Opinion
No. CV 06 5005115 S
May 5, 2009
MEMORANDUM OF DECISION ON MOTION FOR SUMMARYJUDGMENT
The defendant, Hicks Trucking Company of Litchfield ("Hicks") filed a motion for summary judgment seeking judgment in its favor on the plaintiff's amended complaint and all cross claims asserted against Hicks. The plaintiff, Shirley Hanson, both individually and as administratrix of the estate of her son, Adam Parker, and the defendants U.S. Airports Air Cargo, LLC ("U.S. Airports") and Clyde Machines, Inc. ("Clyde"), all filed objections to Hicks' motion. For the reasons that follow, the court denies the motion for summary judgment.
Hicks efiled a reply brief on March 2, 2009, the day the motion was originally scheduled to be heard. While the hearing ended up being rescheduled on March 2 to the following week because of inclement weather, the parties opposing Hicks' motion all objected to its filing and the court agrees that this filing was made too late to be considered by the court in deciding this motion. If the hearing had occurred on March 2 as scheduled, the court would not have been able to read it prior to the hearing, and while Hicks transmitted copies to the opponents' offices over the weekend prior to the hearing, none of them would have had the opportunity to read it before the hearing unless they happened to be present in their offices over the weekend to receive it.
The following facts are undisputed. Adam Parker was a truck driver who worked exclusively for Hicks pursuant to an independent contractor agreement. He was assigned by Hicks to transport a shipment of cargo dollies from Clyde's facility in Litchfield, Minnesota to U.S. Airports' facility at Bradley International Airport in Windsor Locks. Parker's mother, the plaintiff Shirley Hanson, worked for Parker as a truck driver and assisted him with the shipment. The cargo dollies were loaded on Parker's truck by Clyde employees. There were no Hicks employees present during the loading or unloading of the dollies. Parker was killed when he was struck by cargo dollies during the unloading process.
Clyde was one of Hicks' largest customers, and Hicks transported many loads of Clyde's cargo dollies. Cargo dollies are over twelve feet long and over eight feet wide and weigh 2230 pounds each. Shipments of these dollies are loaded on edge, which makes them unstable. Hicks was aware of the dangers posed by shipments of cargo dollies loaded on edge and had memorialized its policy for the safe handling of these shipments in an 1997 memorandum providing guidelines for loading, securing and unloading the dollies. The memorandum stated: "Failure to comply with these instructions will result in extreme danger to the driver, unloading personnel and the tractor/trailer. Violation of this policy will result in immediate probation of the driver and may result in termination." These guidelines were included in the policy and procedure summary provided to company drivers, but was not set forth in the independent contractor policy and procedure summary. A second, undated memorandum directed to "HTC Drivers and Owner-Operators" was drafted reiterating the policy regarding Clyde's cargo dollies. There is no evidence that Parker was ever provided with the memoranda, the policy and procedure summary provided to the company drivers, or any information regarding the guidelines for the safe transport and handling of the Clyde cargo dollies.
In the amended complaint, the plaintiff claims that Hicks was negligent in failing to provide information, instructions or warnings to Parker with respect to the loading and unloading procedures and cargo securement applicable to the Clyde cargo dollies. The plaintiff seeks to recover damages for the wrongful death of Parker and the bystander emotional distress she suffered by witnessing the accident.
In its motion for summary judgment, Hicks claims that the plaintiff cannot show that Hicks owed any duty to Parker or Hanson because at the time of the accident, Parker and Hanson were performing services pursuant to an independent contractor agreement. Hicks further argues that the plaintiff's claim against Hicks is untimely because the independent contractor agreement provides that any action arising under that agreement must be brought within one year of termination of the contract. Hicks also argues that the plaintiff's claim against Hicks must be dismissed in that the independent contractor agreement provides that any action arising under the agreement must be brought in Meeker County, Minnesota. Hicks claims that it is entitled to summary judgment on the cross claims for contribution and indemnification filed by Clyde and U.S. Airports because if it is not liable to the plaintiff, then it cannot be liable to the codefendants for contribution or indemnification.
"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 . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts." (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006). Summary judgment is appropriate only if a fair and reasonable person could conclude only one way. Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).
The parties agree, at least for purposes of this motion, that Minnesota law applies. The existence of a duty is a question of law. Rinn v. Minnesota State Agricultural Society, 611 N.W.2d 361, 364 (Minn.App. 2000). The existence of a common-law duty depends upon the relationship between the parties and the foreseeable risk involved. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 673 (Minn. 2001); Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn. 1989). Ultimately, whether a special relationship and, therefore, a duty exists, is a question of policy. Funchess v. Cecil Newman Corp., supra, 673; Erickson v. Curtis Inv. Co., supra, 447 N.W.2d 169. "In order to find that a special relationship exists, it must be assumed that the harm to be prevented by the defendant is one that [the defendant] is in a position to protect against and should be expected to protect against." (Internal quotation marks omitted.) Gilbertson v. Leininger, 599 N.W.2d 127, 131 (Minn. 1999).
The Minnesota supreme court "has been reluctant to apply either direct or vicarious liability to a company hiring an independent contractor for injuries to that contractor's employees." Sutherland v. Barton, 570 N.W.2d 1, 5 (Minn. 1997). "There have been limited circumstances, however, when [the] court has been willing to hold a hiring company liable for injuries to an independent contractor's employee. For example, a company may be directly liable for its own personal negligence that causes injuries to an independent contractor's employees." Id. A company may be found negligent when it retains detailed control over a project and then fails to exercise reasonably careful supervision over that project. The hiring company must retain such "a right of supervision that the contractor is not entirely free to do the work in his own way." Id., 5-6; see Conover v. Northern States Power Co., 313 N.W.2d 397, 401 (Minn. 1981).
The above statements in Sutherland were discussed in Bergerson v. Geyer Rental, Inc., No. C1-97-131 (Minn.App., November 10, 1997), review denied, December 31, 1997, an unpublished decision by the Minnesota court of appeals that is cited by all three opponents to Hicks' motion for summary judgment. While this case is not precedential according to Minnesota law, the court finds it instructive as to how the Minnesota courts have analyzed a similar factual scenario and how they might view the plaintiff's claims in this action. In Bergerson, the employer of an independent contractor had knowledge of the requirements for the bracing and shoring of a building to be demolished, but failed to disclose them to the independent contractor's employee, who was killed when a brick wall fell on him while he was directing a crane that was removing the roof. The court found that the employer of an independent contractor could be held responsible pursuant to sections 410 and 413 of the Restatement (Second) of Torts for its own direct negligence that injures one of the contractor's employees. The court summarized these sections of the Restatement as follows: "Restatement (Second) of Torts § 410 states that the employer of an independent contractor is liable for any injury that occurs when the independent contractor acts pursuant to the employer's negligently given orders. Restatement (Second) of Torts § 413 states that the employer of an independent contractor doing work likely to create a peculiar risk of harm absent special precautions is liable for injuries caused by the absence of the precautions if the employer failed either to provide in the contract that the precaution be taken or to exercise reasonable care to provide in some other manner for taking the precautions." Bergerson v. Geyer Rental, Inc., supra, n. 3. The court noted that the independent contractor relationship was not established to shield the employer from direct liability for its own negligence.
See Minn. Stat. § 480A.08, subd. 3.
The court finds no need to go into a great deal of detail in this memorandum, as it agrees with the points raised by the three opponents to Hicks' motion for summary judgment in their voluminous submissions to the court regarding the existence of a duty owed by Hicks to the plaintiff. In this case, the plaintiff has alleged personal negligence on the part of Hicks for failure to adequately train, instruct or warn Parker and Hanson regarding the safe transport and handling of the Clyde cargo dollies. The opponents to Hicks' summary judgment motion have presented evidence showing that Hicks had knowledge of the dangers posed by the Clyde cargo dollies, that it had taken steps to warn its own drivers of these dangers and that it exercised control over independent contractors by requiring them to abide by the same safety policies and procedures as its own drivers, but it had not provided the warnings to the independent contractors who transported the same Clyde cargo dollies as its own drivers. The court finds that this evidence, if proven, is sufficient, pursuant to Sutherland and Bergerson, to support a finding that Hicks owed Parker and Hanson a duty to provide information, instructions or warnings of the particular dangers related to the transport and handling of the Clyde cargo dollies.
The court also agrees with the opponents to the summary judgment motion that the release of liability and forum selection provisions of the independent contractor agreement do not apply to the plaintiff's claims in this case. The release provision states, in relevant part: "After one year from the date of termination of this agreement Carrier [Hicks] and Contractor [Parker] mutually release each other from any liability or obligation arising during the term of this Agreement." The forum selection provision provides: "Carrier and Contractor hereby agree that in the event of litigation arising under this Agreement, proper venue for said litigation is Meeker County, Minnesota." A plain reading of the independent contractor agreement shows that it defines the parameters of the business relationship between the parties and there is no indication that it was intended to apply to a negligence claim arising out of a claimed breach of duty that is independent of the agreement. Hicks has not met its burden of showing that it is entitled to summary judgment based upon these provisions in the independent contractor agreement because it has not presented any evidence indicating that the terms of this agreement were intended to apply to a negligence action arising from the death of the independent contractor.
Hicks' motion for summary judgment is denied.
So ordered,