Jonathan Love v. Brian J. Morin et al. (2011)

MEMORANDUM OF DECISION

The parties to this case are Jonathan Love, the plaintiff, and the defendants, Brian Morin, a builder and developer, and his companies, Colonial Builders, LLC and Westconn Homes, LLC (collectively, Morin), and Wayne and Jack Delmonte, carpentry contractors, and their companies, Delconn, Inc. and Delconn, LLC (collectively, Delconn).   Mr. Love was injured on April 27, 2004 when a temporary staircase erected by Delconn in a home under construction by Morin collapsed while he was walking up the stairs in the course of his duties as an electrical apprentice on the construction job.   He brought this negligence action against Morin and Delconn, and Morin cross claimed against Delconn, seeking indemnification for any amounts it might have to pay Mr. Love by way of verdict or settlement.

On July 29, 2009, when the parties appeared for trial, two days of negotiations ensued, culminating in an agreement which required Morin to pay Mr. Love $95,000 and Delconn to pay him $600,000 in settlement of his claims against them.

Morin and Delconn are at sword's point over whether the cross claim was settled at the same time.   Morin, in the person of Brian J. Morin, claims that at no time did he intend or understand that his claim for indemnification for the $95,000 he paid to Mr. Love was to be withdrawn as part of the settlement.   Delconn, pointing to the transcript of the canvass of all parties conducted by the court (Pittman, J.) on July 30, 2009, argues that it is clear that Morin's indemnification claim was resolved along with Mr. Love's personal injury claim as part of a “global settlement.”   Transcript of proceedings, July 30, 2009, p. 4, 11. 19-20.   Delconn has filed a motion to enforce the claimed settlement agreement and have the cross claim withdrawn.

On October 5, 2010 this court conducted a hearing on that motion.   By agreement of the parties the court also heard evidence on the substance of the cross claim, itself.   The sole witness was Mr. Morin, and both parties introduced documentary evidence, including deposition testimony of Mr. Love, Wayne and Jack DelMonte and Steven C. Batterman, Ph.D., an expert witness retained by Mr. Love.¹ It was agreed by the parties that the matter would be resolved if the court were to grant the motion to enforce the alleged settlement agreement, compelling Morin to withdraw the cross claim, or if the court found that Morin had failed to carry its burden to prove the elements of common-law indemnification necessary to support its cross claim.

Based on its assessment of the credibility of the witnesses who testified, either in person or via deposition, and the weight to be accorded their testimony and the exhibits that were introduced, the court concludes that Morin has failed to prove that it is entitled to indemnification from Delconn for its $95,000 share of the settlement with Mr. Love and enters judgment for Delconn on the crossclaim.

The elements of a common-law indemnification claim brought by a tortfeasor (in this case, Morin) are:  “(1) that the other tortfeasor [in this case, Delconn] was negligent;  (2) that [Delconn's] negligence was the direct, immediate cause of the accident and injuries [to Mr. Love];  (3) that [Delconn] was in control of the situation to the exclusion of [Morin];  and (4) that [Morin] did not know of such negligence, had no reason to anticipate it, and could reasonably rely on [Delconn] not to be negligent.”  Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 698 (1997).   The “situation” which must be in the exclusive control of the cross claim defendant is “the dangerous condition giving rise to the accident.”  Id., 706.   The court finds that the “situation” in this case is the weakened condition of the ladder which collapsed, causing Mr. Love's injuries, and that Delconn did not have exclusive control of that “situation.”

It is clear from the evidence that Delconn was solely responsible for the construction and installation of the temporary stairs.   It is not at all clear that the alleged defects in their construction are what caused the stairs to collapse.

The stairs were installed as part of the rough framing of the house, which was completed by mid- to late March.   Thereafter, Delconn was off the job, and it was Morin's responsibility to install the roof and take whatever other steps were necessary to keep the interior of the house protected from the elements.   Mr. Morin conceded as much both at his deposition and at the October 5 hearing.   Mr. Love testified at his deposition, however, that the interior of the house, including the stairs, was “saturated” with water on the day he fell.   He testified further that, when wood gets wet, it sucks in water through nail holes and identified such wood-saturated holes in photographs of the wood of the staircase.   These observations are telling in view of Dr. Batterman's testimony that the loads at which nails will withdraw from wood are significantly reduced when wood or nails are wet than when they are dry.   He concluded that the stairs may have failed on the day Mr. Love fell because the “environmental conditions that day decreased the pull-out load.”

So, four to six weeks had passed between when Delconn installed the allegedly defective temporary stairs and when they collapsed.   During that time it was Morin's duty to keep them protected from conditions that might weaken them and cause them to collapse.   The evidence indicates that he failed to do so, and that failure may have been the cause of the collapse rather than any defect in the stairs.   In the alternative, Morin's failure to protect the stairs may have exacerbated a defect by further weakening them.   After all, the same stairs had been used without incident in at least one house under construction in the same development, and for the four to six weeks after Delconn installed them in the house where Mr. Love was injured.

Morin relies on cases such as Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 599 (2008), for the proposition that it is the subcontractor not the general contractor that is responsible for injuries on a construction site because control over the work is in the former not the latter.  “(A)n exception to this rule is when the general contractor retains all or partial control over the work to be performed ․ (I)f honest and reasonable persons could fairly reach different conclusions on the question, the issue should properly go to the jury ․ In addition, the [general] contractor's control need not be exclusive;;  it is sufficient if it be shared with another.”  Id. See also Van Nesse v. Tomaszewski, 265 Conn 627, 631 (2003).   Here, this court, as the finder of fact, has found that Morin shared control with Delconn over the condition of the temporary stairs which collapsed under Mr. Love.

As the cross claimant, Morin bore the burden of proving the elements of his common-law indemnification claim by a preponderance of the evidence.   The court cannot say that the burden was met as to the exclusive control of the stairs necessary to fasten liability on Delconn.   Indeed, given the testimony of Dr. Batterman as to what caused the stairs to fail on the day Mr. Love was injured, the court cannot find that a defect in the stairs was the “direct, immediate cause” of the collapse, as opposed to their having been allowed to become saturated with moisture.

Accordingly, judgment enters for Delconn on Norm's cross claim.

By the Court

Joseph M. Shortall, J.T.R.

FOOTNOTES

FN1. The parties agreed that the court could consider the deposition testimony for the truth of the matters testified to..  FN1. The parties agreed that the court could consider the deposition testimony for the truth of the matters testified to.

Shortall, Joseph M., J.T.R.