GORHAM K. GOULD'S CASE.

MARION L. FLYNN vs. PERINI CORPORATION.

358 Mass. 811

December 30, 1970

The plaintiff excepts to the direction of a verdict for the defendant on the plaintiff's opening statement which we summarize. On November 24, 1965, the plaintiff worked as a switchboard operator for the Commonwealth's Department of Public Works on the sixth floor of the new State office building which was being erected by the defendant for the Commonwealth. While leaving the building at the end of her work day she was injured when she "slipped upon one of a number of metal strips which, with other pieces of construction debris, were strewn over . . . [the surface of a cement sidewalk near the exit door, and which] had been negligently left in the area by defendant's employees." On that date the Commonwealth was occupying only the lobby and floors 6, 10, 11 and 12 of the building; other portions were not completed.

Page 812

The plaintiff claimed and received workmen's compensation benefits from the Commonwealth for her injury, and was still receiving such benefits at the start of the trial of this action in tort against the defendant for the same injury. The sole contention of the defendant is that the plaintiff, on the date of her injury, "was assisting in the advance preparation of the building for acceptance by the Commonwealth and for use by [its] various departments," and that therefore "[b]oth the defendant and the plaintiff . . . were to that extent working for a common employer." There is no basis in the record for this contention. The verbatim report of the plaintiff's opening does not state or permit an inference that the plaintiff "was assisting in the advance preparation of the building" or that the plaintiff and defendant were in any way "working for a common employer" for the purposes of G. L. c. 152, Section 15. On this record there is no need to consider whether the Commonwealth is an "insured" or "insured person" within the definitions contained in G. L. c. 152, Section 1 (6), or to consider alleged inconsistencies on this question in the opinions in Saxe's Case, 242 Mass. 290 , Pettiti v. Edward J. McHugh & Son, Inc. 341 Mass. 566 , 571, and Moschetta v. Quincy, 347 Mass. 80 (and concurring opinion, 84-90).

Exceptions sustained.