William Frank v. LLC (2014)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 159)

The defendant Barnhart Northeast, Inc. (Barnhart) filed this motion for summary judgment on September 26, 2013, seeking summary judgment as to count three of the complaint of the plaintiff, William Frank, on the ground that there is no evidence to support the plaintiff's claim of negligence against Barnhart.   The plaintiff and the codefendant, A.E.R. Refurbished Systems, LLC (AER), have both objected and filed memorandums in opposition to Barnhart's motion, arguing that a genuine issue of material fact exists as to whether Barnhart was negligent.   The parties have also submitted various documents as evidence in support of their respective positions, particularly affidavits and deposition transcripts.   This matter was argued before the court on November 12, 2013.

BACKGROUND

The following facts are relevant to this motion and, at least for purposes of deciding the motion, do not appear to be disputed by the parties.   On January 27, 2009, the defendants Barnhart and AER were at the Naval Submarine Base in Groton, Connecticut, having been contracted by the United States Navy to replace a fire suppression system canister on the premises.   The canister being replaced was cylindrical in shape and weighed approximately 100 to 150 pounds.   The primary task of AER during the operation was to disconnect the canister, place it into a harness, and attach it to the crane hook for removal, and then to subsequently install the replacement.   AER had two riggers on site, on a manlift device, in order to complete this task.   The primary role of Barnhart was to conduct the physical removal and replacement of the canister by use of a crane, after AER completed the rigging.   For this purpose, Barnhart had crane operator Russell Smith at the work site.   Meanwhile, the plaintiff, who is a Navy employee, was in charge of coordinating the entire operation from the ground.   The various personnel on site examined the harness and determined that it was appropriate for the job.   The AER riggers then disconnected the canister, secured it within the harness, and attached it to the crane hook.   After a test lift, the Barnhart crane operator then lifted the canister and began to move it.   All parties, including the plaintiff, appear to agree that the crane operator was not negligent in his operation of the crane during this phase of the process.   Nevertheless, at some point after lifting the canister and while moving it, the canister came loose from the rigging and slipped out of the harness, falling to the ground and disbursing its contents.   The plaintiff was allegedly injured while attempting to avoid the canister.

While the causes of the incident remain in dispute, the majority of the parties and experts assert, both in depositions and affidavits, that the primary cause of the canister slipping from the harness was that the canister was not properly secured in the harness prior to the lift.   In his five-count complaint, the plaintiff asserts negligence claims against various parties for causing his injuries.   The subject of this motion is count three, which is the only count in the complaint directed against Barnhart.   In count three, the plaintiff claims that Barnhart's conduct was negligent, citing a variety of grounds.   The plaintiff seeks money damages from Barnhart as a result.

LAW RE MOTION FOR SUMMARY JUDGMENT

“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.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact ․ To satisfy [its] burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Citations omitted;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

ANALYSIS

As its basis for requesting summary judgment, Barnhart argues that there is no genuine issue of material fact as to the lack of negligence by its crane operator.   Specifically, Barnhart asserts that all of the evidence indicates that its crane operator did nothing wrong, and if anyone was negligent then that liability should fall on AER for its improper rigging of the canister.   The plaintiff and AER do not provide any evidence to show that the Barnhart crane operator was negligent in his lifting and moving of the canister, but they contend that there are still genuine issues of material fact as to whether Barnhart was negligent in other ways.   They point to at least three factual issues that they claim remain in genuine dispute, which involve whether the Barnhart crane operator could have been negligent by:  (1) failing to conduct a pre-lift inspection to ensure that the canister was properly rigged before proceeding with the lift;  (2) failing to ensure that the AER riggers were adequately qualified for the operation;  and (3) violating OSHA regulations, and other workplace and crane-related regulations and procedures, by proceeding with the lift even though the plaintiff was dangerously positioned in the fall zone of the load during the lift.   The first two of these disputed issues would require an elaborate analysis of whether the crane operator actually had a duty to perform such tasks and, as to the second issue, whether it was even pleaded at all in the complaint.   Therefore, the court instead begins by analyzing whether a genuine issue of material fact exists as to the third disputed issue.

In order to prove that a genuine issue of material fact exists as to the third disputed issue, AER has submitted a report and affidavit of its expert witness, Terry R. Lane, who has a degree in industrial engineering and purports to be “a recognized expert in the field of safety practices and work site safety, including the inspection, evaluation, and investigation of work site accidents.”   In his affidavit, Lane expresses the following opinion:  “Russell Smith, the crane operator employed by Barnhart Northeast, Inc., acted negligently on January 27, 2009, when he failed to stop or refuse to perform the lift at issue in this case due to the fact that [the plaintiff] William Frank positioned himself in the fall zone of the lift ․ Frank testified at various places in his deposition that he was standing close to where the cylinder hit the ground, which is where it was planned for it to have been placed ․ He said he was about 10 feet in front of the crane in view of the crane operator ․ It is a standard in the crane industry that the crane operator has ultimate responsibility for the lift;  he is the one in physical control of the crane ․ Permitting William Frank to be in the fall zone of the lift in question constituted an unsafe act by Russell Smith, violating several applicable safety standards, including ANSI (B30.5–3.2.3.f), Naval Crane Center Standard P–307 (Section 10.7) and OSHA (CFR § 1926.1425).”   It is questionable whether each of these standards was actually violated by the crane operator;  for example, the OSHA standard does not outright prohibit persons from being in the fall zone—in fact, it states that essential persons may be in the fall zone if they are involved in guiding or receiving the load.   Regardless, because Lane will testify that a general safety standard exists under which the Barnhart crane operator should not have proceeded with the lift under the circumstances present in this case—specifically, continuing with the lift while the plaintiff was in a dangerous location in proximity to the load—a genuine issue of material fact exists on this point that would not be appropriate for this court to resolve as a matter of law.   Although this issue was raised by AER, the plaintiff's complaint does have sufficient allegations to support it when interpreted broadly and realistically, as the court must;  see Boone v. William W. Backus Hospital, 272 Conn. 551, 559–60, 864 A.2d 1 (2005);  including the plaintiff's allegation that Barnhart was negligent by “fail[ing] to properly set-up said construction apparatus so that it was safe for its workers and business invitees.”   Thus, the motion for summary judgment cannot be granted.

Because the court has determined that there is a genuine issue of material fact on this point, it need not analyze whether a genuine dispute exists as to the two other factual issues raised by the plaintiff and AER. Although there is a split in the Superior Court regarding how courts should handle this procedural issue, recently, in Leuze v. Connecticut Rivers Council, Inc., Boy Scouts of America, Superior Court, judicial district of New London, Docket No. CV–10–6006879–S (January 29, 2014, Devine, J.), this court adopted the majority view that it is not proper to render summary judgment on part of a count of a complaint, explaining that “[t]he majority of the cases do not allow a party to eliminate some, but not all, of the allegations of a single count through a motion for summary judgment.”  (Internal quotation marks omitted.)   Id. Because Barnhart cannot parse through count three and obtain summary judgment on single issues within the negligence claim, it is not necessary for the court to analyze whether there are any additional factual allegations from count three that are in genuine dispute.   In other words, it is enough that one genuine issue of material fact exists in count three, such that continued analysis is unnecessary and Barnhart's motion must be denied in its entirety.   Any narrowing of the issues to be tried against Barnhart would be more appropriately addressed at trial or on a motion in limine.

ORDER

For the foregoing reasons, the defendant Barnhart's motion for summary judgment (# 159) is hereby denied.

Devine, J.

Devine, James J., J.