Silvestre Pereira et al. v. North Carolina Granite Corp. et al. (2014)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT (# 160) (# 185) (# 165) (# 192)

BACKGROUND AND FACTS

This memorandum addresses the two motions for summary judgment filed in Pereira v. North Carolina Granite Corp., Superior Court, judicial district of New Haven, Docket No. CV–09–5031427–S, and the two motions for summary judgment filed in its companion case, C.J. Fucci, Inc. v. North Carolina Granite Corp., Superior Court, judicial district of New Haven, Docket No. CV–09–6004639–S.¹  Both cases concern the same incident in which Silvestre Pereira was allegedly injured while unloading granite curbs off of a flat-bed trailer.   First, this memorandum sets forth the relevant procedural and factual background in each case.   Second, because all four motions are premised on the same arguments and evidence, the memorandum discusses the merits of all the motions together.

I

Pereira v. North Carolina Granite Corp.

In Pereira v. North Carolina Granite Corp. (Pereira case), defendant Tennessee Steel Haulers, Inc. (TSH) has moved for summary judgment on counts eleven and twelve of the plaintiffs' revised amended complaint, and on the apportionment complaint filed by defendant BFR & Associates, Inc. (BFR).  The following factual and procedural background is relevant to the resolution of these motions.

On August 25, 2009, Silvestre Pereira and Rosa Pereira (collectively the Pereiras) filed a complaint against North Carolina Granite Corporation (NCGC) and BFR. On February 23, 2010, BFR filed an apportionment complaint against TSH. Subsequently, on April 11, 2011, the Pereiras filed a revised amended complaint, again asserting claims against NCGC and BFR, and also asserting claims against TSH. The revised amended complaint alleges the following facts,² as summarized by this court in a previous memorandum of decision:  “On August 4, 2007, the defendants loaded granite curbs onto a flat-bed trailer upon perpendicular wooden ‘dunnage’ boards and delivered them to C.J. Fucci [, Inc. (C.J.Fucci) ], pursuant to a purchase agreement.   The shipment consisted of seventy or seventy-two individual granite curbs ․ On August 6, 2007, while on a flat-bed trailer assisting a fellow employee who was operating a combination loader to unload the granite curbs, Silvestre Pereira ‘was caused to trip by a brownish wooden dunnage board and fell off the trailer onto the surface below,’ sustaining numerous injuries, including an injury to his spinal cord resulting in loss of his upper and lower body functions ․

“Counts three, seven and eleven allege common-law negligence against [NCGC, BFR, and TSH], respectively ․ The negligence counts ․ allege that the defendants proximately caused Silvestre Pereira's injuries by negligently loading and delivering the granite curbs as separate pieces individually laid on top of wooden dunnage boards, thereby creating an unreasonably dangerous condition ․ In counts four, eight and twelve, [Rosa] Pereira alleges loss of consortium against [NCGC, BFR, and TSH], respectively.   These counts are derivative of Silvestre Pereira's negligence counts.”   Pereira v. North Carolina Granite Corp., Superior Court, judicial district of New Haven, Docket No. CV–09–5031427–S (August 5, 2011, Wilson, J.) (52 Conn. L. Rptr. 417, 418).

BFR's apportionment complaint, which was filed on February 23, 2010, alleges the following facts.   TSH, a company that offers “heavy haul shipping services,” provided the flat-bed trailer, and, acting through its agents or employees, improperly loaded the granite curbs onto the flat-bed trailer.   Additionally, TSH failed to instruct Silvestre Pereira on proper unloading techniques.   BFR further alleges that, if the Pereiras sustained damages in connection with the incident, then such damages were caused, in whole or in part, by the negligence of TSH.

On December 11, 2012, TSH filed a motion for summary judgment on counts eleven and twelve of the Pereiras' revised amended complaint, and on September 4, 2013, TSH filed a motion for summary judgment on BFR's apportionment complaint.   Both motions were accompanied by memoranda of law in support thereof.   With regards to count eleven of the Pereiras' revised amended complaint and BFR's apportionment complaint, TSH argues that it is entitled to summary judgment because (1) TSH did not commit the acts or omissions complained of by Silvestre Pereira, (2) TSH did not owe a duty of care to Silvestre Pereira, and (3) TSH's actions were not the proximate cause of Silvestre Pereira's alleged injuries and damages.   TSH further argues that summary judgment is appropriate on count twelve of the Pereiras' revised amended complaint because the loss of consortium claim set forth therein is derivative of the negligence claim in count eleven.   In support of its motions for summary judgment, TSH submits, inter alia, the following evidence:  (1) NCGC's responses to BFR's interrogatories;  (2) two affidavits of Dexter Dickson, the driver of the flat-bed trailer;  (3) excerpts from the deposition of Dickson;  (4) excerpts from the deposition of Silvestre Pereira;  and (5) excerpts from the deposition of Salvatore Consiglio, a C.J. Fucci employee who was also unloading the granite curbs on the date of the alleged incident.   The Pereiras filed an amended memorandum in opposition to the motions for summary judgment on September 20, 2013.   In support of their memorandum in opposition, the Pereiras submit, inter alia, the following evidence:  (1) excerpts from Dickson's deposition;  (2) excerpts from the deposition of Silvestre Pereira;  and (3) the affidavit of David L. Dorrity, a transportation safety specialist.   On October 3, 2013, TSH filed a reply in which it asserted for the first time that it cannot be held liable as a matter of law because Dickson, the driver of the flat-bed trailer, was an independent contractor, and not an employee, of TSH. The motions were argued at the short calendar on October 7, 2013, at which time the court requested additional briefing and argument on whether Dickson was an independent contractor or an employee of TSH. Supplemental briefs were submitted by the Pereiras and TSH on November 5, 2013, and November 18, 2013, respectively.   Additional argument was heard at short calendar on December 2, 2013.

II

C.J. Fucci, Inc. v. North Carolina Granite Corp.

In C.J. Fucci, Inc. v. North Carolina Granite Corp. (C.J. Fucci case), TSH moves for summary judgment on counts five and six of plaintiff C.J. Fucci's revised second amended complaint, and on BFR's apportionment complaint.   The following procedural and factual background is relevant to the resolution of these motions.

On August 5, 2009, C.J. Fucci filed a complaint against NCGC and BFR. On January 29, 2010, BFR filed an apportionment complaint against TSH. Subsequently, on August 24, 2010, C.J. Fucci filed a revised second amended complaint, again asserting claims against NCGC and BFR, and also asserting claims against TSH. The revised second amended complaint alleges the following facts,³ as summarized by this court in a previous memorandum of decision:  “C.J. Fucci alleges that it purchased the granite curbs from the defendants and that its employee, Silvestre Pereira, was injured unloading them.   As a result, C.J. Fucci alleges that it has paid Silvestre Pereira $770,248 in workers' compensation benefits.   C.J. Fucci has filed its complaint pursuant to General Statutes § 31–293(a) to recover the workers' compensation benefits it has paid and will become obligated to pay ․

“Counts two, four and five allege common-law negligence against [NCGC, BFR, and TSH], respectively ․ [T]he allegations in counts two, four and five are substantially similar to the allegations in the common-law negligence counts in Pereira.

“Count six is labeled ‘As to [TSH]—Vicarious Liability.’   The allegations in count six are substantially similar to those in the common-law negligence count against [TSH] except count six alleges ‘Silvestre Pereira's ․ personal injuries and damages ․ were proximately caused by [TSH's] vicarious negligence or carelessness acting through its servants, agents, apparent agents, employees, contractors, and/or drivers, including Dexter B. Dickson and any other individuals whose names shall be ascertained during discovery.’   “ C.J. Fucci, Inc. v. North Carolina Granite Corp., Superior Court, judicial district of New Haven, Docket No. CV–09–6004639–S (August 5, 2011, Wilson, J.) (52 Conn. L. Rptr. 417, 421).

BFR's apportionment complaint in the C.J. Fucci case, which was filed on January 29, 2010, is nearly identical to its apportionment complaint in the Pereira case.

On December 11, 2012, TSH filed a motion for summary judgment on counts five and six of C.J. Fucci's revised second amended complaint, and on September 4, 2013, TSH filed a motion for summary judgment on BFR's apportionment complaint.   In support of its motions for summary judgment in the C.J. Fucci case, TSH advances the same arguments and relies on the same evidence it uses in support of the motions for summary judgment in the Pereira case.⁴  In opposition to the motion, C.J. Fucci relies on the same arguments and evidence used by the Pereiras.   The schedule of briefing and oral argument in the C.J. Fucci case is substantially the same as in the Pereira case.

DISCUSSION

“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.”  (Internal quotation marks omitted.)  Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012).   “[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way.”  (Internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Moreover, “[i]n 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.)  Patel v. Flexo Converters USA, Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).  “[I]t is the movant who has the burden of showing the nonexistence of any issue of fact ․ The courts hold the movant to a strict standard.   To satisfy his 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.”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).  “It necessarily follows that it is only [o]nce [the moving party's] burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the nonmoving party] to show that a genuine issue of fact exists justifying a trial.”  (Internal quotation marks omitted.)  Mott v. Wal–Mart Stores East, LP, 139 Conn.App. 618, 626, 57 A.3d 391 (2012).  “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.”  (Internal quotation marks omitted.)  RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 233, 32 A.3d 307 (2011).

Part I of this section addresses TSH's argument that summary judgment should be granted because Dickson, the flat-bed trailer driver, was an independent contractor.   Part II addresses the remainder of TSH's arguments.

I

TSH contends that summary judgment should be granted because Dexter Dickson, the driver of the flat-bed trailer, was an independent contractor, and not an employee, of TSH. Thus, TSH argues that even if Dickson was negligent in any way, TSH would not be liable for that negligence.   In response, the Pereiras, C.J. Fucci, and BFR argue that (1) the issue was raised in a procedurally improper manner, (2) there is no factual record to support TSH's independent contractor argument, and (3) even if Dickson were an independent contractor, the Federal Motor Carrier Safety Regulations (FMCSR) statutorily deem an interstate truck driver to be an employee of his or her trucking company under federal law even if the driver would be classified as an independent contractor under state law.⁵

It is axiomatic that a principal is generally responsible for the torts of his employee, but is not responsible for those of his independent contractor.   Compare Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 508, 4 A.3d 288 (2010) (noting that “it is a general rule of agency law that the principal in an agency relationship is bound by, and liable for, the acts in which his agent engages with authority from the principal, and within the scope of the agent's employment ” [emphasis added;  internal quotation marks omitted] ), with Meretsky v. Tanger Properties Ltd. Partnership, Superior Court, judicial district of Middlesex, Docket No. CV–09–5006111–S (April 26, 2010, Burgdorff, J.) (noting that “[i]t is well established that, [u]nder the general rule, an employer is not liable for the negligence of its independent contractors” [internal quotation marks omitted] ).  “The determination of the status of an individual as an independent contractor or employee is often difficult ․ and, in the absence of controlling considerations, is a question of fact.”  (Internal quotation marks omitted.)  Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 696, 651 A.2d 1286 (1995).  “The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work.”  (Internal quotation marks omitted.)  Compassionate Care, Inc. v. Travelers Indemnity Co., 147 Conn.App. 380, 390, 83 A.3d 647 (2013).  “The test of the relationship is the right to control.   It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent ․ An independent contractor has been defined as one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.”  (Citations omitted;  internal quotation marks omitted.)   Tianti v. William Raveis Real Estate, Inc., supra, 231 Conn. 697.

In the present case, TSH argues that Dickson, the driver of the flat-bed Wailer owned by TSH, was an independent contractor and not an employee of TSH, and therefore TSH cannot be held liable for Dickson's negligence.   For three reasons, however, summary judgment must be denied on this ground.

First, TSH has raised the issue in a procedurally improper manner.  “The defense of independent contractor, under our modern rule of pleading, should be specially pleaded.”  Felsted v. Kimberly Auto Services, Inc., 25 Conn.App. 665, 671, 596 A.2d 14, cert. denied, 220 Conn. 922, 597 A.2d 342 (1991).   “Under our practice, when a defendant pleads a special defense, the burden of proof on the allegations contained therein is on the defendant.”  DuBose v. Carabetta, 161 Conn. 254, 262, 287 A.2d 357 (1971).   TSH, however, did not assert Dickson's alleged status as an independent contractor as a special defense in its answers,⁶ and instead improperly attempts to raise and resolve the issue by way of the present motions for summary judgment.   Moreover, TSH raises this argument in support of its motions for summary judgment for the first time at the reply brief stage.  “It is a well established principle that arguments cannot be raised for the first time in a reply brief.”  (Internal quotation marks omitted.)  Arties Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217 n.10, 947 A.2d 320 (2008);  see also Kaltsas v. Kaltsas, Superior Court, judicial district of Middlesex, Docket No. CV–07–4007142–S (January 8, 2008, Holzberg, J.) (44 Conn. L. Rptr. 726, 728 n.5) (declining to address additional argument made in a reply memorandum in support of a motion), and Maryland Casualty Co. v. DNR Painting Co., LLC, Superior Court, judicial district of Stamford–Norwalk, Docket No. CV–07–4012459 (February 17, 2009, Pavia, J.) (same).  Because TSH failed to specially plead the defense of independent contractor and raised the argument regarding Dickson's alleged independent contractor status for the first time in its reply briefs, TSH has raised the issue in a procedurally improper manner.

Second, even if the independent contractor issue were properly before the court, the evidence demonstrates that there are genuine issues of material fact as to whether Dickson was an employee or an independent contractor.   In order to determine the nature of Dickson's relationship with TSH, the court must apply the well established right to control test.   Under this test, TSH needs to demonstrate that there is no genuine issue of material fact that it had no right to control the means and methods of Dickson's work as a flat-bed trailer driver.   TSH, however, fails to introduce any evidence, such as a written agreement, contract, or list of policies, that demonstrates the nature of the relationship between it and Dickson.   In the absence of such evidence, Dickson's status as an employee or an independent contractor cannot be determined as a matter of law.   Moreover, the evidence that TSH does introduce is contradictory.   TSH introduces two affidavits of Dickson.   First, on December 11, 2012, TSH introduced the December 5, 2012 affidavit of Dickson (first affidavit).   In the first affidavit, Dickson attests that he was “employed as a tractor-trailer driver for [TSH]” at the time of the alleged incident.   Later, on September 4, 2013, TSH introduced the April 23, 2013 affidavit of Dickson (second affidavit).   In the second affidavit, Dickson attests that he was “an independent contractor to [TSH]” at the time of the alleged incident.   Additionally, TSH, the Pereiras, and C.J. Fucci introduce various excerpts from the deposition of Dickson, in which Dickson first testifies that he was an employee of TSH, then clarifies that he was actually an independent contractor of TSH, but goes on to testify that he was an agent acting within the scope of his agency at the time of the incident.  (Dickson Dep. 4/24/13, pp. 16–17, 155.)   This contradictory evidence demonstrates that genuine issues of material fact exist regarding whether Dickson was an independent contractor or an employee of TSH.⁷

Third, even if the issue were properly before the court and there was no genuine issue of material fact that Dickson was an independent contractor, Dickson would still be statutorily deemed to be an employee under federal law.  Title 49 of the Code of Federal Regulations § 376.12(c)(1) ⁸ “impose[s] a ‘statutory employer’ condition on the carrier lessee in situations of damage done to the public during the term of the lease.”  Pouliot v. Paul Arpin Van Lines, 292 F.Sup.2d 374, 383 (D.Conn.2003).  “The FMCSR preempt state law in tort actions in which a member of the public is injured by the negligence of a motor carrier's employee while operating an interstate carrier vehicle ․ Thus, an interstate motor carrier's liability for equipment and drivers covered by leasing arrangements is not governed by the traditional common-law doctrines of the master-servant relationship and respondeat superior ․ Instead, an interstate carrier is vicariously liable as a matter of law under the FMCSR for the negligence of its statutory employee drivers.”   (Citations omitted;  emphasis added.)  Tamez v. Southwestern Motor Transport, Inc., 155 S.W.3d 564, 573 (Tex.App. San Antonio 2004).   In other words, when a third party to the commercial motor vehicle lease contract, i.e., a member of the public, is injured by the negligence of the contractor-lessor, the federal regulations impose a “statutory employer” construct on the carrier-lessee, making the latter party vicariously liable for its driver's actions.   Here, the relevant relationship is between TSH, the carrier-lessee, and Dickson, the contractor-lessor.⁹  All other persons are third parties, i.e., members of the public, to the commercial motor vehicle agreement between TSH and Dickson.   The allegations in both the Pereira case and the C.J. Fucci case concern injuries sustained by Silvestre Pereira, due at least in part to the negligence of Dickson.   Silvestre Pereira is indisputably not a party to any agreement between TSH and Dickson, and is therefore a member of the public.   Thus, if Dickson's negligence caused injury to Silvestre Pereira, federal law—specifically, 49 C.F.R. § 376.12(c)(1)—would impose a “statutory employer” construct on TSH, making TSH vicariously liable for Dickson's actions.¹⁰

Due to the procedurally improper manner in which the argument was raised, the contradictory factual record, and the federal regulations that abolish the common-law employee/independent contractor distinction in the commercial motor vehicle context when the injury alleged is suffered by a member of the public, TSH's motions for summary judgment are denied on the ground that Dickson was an independent contractor.

II

TSH also argues that summary judgment should be granted on count eleven of the Pereiras' revised amended complaint, counts five and six of C.J. Fucci's revised second amended complaint, and both apportionment complaints on the grounds that (1) TSH did not commit the acts or omissions complained of by Silvestre Pereira, (2) TSH did not owe a duty of care to Silvestre Pereira, and (3) TSH's actions were not the proximate cause of Silvestre Pereira's alleged injuries and damages.   Additionally, TSH moves for summary judgment on count twelve of the Pereiras' revised amended complaint on the ground that the loss of consortium claim set forth therein is derivative of and dependent on the negligence claim in count eleven of that complaint.   Thus, TSH argues that if the court grants summary judgment on the negligence claim, it is also entitled to summary judgment on the loss of consortium claim.

“The essential elements of a cause of action in negligence are well established:  duty;  breach of that duty;  causation;  and actual injury ․ Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action.”  (Internal quotation marks omitted.)  Doe v. Saint Francis Hospital & Medical Center, 309 Conn. 146, 174–75, 72 A.3d 929 (2013).  “[T]he general rule [is] that every person has a duty to use reasonable care not to cause injury to those whom he reasonably could foresee to be injured by his negligent conduct, whether that conduct consists of acts of commission or omission.”  Gazo v. Stamford, 255 Conn. 245, 251, 765 A.2d 505 (2001).  “The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.”  (Internal quotation marks omitted.)  Perodeau v. Hartford, 259 Conn. 729, 754, 792 A.2d 752 (2002).  “By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was, likely to result ․” (Internal quotation marks omitted.)  Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 594, 945 A.2d 388 (2008).   The causation element consists of two components:  cause in fact and proximate cause.   See, e.g., Paige v. St. Andrew's Roman Catholic Church Corp., 250 Conn. 14, 24–26, 734 A.2d 85 (1999).  “Proximate cause is [a]n actual cause that is a substantial factor in the resulting harm ․ The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant's negligent conduct.”  (Internal quotation marks omitted.)   Mirjavadi v. Vakilzadeh, 310 Conn. 176, 192, 74 A.3d 1278 (2013).

Our Supreme Court has noted that “[s]ummary judgment procedure is ․ ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).  “[T]he question of proximate causation ․ belongs to the trier of fact because causation is essentially a factual issue ․ It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion;  if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.”  (Internal quotation marks omitted.)  Sapko v. State, 305 Conn. 360, 373, 44 A.3d 827 (2012).

In support of its motions for summary judgment, TSH argues that it is undisputed that it did not load the granite curbs onto the flat-bed trailer, did not supply or place the wooden dunnage boards on the flat-bed trailer, and did not unload the granite curbs from the flat-bed trailer.   TSH emphasizes that its only role in the incident involved driving the flat-bed trailer from the loading facility in North Carolina to the C.J. Fucci construction site in Connecticut.   In support of this argument, TSH submits NCGC's responses to BFR's interrogatories.   In the interrogatories, NCGC states unequivocally that NCGC performed the loading of the granite curbs onto the flat-bed trailer.   (NCGC's Responses to BFR's First Set of Interrogatories. 2/23/11, Interrogatory No. 14.)   TSH also submits two affidavits of Dickson.   In both affidavits, Dickson attests to the following facts.   Employees of NCGC loaded the granite curbs onto the flat-bed trailer.   NCGC provided the wooden dunnage boards.   Dickson placed straps over the load, then drove the flat-bed trailer with the load of granite curbs to Connecticut, where he removed the straps from the load.   Employees of C.J. Fucci unloaded the granite curbs from the trailer.   Dickson did not assist in the loading or unloading of granite curbs from the flat-bed trailer, and no other employee of TSH was present.   In addition to these interrogatories and affidavits, TSH also submits the depositions of Silvestre Pereira and Salvatore Consiglio, another C.J. Fucci employee who was unloading the granite curbs on the date of the alleged incident.   In their depositions, Silvestre Pereira and Consiglio both testify that Dickson, the driver, was not involved with the unloading of the granite curbs from the flat-bed trailer, other than removing the straps off the load.  (Pereira Dep. 5/31/12, p. 88;  Consiglio Dep. pp. 25–26.)

In response, the Pereiras, C.J. Fucci, and BFR do not dispute that TSH did not load, unload, or supply the granite curbs and dunnage boards.   Rather, they argue that the motions for summary judgment must be denied because there remain genuine issues of material fact regarding whether TSH (1) allowed dangerously loaded cargo to be transported on its flat-bed trailer;  (2) inadequately inspected the granite curbs after they were loaded onto the trailer;  (3) allowed Silvestre Pereira to climb onto and work on the trailer when the trailer lacked railings or other guards to prevent someone from tripping and falling off the trailer;  and (4) failed to warn Silvestre Pereira regarding this potential danger.   In support of these arguments, the Pereiras and C.J. Fucci submit excerpts from the deposition of Dickson.   In his deposition, Dickson testified that he was familiar with the federal regulations regarding load securement and that his “duties are ․ to make sure that [the load is] put up there properly and it's in a safe manner so it will not cause any accident or shifting as I'm going down the highway.”  (Dickson Dep. 4/24/13, p. 41, 58–59.)   The Pereiras and C.J. Fucci also submit the affidavit of Dorrity, a specialist in commercial motor vehicle transportation and material handling who has previously testified in numerous cases around the country regarding the proper safety procedures for cargo loading, unloading, securement and material handling.   Based on a review of the pleadings, motions, depositions, and other exhibits, Dorrity attests that he believed that Silvestre Pereira's fall would most likely have been prevented had temporary handrails been installed along the open sides of the trailer.   Dorrity further attests that Dickson “should have observed and identified the known hazard of potential unprotected falls and sought to resolve the hazard.   If he had done so Mr. Pereira's fall would likely have been prevented.”  (Dorrity Aff. 9/20/13, ¶¶ 2–4, 5, 8.)

The complaints and apportionment complaints in the present cases allege negligence on the part of TSH. TSH moves for summary judgment on the grounds that (1) it did not commit the acts or omissions complained of, (2) it did not owe a duty of care to Silvestre Pereira, and (3) its actions were not the cause of Silvestre Pereira's injuries.   The evidence, however, when viewed in the light most favorable to the nonmoving parties, reveals genuine issues of material fact on all of these grounds.   Regarding the first ground, the evidence submitted indicates that Dickson, the driver of the flat-bed trailer, knew that Silvestre Pereira was climbing onto the flat-bed trailer, and that the trailer lacked any handrails or other fall protection.   Yet Dickson did not warn Silvestre Pereira of the potential danger.   A trier of fact could reasonably conclude that the failure to provide fall protection or the failure to warn Silvestre Pereira of the potential danger constituted breaches of the duty of care, i.e., acts or omissions that could give rise to liability in negligence.   Regarding the second ground, generally everyone has a duty to use reasonable care not to cause foreseeable injury to others.   In this case, TSH, acting as a carrier under the FMCSR, likely had additional duties to ensure the safety of the load it carried, even though it did not actually load the granite curbs.¹¹  The evidence indicates that Dickson, TSH's driver, allowed Pereira to climb aboard the loaded flat-bed trailer.   A trier of fact could reasonably conclude that the type of injury suffered by Silvestre Pereira was a foreseeable consequence of Dickson allowing him to board an unsafe trailer and failing to warn him of the potential danger.   Regarding the third ground, proximate cause requires that the defendant's conduct be within the scope of the foreseeable risk created by the defendant's negligent conduct and also be a substantial factor in bringing about the plaintiff's injuries.   Dickson's deposition testimony establishes that he was aware of his responsibility to ensure the safety of the load on the flat-bed trailer.   Additionally, Dorrity attests in his affidavit that Silvestre Pereira's fall would most likely have been prevented had TSH and Dickson installed handrails, thereby addressing the known hazard of the potential for unprotected falls.   This evidence, viewed in the light most favorable to the nonmoving parties, raises genuine issues of material fact regarding whether Dickson's conduct in failing to prevent the potential harm or warn Silvestre Pereira of the potential harm was a foreseeable risk and a “substantial factor” in the resulting injuries.

As this discussion demonstrates, the claims of negligence in these cases involve genuine issues of material fact.   Therefore, summary judgment is denied on count eleven of the Pereiras' revised amended complaint, counts five and six of C.J. Fucci's revised second amended complaint, and both apportionment complaints.

Additionally, summary judgment is denied on the loss of consortium claim set forth in count twelve of the Pereiras' revised amended complaint.   TSH's argument in support of the motion for summary judgment on count twelve is premised entirely on the court granting summary judgment on the negligence claim in count eleven.   Because the motion for summary judgment on count eleven is denied, the motion for summary judgment on count twelve is also denied.

CONCLUSION

For the foregoing reasons, TSH's motions for summary judgment on counts eleven and twelve of the Pereiras' revised amended complaint, counts five and six of C.J. Fucci's revised second amended complaint, and BFR's apportionment complaints are denied.

Wilson, J.

FOOTNOTES

FN1. On November 23, 2009, the court, Silbert, J., granted North Carolina Granite Corporation's motion to consolidate the cases..  FN1. On November 23, 2009, the court, Silbert, J., granted North Carolina Granite Corporation's motion to consolidate the cases.

FN2. On August 5, 2011, the court, Wilson, J., granted motions to strike counts one, two, five, six, nine, and ten of the revised amended complaint, as well as the portions of the prayer for relief seeking attorneys fees and punitive damages.   Pereira v. North Carolina Granite Corp., Superior Court, judicial district of New Haven, Docket No. CV–09–5031427–S (August 5, 2011, Wilson, J.) (52 Conn. L. Rptr. 417).   The Pereiras did not re-plead the stricken counts.   Subsequently, upon motions of the various defendants, judgment was entered on each of these counts.   The pending claims, therefore, are those asserted in the remaining counts, namely counts three, four, seven, eight, eleven, and twelve of the revised amended complaint.   This memorandum addresses only the facts alleged and the claims asserted in those counts..  FN2. On August 5, 2011, the court, Wilson, J., granted motions to strike counts one, two, five, six, nine, and ten of the revised amended complaint, as well as the portions of the prayer for relief seeking attorneys fees and punitive damages.   Pereira v. North Carolina Granite Corp., Superior Court, judicial district of New Haven, Docket No. CV–09–5031427–S (August 5, 2011, Wilson, J.) (52 Conn. L. Rptr. 417).   The Pereiras did not re-plead the stricken counts.   Subsequently, upon motions of the various defendants, judgment was entered on each of these counts.   The pending claims, therefore, are those asserted in the remaining counts, namely counts three, four, seven, eight, eleven, and twelve of the revised amended complaint.   This memorandum addresses only the facts alleged and the claims asserted in those counts.

FN3. The court, Wilson, J., previously granted motions to strike counts one, three, and seven of C.J. Fucci's revised second amended complaint, as well as the portions of the prayer for relief seeking attorneys fees and punitive damages.  C.J. Fucci, Inc. v. North Carolina Granite Corp., Superior Court, judicial district of New Haven, Docket No. CV–09–6004639–S (August 5, 2011, Wilson, J.) (52 Conn. L. Rptr. 417).   C.J. Fucci did not re-plead the stricken counts, and, upon motions of the various defendants, judgment was entered on each of those counts.   Therefore, this memorandum addresses only the pending claims asserted in the remaining counts, namely the second, fourth, fifth, sixth, and eighth counts of C.J. Fucci's revised second amended complaint..  FN3. The court, Wilson, J., previously granted motions to strike counts one, three, and seven of C.J. Fucci's revised second amended complaint, as well as the portions of the prayer for relief seeking attorneys fees and punitive damages.  C.J. Fucci, Inc. v. North Carolina Granite Corp., Superior Court, judicial district of New Haven, Docket No. CV–09–6004639–S (August 5, 2011, Wilson, J.) (52 Conn. L. Rptr. 417).   C.J. Fucci did not re-plead the stricken counts, and, upon motions of the various defendants, judgment was entered on each of those counts.   Therefore, this memorandum addresses only the pending claims asserted in the remaining counts, namely the second, fourth, fifth, sixth, and eighth counts of C.J. Fucci's revised second amended complaint.

FN4. Additionally, TSH claims that summary judgment is appropriate in the C.J. Fucci case because the claims asserted therein are derivative of and dependent on the claims asserted in the Pereira case.   TSH argues that, because it is entitled to summary judgment as a matter of law on the Pereiras' claims, it is therefore also entitled to summary judgment on C.J. Fucci's claims.   This argument is premised entirely on the court granting the motions for summary judgment in the Pereira case.   Because TSH's motions for summary judgment in the Pereira case are denied herein, this memorandum does not address this argument..  FN4. Additionally, TSH claims that summary judgment is appropriate in the C.J. Fucci case because the claims asserted therein are derivative of and dependent on the claims asserted in the Pereira case.   TSH argues that, because it is entitled to summary judgment as a matter of law on the Pereiras' claims, it is therefore also entitled to summary judgment on C.J. Fucci's claims.   This argument is premised entirely on the court granting the motions for summary judgment in the Pereira case.   Because TSH's motions for summary judgment in the Pereira case are denied herein, this memorandum does not address this argument.

FN5. The Pereiras and C.J. Fucci also note that TSH's liability, as set forth in the respective operative complaints, is not based solely on vicarious liability for its driver's actions, so judgment on the entirety of the relevant counts cannot be granted.   In light of this court's conclusion that Dickson's alleged status as an independent contractor is not an appropriate basis for summary judgment for other reasons, this memorandum does not address this alternative argument..  FN5. The Pereiras and C.J. Fucci also note that TSH's liability, as set forth in the respective operative complaints, is not based solely on vicarious liability for its driver's actions, so judgment on the entirety of the relevant counts cannot be granted.   In light of this court's conclusion that Dickson's alleged status as an independent contractor is not an appropriate basis for summary judgment for other reasons, this memorandum does not address this alternative argument.

FN6. TSH filed answers and special defenses in the Pereira case and the C.J. Fucci case on August 9, 2013.   The answers and special defenses are addressed only to the respective plaintiffs' allegations, and not to BFR's apportionment complaints.   Neither of the special defenses raise the defense of independent contractor..  FN6. TSH filed answers and special defenses in the Pereira case and the C.J. Fucci case on August 9, 2013.   The answers and special defenses are addressed only to the respective plaintiffs' allegations, and not to BFR's apportionment complaints.   Neither of the special defenses raise the defense of independent contractor.

FN7. TSH's bald assertion in its October 3, 2013 reply memoranda that Dickson's “status as an independent contractor is not in dispute” is plainly false.   Indeed, as this discussion demonstrates, not only do the other parties dispute Dickson's status as an independent contractor, but the evidence introduced by TSH on this point is contradictory.   As the movant on the present motions, TSH has the burden of “showing that it is quite clear” (internal quotation marks omitted);  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11;  that Dickson was an independent contractor, and not an employee, of TSH. TSH's contradictory evidence fails to meet this strict standard..  FN7. TSH's bald assertion in its October 3, 2013 reply memoranda that Dickson's “status as an independent contractor is not in dispute” is plainly false.   Indeed, as this discussion demonstrates, not only do the other parties dispute Dickson's status as an independent contractor, but the evidence introduced by TSH on this point is contradictory.   As the movant on the present motions, TSH has the burden of “showing that it is quite clear” (internal quotation marks omitted);  Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11;  that Dickson was an independent contractor, and not an employee, of TSH. TSH's contradictory evidence fails to meet this strict standard.

FN8. Title 49 of the Code of Federal Regulations, § 376.12(c)(1), provides:  “The lease [agreement between the authorized carrier and the owner of the equipment] shall provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease.   The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.”  (Emphasis added.)   This regulation comports with 49 U.S.C. § 14102(a)(4), which requires carrier-lessees to “have control of and be responsible for operating [leased] motor vehicles in compliance with requirements prescribed by the Secretary [of Transportation] on safety of operations and equipment, and with other applicable law as if the motor vehicles were owned by the motor carrier.”.  FN8. Title 49 of the Code of Federal Regulations, § 376.12(c)(1), provides:  “The lease [agreement between the authorized carrier and the owner of the equipment] shall provide that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease.   The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.”  (Emphasis added.)   This regulation comports with 49 U.S.C. § 14102(a)(4), which requires carrier-lessees to “have control of and be responsible for operating [leased] motor vehicles in compliance with requirements prescribed by the Secretary [of Transportation] on safety of operations and equipment, and with other applicable law as if the motor vehicles were owned by the motor carrier.”

FN9. This discussion regarding the FMCSR assumes arguendo that Dickson was an independent contractor.   As outlined in the preceding paragraph, however, there are genuine issues of material fact regarding Dickson's relationship with TSH..  FN9. This discussion regarding the FMCSR assumes arguendo that Dickson was an independent contractor.   As outlined in the preceding paragraph, however, there are genuine issues of material fact regarding Dickson's relationship with TSH.

FN10. In addition to arguments regarding 49 C.F.R. § 376.12(c)(1), the parties also discussed, in both their written submissions to the court and at oral arguments, the FMCSR definition of employee found in 49 C.F.R. § 390.5. In that regulation, “employee” is defined as “any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety.   Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle) .. .” (Emphasis added.)  Title 49 of the Code of Federal Regulations, § 390.5. Although many courts have broadly noted that this regulation “eliminates the traditional common law distinction between employees and independent contractors for drivers”;  Consumers County Mutual Ins. Co. v. P.W. & Sons Trucking, Inc., 307 F.3d 362, 365 (5th Cir.2002);  a majority of courts who have considered the issue hold that the word “operating” as used in the statute means “driving,” and thus the regulation only applies to accidents related to an independent contractor driving a commercial motor vehicle;  Pouliot v. Paul Arpin Van Lines, 292 F.Sup.2d 374, 382 (D.Conn.2003) (noting that “[t]he majority of courts have held that in accidents related to the loading, unloading or storage of commercial motor vehicles, the independent contractor relationship is not preempted and the viability of the lawsuit is determined by resort to state law or common law principles”).   Here, the accident occurred during the unloading of the flat-bed trailer, and not during a period in which Dickson was actually driving the vehicle.   Thus, under the majority approach, 49 C.F.R. § 390.5 would not impose a “statutory employee” construct.   This memorandum does not, however, interpret or apply this regulation because it is clear that 49 C.F.R. § 376.12(c)(1), another FMCSR provision, does impose a “statutory employee” construct under these circumstances..  FN10. In addition to arguments regarding 49 C.F.R. § 376.12(c)(1), the parties also discussed, in both their written submissions to the court and at oral arguments, the FMCSR definition of employee found in 49 C.F.R. § 390.5. In that regulation, “employee” is defined as “any individual, other than an employer, who is employed by an employer and who in the course of his or her employment directly affects commercial motor vehicle safety.   Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle) .. .” (Emphasis added.)  Title 49 of the Code of Federal Regulations, § 390.5. Although many courts have broadly noted that this regulation “eliminates the traditional common law distinction between employees and independent contractors for drivers”;  Consumers County Mutual Ins. Co. v. P.W. & Sons Trucking, Inc., 307 F.3d 362, 365 (5th Cir.2002);  a majority of courts who have considered the issue hold that the word “operating” as used in the statute means “driving,” and thus the regulation only applies to accidents related to an independent contractor driving a commercial motor vehicle;  Pouliot v. Paul Arpin Van Lines, 292 F.Sup.2d 374, 382 (D.Conn.2003) (noting that “[t]he majority of courts have held that in accidents related to the loading, unloading or storage of commercial motor vehicles, the independent contractor relationship is not preempted and the viability of the lawsuit is determined by resort to state law or common law principles”).   Here, the accident occurred during the unloading of the flat-bed trailer, and not during a period in which Dickson was actually driving the vehicle.   Thus, under the majority approach, 49 C.F.R. § 390.5 would not impose a “statutory employee” construct.   This memorandum does not, however, interpret or apply this regulation because it is clear that 49 C.F.R. § 376.12(c)(1), another FMCSR provision, does impose a “statutory employee” construct under these circumstances.

FN11. Many federal courts have noted that “a carrier is required to take steps to prevent or protect cargo from shifting or falling.   See [Title 49 of the Code of Federal Regulations,] §§ 393.100–393.136 ․ [T]he nature of the trucking industry suggests that carriers should have the final responsibility for the loads they haul because no shipper can force a carrier to accept an unsafe load.”   Morris v. Ford Motor Co., United States District Court, Docket No. 2:10cv504 (N.D.Ind. November 28, 2012)..  FN11. Many federal courts have noted that “a carrier is required to take steps to prevent or protect cargo from shifting or falling.   See [Title 49 of the Code of Federal Regulations,] §§ 393.100–393.136 ․ [T]he nature of the trucking industry suggests that carriers should have the final responsibility for the loads they haul because no shipper can force a carrier to accept an unsafe load.”   Morris v. Ford Motor Co., United States District Court, Docket No. 2:10cv504 (N.D.Ind. November 28, 2012).

Wilson, Robin L., J.