Opinion
No. CV 03 0401002
September 5, 2003
MEMORANDUM OF DECISION RE (#107) DEFENDANT'S REQUEST TO REVISE
This action arises out of a fall by the plaintiff, Skawek Perkowski, from a scaffolding at the residence of the defendant, Frank Rogers, in Orange, Connecticut (the premises).
On May 2, 2003, the plaintiff filed an amended complaint against the defendant alleging negligence. Specifically, Perkowski alleges that Rogers hired him to paint the exterior of his house and to perform other work. While on top of a ten-foot scaffolding, performing his duties, Perkowski fell to the ground sustaining severe and serious injuries. It is further alleged that at all relevant times, Rogers maintained, operated, managed and or controlled the premises and retained the right to direct, supervise and control Perkowski when performing his duties.
According to Perkowski, Rogers was negligent in the following ways. "In requiring the [Perkowski] to work in surrounding or under working conditions which were hazardous and dangerous to his health or safety in violation to the Occupational Safety and Health Act, [(OSHA)], 29 C.F.R. § 1926.20 (a)(1)." (Third amended complaint ¶ 9(G).) "In failing to instruct [Perkowski] in the recognition and avoidance of safe conditions and the regulations applicable to his work environment to control or eliminate any hazardous or other exposure to injury in violation of Occupational Safety and Health Act, 29 C.F.R. § 1926.21 (b)(2)." (Third amended complaint ¶ 10(H).) "In failing to provide to [Perkowski] protective equipment in violation of Occupational Safety and Health Act, 29 C.F.R. § 1926.95 (a)." (Third amended complaint ¶ 9(J).) "In failing to provide [Perkowski], who was working while on a scaffold more than ten feet above the ground and/or lower level, fall protection equipment in violation of Occupational Safety and Health Act, 29 C.F.R. § 1926.451 (g)(1)." (Third amended complaint ¶ 9(J).) "In failing to provide [Perkowski], who was working while on a scaffold more than ten feet above the ground and/or lower level, fall protection equipment including a guardrail system in violation of Occupational Safety and Health Act, 29 C.F.R. § 1926.451 (g)(4)." (Third amended complaint ¶ 9(K).) "In failing to provide [Perkowski], who was working while on a scaffold more than ten feet above the ground and/or lower level, fall protection equipment before the scaffold was released for use by [Perkowski] including a guardrail system in violation of Occupational Safety and Health Act, 29 C.F.R. § 1926.451 (g)(1)." (Third amended complaint ¶ 9(L).) "In failing to have [Perkowski], who was working on a scaffold, trained by a person qualified in the subject matter to recognize the hazards associated with the type of scaffold being used and to understand the procedures to control or minimize those hazards in violation of Occupational Safety and Health Act, 29 C.F.R. § 1926.454 (a)." (Third amended complaint ¶ 9(M).) "In failing to train [Perkowski], who was working while on a scaffold, in the nature of fall hazards in violation of Occupational Safety and Health Act, 29 C.F.R. § 1926.454 (a)(1)." (Third amended complaint ¶ 9(N).) "In failing to train [Perkowski], who was working while on a scaffold, concerning the correct procedure for erecting, maintaining, and disassembling a fall protection system in violation of Occupational Safety and Health Act, 29 C.F.R. § 1926.454 (a)(2)." (Third amended complaint ¶ 9(O).) "In failing to train [Perkowski], who was working while on a scaffold, concerning the proper use of the scaffold in violation of Occupational Safety and Health Act, 29 C.F.R. § 1926.454 (a)(3)," (Third amended complaint ¶ 9(P).)
On May 21, 2003, Rogers filed a request to revise paragraphs 9(G) through (P) of the amended complaint. The defendant filed a timely objection to this request.
On June 19, 2003, Perkowski filed a motion to cite in John Watkins (Watkins) as a defendant and simultaneously filed a two count, third amended complaint against Rogers and Watkins. In count one of the third amended complaint, Perkowski alleges negligence against Rogers. In count two, he alleges negligence against Watkins.
Paragraphs 9(O) through (P) in the amended complaint are now count one, paragraphs 10(G) though (P) in third amended complaint. Accordingly, the court will treat the defendant's request to revise paragraphs 9(G) through (P) of the amended complaint as Rogers' request to revise count one, paragraphs 10(G) through (P) of third amended complaint.
"The request to revise is a motion for an order directing the opposing party to revise his pleading in the manner specified." Royce v. Westport, 183 Conn. 177, 180, 439 A.2d 298 (1981). "The purpose of a request to revise is to secure a statement of the material facts upon which the adverse party bases his complaint or defense . . . The test is not whether the pleading discloses all that the adversary desires to know in aid of his own cause, but whether it discloses the material facts which constitute the cause of action or ground of defense." (Citation omitted; internal quotation marks omitted.) Knight v. Southeastern Council on Alcoholism Drug Dependency, Superior Court, judicial district of New London, Docket No. CV 01 0557182 (September 21, 2001, Hurley, J.T.R.), citing Kileen v. General Motors Corp., 36 Conn. Sup. 347, 348, 421 A.2d 874 (1980).
In his request to revise, Rogers argues that it is improper for Perkowski to allege that Rogers was negligent because he failed to comply with OSHA. According to Rogers, "though OSHA can provide evidence of the standard of care, it cannot in and of itself provide an independent cause of action for negligence." (Request to Revise p. 4.) To support this argument, Rogers cites Wendland v. Ridgefield Construction Service, Inc., 184 Conn. 173, 439 A.2d 954 (1981) and Wagner v. Clark Equipment Co., 243 Conn. 168, 700 A.2d 38 (1997). In addition, Rogers argues that Practice Book § 10-1 does not require or allow a plaintiff to plead evidence in a complaint and "since OSHA violations can only be used as evidence of the standard of care, they should be deleted" from the complaint. (Reply to plaintiff's objection to defendant's request to revise.)
Perkowski concedes that OSHA violations cannot be used to allege independent causes of action. He alleges, however, that the operative complaint "does not contain a separate cause of action or count of negligence per se for violation of OSHA regulations. Instead, the negligence count of the [operative] complaint pleads OSHA violations as evidence of a standard of care," which may be properly pleaded in a complaint. (Attachment to request to revise.) To counter Rogers argument that Practice Book § 10-1 does not require or allow a plaintiff to plead evidence in a complaint, Perkowski argues that allegations that the defendant violated OSHA are allegations of fact not evidence.
This court finds that the defendant's reliance on the cited cases is misplaced. "Both the federal and state OSHA statutes [ 29 U.S.C. § 653 (b)(4) and General Statutes § 31-369 (b)] provide that such regulations may not be used to create a private cause of action for injuries arising out of or in the course of employment . . ." Mingachos v. CBS, Inc., 196 Conn. 91, 112-13, 491 A.2d 368 (1985). Nor can OSHA "furnish a basis for a jury instruction on negligence per se . . ." Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 181, 439 A.2d 954 (1981). "OSHA regulations, if applicable, [however] may be used as evidence of the standard of care in a negligence action against an employer." Wagner v. Clark Equipment Co., 243 Conn. 168, 188, 700 A.2d 38 (1997).
In Wendland, the case that Rogers cites, the Supreme Court addressed the issue whether OSHA violations can be a basis for a jury instruction on negligence per se. Wendland v. Ridgefield Construction Services, Inc., supra, 184 Conn. 173. "To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinary prudent person would have acted under circumstances. They merely decide whether the relevant statute or regulation has been violated." Id., 178. The court held that while an OSHA violation can be offered as evidence of a standard of care, it cannot provide a basis for jury instructions on negligence per se. Id., 181. Similarly, in Wagner, the court stated that when determining whether a manufacturer exercised due care, a jury may consider whether a product complied with OSHA. Wagner v. Clark Equipment Co., supra, 243 Conn. 190.
The facts in Wendland are not analogous the facts in the present case. In paragraphs 10(G) through (P), Perkowski states the reasons why Rogers was negligent and after each, the section of OSHA that Rogers allegedly violated. Perkowski is not alleging negligence per se and the references to OSHA in these paragraphs do not give rise to an independent cause of action. As alleged, paragraphs 10(G) through (P) contain allegations of fact which, if proven, would support Perkowski's claim of negligence. See Pocevic v. Connecticut Distributors, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0357030 (January 16, 2003, Wolven, J.).
Further, while there is no dispute that Practice Book § 10-1 provides in part that pleadings "shall contain a plain and concise statement of the material facts on which the pleader relies, but not of the evidence by which they are to be proved . . .," the mere mention of the statute in the complaint is not considered evidence within the meaning of Practice Book § 10-1. See also Blacks Law Dictionary (7th Ed. 1999).
Evidence is defined as "[s]omething (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact . . .", 2B. Holden J. Daly, Connecticut Evidence (2d Ed. 1988).
For the foregoing reasons, the defendant's request to revise is hereby denied.
BY THE COURT,
Joseph W. Doherty, Judge