations to the boiler and its appurtenances, which are within the education, training, and experience of a boiler inspector, and leaving responsibility for the inspection of other types of equipment to appropriately trained professionals.

Accordingly, we conclude that Provost did not owe Bishop a duty to inspect the sump under general principles of negligence law. Because we have concluded already that the defendants did not owe Bishop a statutory or contractual duty to inspect the sump, the plaintiffs cannot prove an essential element of their claims. On that basis, we affirm the summary judgment in favor of the defendants without reaching the parties’ other arguments.

Judgment affirmed.


4.   The amended complaint also named South Congregational Church, Joel F. Huntington, Steve Bean, Pittsfield Pipers, Inc., and unnamed Does as defendants. However, only Preferred, Hartford, and Provost filed a brief in this appeal.

5.   The vicarious liability claims allege that Preferred and Hartford are liable for Provost's negligent failure to inspect the sump. See Merrimack College v. KPMG LLP, 480 Mass. 614, 620 (2018) (under agency principles, agent's conduct is imputed to principal and “result of imputation is that the principal bears the legal consequences of the agent's conduct”); Gangl v. Ford Motor Credit Co., 37 Mass. App. Ct. 561, 563 (1994) (“finding that the agent or servant is not negligent compels a similar finding, as matter of law, for the principal or master”). Similarly, the loss of consortium claims depend upon the viability of Bishop's claims. See Papadopoulos v. Target Corp., 457 Mass. 368, 369 n.4 (2010) (wife's loss of consortium “claim is entirely dependent on the viability of her husband's underlying claim”).

6.   The applicability of the first definition is underscored by the adoption of 522 Code Mass. Regs. § 1.02, after Bishop was injured. Section 1.02 defines “appurtenance” as “[a] component or piping added to a Boiler/Pressure Vessel, necessary for its proper operation” (emphasis added). The first definition also is consistent with the definition of appurtenance the parties agree appeared in the 1998 Board of Boiler Rules: “Any system or part of any system that is added to a steam boiler and/or steam engine which contributes to the safe and proper operation of the steam boiler and/or steam engine.” All of these definitions are consistent in describing an appurtenance as something “added to” a boiler that is necessary to its operation.

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