Robert Barber v. O & G Industries, Inc. et al. (2012)

MEMORANDUM OF DECISION RE DEFENDANT, EASTERN ENERGY SERVICES, LLC'S MOTION FOR SUMMARY JUDGMENT

The defendant, Eastern Energy Services, LLC (herein “the defendant” or “Eastern”), has moved for summary judgment on count two of the plaintiff's complaint, asserting that it cannot be held liable for the plaintiff's injuries and that there is no genuine issue as to that material fact.   The court disagrees with the defendant's contention that no issue of material fact exists and, accordingly, the motion for summary judgment is hereby denied.

FACTS

The plaintiff's action arises out of a renovation and addition project at the state-owned Henry Abbott Technical High School in Danbury.   O & G Industries, Inc. (“O & G”) was hired as the general contractor for the project, and the defendant was hired by O & G to perform the mechanical work at the school.   The defendant hired Barber Firestop Systems, LLC (“Firestop”) to perform the fire caulking work required by the project.   The plaintiff, Robert Barber, was an employee of Firestop.

In his two-count complaint brought against the defendant and O & G, the plaintiff alleges that on November 7, 2007, while lawfully on the school premises and performing the duties of his employment, he was on a ladder which slipped on the concrete floor, causing him to fall and to sustain injuries.   The plaintiff claims that his injuries were caused by the carelessness and negligence of the defendant and O & G relating to their failure to inspect, warn of, or remedy the unreasonably slippery and dangerous floor on the job site, as well as their failure to provide a safe work environment.

On October 20, 2011, the defendant filed a motion for summary judgment as to count two of the plaintiff's complaint—the portion of the complaint which is directed to the defendant.   Relying on the general principle that an employer is not liable for the torts of its independent contractors, the defendant contends that because Firestop was an independent contractor and the plaintiff was employed by Firestop, the defendant, as matter of law, cannot be held liable for the plaintiff's injuries.   In support of its motion, the defendant submitted an affidavit by Debra Stout, who is identified as a member of the defendant, and a deposition excerpt from Lee Krohl, job foreman for Firestop.   In response to the defendant's motion, the plaintiff filed an objection on November 3, 2011 and submitted as evidence an affidavit from the plaintiff and an excerpt from his deposition.   The matter was heard by the court at short calendar on April 9, 2012.

DISCUSSION

I.

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law ․ The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried.”  (Citations omitted.)  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”   (Internal quotation marks omitted.)  Sherman v. Ronco, 294 Conn. 548, 554, 985 A.2d 1042 (2010).  “In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

“On a motion by the defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying trial.”   (Internal quotation marks omitted.)  Baldwin v. Curtis, 105 Conn.App. 844, 851, 939 A.2d 1249 (2008).   The plaintiff “must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.”  (Internal quotation marks omitted.)  Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000).   The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the “inferences which could be reasonably and logically drawn from them ․” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).

II.

“As a general rule, an employer is not liable for the negligence of its independent contractors.”  (Internal quotation marks omitted.)  Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517, 825 A.2d 72 (2003) (Pelletier II ).  “This same rule applies, as a general matter to general contractors as employers of independent subcontractors:  a general contractor is not liable for the torts of its independent contractors ․ [Our courts] have long held, however, that [t]o this general rule there are exceptions, among them these:  If the work contracted for be unlawful, or such as may cause a nuisance, or is intrinsically dangerous, or in its nature is calculated to cause injury to others, or if the contractee negligently employ an incompetent or untrustworthy contractor, or if he reserve in his contract general control over the contractor or his servants, or over the manner of doing the work, or if he in the progress of the work assume control or interfere with the work, or if he is under a legal duty to see that the work is properly performed, the contractee will be responsible for resultant injury ․ So, too, the contractee or proprietor will be liable for injury which results from his own negligence.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 518.   See also Douglass v. Peck & Lines Co., 89 Conn. 622, 627, 95 A. 22 (1915).

Employer liability is not limited, however, to those expressly stated exceptions.¹  “An injured employee of [an independent contractor] may sue [the employer], if he can establish a basis for the [employer's] liability to him under our case law.”  Pelletier II, supra, 264 Conn. 527.   Thus, the Supreme Court has recognized as exceptions to the general rule above referenced those claims in which liability is based on common-law negligence;  Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 592–96, 945 A.2d 563 (2008) (Pelletier III );  a nondelegable duty;  Smith v. Greenwich, 278 Conn. 428, 458, 899 A.2d 563 (2006);  or control over the premises;  Van Nesse v. Tomaszewski, 265 Conn. 627, 628, 829 A.2d 836 (2003);  see also Mazurek v. Great American Ins. Co., Superior Court, judicial district of Waterbury, Docket No. X02 CV 01 0177433 (October 29, 2004, Schuman, J.), appeal dismissed, 284 Conn. 16, 930 A.2d 682 (2007).

In the present case, although the parties agree that Firestop was an independent contractor and that the defendant did not control the manner or method of the work that was being performed by the plaintiff, this agreement does not answer or otherwise eliminate the question as to who maintained control over the hallway in which the plaintiff was injured.   The legal responsibility for maintaining premises in a reasonably safe condition depends on who has possession and control of those premises.  LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002).  “The word ‘control’ has no legal or technical meaning distinct from that given in its popular acceptation ․ and refers to the power or authority to manage, superintend, direct or oversee ․ [T]he question of whether a defendant maintains control over property sufficient to subject him to ․ liability normally is a jury question.”   (Internal quotation marks omitted.)  Doty v. Shawmut Bank, supra, 58 Conn.App. 432.  “Where the evidence on the question as to who had control of the area ․ causing the injury is such that the mind of a fair and reasonable [person] could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable [persons] could fairly reach different conclusions on the question, the issue should properly go to the jury ․ In addition, the contractor's control need not be exclusive;  it is sufficient if it be shared with another.”  (Internal quotation marks omitted.)  Van Nesse v. Tomaszewski, supra, 265 Conn. 631.

In Van Nesse, our Supreme Court confronted the issue of whether the trial court properly concluded that the issue of control over the work site properly went before the jury.  Id., 629–33.   In that case, the plaintiff, the employee of a framing subcontractor who was hired by the defendant-general contractor, used a ladder to lower himself into the basement of the work site.  Id., 629.   While climbing back up the ladder, which had a broken foot and was standing in a large accumulation of sawdust, it slid out from under the plaintiff, causing him to fall and suffer serious injuries.  Id., 629–30.   The plaintiff commenced an action against the defendant, who argued that he did not have sufficient control over the worksite.  Id., 633.

The Supreme Court in Van Nesse concluded that there was sufficient evidence for the issue of control to go to the jury.  Id., 631–32.   Although the subcontractor there owned the ladder and no employees of the defendant were on the premises at the time of the accident, other evidence revealed that the defendant was contractually obligated to keep the property free from rubbish and waste;  the ladder was the only means of ingress and egress to the basement;  other tradesmen had reason to be in the basement in the days immediately preceding the accident and the defendant inspected the premises daily.  Id., 632–33.   Thus, the court concluded, a jury could infer that the defendant had not relinquished complete control of the premises.  Id., 632.

In applying the Van Nesse rationale to the present case, the court recognizes, of course, that not all of the facts present in that case are present here.   In addition, the court notes that the affidavit of Ms. Stout and the deposition excerpt from Mr. Krohl, both of which are submitted by the defendant in support of its motion for summary judgment, provide that the defendant was not in possession or control of the hallway at the time of the plaintiff's accident.

But the court must also give due consideration to the materials submitted by the plaintiff in support of his objection to the motion for summary judgment.   In this regard, the court notes that the plaintiff indicates in his deposition that representatives of the defendant would walk the plaintiff's foreman to the area where the plaintiff was to work each day and, by the use of cones, signs, tape or barricades, would identify clearly any hazards that existed in that particular area of the worksite.   In fact, as to the hallway at issue, the plaintiff notes that it was a “hot spot” of activity at the time of his fall and that the defendant was “sweating [Firestop] to get the hallway done.”   Moreover, the plaintiff states that although the defendant did not correct the plaintiff's work, its employees would inform the plaintiff if they observed that he had failed to firecaulk a particular pipe within his work area.

Thus, in the court's opinion, there is sufficient evidence in this case reasonably to infer that the defendant regularly and routinely would inspect the premises, identify hazardous conditions and, by its actions, communicate those findings to workers on the worksite.   There is also adequate evidence from which to conclude that these workers relied upon the defendant's inspections and its identification of areas of danger within the worksite.   Under such circumstances, a question necessarily exists as to whether the defendant, by performing these tasks, had completely relinquished control of the premises in question at the time of the plaintiff's injuries.   See Van Nesse v. Tomaszewski, supra, 265 Conn. 632.   Given the existence of this genuine issue of material fact relating to the issue of control, it cannot be said as a matter of law that the defendant is not liable for the injuries sustained by the plaintiff.   Consequently, the defendant's motion for summary judgment must be denied.

CONCLUSION

For the reasons set forth above, the defendant's motion for summary judgment on count two of the plaintiff's complaint is denied.

THE COURT

Gold, J.

FOOTNOTES

FN1. One Superior Court has noted that:  “The Pelletier [II] Court identifies these situations as exceptions to the rule that ‘an employer is not liable for the negligence of its independent contractors' ․ and to the rule that “a general contractor is not liable for the torts of its independent contractors.’  ․ The Court's statement in this regard does not appear to be entirely accurate.   The general rule that an employer or general contractor is not liable for the negligence or torts of its independent contractors is one negating vicarious or no-fault liability ․ In contrast, the exceptions listed by the Pelletier [II] Court are all fault-based.   Thus, instead of establishing vicarious liability, these exceptions in fact create a basis for direct liability of the employer or general contractor for its own negligence or fault.   In other words, the exceptions cited by Pelletier [II] are in fact exceptions, but to a different rule than the one it discusses.   The law could perhaps be better summarized by stating that an employer or general contractor is not vicariously liable for the torts of its independent contractor and is not directly liable to an employee of the independent contractor unless it is at fault based on its control of the premises, its negligent hiring, or on any of the other exceptions listed in Pelletier [II].” Mazurek v. Great American Ins. Co., Superior Court, judicial district of Waterbury, Docket No. X02 CV 01 0177433 (October 29, 2004, Schuman, J.), appeal dismissed, 284 Conn. 16, 930 A.2d 682 (2007)..  FN1. One Superior Court has noted that:  “The Pelletier [II] Court identifies these situations as exceptions to the rule that ‘an employer is not liable for the negligence of its independent contractors' ․ and to the rule that “a general contractor is not liable for the torts of its independent contractors.’  ․ The Court's statement in this regard does not appear to be entirely accurate.   The general rule that an employer or general contractor is not liable for the negligence or torts of its independent contractors is one negating vicarious or no-fault liability ․ In contrast, the exceptions listed by the Pelletier [II] Court are all fault-based.   Thus, instead of establishing vicarious liability, these exceptions in fact create a basis for direct liability of the employer or general contractor for its own negligence or fault.   In other words, the exceptions cited by Pelletier [II] are in fact exceptions, but to a different rule than the one it discusses.   The law could perhaps be better summarized by stating that an employer or general contractor is not vicariously liable for the torts of its independent contractor and is not directly liable to an employee of the independent contractor unless it is at fault based on its control of the premises, its negligent hiring, or on any of the other exceptions listed in Pelletier [II].” Mazurek v. Great American Ins. Co., Superior Court, judicial district of Waterbury, Docket No. X02 CV 01 0177433 (October 29, 2004, Schuman, J.), appeal dismissed, 284 Conn. 16, 930 A.2d 682 (2007).

Gold, David P., J.