Linda Borovicka, Individually and as the Executrix of the Estate of John Borovicka v. Oshkosh Corporation et al. (2013)

MEMORANDUM OF DECISION ON QUINNIPIAC UNIVERSITY'S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This action arises out of a tragic accident that occurred on Quinnipiac University's Hamden Connecticut campus on November 13, 2009.   At approximately 9:15 a.m. that day, the decedent, John Borovicka, was working on a construction project on the campus as an employee of O & G Industries when the right rear tire of an industrial forklift (also known as a telehandler) that was being operated by another O & G employee struck Borovicka from behind, ran him over, and killed him.   The plaintiffs have asserted claims against both the manufacturer of the telehandler, JLG Industries, Inc., and Quinnipiac.   In particular, in Count Two of the complaint, the plaintiffs allege that Quinnipiac was negligent in its control and maintenance of its premises and that such negligence was a proximate cause of Borovicka's death.

Quinnipiac has moved for summary judgment arguing that it owed no legal duty to the plaintiffs because it was not in control of the premises when Borovicka was killed.   Quinnipiac argues that it had granted total control over the construction site where the accident occurred to O & G. As a result, O & G, not Quinnipiac, owed the plaintiffs the duty to control and maintain the premises in a non-negligent manner.   The plaintiffs argue that there is a genuine issue of material fact as to whether Quinnipiac exercised control over the premises.

II. UNDERLYING FACTS

Viewing the affidavits, deposition testimony and other supporting evidence submitted in a light most favorable to the plaintiffs, the following facts are relevant to resolution of Quinnipiac's motion.   Pursuant to a written contract between O & G and Quinnipiac, O & G was retained to serve as the general contractor for a construction project on Quinnipiac's York Hill campus at 305 Sherman Avenue, Hamden, Connecticut.   Exhibit B to Quinnipiac's Motion for Summary Judgment (hereinafter Def. Ex. B).  Pursuant to the General Conditions of the contract, “[O & G] shall be solely responsible for and have control over construction layout, means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters.”   Def. Ex. B, General Conditions § 3.3.1. Even if the contract gave specific instructions, O & G still had sole responsibility for safety of the job site.   That responsibility would only transfer to Quinnipiac if O & G informed Quinnipiac of a safety concern arising out of a specific instruction and Quinnipiac nonetheless told O & G to proceed with the work as instructed.   Id. The General Conditions also provided that O & G was “responsible for initiating, maintaining and supervising all safety precautions and programs in connection with performance of the Contract.”   Id., § 10.1.1. That document further provided that it was O & G's responsibility to “take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to ․ employees on the work and other persons properly on the site in furtherance of the Work.” Id., § 10.2.1.

However, it was Quinnipiac's responsibility to prevent persons not involved with the construction from entering the job site, and O & G had no responsibility for the safety of such persons who gained access to the job site.   Id., § 10.2.8. In addition, the contract gave Quinnipiac the right to stop work if O & G “persistently fail[ed] to carry out Work in accordance with the Contract Documents.”   Id., § 2.3.1. Nevertheless, the contract specifically provided that Quinnipiac's right to stop work “shall not give rise to a duty on the part of [Quinnipiac] to exercise this right for the benefit of [O & G] or any other person or entity, except to the extent required by Section 6.1.3.”   Id.¹

Quinnipiac retained Pegasus Group (“Pegasus”) to oversee the construction on the York Hill Campus.   Pegasus' primary representative on the job was one of its principals, Eric Kruse.   It also had a second full-time employee, Rick Lawrence, on site.   Although there was no contract between Quinnipiac and Pegasus setting forth Pegasus' duties and responsibilities, it is undisputed that Pegasus acted as Quinnipiac's agent.   It was Quinnipiac's eyes and ears on the site.   Kruse and Lawrence conducted weekly job meetings that were attended by O & G superintendents and project managers.   There was also daily interaction between Pegasus and O & G. Kruse had the responsibility to report any unsafe conditions to Quinnipiac, although he had no safety training.   Kruse reported directly to Joseph Rubertone, who was then Quinnipiac's Vice President of Facilities Management.

The decedent was employed by O & G. On the day of the accident, November 13, 2009, he was working in the fenced in area of the job site.   A few seconds before the accident, the decedent's brother, James Borovicka, also an O & G employee, saw the decedent carrying a tool case as he walked along the unfinished roadway located in front of the building under construction in which James was working.   James saw the decedent try to get off of the construction roadway, but his path was obstructed by construction materials stored and stockpiled along the roadway.   The decedent was attempting to leave the roadway to go into the building where his brother was working.   The materials were partially on the roadway, and there was a wall on the other side of the roadway, and no walkway.   At the same time, and in the same area, a third O & G employee, Frank Papa, was operating a JLG telehandler.   According to Papa, the area where he was operating the telehandler was more congested than it had been earlier in the project due to more materials being located on the site.   Consequently, it was more difficult to navigate the corner where the accident occurred.   The decedent was struck and fatally injured as Papa was backing up the telehandler to allow other machines to pass.   When the accident occurred, Pegasus was notified, and Kruse went to the site as Quinnipiac's agent to determine what had occurred.

Prior to November 13, 2009, not all of the construction materials related to the project were stored on the active job site.   Several other areas of Quinnipiac's campus were used as staging areas until the materials were needed by O & G. One such area was a large lot near Quinnipiac's athletic facilities.   The large lot was several hundred feet in length and 50 to 75 feet in width, and was used to store steel and concrete, construction containers and various other construction materials.   Prior to October 2009, this lot was 75% to 100% full of materials.   Quinnipiac had no contractual obligation to allow O & G to use this lot for storage and staging.   It did so merely as an accommodation to O & G and with the understanding that O & G would have to clear the site by the Fall sports season when Quinnipiac would need the lot for athletic events.

Beginning in October 2009, Quinnipiac, through Kruse, demanded that the materials stored on the lot be moved.²  O & G resisted and sought to have the materials remain on the lot.   Kruse became more insistent, and O & G cleared the materials from the lot.   While the plaintiff presented no direct evidence of the location to where the materials were moved, viewing the evidence in a light most favorable to the plaintiffs and drawing all reasonable inferences in their favor, the court infers that the materials were moved to the active job site, resulting in the increased congestion discussed by Papa and James Borovicka.   Kruse, as Quinnipiac's agent, knew that the job site was very active with lots of construction workers and lots of materials.

III. SUMMARY JUDGMENT STANDARD

“In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.”  (Citations and internal quotation marks omitted.)  Liberty Mut. Ins. v. Lone Star Indus., Inc., 290 Conn. 767, 787, 967 A.2d 1 (2009).  “It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].”  Home Ins. Co. v. Aetna Life & Casualty, Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995).

IV. DISCUSSION

Quinnipiac has moved for summary judgment arguing that the undisputed facts show that it owed no duty to the decedent because it did not have control over the job site when the accident happened.   Relying on Mozeleski v. Thomas, 76 Conn.App. 287, 818 A.2d 893 (2003), it argues that where, as here, an owner cedes control of his property to an independent contractor, it ceases to be liable for accidents that occur on the property.   As the Appellate Court explained, “[t]he basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor ․ The explanation for [this rule] most commonly given is that, since the [owner] has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise, and the [contractor], rather than the [owner], is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it.   2 Restatement (Second), [Torts] § 409, comment (b) [p. 370 (1965) ].”  (Internal quotation marks omitted;  citations omitted;  alterations in original.)   Id., 291–92.   As the Appellate Court noted though, “[e]xceptions to that rule arise when the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation.”  (Internal quotations marks omitted;  citation omitted.)  Id. 292.

More recently, our Supreme Court has provided greater clarification of this rule and the reach of the exceptions.   In Archambault v. Soneco/Northeatern, Inc., 287 Conn. 20, 946 A.2d 839 (2008), the plaintiff, an employee of the subcontractor, Soneco/Northeastern, Inc. (“Soneco”) was injured when a trench in which he was working on a construction site collapsed.   He sought to hold the general contractor, Konover Construction Corporation (“Konover”), liable for the accident claiming that Konover was negligent in its supervision of the site.   Konover defended the case by arguing that it owed no duty to the plaintiff because its subcontractor, Soneco, had complete control over the trench where the accident happened as well as the means and methods of work in the trench.   The trial court, over Konover's objection, instructed the jury that “[Konover has not contested that it had overall control of safety on the job site.   The court therefore instructs you that, as a matter of law, Konover had a nondelegable duty concerning safety, that it could not assign it to someone else and that such duty extended to all workers on the site including the [plaintiff].”   Id., 28, n.6. The jury returned a verdict for the plaintiff.

On appeal, Konover argued that the court's instruction was in error because evidence showed that, if anyone, Soneco was negligent in overseeing the work site.   In deciding this issue, the Court examined the subcontract between Soneco and Konover.   The plaintiff argued that the agreement required Konover to ensure overall safety of the work site, a fact confirmed by Konover's safety director and project superintendent during trial.  Id., 45–46.   The plaintiff also relied upon the fact that Konover provided Soneco with a safety manual on excavations.  Id., 48.

The Court rejected the plaintiff's arguments.   Instead, the Court noted the provisions of the contract that required Soneco to meet a number of safety requirements while doing its work.  Id., 46–48.   It also noted that, under the agreement, Soneco assumed all liability and responsibility for its work.   Id.

With these facts in mind, the Court, in reaching its conclusion, applied the same rationale used by the court in Mozeleski, employing virtually the exact same language.  Id., 53–54.   In doing so, it noted that, “[w]hen the evidence on the question as to who had control of the instrumentality 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 [is] shared with another.”  (Internal quotation marks omitted;  citation omitted.)  Id., 54.

The Court then concluded, based on the subcontractor agreement that, “a reasonable person could reach but one conclusion as to who exercised control over excavation of the trenches ․ [T]he entity in control was Soneco, rather than Konover ․ Konover's subcontract agreement with Soneco required that Soneco comply with all applicable federal, state and local safety rules and regulations, follow Konover's safety plan, maintain safe and healthful working conditions, provide required mechanical safeguards and personal protective equipment, and ensure that employees comply with established safety regulations and practices, including the proper use of all safety equipment provided.   In addition, Soneco assumed ‘the entire responsibility and liability for all work, supervision, labor and materials' provided under the subcontract agreement until final acceptance of the work by the owner.   Soneco also agreed to accept liability for any loss, damage or destruction from any source other than Konover's sole negligence.”  Id., 54–55.   The Court went so far as to hold that “Konover's safety manual was not the source of a contractual or legal duty to provide a safe work site but was merely an informational tool.”  Id., 55.   Nor did the fact that Konover's safety director and project superintendent testified that Konover had overall responsibility for safety of the work site change the result.  “Even though [the project superintendent] exercised general supervision over the work site, Soneco had direct responsibility for supervising the work of its employees.”  Id., 56.

Applying the Court's analysis of duty in Archambault to the facts here, viewed in a light most favorable to the plaintiff, it is clear that the only conclusion a reasonable person could draw is that only O & G, not Quinnipiac, had control of the job site at the time of the accident.   The contract between O & G and Quinnipiac gave complete control over work on the job site to O & G. It also placed full responsibility for safety on O & G. Furthermore, as was true of Soneco in Archambault, O & G had the responsibility to remedy all damages and losses except those caused solely by the acts or omissions of the other party, here Quinnipiac.   Def. Ex. B, § 10.2.5.

Furthermore, while the plaintiff in Archambault could point to Konover's safety manual or its overall responsibility for work site safety, there is no such evidence here.   Quinnipiac's only responsibility for safety of the job site was to make sure nobody that did not belong on the job site entered.   That responsibility is not at issue here and cannot be used as a springboard to argue that Quinnipiac owed some greater duty to O & G or the plaintiff.   The only evidence at all that the plaintiff points to is the fact that Quinnipiac told O & G to move its materials from the athletic fields lot shortly before the accident occurred.   However, Quinnipiac had no legal duty to allow O & G to use that lot.   Nor is there any evidence that Quinnipiac told O & G to move its materials to the work site.   As with all other parts of this project, O & G was in complete control of its materials and where it chose to store them.   It was O & G's responsibility to determine whether moving more materials onto the job site would make it unsafe.   O & G could have found an alternative storage area.   The fact that it may have chosen not to do so did not create a duty in Quinnipiac to assume control of the work site.

Overall, the evidence of control by Quinnipiac of the work site here is much less than the evidence of Konover's control in Archambault.   Given that the Court there held that the evidence could lead to only one reasonable conclusion—that Konover was not in control sufficient to impose a legal duty on it, the same conclusion must be reached here as to Quinnipiac.

V. CONCLUSION

For the foregoing reasons, Quinnipiac's motion for summary judgment as to Count Two of the complaint is GRANTED.

Bright, J.

FOOTNOTES

FN1. Section 6.1.3 relates to the coordination of schedules among contractors and is not at issue here..  FN1. Section 6.1.3 relates to the coordination of schedules among contractors and is not at issue here.

FN2. The plaintiffs claim that the evidence shows that Quinnpiac told O & G to move the materials from the lot onto the active construction site.   The only such evidence offered though is the hearsay statement of James Borovicka that the decedent told him that.   The plaintiffs offered no evidence as to the decedent's source of any such information.   Nor have the plaintiffs offered any testimony from anyone at O & G who communicated with Kruse or Qumnipiac that such a demand was made.   Consequently, the only competent evidence submitted is that Quinnipiac and Kruse asked that the materials be moved from the athletic facilities lot, but did not tell O & G where to put the materials..  FN2. The plaintiffs claim that the evidence shows that Quinnpiac told O & G to move the materials from the lot onto the active construction site.   The only such evidence offered though is the hearsay statement of James Borovicka that the decedent told him that.   The plaintiffs offered no evidence as to the decedent's source of any such information.   Nor have the plaintiffs offered any testimony from anyone at O & G who communicated with Kruse or Qumnipiac that such a demand was made.   Consequently, the only competent evidence submitted is that Quinnipiac and Kruse asked that the materials be moved from the athletic facilities lot, but did not tell O & G where to put the materials.

Bright, William H., J.