# Poirier v. Town of Plymouth

> Massachusetts Supreme Judicial Court · January 10, 1978 · 374 Mass. 206

URL: https://www.frixlaw.com/law-library/cases/9533679

## Case

- **Full name:** Francis Poirier vs. Town of Plymouth
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** January 10, 1978
- **Citations:** 374 Mass. 206; 372 N.E.2d 212; 1978 Mass. LEXIS 836
- **Precedential status:** Published
- **Opinion:** Concurrence by Braucher
- **Judges:** Hennessey, Quirico, Braucher, Kaplan, Wilkins, Liacos, Abrams
- **Cited by:** 212 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9533679

## Opinion text

Braucher, J.
(concurring in the result). I do not agree
with point 2 of the opinion of the court. In my view liability in the present case cannot be reconciled with nonliability in such cases as Burr v. Massachusetts Elec. Co., 356 Mass. 144, 147 (1969), and Hannon v. Hayes-Bickford Lunch Sys., Inc., 336 Mass. 268, 273-274 (1957). But I join in the balance of the court’s opinion and in the result, particularly the overruling of the doctrine of Afienko v. Harvard Club of Boston, 365 Mass. 320, 327-328 (1974), limiting liability to cases where the defendant fails to disclose “hidden or concealed defects” of which “it was aware or should have been aware through the exercise of reasonable care.”
The elimination of the doctrine restricting liability in such cases as the present one will not operate unfairly. Under G. L. c. 152, § 15, in its present form, the workman is entitled to workmen’s compensation benefits, and need not choose between those benefits and his claim against the defendant town as a third party. His recovery in an action against the third party will be in part for the benefit of the workmen’s compensation insurer. The third party can protect itself by obtaining from the workman’s employer — the “independent contractor” — an agreement that the tank will be properly inspected before it is painted and that the workman’s employer will hold the third party harmless for any injury to workmen like the plaintiff. The third party *230 can also protect itself by insurance against the liability imposed in the present case.
The restrictive doctrine is out of harmony with other developments. As the benefits provided by the workmen’s compensation laws have come to seem inadequate in comparison with recoveries by tort claimants generally, courts have become increasingly tolerant of claims against third parties other than the employer. The Legislature has followed a similar policy in amending G. L. c. 152, § 15, to eliminate the requirement of election and the doctrine of common employment. St. 1971, c. 888 and c. 941. With the adoption of the doctrine of comparative negligence and the abolition of the defense of assumption of risk by G. L. c. 231, § 85, the Legislature has moved in the direction of the Federal Employers’ Liability Act and other Federal statutes, under which juries are permitted to find employer negligence where fault is fictitious. See, e.g., Caddy v. Texaco, Inc., 363 Mass. 36, 38 (1973).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9533679. Public record. Not legal advice.