Opinion
No. CV 06 5002212
November 19, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT #115
The plaintiff, Kay-Ann Laud, filed a three-count complaint, dated February 14, 2006, against the defendants, H.N.S. Management Co., Inc., the city of New Haven and Career Systems Development Corp. (CSDC). Therein, the plaintiff alleges the following facts. CSDC was the tenant of premises known as 455 Wintergreen Avenue in New Haven, Connecticut. CSDC was in possession and control of the premises and was the operator of the New Haven Job Corps Center. On April 28, 2004, the plaintiff was a passenger on a bus that was driven by an unknown operator and owned by H.N.S. Management Co., Inc. The unknown operator stopped to let passengers off in front of 455 Wintergreen Avenue in New Haven, Connecticut. The plaintiff fell upon exiting the bus due to a patch of uneven and rocky ground.
The clerk's office failed to date stamp the complaint.
On April 16, 2007, CSDC filed a motion for summary judgment as to the third count of the complaint, which alleges negligence, on the ground that the plaintiff was a vocational trainee at the New Haven Job Corps Center and her tort claim thus falls within the ambit of the Connecticut Workers' Compensation Act, General Statutes § 31-275 et seq. The defendant has submitted a memorandum of law in support of the motion. On May 11, 2007, the plaintiff filed a memorandum of law in opposition. The matter was heard on the short calendar on September 24, 2007.
Because CSDC is the only defendant involved in this motion for summary judgment, the court will refer to it as the defendant in this opinion.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 253, 926 A.2d 656 (2007). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "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). "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . [T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. 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 . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the non-moving party has no obligation to submit documents establishing the existence of such an issue . . . 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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
In its memorandum of law in support of the motion for summary judgment, the defendant argues that at the time of the accident, it operated the New Haven Job Corps Center pursuant to the Workforce Investment Act of 1998, 29 U.S.C. § 2801 et seq., and its contract with the United States Department of Labor. The defendant maintains that the plaintiff resided on the premises and was a vocational trainee under 29 U.S.C. § 2931. The defendant contends, therefore, that the plaintiff's injuries arose in the course and general scope of her training at the New Haven Job Corps Center and are thus covered by the Connecticut Workers' Compensation Act, which bars the present action.
The term "participant" is defined in 29 U.S.C. § 2801 of the Workforce Investment Act of 1998 as "an individual who has been determined to be eligible to participate in and who is receiving services (except followup services authorized under this title) under a program authorized by this title. Participation shall be deemed to commence on the first day, following determination of eligibility, on which the individual began receiving subsidized employment, training, or other services provided under this title."
Title 29 of the United States Code, § 2931(b)(4), further provides in relevant part: "To the extent that a State workers' compensation law applies, workers' compensation shall be provided to participants on the same basis as the compensation is provided to other individuals in the State in similar employment." (Emphasis added.)
Finally, the exclusivity provision of the Connecticut Workers' Compensation Act, General Statutes § 31-284(a), provides in relevant part: "An employer . . . shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees as provided under this chapter . . . All rights and claims between an employer . . . and employees . . . arising out of personal injury . . . sustained in the course of employment are abolished other than rights and claims given by this chapter. . ."
The defendant presents an affidavit from Tammy Schweikert, the director of the New Haven Job Corps Center. In her affidavit, Schweikert states that the defendant operates the New Haven Job Corps Center pursuant to an operations agreement with the United States Department of Labor. She states that "[a]s a residential vocational trainee under 29 U.S.C. § 2931, the plaintiff . . . was an employee of the United States Government at the time of her alleged injury." She further states that "[a]s a federal government employee, the plaintiff had available to her all of the rights and benefits of the Federal Workers' Compensation office, including the right to file a workers' compensation claim." The statements contained in Schweikert's affidavit are mere legal conclusions and are not statements of fact based on personal knowledge. Moreover, the defendant has not even argued in its memorandum of law in support of the motion for summary judgment that the plaintiff was a federal employee or that the Federal Employees' Compensation Act, 5 U.S.C. § 8101 et seq., is applicable.
In the context of summary judgment, Practice Book § 17-46 provides in relevant part: "Supporting . . . affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." (Emphasis added.)
The plaintiff counters that there exists a genuine issue of material fact as to her status as an employee in the course of her employment with the defendant. The plaintiff has submitted an affidavit in opposition to the defendant's motion for summary judgment, in which she states that although she lived at the New Haven Job Corps Center, she was not in the course of any training or enrolled in any classes there at the time of her accident. The plaintiff further states that she was employed by the Burlington Coat Factory and that she was enrolled at Gateway Community College.
The parties have failed to address 29 U.S.C. § 2897(a)(3), which seems to indicate that an enrollee in the Job Corps program is considered to be a civil employee of the federal government for purposes of the Federal Employees' Compensation Act. See Howren v. Career Systems Development Corp., United States District Court, Docket No. 4:05-CV-150-M, 2006 U.S.Dist.LEXIS 75476 (W.D.Ky. October 13, 2006). In its memorandum of law in support of the motion for summary judgment, the defendant relies exclusively upon 29 U.S.C. § 2931, which merely indicates that " [t]o the extent that a State workers' compensation law applies, workers' compensation shall be provided to participants on the same basis as the compensation is provided to other individuals in the State in similar employment." (Emphasis added.) Simply citing to 29 U.S.C. § 2931 for the proposition that the Connecticut Workers' Compensation Act applies to the plaintiff's injuries does not make it so. The defendant has also failed to brief the issue of whether an "enrollee" in the Job Corps program is considered to be a "participant" under the Workforce Investment Act of 1998 or whether there is any meaningful difference between the appellations. In the face of these unresolved issues, the court concludes that there is a question of material fact and that summary judgment is, therefore, inappropriate. The defendant's motion for summary judgment is denied without prejudice.
The term "enrollee" is defined in 29 U.S.C. § 2882 as "an individual who has voluntarily applied for, been selected for, and enrolled in the Job Corps program, and remains with the program, but has not yet become a graduate."
With regard to compensation for work injuries, 29 U.S.C. § 2897(a)(3) provides in relevant part: "For purposes of subchapter I of chapter 81 of title 5, United States Code [ 5 U.S.C. § 8101 et seq.] (relating to compensation to Federal employees for work injuries), enrollees shall be deemed to be civil employees of the Government of the United States within the meaning of the term `employee' as defined in section 8101 of title 5, United States Code, and the provisions of such subchapter shall apply as specified in section 8143(a) of title 5, United States Code." (Emphasis added.)
The Federal Employees' Compensation Act has an exclusivity provision, 5 U.S.C. § 8116(c), that is similar to that of the Connecticut Workers' Compensation Act: "The liability of the United States or an instrumentality thereof under this subchapter [ 5 U.S.C. § 8101 et seq.] or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee . . . because of the injury or death in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute." The defendant, however, has only briefed the issue of whether the exclusivity provision of the Connecticut Workers' Compensation Act bars the present action.