Opinion
No. CV 04 0286640
October 12, 2005
MEMORANDUM OP DECISION RE MOTION FOR SUMMARY JUDGMENT #132
The plaintiffs, Hilbert Gibbs and Milta Gibbs filed a two-count complaint alleging negligence and loss of consortium respectively. Their claims arise out of injuries sustained by Hilbert Gibbs while working as an assistant manager at Valvoline Instant Oil Change, Inc. (Valvoline) in Middletown, Connecticut when the defendant, Lorenzo Noland, also an employee of Valvoline, backed a customer's vehicle out of a repair bay, struck Hilbert Gibbs in the right knee, and pinned him against the car of another customer waiting for service.
The defendant moves for summary judgment on its special defense that Hilbert Gibbs' negligence, action and Milta Gibbs' derivative loss of consortium action are barred by the exclusivity provisions of the Workers' Compensation Act. The exclusive remedy for the injuries sustained by Hilbert Gibbs during the course of his employment with Valvoline is the Workers' Compensation Act unless his claim falls within an exception to the act. The defendant argues that the motor vehicle exception in General Statutes § 31-293 a does not apply here because Hilbert Gibbs' alleged injuries were the result of workplace negligence and not the type of negligence commonly associated with operating a vehicle on a roadway to which the general public is exposed.
"The Workers' Compensation Act provides the exclusive remedy to employees seeking compensation for work related injuries or death from such injuries where (1) the plaintiff was an employee of the defendant, (2) the plaintiff suffered a personal injury and (3) the injury arose out of and in the course of the plaintiff's employment." Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn.App. 800, 807, 609 A.2d 1034 (1992), appeal dismissed, 226 Conn. 404, 627 A.2d 931 (1993). Nevertheless, an employee injured on the job, who also claims compensation under the workers' compensation statutes, still may bring a claim against a third-party fellow employee who contributed to his or her injury under two circumstances. General Statutes § 31-293a. Section 31-293a provides in relevant part: "If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1." (Emphasis added.)
It is undisputed that the defendant drove a customer's vehicle in reverse and struck Hilbert Gibbs. Nevertheless, the defendant argues that the statutory exception does not apply and that the plaintiffs' claims are barred because Hilbert Gibbs subjected himself to a special hazard common to his job but not common among members of the general public.
In Dias v. Adams, 189 Conn. 354, 456 A.2d 309 (1983), the court discussed the difference between workplace negligence and negligence iii the operation of a motor vehicle as follows: "Although the legislative history of § 31-293a is not especially revealing, there is some evidence that the intention was to distinguish `simple negligence on the job' from negligence in the operation of a motor vehicle. Unlike the special hazards of the workplace, the risk of a motor vehicle accident is a common danger to which the general public is exposed. Particular occupations may subject some employees to a greater degree of exposure to that risk. The nature of the risk remains unchanged, however, and in many employments it is no greater than for the general public. The legislature has chosen, therefore, not to extend the immunity given to fellow employees by § 31-293a to accidents having a less distinct relationship to the hazards of the employment. At the same time it has accorded the injured employee, in addition to workers' compensation, the same remedy he would have against a member of the general public who caused a motor vehicle accident." Dias v. Adams, supra, 189 Conn. 359-60.
"12 H.R. Proc., Pt. 9, 1967 Sess., pp. 3813, 4035, remarks of Representative Paul Pawlak: `Section 5. This section stops third party suits against fellow employees since such employee usually is unable to meet any judgment involving serious injuries. However, the section specifically permits suits against fellow employees where the injury or death was the result of wilful or malicious wrong by such employee or involves the operation of a motor vehicle. We are here trying to make sure that a fellow employee cannot ordinarily be sued for simple negligence on the job, but we do not believe that he should be protected against wilful or malicious wrong, nor do we believe he should be protected if the employee is injured as a result of a motor vehicle accident.'" Dias v. Adams, 189 Conn. 354, 359 n. 3, 456 A.2d 309 (1983). (Emphasis added.)
The Superior Courts vary in their application of Dias; See Anberg-Dudas v. Spillane, Superior Court, Judicial District of Middlesex at Middletown, Docket No. CV 03 0102414 (November 18, 2004, Sibert, J.) ( 38 Conn. L. Rptr. 294); and seem to grapple with the question of whether the risk of injury must be of a type unique to the workplace, that is whether it is the nature of the risk that bears a distinct relationship to the hazards of the employment, or whether it is the increased risk of injury from a motor vehicle accident on the job which determines whether the motor vehicle exception applies. The resolution of the claims often rests on fine factual distinctions.
See, Kuhar v. Phillips, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 03 0481998 (April 26, 2004, Blue, J.) ( 49 Conn.Supp 351) (granting defendant's motion for summary judgment under § 31-293a where the plaintiff was injured when a fellow employee at an automobile service station turned the key to the motor vehicle's lock cylinder, believing the vehicle would not move, and the vehicle lurched forward). Colangelo v. Heckelman, Superior Court, judicial district of Waterbury, Docket No. CV 01 0168331 (February 17, 2004, Alvord, J.) ( 36 Conn. L. Rptr. 527), the court granted summary judgment in favor of the defendant who injured the plaintiff while working in an automotive repair bay. When the defendant started a car inside of the repair bay, the car lurched forward unexpectedly crushing the plaintiff against a workbench. The court in Colangelo held that "the general public is not exposed to the risk entailed in working in an automotive repair bay performing 30-point test inspections on vehicles and that [t]he plaintiff was not facing the hazards encountered by the general public as motorists . . ." (Internal quotation marks omitted.) Colangelo v. Heckelman, supra, 36 Conn. L. Rptr. 529. See also Miller v. Jutkowicz, Superior Court, judicial district of New Haven, Docket No. CV 02 0460536 (April 29, 2003, Gilardi, J.) ( 34 Conn. L. Rptr. 536) (finding the motor vehicle exception inapplicable where plaintiff was injured as a passenger of a vehicle being tested on a slalom course); Anberg-Dudas v. Spillane, supra 38 Conn. L. Rptr. 294 (granting summary judgment as to plaintiff's legal malpractice claim for failure to commence a timely action against fellow employee who ran over plaintiff's foot with a wood chipper attached to a truck).
On the other hand, see Ahern v. Cooper, Superior Court, judicial district of Waterbury, Docket No. CV 97 0141741 (April 5, 1999, Leheny, J.) ( 24 Conn. L. Rptr. 336), like the present case, involved one employee who struck a fellow employee while moving a car inside an automotive service bay. In Ahern, the court denied the defendant's motion for summary judgment because the defendant, in causing injury to a fellow employee, drove the car and therefore used the car as a motor vehicle. The court refused to apply a risk-based exception to the statutory motor vehicle exception in § 31-293a. See also Keough v. Bridgeport, 187 Conn. 53, 444 A.2d 225 (1982) (indicating in dicta that § 31-293a would not bar action against fireman for negligent operation of fire truck if the parties had been employed by a different employer than the city of Bridgeport); Stewart v. Heffernan, Superior Court, judicial district of Hartford, Docket No. CV 00 0801396 (Nov. 14, 2001, Koletsky, J.) ( 30 Conn. L. Rptr. 698) (denying defendant's motion for summary judgment under § 31-293a where the plaintiff fell from a loading dock because defendant engaged in ordinary use by pulling truck away from the dock).
In deciding the applicability of the motor vehicle exception at issue here, it is instructive to consider the above oft-quoted discussion in CT Page 13358 Dias in light of its holding and in the factual context of that case. In Dias, the plaintiff's decedent was struck by the shovel of a backhoe being operated by a fellow employee. "The backhoe was a self-propelled machine which used a diesel engine as its energy source both for locomotion and for movement of the boom to which the shovel or `bucket' was attached . . . [T]he same levers which controlled its locomotion could also be used to operate the shovel once the operator manipulated a certain valve to transfer the power of the engine from the treads to the boom. The shovel could not be operated while the backhoe was in motion. At the time of the accident the operator had moved the valve in to the proper position for operation of the shovel." Id., 356. The sole issue in Dias was "whether at the time of the accident [the co-employee] was operating a motor vehicle as contemplated by § 31-293a." Id.
In vacating judgment for the plaintiff after a jury verdict and directing judgment for the defendant, the court held that "when the mishap took place, the defendant was doing nothing related to driving or moving the vehicle itself . . . [h]e was engaged only in operating the shovel. His negligence, which the jury found to have caused the accident, did not occur, therefore, in the operation of a motor vehicle, as § 31-293 requires for the exception allowing such suit against a fellow employee." Id., 358. In essence, the Dias court construed the term "operation of a motor vehicle" in § 31-293a as not including activities unrelated to movement of the vehicle." Id., 360. See also Fields v. Giron, 65 Conn.App. 771, 783 A.2d 1097, cert. denied, 258 Conn. 936, 785 A.2d 230 (2001), in which the court upheld the trial court's grant of a motion to strike because "the plaintiff subjected himself to the special hazards of the workplace and the risk of injury he faced was not that risk of a motor vehicle accident faced by the general public as a common danger." (Internal quotation marks omitted.) Id., 775. In that case, the defendant tethered a fallen tree to a block and tackle and then to a work truck. When he moved the truck forward to pull on the fallen tree, the rope broke causing the block and tackle to strike the plaintiff. Id., 772-73. The Appellate Court concluded that the trial court properly granted the defendant's motion to strike under § 31-293a because the general public is not exposed to the risk entailed in removing a fallen tree by using a rope that is fed through block and tackle to a truck and because the defendant's actions constituted simple negligence on the job and not negligence in the operation of a motor vehicle. Id., 776.
In the present case, the undisputed facts disclose that the defendant, by his control and movement of the car, engaged in the operation of a motor vehicle. The defendant submitted only one piece of evidence in support of his motion for summary judgment consisting of five pages of the transcript of Hilbert Gibbs' deposition. Those five pages demonstrate the following material facts. Hilbert Gibbs, an assistant manager at Valvoline, instructed the defendant to remove a car from bay #4 of the service garage in order to make room for other cars. He did so by saying, "Let's go ahead and back it out." Gibbs then stood toward the rear of that car and directed other customers waiting for service to back up. While speaking with those customers, the car that Gibbs told the defendant to move struck Gibbs from behind and pinned him against another car.
The negligent operation of a motor vehicle alleged in this case is a hazard that is common to the general public. The hazard that is created by a driver's negligently backing out of a repair bay is not unlike the hazard experienced by the general public and created by a driver's negligently backing out of a garage. The statute does not exempt motor vehicle accidents that occur at the jobsite, and under the circumstances of this case, the fact that the accident occurred at the job site is of no moment. The hazard or the nature of the risk that allegedly caused injury to Hilbert Gibbs is not unique to the Valvoline workplace and is not unique to the nature of the work or the worker. The nature of the injury from the negligent backing up of a motor vehicle is the same as that to which the general public is exposed whether the injury occurs on an automobile repairer's lot or a private driveway.
See Ferreira v. Pisaturo, 41 Conn.Sup. 326 (1989) for a discussion of a 1983 amendment to § 31-293a, distinguishing between automobiles such as involved in this case and contractors' mobile equipment, such as bulldozers or similar equipment designed for use principally off public roads, which are not "motor vehicles" if the claimed injury involving such equipment occurred at the worksite.
The defendant's motion for summary judgment is denied.
By the court
Tanzer, J.