Garland Hall v. Joseph O'Connor et al. (2013)

TRIAL DECISION

INTRODUCTION AND PLEADINGS

COMPLAINT and ANSWER

This action was brought via Writ of Summons and Complaint dated June 25, 2010 with a return date of August 17, 2010.   The Original Complaint was amended on November 8, 2010.   The First Count alleges negligence against the Defendant-driver, Joseph O'Connor, and the Defendant employer, All–Ways Dumpsters, Inc. “All–Ways.”   The Second Count alleges a claim of recklessness and claims damages pursuant to C.G.S. § 14–295.   Specifically, the First Count alleges that the Defendant-driver Joseph O'Connor (“O'Connor”) acted negligently in one or more of the following ways:  he was inattentive and failed to keep a proper lookout for pedestrians on said road and/or in the area of his vehicle;  he failed to keep his motor vehicle under reasonable and proper control;  he was traveling at an excessive rate of speed in violation of Sections 14–218(a) and 14–219 of the Connecticut General Statutes;  he failed to turn the motor vehicle he was operating aside so as to avoid striking the Plaintiff;  he drove said motor vehicle with defective or inadequate brakes or failed to apply the brakes in time;  or he failed to properly operate his vehicle in reverse.

The Second Count of the Complaint states that the Defendant-driver was reckless in that he operated her [sic] motor vehicle in a reckless manner, in addition, with reckless disregard violated Connecticut General Statute § 14–222;  in that he traveled at a rate of speed which was excessive and unreasonable in view of the circumstances then and there existing, in addition with reckless disregard violated Connecticut General Statutes §§ 14–218[sic] and 14–219.   The Second Count contains no specific factual description of the actions of the Defendant-driver.

Plaintiff alleges that he sustained the following damages which may be permanent, acute traumatic cervico thoracic and lumbosacral grade II sprain/strain, back pain, headaches, dizziness and general shock and that he incurred and may in the future incur medical expenses for treatment of the above symptoms.   Plaintiff claims lost wages, lost earning capacity, post and future pain and suffering and limitation of life's usual activities.   He claims economic and non-economic damages for the above.

All–Ways and O'Connor have denied that they are responsible for the plaintiff's injuries and have pleaded two special defenses.   Defendants' first special defense alleges that plaintiff's injuries were caused by his own negligence in that he stood between the truck which was operating in reverse and the dumpsters it was picking up, failed to keep a safe distance from a moving vehicle, failed to properly attach the chain to the dumpster and failed to appreciate his surroundings.

Defendants' second special defense alleges that plaintiff's injuries were caused by the apportionment defendant, plaintiff's employer Surf Metal Co., Inc. in failing to keep the premises safe, failing to keep plaintiff away from the truck and/or allowing another employee to direct the truck backwards without making sure it was safe to do so.

INTERVENING COMPLAINT

The intervening complaint filed by plaintiff's employer All–Ways, New Hampshire Insurance Company and Chartis Claims, Inc. dated October 17, 2011 seeks reimbursement and/or discharge from the defendant for compensation which they have paid and may be obligated to pay in the future to the plaintiff pursuant to Connecticut's workers' compensation laws.   Although the intervening complaint was filed well after the plaintiff commenced his action, intervenor assert that it did not receive notice from the plaintiff of the pending action and filed its motion to intervene as a result of learning about the action during a routine search of the judicial website.   The court recognizes that the workers' compensation statute is a deviation from common law and thus, it should be strictly construed.  Goodyear v. DiScala, 269 Conn. 507, 849 A.2d 791 (2004).   However, since notice is a prerequisite to the thirty-day statutory time limit for moving to intervene, where notice is not provided, as asserted here, the employer should not be precluded from asserting its claim.   See Lawrence v. Sodexho, Inc. (2007 WL 447298) [42 Conn. L. Rptr. 843].

APPORTIONMENT COMPLAINT

The defendant All–Ways filed an apportionment complaint dated December 6, 2010 invoking the motor vehicle exception to the workers' compensation statutes, C.G.S. 52–293a.   In support of its claim, Defendant/apportionment plaintiff cites three Supreme Court decisions, Plunkett v. Nationwide Mutual Ins. Co., 150 Conn. 203, 209, 187 A.2d 754 (1963);  Reetz v. Mansfield, 119 Conn. 563, 178 A. 53 (1935), and Stroud v. Water Commissioners, 90 Conn. 412, 97 A. 336 (1916).   The rule as defined by our courts is that operation as it relates to a motor vehicle relates to the driving or movement of the vehicle itself or a circumstance resulting from the movement of the vehicle.   All Ways claims that the co-employee of the plaintiff was engaged in the operation of the truck because he allegedly waved to the driver to proceed in reverse.   The apportionment defendant Surf Metal Co., Inc. did not answer the apportionment complaint.   Thus, the pleadings were never closed on this issue.   Two and a half years later and only three weeks before the trial, the plaintiff filed a motion to strike the apportionment complaint.   In its post-trial brief, All–Ways requests that the court deny the motion to strike because 1) the plaintiff lacks standing to challenge the apportionment complaint between All–Ways and Surf Metal and 2) even if the court found that the plaintiff has standing, the plaintiff has waived that right by waiting until the first day of evidence to raise the issue.   All–Ways is correct in its assessment that plaintiff should have pled over against Surf Metal.   This would have enabled Surf Metal to plead the defense of exclusivity under Gen.Stat. 31–293a and for a judicial determination of the applicability of the operation of a motor exception.   The security video evidence of the coworker's actions, deposition testimony of O'Connor and trial testimony of plaintiff prevent the court from finding that the coworker's conduct met the legal test for operation of a motor vehicle as the term is applied under the workers' compensation laws or any further finding of proximate cause.   The court denies the motion to strike on both the standing and timeliness grounds.   The court will address the issues as they appear in the pleadings as of the date of the trial.

II. FINDINGS OF FACT

Plaintiff Garland Hall was 47 years old and had worked for Surf Metal for four years as a laborer at the time of the accident on June 27, 2008.   His job description included weighing and cutting metal.   This required him to assist in loading and unloading quantities of metal delivered to Surf Metal.   This included attaching dumpsters filled with metal to trucks which carted the metal.   The trucks are equipped with a hoist and a boom with two metal arms which extend from the rear bumper of the truck.   The hoist has two chains with hooks to secure the dumpster or can.   The driver backs the truck up toward the can, aligns the hoist with the dumpster and lowers the boom until it is flush with the top of the dumpster.   According to Mr. O'Connor, the driver is responsible for hooking the chains to the dumpster.   The dumpster is then lifted and moved by the retracting hoist onto the truck.

Plaintiff introduced a series of photographs which depict the truck/hoist/ bumper arm/ chain assembly at various stages of picking up a load of metal and a security video which depicted the events of June 27, 2008.   According to O'Connor, the dumpster was overfilled on the day in question.   This required Surf Metal employees to remove excess metal that extended two to three feet over the dumpster top to make it level.   None of the Surf Metal employees wore protective headgear, eyewear or reflective vests.   A Surf Metal employee with sandy brown hair directed the removal of the excess scrap metal.   The workers removed the excess metal and added it to a pile of metal bed frames located next to the dumpster on the side which corresponded to the passenger side of the truck.   O'Connor drove forward to allow the Surf Metal employees to remove the excess metal.   He then checked his mirror, did not see anyone and began to back up to the can.   All of the workers on site were familiar with the loading procedure.

The same Surf Metal employee with sandy brown hair was on the ground next to the driver's side of the truck directing O'Connor to back up the truck in order to align the boom and hoist with the can.   As O'Connor neared the can he heard a voice, looked in his mirror and saw Mr. Hall on the ground in the area of the bed frames and excess metal on the passenger side of the truck.   O'Connor never saw Mr. Hall before he was injured explaining that Hall must have been standing in a blind spot.   O'Connor was moving the truck slowly and it made noise when it moved.   He stopped immediately when he heard a voice say “ow, ow, ow.”   The video from the security system maintained by Surf Metal provides a film of the area and the events which occurred just prior to and following the incident.   It shows the plaintiff facing away from the truck between it and the dumpster.   The other person was standing on the side of the dumpster facing forward toward the moving truck.   The video shows that as the truck moved backward it struck back of plaintiff's thigh area causing him to lose his balance and fall onto a pile of metal bed frames which were next to the dumpster.   Plaintiff stated that he momentarily lost consciousness.   Medical help was immediately summoned.   Plaintiff was taken by ambulance to Bridgeport Hospital where he was seen at about 11:05 am, approximately 15 minutes after the incident.   On examination, plaintiff was observed to be alert following the above report of a concussion at the scene.   He had full movement of all extremities.   He complained of pain in right shoulder and back on a 5/10 scale but denied need for pain medication.   CT scans of the abdomen, pelvis, chest, right arm and leg, head and spine were normal.   Plaintiff rested in bed at home for about four days and stayed out of work for two weeks.   He returned first to light duty, assisting with customers but resumed normal duty because he was worried about losing his job.

Plaintiff sought treatment from Dr. Robert Pesale, Pesale Chiropractic, LLC from November 17, 2008 to January 13, 2009 and thereafter periodically until March 28, 2012.   Dr. Pesale's June 14, 2012 report summarizes plaintiff's course of medical treatment for injuries allegedly arising out of the subject accident.   When he first presented on November 17, 2008, he was complaining of numbness, tingling and pain to the right extremity, daily moderate right sided headaches, bilateral mid to upper back pain and stiffness with radicular symptoms bilaterally to lower extremities and resulting trouble sleeping.   He demonstrated tenderness and pain on palpation to the upper para spinal musculature.

Remaining physical findings by Dr. Pesale were within normal range or unremarkable except for joint dysfunction in the lower lumbar spinal segments and in the sacroliliac joints bilaterally, radicular symptoms to lower extremities and bilateral sensory changes involving the 51 nerve root.

MRI scans performed at Griffin Hospital on January 30, 2012 indicated:  1. Extremely limited study secondary to poor signal ․ surface coil was not utilized due to claustrophobia, 2. Mild canal stenosis, mild neural foramen stenosis and disc desiccation at C3–C4 to C6–C7, 3) mild right neural foramen stenosis at C7–T1 due to facet arthropathy and spondylosis.   This report is consistent with the January 9, 2012 MRI examination which found mild degenerative disease of the cervical spine.   Both the 2008 MRI studies from Bridgeport Hospital and the 2012 Griffin Hospital MRI studies show congenital and degenerative findings.   They do not describe injuries related to trauma which the plaintiff claims to have experienced as a result of being struck by the All–Ways truck.   Plaintiff declined Dr. Pesale's suggestion to consult with an orthopedic doctor.   Without evidence from an orthopedic doctor, the court is left with an absence of specific objective findings connected to the incident and generalized complaints.   While the plaintiff experienced some pain discomfort and possibly continuing lumbar limitation, he failed to meet his burden under the law.

Plaintiff claims loss of earnings due to his inability to work overtime and perform some of the work requiring heavy lifting.   However, as noted above the medical findings are either not related to trauma or not related to the parts of the plaintiff's body which plaintiff identified as impacted by the incident.   Plaintiff returned to work after two weeks.   He makes a significant claim for lost wages due to inability to take overtime work but he failed to provide evidence to support this claim.   His employment was terminated for lack of work on August 2, 2012.   Plaintiff did not present evidence which established that the termination was related to the injury he sustained on June 27, 2008.   His claim as to lost wages due to not working overtime was not supported by any objective evidence and was thus too speculative as to both causal relationship to his injury and amount.   The fact that plaintiff was laid off four years after the 2008 incident for lack of work undermines plaintiff's overtime claim as well.

The plaintiff experienced some pain and limitation for a period of time following the incident.   However, there was no clear evidence that the nature, cause and extent of his discomfort, physical limitations or change in temperament were proximately caused by the June 27, 2008 incident.

The court finds that the actions of the defendant All–Ways and its employee O'Connor were the proximate cause of the accident which injured Garland Hall on June 27, 2008.   The court also finds that Mr. Hall's own negligence contributed to the accident and the injuries he claims to have sustained, specifically, that plaintiff was not responsible for connecting the chains to the dumpster, that he placed himself between the truck and the dumpster outside the field of vision of the driver when he knew the driver would be moving the truck backward toward the dumpster and that he failed to pay attention to the noise of the truck engine or give warning of his position.   The court attributes 55 percent liability to the defendants and 45 percent liability to the plaintiff.   Judgment shall enter for the plaintiff on the first count as specified below.   The court finds that viewing all of the evidence regarding the occurrence of this incident the plaintiff did not present any facts from which the court could find that the actions of the defendants were reckless or wanton.   Judgment shall enter for the defendant on the second count.

APPORTIONMENT COMPLAINT

The crux of the apportionment complaint relates to the claim that the apportionment defendant failed to keep the premises safe and had another employee direct the truck back towards the dumpster without making sure it was safe to do so.   The evidence that the premises were not safe was the accumulation of scrap metal in the vicinity of the dumpster.   There is evidence that the plaintiff fell on this pile.   However, the evidence is inconclusive as to whether this condition or any other ways in which the premises may not have been reasonably safe were causally related to the plaintiff's injuries.   There was evidence that a Surf Metal co-employee was on the driver's side of the dumpster waving at the driver.   The dumpster was approximately eight and a half feet high and seventeen feet long.   The evidence supported a finding that this employee could not see over the dumpster to view plaintiff.   Although he motioned O'Connor to stop, there was no testimony that the reason was other than to direct the truck to line up with the dumpster.   It is therefore not possible to conclude that the co-employee was doing anything except directing the truck or that he gave any indication that he was aware that plaintiff had positioned himself between the truck and the dumpster.   The video is a visual depiction only.   The court has reviewed the security video and testimony of Mr. O'Connor.   Without audio it is not possible to determine what the other employee was doing, who would have been aware of his actions, etc. if he gave any warning or was himself aware of the position of danger in which the plaintiff had placed himself.   The court therefore concludes that the apportionment plaintiff has not met its burden of proof.

DAMAGES

The plaintiff has proved that he sustained injuries to his lumbar area when the All–Ways truck caused him to lose his balance and fall on a pile of scrap metal for which he his entitled to recover damages for medical care and lost wages.

ECONOMIC DAMAGES

Bridgeport Hospital $ 5,831.00

Dr. Pesale $ 1,772.78

Griffin Hospital $ 426.00

Town of Stratford-ambulance $ 764.80

Lost wages-regular and O/T $ 1,300.00

TOTAL $12,094.58

Non–ECONOMIC DAMAGES

Pain and Suffering $15,000.00

Loss of Life's activities $15,000.00

Impairment to lumbar spine $15,000.00

TOTAL $57,094.58

NET to PLAINTIFF (–45%) $31,402.00

The intervening plaintiff is entitled to recover the amount of its lien under the statute.

SOMMER, J.

Sommer, Mary E., J.