Opinion
No. CV 01-0276094S
July 28, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#156)
The plaintiff brought this personal injury action in negligence and recklessness to recover for injuries he incurred after falling off a ladder while painting a smokestack atop buildings on defendants' property. The two defendants, Boehringer-Ingelheim Corporation and Boehringer-Ingelheim Pharmaceuticals, Inc. (both hereafter, "Boehringer") now move for summary judgment on the grounds that they owed no duty to the plaintiff because he was an employee or subcontractor of an independent contractor they hired. For the reasons explained below, the motion is denied.
A court will grant summary judgment if, viewing the evidence in the light most favorably to the non-moving party; Elliot v. Waterbury, 245 Conn. 385, 391, 715 A.2d 27 (1998); there is no genuine issue of material fact and the moving party would be entitled to a directed verdict on those facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982). A material fact is one that will make a difference in the result of the case. Hammer v. Lumberman's Mutual Casually Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. Gupta v. New Britain General Hospital, 239 Conn. 574, 582, 687 A.2d 111 (1996). Summary judgment is proper "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." Practice Book § 17-49.
There is no dispute between the parties that the defendants contracted with the F.J. Cahill Company, Inc., the intervening plaintiff, to paint the smokestacks, and that Cahill hired Balogh to do the job; whether Balogh was an employee of Cahill or an independent contractor does not affect the outcome of the case. Boehingers' claim of no duty arises out of the long-established rule that
where the owner of premises employs an independent contractor to perform work on them, the contractor, and not the owner, is liable for any losses resulting from negligence in the performance of the work . . . The basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor.
Darling v. Burrone Bros., Inc., 162 Conn. 187, 196, 292 A.2d 912 (1972). The plaintiff, on the other hand, relies on three equally venerable exceptions to the general rule: where the injuries result from the owner's own negligence or where "the work contracted for . . . is intrinsically dangerous, or . . . the [employer] . . . reserve[s] in his contract general control over the contractor or his servants, or over the manner of doing the work, or if he in the progress of the work assume control or interfere with the work, . . ." Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 518, 825 A.2d 72 (2003).
At oral argument on the motion, defendants relied on Ray v. Schneider, 16 Conn.App. 660, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988), to argue that the intrinsically dangerous exception does not apply here. In Ray, the court held that the employer of an independent contractor may not be held vicariously liable to the contractor's employees for injuries incurred while performing inherently dangerous work. The court ruled, for various policy reasons relating principally to the purposes of workers' compensation benefits, that this exception applies only to members of the general public. In Pelletier v. Sordoni/Skanska Construction Co., supra, however, the Supreme Court recently disavowed the holding in Ray and abandoned the general contractor nonliability rule. Acknowledging that "a number of courts in other jurisdictions have held consistently with Ray"; id., 530; the court, after analyzing our workers' compensation statutes, held that under Connecticut law:
"The policy reasons articulated by the court in Ray v. Schneider, [ 16 Conn.App. 660, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988)], may be summarized as follows: (1) employees of an independent contractor stand on a different footing from members of the general public, because they in effect assume certain risks of their employment and are entitled to workers' compensation benefits; id., 667-68; (2) the price of the contract between the general contractor and the subcontractor will ordinarily reflect the cost of the workers' compensation insurance and, therefore, the general contractor is already indirectly financing those benefits; id., 668; (3) imposition of common-law liability on the general contractor would subject the contractor to greater liability than if it had used its own employees on the job; id., 668-69; (4) holding the contractor vicariously liable would be contrary to the general principle that ordinarily one is liable for harm only when he caused it through his own fault; id., 669; (5) recovery in tort based on vicarious liability for injuries for which the employee already has been compensated by workers' compensation benefits would contravene the scheme of the Workers' Compensation Act; id., 669-70; (6) the employee has greater knowledge and control over the dangers of the work than does the general contractor; id., 670; and (7) public policy encourages developers and general contractors to employ independent contractors with expertise where the work is inherently dangerous, and imposition of vicarious liability would be a disincentive to such employment. Id." Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 529 fn 13, 825 A.2d 72 (2003).
An injured employee of a subcontractor may sue the general contractor, if he can establish a basis for the contractor's liability to him under our case law. He is not barred from doing so simply because, as Ray holds, the plaintiff is an employee of a subcontractor, rather than a member of the general public.
Id. 527. Although the court in Pelletier addressed only the liability of contractors to employees of subcontractors, its analysis is equally applicable to the duty owed by property owners to employees of their independent contractors. See, e.g., Szestowicki v. Carlone, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 00-0074207, 126 (September 23, 2003, Scholl, J.) ( 35 Conn. L. Rptr. 520).
In Pelletier, the Supreme Court focused on the history of the legislature's grant of common-law negligence immunity to "principal employers." Until 1988, § 31-291 of the General Statutes excused from common-law negligence a "principal employer" who "procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control . . ." Such principal employers were instead liable under the statute to pay workers' compensation benefits "to the same extent as if the work were done without the intervention of such contractor or subcontractor." The original purpose of the statute was "to protect employees of minor contractors against the possible irresponsibility of their immediate employers, by making the principal employer who has general control of the business in hand liable as if he had directly employed all who work upon any part of the business which he has undertaken to carry on." Bello v. Notkins, 101 Conn. 34, 38, 124 A. 831 (1924).
Although the statutes nowhere expressly define the term "principal employer," the reported cases usually applied it to contractors who employed another contractor to do their work. See, e.g., Bogoratt v. Pratt Whitney Aircraft Co., 114 Conn. 126, 157 A. 860 (1932); but nothing in the statute precluded its application to a property owner who employs a contractor. That property owner would, under the old law, have been liable for workers' compensation benefits if it met the three-fold test of § 31-291: "(1) the relation of principal employer and contractor must exist in work wholly or in part for the former; (2) the work must be on or about premises controlled by the principal employer; [and] (3) the work must be a part or process in the trade or business of the principal employer." (Citations omitted). Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 519 fn 7, 825 A.2d 72 (2003). Thus, in Bello v. Notkins, supra, 101 Conn. 34, the court held that a property owner could be held liable as a principal employer for workers' compensation benefits because the owner had retained control over construction of a building on the owner's property, parceled out fractions of the construction work to separate contractors, each responsible solely to the owner for a particular portion of the work; the court noted That the owner was thus engaged in the trade or business of erecting a building, whether the owner intended the building for rent sale or for its own personal use.
In Pelletier, the court observed that over time principal employers "were rarely called upon" to pay workers' compensation benefits to injured employees of subcontractors because of the increasing use of certificates of insurance and the benefits provided by the second injury fund. "If, however, the general contractor was not a principal employer, the injured employee could recover against the general contractor if he could establish one of the exceptions to the general rule of nonliability of general contractors for the torts of its independent contractors, or if he could establish a basis for a direct claim of negligence by the general contractor." Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 522. The court further noted that under the old legislative scheme "it would have been inconsistent with the immunity granted, by implication of the exclusive remedy provision of the Workers' Compensation Act, to the principal employer, to have barred the same employee from suing a general contractor who was not a principal employer." Id.
The basis of the decision in Pelletier to overturn Ray was a 1988 amendment to § 31-291 that added a second sentence to the statute denying immunity to a principal employer that had not actually contributed to workers' compensation benefits:
The provisions of this section shall not extend immunity to any principal employer from a civil action brought by an injured employee or his dependent under the provisions of section 31-293 to recover damages resulting from personal injury or wrongful death occurring on or after May 28, 1988, unless such principal employer has paid compensation benefits under this chapter to such injured employee or his dependent for the injury or death which is the subject of the action.
Public Acts 1988, No. 88-286, § 1. The Pelletier court construed this legislation as implicitly demonstrating the legislature's intent as a matter of policy, to preserve the previously recognized right of an injured employee of a subcontractor to sue a general contractor who was not a principal employer. It would be wholly contrary to the policy of the 1988 legislation to hold otherwise. This is because, under the 1988 legislation, a general contractor who is a principal employer under § 31-291 — and, therefore, whose business and work are closely tied to that of the subcontractor — may be sued by an injured employee of its subcontractor unless the general contractor in fact paid workers' compensation benefits to the employee. Given the language and policy of § 31-291, especially as amended in 1988, it would be anomalous to hold that an injured employee of a subcontractor may not sue a general contractor who has not paid compensation benefits to the employee and who does not meet the requirements of the principal employer provisions — and, therefore, whose work and business are not at all tied to that of the subcontractor.
Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 526-27.
Since Pelletier, then, injured employees of subcontractors can maintain actions in common-law negligence directly against a general contractor not protected by § 31-291. The same logic applies to the right of an injured employee of a general contractor to bring an action against the property owner who hired the contractor. If the property owner who hires a general contractor is not a qualifying "principal employer," — and some may, and some may not, then the employee may bring common-law personal injury actions against the property owner. Although the Pelletier court focused on the relationship between general contractors and subcontractors, its statutory and policy analyses apply equally to cases such as the present one.
This court must thus consider whether the intrinsically dangerous exception applies here. The Restatement (Second) of Torts describes at least three instances where the employer of an independent contractor may be liable for injuries to others caused by performance of the contracted work:
§ 413. Duty to Provide for Taking of Precautions Against Dangers Involved in Work Entrusted to Contractor: "One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer (a) fails to provide in the contract that the contractor shall take such precautions, or (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions."
§ 416. Work Dangerous In Absence Of Special Precautions." One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise."
§ 427. Negligence As To Danger Inherent In The Work. "One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger."
As comment b to § 413 observes, these sections
are concerned with special risks, peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done, against which a reasonable man would recognize the necessity of taking special precautions. The situation is one in which a risk is created which is not a normal, routine matter of customary human activity, such as driving an automobile, but is rather a special danger to those in the vicinity, arising out of the particular situation created, and calling for special precautions." Peculiar" does not mean that the risk must be one which is abnormal to the type of work done, or that it must be an abnormally great risk. It has reference only to a special, recognizable danger arising out of the work itself.
The three sections differ principally in the employer's response to the special risk. Section 413 applies to the "one who . . . does not provide in the contract that the contractor shall take the precautions necessary" to make the work safe, § 416 to one that "anticipate[s] the need for some specific precaution and "stipulates in his contract . . . that the precautions shall be taken," and § 417 to one where the contract anticipates "a number of precautions, or involves a number of possible hazards." § 416, comments a and c. Our appellate courts have recognized all three sections of the Restatement as authoritative. See, e.g., Ray v. Schneider, supra, 16 Conn.App. 664. As the court astutely noted in Latulippe v. Mary Catherine Development Co., Superior Court, judicial district of Hartford, Docket No. CV94-0535457S (April 3, 1996, Corradino, J.) ( 16 Conn. L. Rptr. 517), these sections are but examples of the general rule that the employer of an independent contractor may, depending on the circumstances, be held liable to an employee of the contractor for its own negligence.
The evidence submitted on summary judgment shows a number of ways that the intrinsically dangerous rule articulated in these sections might impose liability on the defendants. An affidavit of a safety expert submitted by plaintiff states that "[t]he safety hazards associated with the placement of a ladder against a circular metal stack are obvious." (Letter of Clayton D. Rose, p. 7, attached to his affidavit of 5/28/04) Common sense tells that placing a 40-foot extension ladder on the roof of a building against a 35-foot circular smoke stack with a diameter of just 24½ inches, as was done here, is inherently dangerous. Defendants' own employees recognized that peril; on the day that plaintiff began the job, defendant's project engineer, arriving at work and seeing plaintiff on the ladder, ordered him to stop because she knew how dangerous the work was:
[T]he ladder was leaning on a stack without any support. It was too close to the edge of the roof . . . I said, no way will I let him do this kind of work, because I was concerned about the safety.
Deposition of Raisa Kendall, p. 17.
Representatives of Boehringer and Dahill then met to discuss defendants' safety concerns. Dahill convinced defendants that the ladder would be safe if tied off at the top and bottom, and defendants then agreed to let the work resume. Unfortunately, plaintiff did not tie off the ladder in the method that Dahill had claimed would be safe; he fell and was injured.
From the evidence presented on summary judgment, it seems clear that the original contract between Dahill and defendants did not contain specifications for ladder safety that would meet the defendants' duty under § 413(a). Under § 413(b), the question would thus be whether defendants failed "to exercise reasonable care to provide in some other manner for the taking of precautions" to prevent the peculiar unreasonable risk of physical harm to the plaintiff. Whether the agreement between Dahill and defendants as to safety measures, reached during the meeting after the work initially stopped, is construed as an effort by defendants to exercise reasonable care by providing non-contractually for precautions to prevent harm to plaintiff, pursuant to § 416, or a modification to the original contract specifying special precautions pursuant to § 413(a), the defendants would remain "subject to liability for physical harm caused . . . by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise." § 416. Hence, even if the safety measures to which Dahill and defendants had agreed would have been adequate, if implemented, defendants would be liable for Dahill's and their failure to ensure that the plaintiff abided by the agreed-upon safety measures. The premise of all three sections is that an employer "remains liable for injuries resulting from dangers [inherent in or normal to the work] which he should contemplate at the time that he enters into the contract, and cannot shift to the contractor the responsibility for such dangers, or for taking precautions against them." Section 416, comment a.
Deposition testimony of an employee of defendants stated that defendants originally expected Dahill to do the job with scaffolding. (Deposition transcript of Mostafa Elmorisi, 12/18/03, at 36-37.) If that testimony were accepted as credible, then perhaps the original contracted work did not raise safety questions. But once defendants saw plaintiff on the ladder and assented to its use, the perils were obvious and their duties under the intrinsically dangerous exception applicable.
From this analysis the court concludes that the motion for summary judgment must be denied, as the case presents facts warranting a finding that defendants owed plaintiff a duty to take precautions to protect him against the harms envisioned by these three sections of the Restatement. Whether that liability is vicarious for Dahill's negligence/recklessness or direct for defendant's own negligence/recklessness does not affect this result.
The other exception to the rule an employer is not liable for the negligence of its independent contractor lies in the premise of the rule:
"The explanation for [this rule] most commonly given is that, since the employer has no power of control over the manner in which the work is to be done by the contractor it is to be regarded as the contractor's own enterprise, and [the contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it." 2 Restatement (Second) [Torts], . . . § 409, comment (b).
Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 517-18. Thus, where the employer itself retains supervision or control over the work, the employer may be found negligent for performance of work it controlled, though undertaken by another. Ordinarily, control is a question of fact not susceptible of summary judgment. LaFlamme v. Dallessio, 261 Conn. 247, 247, 802 A.2d 63 (2002); Franklin v. Murray, Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X01 CV-01-0170608-S (March 12, 2004, Sheedy, J.).
Defendants argue strenuously here that the undisputed facts show their lack of control. They hired Dahill and Dahill hired plaintiff to do the painting job. The equipment used belonged only to Dahill and plaintiff. (Balogh response to Defendants' Requests for Admissions, ¶ s 7, 9, 10.) Defendants were not present and did not participate in or supervise the ladder setup or the work performed by plaintiff the day he was injured. ( Id., ¶ s 11 and 16.) The defendants rely in their argument on Mozeleski v. Thomas, 76 Conn.App. 287, 818 A.2d 893 (2003), cert. den. 264 Conn. 904, 823 A.2d 1221 (2003), and the five factors that court used to affirm a grant of summary judgment for a property owner sued for sought damages for injuries sustained when plaintiff there fell from scaffolding while performing masonry work at a residential construction site:
(1) the plaintiff controlled the means and methods of his own work, (2) Hall did not represent himself to the plaintiff as a "masonry supervisor," (3) [defendant] did not own or erect the scaffolding, (4) [defendant] was not present when the plaintiff erected the scaffolding and (5) the plaintiff did not ask [defendant] to provide scaffolding, a fall arrest system or guardrails. Those facts are undisputed and establish that at the time of the incident the plaintiff was acting as an independent contractor and that [defendant] did not exercise control over the offending area where the plaintiff was injured, namely, the scaffolding.
Id., 292.
In Mozelski, plaintiff had claimed that control was a material fact in dispute, but under our rules on summary judgment "[t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 663, 691 A.2d 1107 (1997). "Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377, 260 A.2d 596 (1969). Plaintiff there did not submit any evidence to rebut the defendant's contentions, and the facts that plaintiff established justified summary judgment. Defendants contend that the same result is warranted here.
The plaintiff points to only two facts to show defendants' exercise of control. First, they contend, the defendants selected the work and how it was to be done. The evidence submitted on summary judgment is not so clear on this question, however. Plaintiff submitted a deposition transcript asserting that Dahill submitted alternative for proposals how to do the job, one using scaffolding and the other a ladder and that defendants accepted Dahill's plan to use just a ladder because the former was more expensive. (Deposition testimony of Thomas Smith, 9/10/03, at 148-54.) Another deposition transcript plaintiff submitted, however, claims that the defendants' project engineer had expected Dahill to use scaffolding on the job and had stopped the plaintiff when she saw him using a ladder instead. (Deposition testimony of Mostafa Elmorisi, 12/18/03, at 36-37.) Plaintiff also point to the safety meeting where defendants acceded to Dahill's representations that using a ladder would be safe if properly tied off as an example of defendants' exercise of control. The affidavit of the safety expert that plaintiff submitted, however, asserts that at the meeting the defendants relinquished all control over the work and seems to undermine that claim completely.
"During the meeting . . ., Boehringer essential removed itself from the decision making for the safety of the workers involved in the project and accepted Dahill's methods of performing the work." Letter of Clayton D. Rose, p. 6-7, attached to his affidavit of 5/28/04.
Moreover, this court agrees with the observation of Judge Corradino that the defendants' safety concerns — the fact that they stopped plaintiff from performing the work when their employees became worried about his safety and would not let the work resume until Dahill convinced them that the job could be done safely with a ladder, should not be regarded as exercising such a level of control as to make them liable.
I don't agree with the plaintiff to the extent that he argues that merely because the employer takes an interest in safety concerns and installing safety devices that means whenever an accident happens an employee of an independent contractor has a negligence claim against the employer or owner. That would lead to a terrible policy result — employers or owners would avoid taking any steps to ensure safety on the job unless they were specifically required to do so by statute or regulation.
Latulippe v. Mary Catherine Development Co., Superior Court, judicial district of Hartford, Docket No. CV94-0535457S (April 3, 1996, Corradino, J.). The law has always recognized that an "owner may exercise a limited degree of control or give the contractor instructions on minor details without destroying the independent character of the contractor." Mozeleski v. Thomas, 76 Conn.App. 287, 294, 818 A.2d 893 (2003), cert. den. 264 Conn. 904, 823 A.2d 1221 (2003).
This is not a case like Mozelski, where the party opposing summary judgment has submitted no evidence to support such a finding. Perhaps the muddled evidence here would support a finding that the defendants selected or at least accepted the means for Dahill to paint the smokestack. It is not necessary for this court to decide on summary judgment whether such a level of involvement rises to the level of control so as to destroy the independent character of the contractor since the evidence on summary judgment supports a finding of liability under the intrinsically dangerous exception.
The motion for summary judgment is therefore DENIED.
STEPHEN F. FRAZZINI, JUDGE