Opinion
No. X04-CV99-0103454 S
January 17, 2006
MEMORANDUM OF DECISION
FACTS
The plaintiff, Richard Archambault, sought damages from the defendant, the general contractor, for personal injuries he sustained while operating a backhoe for the installation of a waterline on a construction site in Willimantic in 1998. The matter was tried to a jury, which rendered a verdict on May 9, 2005 in favor of the plaintiff. The jury awarded economic damages of $1,550,000 and $1,900,000 in non-economic damages to the plaintiff for a total award of $3,450,000. The defendant filed a motion for remittitur, claiming that there was no evidence to support the damages award and that the damages were excessive as a matter of law. In the alternative, it seeks a new trial and moves to set aside the verdict as excessive, contrary to the law and the evidence and specifically claiming that:
(1) the court erred in prohibiting it from introducing evidence that the plaintiff's employer, a subcontractor on the construction site, was negligent and that such negligence caused the plaintiff's injuries;
(2) the court erred in instructing the jury that the defendant had a non-delegable duty for safety on the job site and was the controlling employer pursuant to OSHA on the job sites;
(3) the court erred in failing to instruct the jury that the plaintiff's employer's conduct on the job site was a superseding or a concurrent cause of the plaintiff's injuries;
(4) the jury's verdict must be set aside as it resulted from passion, prejudice and improper considerations.
For the reasons set forth in detail below, the court affirms the jury's verdict and denies the defendant's motions. The court finds that the jury's verdict is adequately supported by the facts and the law and is not excessive.
DISCUSSION A. Standard of Review
Motions for Remittitur and to Set Aside a Verdict.
Connecticut General Statutes § 52-216a provides the statutory framework for motions for remittitur and states: "If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial."
In determining whether or not any verdict is excessive as a matter of law, the court must review the evidence as a whole and determine whether it supports the verdict entered. On this issue, the law concerning motions to set aside verdicts provides the court with the guidelines to be used. "When considering a motion to set aside the verdict, this court's function is to determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury's verdict." (Internal quotation marks omitted.) Skrypiec v. Noonan, 228 Conn. 1, 10, 633 A.2d 716 (1993), Preston v. Wellspeak, 62 Conn.App. 77, 81, 767 A.2d 1259 (2001). "A trial court may set aside a verdict on a finding that the verdict is manifestly unjust because, given the evidence presented, the jury mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case could be applied." Card v. State, 57 Conn.App. 134, 138, 747 A.2d 32 (2000). "A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion." (Internal quotation marks omitted.) Kurti v. Becker, 54 Conn.App. 335, 337, 733 A.2d 916, cert. denied, 251 Conn. 909, 739 A.2d 1248 (1999).
Mather v. Griffin Hospital, 207 Conn. 125, 138-39, 540 A.2d 666 (1988) states as follows: "Litigants have a constitutional right to have factual issues resolved by the jury . . . This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair minded persons as to the amount that should be awarded. This right is one obviously immovable limitation on a legal discretion of the court to set aside a verdict since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair minded men passed upon by the jury and not by the court . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury . . . The size of the verdict alone does not determine whether it is excessive. The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." (Citations omitted; internal quotation marks omitted.) In light of the legal precedents reviewed, the court will address the motions filed by defendant in order, beginning with the motion for remittitur.
B. Amount of Damages
The motion for remittitur raises the issue of the amount of damages, if any, it was appropriate for the jury to award in this case and requires the court to review the evidence that was presented in support of the claims made by the plaintiff. Defendant asserts that the testimony of the physicians who treated the plaintiff for his injuries provided no basis for a finding that the plaintiff had a complete loss of earning capacity.
Certain of plaintiff's physicians, Dr. Grady-Benson, Dr. Becker, Dr. Selden and Dr. Santoro testified that in their opinion, once Mr. Archambault attained maximum medical improvement, he could perform light duty work. There was also credible evidence that Mr. Archambault had sustained significant life threatening injuries at the time of the accident, from which he will never fully recover. The jury could also have found credible Mr. Archambault's own very moving testimony concerning his ongoing and significant permanent pain, at the time of the trial some six years after the accident. He spoke of his attempts to work and his inability to sustain any activity for any length of time, given the debilitating nature of that pain. Prior to the accident he had been a very physically active man, both in terms of his work and in his hobbies. He was never able to return to the various outdoor hunting, fishing and all around handyman activities that he so much enjoyed after the accident. The pain, he stated, was simply too great.
The vocational expert who testified for the plaintiff, Dr. Peter Cohen, based on the physicians' reports, assumed that Mr. Archambault was able to physically perform some form of sedentary or light duty work. Nonetheless, given Mr. Archambault's level of educational attainment and previous experience in construction, in his opinion, there were no jobs available for which Mr. Archambault was qualified. Dr. Cohen testified that on a sustained basis, Mr. Archambault would not be employable on a full-time basis. In addition, he concluded that, because of Mr. Archambault's impairments, it would be difficult for him to secure part-time employment as well. The jury could have found such expert testimony credible and could have concluded that this accident completely destroyed Mr. Archambault's ability to be gainfully employed, either on a part-time or full-time basis. They could reasonably have concluded that he had no earning capacity, either past or future, from the date of the injury on October 30, 1998. The jury could reasonably, based on the evidence, have concluded that the trench collapse and the resulting severe injuries completely destroyed his ability to work.
In addition to the testimony of the vocational expert, which incorporated the findings of the physicians, the jury also had before it evidence of an economist, Dr. Gary Crakes. Dr. Crakes analyzed Mr. Archambault's lost earnings and, based on varying assumptions concerning Mr. Archambault's ability to work, made differing estimates concerning his future lost earnings. If the jury found credible that Mr. Archambault could never work in the future, then, based on Dr. Crakes' testimony, they could also have concluded that Mr. Archambault's economic damages, based on past and future earning loss, were slightly in excess of one million dollars. Adding to this amount the sums expended for medical care as well as potentially required future medical care could yield the economic damages award found of $1,550,000. The record contains adequate evidence from which the jury could reasonably have determined this total. The court therefore concludes that the economic damages awarded were based on the evidence and were not excessive as a matter of law.
Dr. Crakes' detailed findings are contained in Exhibit 47 and 47a, exhibits the jury had available to it for its consideration.
In particular, Dr. Grady Benson testified as to the future costs.
The non-economic damages awarded are also challenged by the defendant, Konover Construction. It argues that there was no testimony by the physicians to support damages for plaintiff's pain and suffering and other non-economic losses totaling $1,900,000. The court does not agree. The defendant's formulation ignores the credible testimony of the plaintiff and the many lay witnesses concerning the plaintiff's intractable pain, the losses he experienced of those activities that brought him much enjoyment, his permanent impairments and loss of bodily function, to which the physicians did testify. Defendant's argument simply ignores much of the evidence before the jury which does not support its viewpoint.
The fact that the plaintiff was in significant pain daily was also visible daily in court. The degree to which that pain inhibited his ease of movement, his ability to concentrate and function as each day went on was apparent to all who observed him, in particular the members of the jury.
In reviewing a motion for remittitur, it is not the court's function to second-guess the jury or even to concur in its precise conclusions, to the extent they can be known. The parties have a constitutional right to trial by jury and "the amount of a damage award is a matter peculiarly within the province of the . . . jury." Mather v. Griffin Hospital, supra, 207 Conn. 139. There was ample and credible evidence to support its conclusions concerning the noneconomic damages. The court cannot find, based on the evidence and law, that the amount shocks the conscience and is excessive as a matter of law. For all the reasons above stated, the court denies the motion for remittitur.
C. Motion to Set aside the Verdict and for a New Trial
Defendant, as noted above, makes four specific claims in support of its claim that the verdict should be set aside and a new trial ordered. It claims that: (1) the court erred in prohibiting it from introducing evidence that the plaintiff's employer, a subcontractor on the construction site, was negligent and that such negligence caused the plaintiff's injuries; (2) the court erred in instructing the jury that the defendant had a non-delegable duty as to safety on the job site and that it was the "controlling employer" under OSHA regulations on the site; (3) the court erred in failed to instruct the jury the plaintiff's employer's conduct on the job site was a superseding or a concurrent cause of the plaintiff's injuries; and that (4) the jury's verdict must be set aside as it resulted from passion, prejudice and improper considerations. The court will address each of these claims in turn.
1. Negligence of Plaintiff's Employer, Soneco/Northeastem, Inc. CT Page 546
While originally this case had included the plaintiff's employer, Soneco/Northeastern, Inc., as an intervening party plaintiff, when the case reached the jury, Soneco was no longer a party to the case. Plaintiff filed, prior to trial, a motion in limine to preclude the defendant from introducing any evidence about any alleged negligence of Soneco, claiming that a plaintiff cannot be required, under the workers' compensation statutes, to defend against any such alleged negligence on the part of his employer.
As noted in Durniak v. August Winter Sons, Inc., 222 Conn. 775, 776-77, 610 A.2d 1277 (1992);
Our statutes permit an injured employee to pursue a personal injury action against a third party tortfeasor, even though the employee's exclusive remedy against his employer is the recovery of workers' compensation benefits. General Statutes 31-284(a) and 31-293(a).Durniak explores the question of whether or not the third-party tortfeasor could raise the employer's negligence as a special defense. The Durniak court concluded, after careful analysis, that it would not permit such a defense as its impact is:
to undermine the tradeoffs that underlie workers' compensation by importing contributory or comparative negligence into the no-fault workers' compensation reimbursement program . . . Our conclusion comports with the result reached in a number of Superior Court decisions in this state and in the majority of cases decided in other jurisdictions. [I]t is generally held that the employee cannot be met with a defense that his own employer's negligence contributed to the injury. (Emphasis added, internal citations and quotation marks omitted.) Durniak v. August Winter Sons, Inc. supra 222 Conn. 781-82.
As Durniak noted, the workers' compensation laws do not make the employer's negligence a ground for limiting the employee's recovery.
Based on this holding, this court granted plaintiff's motion in lime, permitting, however, the defendant to introduce evidence as to any duties the employer Soneco had on the job site as well as its conduct with regard to that duty. Any opinion evidence or argument as to the breach of that duty by Soneco was precluded. As a consequence of the court's ruling, the defendant was permitted to introduce significant evidence concerning Soneco's role in the construction of the BJ's shopping center in Willimantic, Connecticut. Such evidence included the contract between Soneco and Knover concerning safety on the job site, Soneco's duties on the job site, its knowledge of safety requirements and conditions, as well as Soneco's conduct of its portion of the construction work and what it actually did do with respect to safety on the site. It was permitted to have its expert on job safety testify concerning Soneco's obligations on the job site including its obligations under OSHA.
Defendant's expert in this regard was carefully instructed not to testify concerning the alleged breach of any duty by Soneco. He failed on at least two occasions to listen to the court's admonishments and his offending testimony was stricken. He was so clearly partisan in his statements that the jury could have concluded that much of what he had to say was not credible, or even if it was, other evidence in the case outweighed it.
Defendant now argues strenuously that, based on a footnote in Durniak, that in this case where it filed a general denial, it should have been permitted to show that it was the plaintiff's employer's conduct that proximately caused the employee's injuries. The second paragraph of Footnote 5, Durniak supra, 222 Conn. 782 states that:
[a] different result might also follow if, instead of relying on a special defense alleging the intervening employer's negligence, the defendant, having filed a general denial, sought to make an evidentiary showing that it was the employer's conduct rather than the defendant's conduct that had proximately caused the employee's injuries. (Citations omitted.)
Defendant's present formulation of this issue ignores the details of the court order, permitting it to introduce evidence concerning the conduct of the plaintiff's employer on the job site, its responsibilities with respect to safety and what steps it took with regard to its obligations. It is simply inaccurate to claim, as defendant does in its motion, that the court excluded such testimony, as such evidence was introduced. It is also inaccurate to claim that this case was tried on a false premise that the only entity in charge of safety for the trenching operation was Konover.
Defendant's motion to set aside verdict dated May 16, 2005, page 3.
Evidence was adduced concerning the employer's actual conduct and the safety requirements plaintiff's employer was obligated to observe. In this case, the court concluded that the defendant, under its general denial, was permitted to introduce evidence that it was not responsible for the damages to the plaintiff and that others, including Soneco/Northeastern as well as the plaintiff Richard Archambault had safety obligations each was obligated to perform.
The jury, from the evidence the court permitted to be introduced and that the jury had before it, had it credited that testimony, could have determined that Konover's conduct was not a substantial factor in bringing about this injury, but that Soneco's conduct did. The jury did not do so. Last, but not least, on several occasions the court asked the parties if they wished special interrogatories to determine the jury's particularized finding in this regard. Defendant did not request such interrogatories.
Further, defendant argues that the dictates of Meek v. Walmart, 72 Coma. App. 467, 806 A.2d 546 (2002) permit it to introduce evidence about Soneco/Northeastern's breach of the duty of care it owed to the plaintiff. This court finds Meek inapposite. And defendant's formulation of the issue again overlooks the details of this court's specific order permitting the defendant to introduce evidence of independent acts, undertaken by Soneco/Northeastern in connection with this matter and its safety obligations under the contract it had with Konover. However, consistent with this court's earlier pretrial ruling, the defendant was prohibited from introducing any opinion evidence of any alleged negligence by Soneco in the performance of its duties on the job site, as Durniak unequivocally holds that such is prohibited, when directed against the employee of such employer. Permitting such opinion testimony or argument would have been tantamount to this court single-handedly overruling of the dictates of our Supreme Court and its interpretation of the legislative policies supporting the workers' compensation act as articulated in Durniak. Change on such a scale can only be accomplished by the legislature, not a trial court ruling on questions of admissible evidence in a jury trial.
In addition, Soneco/Northeastern was not a party to this case and any liability for the accident and resulting injuries could not permissibly be apportioned between it and the defendant, Konover. Connecticut General Statutes § 52-572h prohibits apportioning liability between a defendant and a non-party.
The details are set forth in this memorandum in Section 3, at page 15.
Finally, defendant now also argues that it was incorrectly prohibited from introducing into evidence the fact that Soneco had been cited by OSHA for failing to provide proper support and protection for the trench work. The court precluded such testimony, not based only on the holding of Durniak, but because OSHA's determination was made by an administrative tribunal based on differing standards of proof and evidentiary relevance than are appropriate at trial. Even without the issues of workers' compensation and the preclusive nature of the Durniak holding, such testimony was not permissible under the rules of evidence.
2. Defendant's Non-delegable Duty for Safety on the Job Site and the Controlling Employer Doctrine
Defendant asserts that the court erred in instructing the jury that Konover had overall responsibility for safety on the job site. This assertion fails to take into account much of the evidence on this issue before the jury. There was consistent repeated evidence, by its job site superintendent, James Simmons, and its safety director, John Zook, that Konover had overall responsibility for job safety on the job site. When asked whether in terms of overall safety on the job, the buck stops with Konover, Mr. Zook agreed. He stated that there was in accordance with Konover's rules, an overall safety plan and that there were regular safety inspections on the site. Mr. Zook confirmed that safety took precedence over production and construction completion schedules. The contract between Soneco/Northeastem and Konover, introduced into evidence, did specify the nature of Soneco's duties on the job site and there was evidence of its responsibilities to its workers. Such obligations, however, under our law, do not abrogate the responsibility of Konover for overall job site safety, as it retained such control under its contractual agreements with its subcontractors and in fact on this site.
In general, a general contractor has no liability to an injured employee of a subcontractor and the explanation most often given is that the general contractor has no power of control over the manner in which the work is performed by the subcontractor. See Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517-18, 825 A.2d 82 (2003). In Pelletier, the court concluded that where a general contractor had retained such right of control over safety, it could be liable for its negligence and such injuries. Pelletier, supra, 264 Conn. 518. Where a general contractor retains such a right of control, it is said to have assumed a non-delegable duty with regard to safety on the job site.
In this case, Konover did not contest at trial that it had overall responsibility for safety on the job site or that it was the "controlling employer" as that term is defined under OSHA. These facts, because they were not at issue, were not for the jury to decide. While defendant claims that the court permitted this case to be tried under the false theory that Konover was the only entity in charge of safety for the trenching operation, the evidence and the jury charge does not support that claim. It also overlooks evidence that the jury could have credited that on the day of the trench collapse before the accident, the Soneco foreman spoke to Mr. Simmons at the morning break. While the former Soneco foreman testified that he had no recollection of discussing the difficulty of the trenching operation with Mr. Simmons that morning and Mr. Simmons denied it, there was other credible evidence before the jury that Mr. Simmons could have and should have known about the concerns which Mr. Archambault raised with his foreman just shortly before the conversation referenced took place. Those concerns related to the poor soil conditions and the depth of the excavations and Mr. Archambault's concerns about the safety of continuing to excavate in the location of the filled wetlands without adequate space to properly excavate and dispose of the trench fill. If credited by the jury, this evidence supports the inference that construction schedules rather than safety were paramount to Konover on that day and that therefore, it violated its own safety policy.
The instructions stated "Both Richard Archambault and Dubie Sowell allege that as a general contractor, Konover was under a non-delegable duty to provide a safe job site. The defendant has not contested that it had overall control of safety on the job site. The court therefore instructs you that Konover had a non-delegable duty concerning safety that it could not assign to someone else and that such duty extended to all workers on the site, including the plaintiffs. The plaintiff's allege that the defendant Konover was negligent because it:
1) failed to provide or require cave-in protection for workers engaged in trenching operations, despite a high risk of injury to or death of said workers on the job site;
2) failed to ensure safe working conditions on the job site, when it had a non-delegable duty to do so;
3) failed to adequately inspect the work site to ensure safe working conditions existed;
4) failed to adequately supervise its independent contractors and their employees including the plaintiffs to ensure compliance with all applicable state and federal regulations, and;
5) failed to enforce compliance with such regulations and good excavating practices.
Both plaintiffs further allege that such negligence was a result of Konover's attempts to accelerate productivity and rush the job to achieve greater profits. They each allege that Konover's negligence was a legal cause of their respective injuries, . . ." The jury instructions also took care to make sure that the jury understood that Konover was not obligated to guarantee safety on the job site and further instructed the jury that: "[b]ut also bear in mind that the defendant is not required to make absolutely certain that the job site is safe at all times and in all respects for any workers laboring on the site. It is not a guarantor of safety on the job site for all workers. It is only required to use reasonable care, as I have defined it for you."
Defendant, as part of its challenge to the court's instruction that the defendant retained overall control of safety over the job site and therefore had a non-delegable duty for safety, also challenges the court's instructions pursuant to OSHA that the defendant was a "controlling employer." The instructions stated, pursuant to the OSHA regulations that:
"In this case you have heard references to OSHA, which, as you may recall, stands for the Occupational Safety and Health Administration, a federal agency, which has been granted the legal authority to issue rules and regulations governing workplace safety on construction projects. There are also certain documents in evidence concerning the OSHA regulations as they apply to the construction industry. If you conclude that the defendant violated any applicable regulations, you may consider such violations, if any, as evidence of negligence.
The plaintiffs claim that Konover, by virtue of its right to control safety for all workers on the job site, was "the controlling employer" on the job site. A "controlling employer" under OSHA is defined as a contractor who has general supervisory authority over the work site, including the power to correct safety and health violations itself or to require others to correct them. Konover does not dispute that it was the controlling employer at the BJs job site in Willimantic in October of 1998. The law requires such an employer to exercise reasonable care to prevent and discover safety violations including conducting periodic inspections of appropriate frequency. You must then consider whether Konover failed to exercise reasonable care regarding its duties, and if you so determine, then you would consider whether or not such conduct was the legal cause of the plaintiffs' injuries." (Emphasis added.)
There was no evidence introduced by Konover challenging the fact that it had the right to control safety for all workers on the job site. The court therefore concluded that the jury did not need to determine whether or not the defendant was a "controlling employer" under the OSHA regulations as they pertain to the construction industry. Indeed, defendant does not advance any argument why the court's conclusions based on the testimony of Konover's own employees was incorrect. While defendant also argues in the body of the motion that the court erred in not instructing the jury on the OSHA "multi-employer" doctrine, it presents no basis for such an instruction in light of the unchallenged testimony concerning the control over safety that Konover retained. It also argues that there is no private right of action based on OSHA, a statement with which the court agreed. And the jury charge only refers to the alleged breach of the regulations as evidence of negligence, if the jury so found. For the foregoing reasons, the court denies the defendant's motion based on these claims.
3. Soneco/Northeastern's conduct as a Superseding/Concurrent Cause of the Plaintiff's Injuries.
Defendant had requested a charge that Soneco/Northeastern's conduct was a superseding cause of the plaintiff's injuries. Based on the holding of Barry v. Quality Steel Products, Inc., 263 Conn. 424, 441-42, 820 A.2d 258 (2003), the court concluded that superseding cause was a negligence doctrine that had been abrogated by the Supreme Court. The court in Barry held that:
We conclude that this aspect of the doctrine of superseding cause has no place in our modern system of comparative fault and apportionment. We agree . . . that it is inconsistent to conclude simultaneously that all negligent parties should pay in proposition to their fault, as Connecticut General Statutes 52-572H requires, but that one negligent party does not have to pay its share because its negligence was somehow `superseded' by a subsequent negligent act.
Further, Connecticut General Statutes § 52-572h now sets forth in statutory terms the legislative scheme ordering our comparative and contributory negligence jurisprudence. It speaks of the liability of joint torfeasors and their respective rights of contribution and specifically uses the word "party." In this instance, Soneco/Northeastern was not a party at the time of the trial, and under the relevant statutory scheme, was not an entity from which defendant could seek to apportion any damages awarded. For the reasons above stated, the court did not give the requested charge.
Negligence actions. Doctrines applicable. Liability of multiple tortfeasors for damages. "(c) In a negligence action to recover damages resulting from personal injury, wrongful death or damage to property occurring on or after October 1, 1987, if the damages are determined to be proximately caused by the negligence of more than one party, each party against whom recovery is allowed shall be liable to the claimant only for such party's proportionate share of the recoverable economic damages and the recoverable noneconomic damages except as provided in subsection (g) of this section . . ." (Emphasis added.)
The court did charge the jury with respect to multiple causes of an injury. That instruction did not use the word "concurrent" but stated as follows that:
If you find that the defendant was negligent in any one or more of the ways alleged in the plaintiffs' complaints, you must next decide if such negligence was a legal cause of any of the plaintiffs' claimed injuries. Legal cause has two components: cause in fact and proximate cause. A cause in fact is an actual cause. The test for cause in fact is, simply, "Would the injury have occurred were it not for the defendant's negligence?" If your answer to this question is "yes," then the defendant's negligence was not a cause in fact of the plaintiff's injuries. Negligence is a legal cause of an injury if it was both a cause-in-fact and a substantial factor in bringing the injury about. Further, negligence is a substantial factor in bringing about an injury if it contributes materially to the production of the injury.
Under our law, one or more forces may concur to cause an accident. A defendant may be liable for any resulting injuries so long as such defendant's negligence was a substantial factor in producing the plaintiffs' injuries. This is so because that defendant would not be relieved from liability for those injuries even though another force also contributed to produce such injuries. (Emphasis added).
Again, defendant's claims on this point overlook the exact nature of the instruction that was given and its meaning, even if the exact word it sought to be included was not used as requested. As noted in State v. Ledbetter, 263 Conn. 1, 22, 818 A.2d 1 (2003), a "refusal to charge in the exact words of a request . . . will not constitute error if the requested charge is given in substance . . ."
4. The Verdict Results form Passion, Prejudice and Improper Considerations.
Defendant, in its arguments on this last issue, incorporates the claims it made in its motion for remittitur and portions of its motion to set aside the verdict made in paragraphs one through five of its brief. As the court has addressed these points in detail above, the court will not further restate them here. There is credible evidence in the record to support the jury's verdict.
D. Conclusion
For all of the reasons stated in detail above, the court denies the motion for remittitur and the motion to set aside the verdict. The court finds that the verdict is supported by credible evidence and the law.