LONGEVER v. REVERE COPPER BRASS INC., 381 Mass. 221 (1980)

408 N.E.2d 857

Supreme Judicial Court of Massachusetts. Suffolk.April 10, 1980.
July 25, 1980.

Present: HENNESSEY, C.J., QUIRICO, BRAUCHER, WILKINS, ABRAMS, JJ.

Workmen’s Compensation Act, Action against employer.

An employee who was injured in the course of his employment while using machinery manufactured and sold to the general public by a wholly separate division of his employer was barred by the provisions of G.L.c. 152 from recovering from his employer as the manufacturer of the allegedly defective product. [222-226]

CIVIL ACTION commenced in the Superior Court Department on May 3, 1979.

After a hearing, the complaint was ordered dismissed b Pierce, J.

The Supreme Judicial Court granted a request for direct appellate review.

Thomas E. Connolly for the plaintiff.

Thomas D. Burns (Joseph K. Mackey with him) for the defendant.

ABRAMS, J.

The central issue is whether an employee injured in the course of his employment may recover from his employer as the manufacturer of an allegedly defective product. The complaint alleges that the plaintiff, who at the time was an employee of the defendant, was injured while using machinery manufactured and sold to the general public by a wholly separate division of the defendant. The plaintiff claims that, since the defendant acted in two separate capacities, this action is not barred by the provisions of G.L.c. 152.

The plaintiff made a motion pursuant to Mass. R. Civ. P. 12 (d), 365 Mass. 754 (1974), for a hearing to determine the sufficiency of the defendant’s second and sixth defenses. The second defense was that the complaint failed to “state a

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claim upon which relief can be granted” and the sixth defense was that the defendant “is immune from liability in this action pursuant to the applicable provisions of the Workmen’s Compensation Act set forth in [G.L.c. 152, §§ 23, 24, the exclusivity provision].” See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). After hearing, a Superior Court judge dismissed the complaint.[1] The plaintiff appealed, and we granted his application for direct appellate review. We affirm.

The facts set forth in the complaint are as follows. On March 2, 1977, the plaintiff, age twenty-nine, suffered a serious and permanent injury while operating a casting machine.[2] At the time of the accident, the plaintiff was an employee of the Edes division of the defendant Revere Copper and Brass Incorporated. The machine in question was manufactured by the defendant’s Rome division. Each division is wholly separate and distinct, and the defendant treats each as a wholly separate entity. The Rome division sells machinery to the general public, and sold the machine in question to the Edes division. The plaintiff claims that the casting machine was defective and as a result, he was injured.[3]

The heart of the plaintiff’s complaint is that the defendant’s liability springs from a second set of obligations imposed on it by virtue of its status as the manufacturer and that his

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suit is therefore not barred by G.L.c. 152, particularly, § 23[4] and § 24.[5] The plaintiff relies on the so called dual capacity doctrine. Under this theory, “an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.” 2A A. Larson, Workmen’s Compensation § 72.80, at 14-112 (1976). See generally Kelly, Workmen’s Compensation and Employer Suability: The Dual-Capacity Doctrine, 5 St. Mary’s L.J. 818 (1974); Mitchell, Products Liability, Workmen’s Compensation and the Industrial Accident, 14 Duq. L. Rev. 349 (1976); Comment, Manufacturer’s Liability as a Dual Capacity of an Employer, 12 Akron L. Rev. 747 (1979).

Among the common law duties placed on an employer was the responsibility to provide a safe place to work as well as safe appliances, tools, and equipment for work. An employer was also required to give warnings of hidden dangers to employees and to promulgate and enforce rules for the

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conduct of employees which would make the work place safe. See W. Prosser, Torts § 80 (4th ed. 1971).

At common law an employee injured by the failure of his employer to furnish safe tools could sue his employer in tort. The employee’s claim, however, was subject to defenses such as assumption of the risk, contributory negligence, or the negligence of fellow employees. As a result many injured workers were not compensated. To rectify this inequity the workmen’s compensation scheme was enacted to replace common law remedies by providing fixed compensation for employees injured at work. Id.
The scheme eliminated the employee’s right to hold his employer liable in tort.[6] Nothing in the compensation act altered the employer’s duty to provide safe tools or machinery at work.

Thus, in this case the defendant was performing its common law function as an employer in supplying equipment, tools, and machinery to the Edes division. The plaintiff’s argument therefore must fail as he “overlook[s] the simple fact that the use of the product was a routine and integral part of the employment. Dual capacity requires a distinct separate lega persona, not just a separate theory of liability of the same legal person.” 2A A. Larson, Workmen’s Compensation § 72.80, at 154 (Supp. 1979).

Moreover, separate divisions are insufficient to establish dual capacity. See Strickland v. Textron, Inc., 433 F. Supp. 326, 327-328 (D.S.C. 1977); 2A A. Larson, Workmen’s Compensation § 72.80, at 14-115 (1976). “The decisive dual-capacity test is not concerned with how separate or different the second function of the employer is from the first but with whether the second function generates obligations unrelated to those flowing from the first, that of employer.” Id. at 14-117. We think that the duties of an

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employer who also manufactures equipment used in his business (and perhaps elsewhere) are not separate and distinct duties from the general obligations of employers.

The result we reach is consistent with the results reached by other courts. See Kottis v. United States Steel Corp., 543 F.2d 22 (7th Cir. 1976), cert. denied, 430 U.S. 916 (1977) Strickland v. Textron, Inc., supra; Winkler v. Hyster Co., 54 Ill. App.3d 282 (1977); Rosales v. Verson Allsteel Press Co., 41 Ill. App.3d 787 (1976). See also Neal v. Roura Iron Works, Inc., 66 Mich. App. 273 (1975); Lewis v. Gardner Eng’r Corp., 254 Ark. 17 (1973). We decline to follow cases which have reached a contrary result. See Douglas v. E. J. Gallo Winery, 69 Cal.App.3d 103 (1977); Mercer v. Uniroyal, Inc., 49 Ohio App.2d 279 (1976).[7]

Implicit in the plaintiff’s argument, as well as the commentaries, is dissatisfaction with the Workmen’s Compensation Act in light of the expansion of liability in tort. Deficiencies in the compensation awards pursuant to the present statute are matters of concern for the Legislature, and on the whole, “damage suits are a distinctly inferior alternative to workmen’s compensation.” Report of the National Commission on State Workmen’s Compensation Laws 120 (1972).

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Young v. Duncan, 218 Mass. 346, 349 (1914). See generally, O’Connell, Bargaining for Waivers of Third-Party Tort Claims: An Answer to Product Liability Woes for Employers and their Employees and Suppliers, 1976 U. of Ill. L.F. 435, 439-444. Any change in compensation law which would permit a covered employee to recover compensation benefits and, in addition, permit litigation by the employee against his employer to recover for an injury clearly covered by the Workmen’s Compensation Act is a public policy decision for the Legislature. See Liberty Mut. Ins. Co. v. Westerlind, 374 Mass. 524, 527 (1978).

Judgment affirmed.

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