Opinion
FSTCV176031256S
10-20-2017
Krzsystof Kosinski v. Archer Homes IV, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (#131.00 AND #132.00)
Kenneth B. Povodator, Judge.
Background
This is a lawsuit arising from an accident that occurred while the plaintiff was performing roofing services in connection with a construction project. The defendants are Archer Homes IV, LLC, the owner of the property being developed; Westchester Decorating Co., the general contractor engaged by Archer to construct the " spec" house where the accident took place; and GK Contracting Corp. and its principal Grzegorz Kloskowski, claimed to be effectively a single entity by virtue of an alleged alter ego relationship. At the time of the accident, the plaintiff was an employee of GK Contracting, and defendant Kloskowski actually was working on the roof with him (and apparently was injured in the same incident). The claims focus on allegedly inadequate or absent or defective safety devices relating to roofing work.
The plaintiff has sued his employer (and its principal), apparently based on the failure of his employer to satisfy the precondition to workers' compensation exclusivity-that workers' compensation coverage/protection had been provided by the employer, in accordance with statutory requirements. See, General Statutes § 31-284.
There are four types of claims of liability asserted as to defendant Archer, defendant Westchester and defendants GK Contracting/Kloskowski: negligence, negligent hiring/supervision, strict liability based on ultrahazardous activity, and recklessness. Defendants Archer and Westchester each have moved to strike the claims of recklessness and strict liability based on ultrahazardous activity. The defendants claim that the activity in question cannot be construed as coming within the scope of the concept of an ultrahazardous activity The defendants also claim that the plaintiff has failed to allege sufficient facts constituting recklessness.
The parties each submitted briefs and the court entertained argument on the motions which were argued together.
More recently, defendants GK Contracting/Kloskowski filed a motion to strike raising these same issues.
The court will not recite the well-established standards for a motion to strike. See, e.g., Kumah v. Brown, 307 Conn. 620, 626, 58 A.3d 247 (2013).
Discussion
I. Ultrahazardous Activity
The defendants have argued that the conduct in question-roofing-does not and cannot come within the scope of activities characterized (characterizable) as ultrahazardous, so as to invoke the concept of strict liability for such inherently dangerous activities. The plaintiff contends that it is permissible to assert such a contention, particularly at this stage.
The plaintiff's objection to the defendants' motions to strike is replete with literary flourishes and hyperbole (e.g., " The Defendant's motion to strike is a feeble attempt to continue avoiding answering the complaint, is disingenuous to say the least and utterly lacks merit in law and fact"), but in large measure fails to engage in a proper analysis of the relevant law. Thus, the plaintiff argues that
[r]emarkably, the Defendant concealed from this Court the analysis undertaken by Judge Bellis in Arauco v. Cooper Associates, LLC, Superior Court, judicial district of Ansonia-Milford, Docket No. 5007960, (April 29, 2010, Bellis J.), concerning the court's discussion of ultrahazardous activities, when the defendant's parentheticals to this citation conveniently end with " would not naturally expose others to injury unless . . ."
The plaintiff blurs the distinction between two aspects of the analysis in Arauco, in turn discussing Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517, 825 A.2d 72 (2003) and a later decision in Pelletier, 286 Conn. 563, 945 A.2d 388 (2008), which focused on the circumstances under which a party engaging an independent contractor might be responsible for the negligence (or other tortious conduct) of that contractor, and the actual merits of a claim invoking such an exception to the general rule of non-liability. Those decisions recognize that the employer of an independent contractor might be subject to liability for the conduct of that contractor in the performance of an ultrahazardous or inherently dangerous activity, but that depends on the nature of the work, not the precautions that were not implemented. The defendants properly are focusing on the issue of whether the work in question can be characterized as an ultrahazardous activity, not the adequacy of safety precautions. Thus, the plaintiff argues:
As will be discussed below, the authorities cited generally discuss the concept of an inherently dangerous activity, which the plaintiff has treated as congruent with the concept of ultrahazardous activity.
In its reasoning, the Court in Arauco found that roofing is the kind of work that, " when properly done and with standard precautions, " would not naturally expose others to injury unless special preventative measures were taken. Arauco, supra Id. at * 24. Defendants' attempts to liken this present case to the facts of Arauco present a problem for Defendants in that the " when properly done with standard precautions, " element of the Arauco Court's decision is currently missing. (Brief at page 3; emphasis as in brief.)
This line of analysis pervades the plaintiff's objection to the motions to strike, but it also demonstrates the plaintiff's misapprehension as to the nature of an inherently dangerous (ultrahazardous) activity. It is the nature of the activity, and whether care beyond what might constitute ordinary care is required for some level of assurance of safety, that determine whether an activity constitutes an inherently dangerous activity. The absence of standard precautions does not convert an activity into an inherently dangerous activity.
The problem is not-as claimed by plaintiff-that the defendants have disregarded Arauco; rather, the plaintiff either has not understood, or has not seen fit to attempt to distinguish, the concluding sentence of the relevant discussion in that decision: " Based on the law as outlined above, it is clear that, as a matter of law, that installing a chimney, like roofing work, is the kind of work that, when properly done and with standard precautions, would not naturally expose others to injuries unless special preventive measures were taken" (emphasis added). The decision-without qualification-states that " roofing work" is not an inherently dangerous (or ultrahazardous) activity. The plaintiff here has not explained why this court should conclude otherwise. The fact that an injury resulted from the failure to take certain identified preventive measures-which in general terms, the plaintiff describes as industry-standard measures-simply means that the conduct may well have been negligent.
Somewhat oversimplified: If the work can be done with reasonable safety so long as " properly done with standard precautions, " then the activity is not inherently dangerous; if an activity is such that even when " properly done with standard precautions, " additional " special preventative measures" are required for some level of assurance of reasonable safety, then the activity may be amenable to characterization as inherently dangerous (or ultrahazardous).
The court notes that he inability of the plaintiff to satisfy the standard of Arauco and Pelletier is dispositive, but the court is compelled to identify additional potential problems with the plaintiff's analysis. The challenged counts assert claimed strict liability based on performance of an ultrahazardous activity, but as noted, Arauco and Pelletier discuss inherently dangerous activities. The plaintiff seems to have treated the terms as interchangeable, and to this point, the court implicitly has accepted that equivalence. At this juncture, the court must note that that implied equivalence is suspect, as will be discussed below. Somewhat related, the plaintiff assumes that the liability of the employer of an independent contractor, under an inherently dangerous analysis, might be subject to the rules of strict liability, but again, that assumption is at best doubtful.
An activity is ultrahazardous if it implicates such a risk of damage or injury-even if all reasonable precautions are taken-that the risk of resulting damage is imposed on the actor without regard to due care. Antinozzi v. D.V. Frione & Co., 137 Conn. 577, 578, 79 A.2d 598, 599 (1951). That is the essence of liability characterized as strict liability The cases discussing inherently dangerous activities, including Pelletier, do not speak in such absolutes of liability, but rather in terms of the need for special precautions to ensure safety. Thus, while Antinozzi specifically states that strict liability arising from an ultrahazardous activity is not related to negligence or recklessness, (" [a] cause of action for [blasting-related] damage does not sound in negligence, nor is it based on reckless or wanton misconduct, " 137 Conn. 580, 79 A.2d 600), the analysis in Pelletier is negligence-based. In Taylor v. Conti, supra, at 178, 177 A.2d 670, this court held that, " [w]here a party contracts for work to be done of such a character that, even if the work is duly performed, it would naturally, if not necessarily, expose others to probable injury unless preventive measures are taken by him, he is liable for that injury if, while chargeable with knowledge that the work is of such a character, he negligently fails to take preventive measures." See also Bonczkiewicz v. Merberg Wrecking Corp., 148 Conn. 573, 172 A.2d 917 (1961). A similar principle is expressed in 2 Restatement (Second), supra, at § 413, pp. 384-85, which provides that " [o]ne 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 . . . 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." Pelletier v. Sordoni/Skanska Const. Co., 286 Conn. 563, 597-98, 945 A.2d 388, 409-10 (2008).
In concluding that the defendant did not have " a duty to ensure that special precautions were taken, " the court was operating in the realm of negligence. In the paragraphs preceding the quoted passage, the court placed its discussion in the context of a claimed trial court error-failing to give an instruction relating to negligence:
The plaintiff next claims that the trial court improperly refused to instruct the jury that it could find Sordoni liable for failing to ensure that special precautions were taken because the fabrication and inspection of welds involved a peculiar and unreasonable risk of serious physical harm to others. The plaintiff claims that Sordoni was negligent because it knew or should have known that steel fabricated items and welds that have not been thoroughly inspected involve a peculiar unreasonable risk during the erection process that could cause serious injury to workers. The plaintiff specifically contends that Sordoni should have required Professional Services to inspect all welds on the Pitney Bowes site during the erection process. Sordoni replies that, in requiring Berlin Steel to ensure the integrity of the structural steel for the Pitney Bowes project and to inspect all welds, it took the precautions necessary to shield it from liability. Sordoni also argues that construction work is not inherently dangerous and does not pose a peculiar unreasonable risk of physical harm to others that requires special precautions. We conclude that the trial court properly declined to instruct the jury on this claim. . . . In the present case, the trial court correctly declined to give the instruction because a claim of negligence for failure to take special precautions was never raised in the pleadings or in the parties' summary judgment motions. Although count one of the plaintiff's third amended complaint contained twenty-two allegations of negligence against Sordoni, there was no allegation of negligence for failure to ensure that special precautions would be taken by Berlin Steel or Professional Services. Thus, the issue was never " distinctly raised" by the plaintiff and the trial court never decided whether there was any legal basis for such a claim under the exceptions that extend the liability of a general contractor to the employee of its independent subcontractors. 286 Conn. at 596-97.
Thus, even if there were a true equivalence between an ultrahazardous activity and an inherently dangerous activity, the consequences seem to be different, dependent upon the role of the defendant-strict liability is the rule for the actor, but the liability of the employer of the independent contractor (actor) is premised on negligence based on the failure to ensure that the relevant special precautions were followed by that independent contractor, i.e., fault.
As noted in Arauco Id. at *3, " [a]s one court has noted: " [T]he exceptions listed by the Pelletier [II] court are all fault-based." (Internal quotation marks and citation, omitted.)
The First and Second Restatements of Torts-and the differences in (evolution of) the relevant provisions-address and illustrate these issues. Articulating a negligence-based theory of liability, Restatement (First) of Torts § 427 (1934)-titled " Negligence in Doing Inherently Dangerous Work" -provided:
One who employs an independent contractor to do work which is inherently dangerous to others is subject to liability for bodily harm caused to them by the contractor's failure to exercise reasonable care to prevent harm resulting from the dangerous character of the work.
The official comment identified such work as seemingly occupying a middle ground:
Meaning of " inherently dangerous ." The words " inherently dangerous work" are used to indicate not only that the nature of the work itself, or of the instrumentalities which must necessarily be used in doing it, is such that it can only be safely performed by the exercise of a special skill and care, as distinguished from work which can be safely done if performed with ordinary skill and care or is dangerous irrespective of whether special skill or care is used, but also that the work, if unskillfully and carelessly done, involves a grave risk of serious bodily harm or death.
The Second Restatement contains a number of provisions relating to this issue, albeit without an effort to define " inherently dangerous." Sections 416, 423 and 427 all have some relevance to this inquiry. The Reporter's Notes to § 427, in particular, state that
[t]his Section has been changed from the first Restatement, which stated the rule in terms of " work which is inherently dangerous to others." The new Section substitutes danger which the employer knows to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract.
The newly-formulated § 427 provides:
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.
Note that, again, the formulation is based on a failure " to take reasonable precautions, " a negligence standard.
Indeed, the Reporter's Notes to § 423 contain an apt comment-in order to avoid confusion with the sections pertaining to strict liability for ultrahazardous activities (§ § 519 and 520), the nomenclature was changed:
This Section has been changed from the first Restatement by substituting " highly dangerous" for " ultrahazardous" in the title, in order to avoid confusion with § § 519 and 520; and by substituting " instrumentalities" for " appliances" in the Section. No change in substance is intended. Restatement (Second) of Torts § 423 (1965).(Ironically (?), the nomenclature of § § 519 and 520 also was changed, abandoning " ultrahazardous" in favor of " abnormally dangerous.")
Thus, the Restatement recognizes that the concept of inherently dangerous activity for employer liability is negligence based and distinct from strict liability for ultrahazardous (abnormally dangerous) activities (although the activities may overlap). The plaintiff has not suggested any basis for bridging the gap, with respect to the employer of the party actually engaging in the activity.
It seems that this analysis may be perceived to amount to something in the nature of an overlay to a " standard" claim of negligence-beyond ordinary care, if the conduct is inherently dangerous (which, per the examples given in the Restatement, can include ultrahazardous activities such as blasting), the failure to undertake " special precautions" might provide a separate route to a determination of negligence-on the part of the employer. There is no suggestion that this is a route to imposition of strict liability on the employer based on an ultrahazardous activity. Again, strict liability does not look to the adequacy of precautions taken but solely to the existence of an adverse (complained of) result.
As already noted, the court need not resolve these additional issues, as the plaintiff has failed to articulate facts bringing this case into the realm of inherently dangerous activities. The court's primary concern was recognizing the existence of these issues, and avoiding the perception that the court was deciding this motion without any level of awareness of the " assumptions" built into the plaintiff's claims.
II. Recklessness
The plaintiff also asserts that the moving parties are legally responsible under a theory of recklessness. The conduct constituting recklessness includes the act of engaging the plaintiff's employer to work on this particular project, given a history of workplace-safety violations on a prior occasion. Recklessness, and especially this aspect of the claim of recklessness, requires a somewhat finer-grained analysis than did the discussion concerning inherently dangerous activities, above.
The moving parties are the owner of the premises, and the general contractor retained by the owner to perform the work, who in turn engaged the plaintiff's employer. Since the owner is " one step removed" from the situation of the general contractor, the court will start with an analysis of the general contractor's situation.
The plaintiff is arguing that the general contractor was reckless in deciding to utilize the services of the roofing contractor, a contractor who in turn was the plaintiff's employer for a period of years. The predicate is the fact that the roofing contractor previously had been cited for safety violations. The net effect of this " syllogism" is that the plaintiff is arguing that any prior safety violation by a subcontractor can or does make it an issue of recklessness for the general contractor to hire that subcontractor.
At the outset, the court must note the extent to which this argument is analogous to the distinction between cause in fact and proximate cause-if this defendant had not hired the plaintiff's employer, the plaintiff never would have been injured. (At least on this project.)
More troubling, and more on point, is the implication that the existence of any prior safety violation is, according to the plaintiff, a potential predicate for a finding of recklessness. There is no claim that the plaintiff's employer had not taken corrective measures in response to the earlier violation, or that this defendant general contractor knew of a history of continued safety violations by the employer, or anything else that might constitute recklessness by the contractor in hiring the plaintiff's employer. (Note that as a regular employee, the plaintiff would be in a particularly advantageous position to know of additional transgressions by his employer.) There is no claim that the general contractor even knew of the prior violation. To the extent that the plaintiff relies on a " should have known" standard: Can it be reckless simply not to have discovered that a subcontractor previously had engaged in an unsafe practice, when deciding to hire that subcontractor? (Again, this goes beyond a mere claim of negligence-it is claimed to constitute a basis for finding recklessness.)
The plaintiff further claims, however, that the general contractor was on site during the construction, and was or should have been in a position to observe the failure of the subcontractor to engage in safe practices with respect to roofing. The allegations include claims of actual knowledge of safety measures that should have been taken, coupled with the claimed ongoing supervision of the worksite. For purposes of a motion to strike, the court is required to accept well-pleaded facts and give the non-moving party the benefit of reasonable/favorable inferences from those facts. With that as the framework, the court believes that the plaintiff has asserted potentially-viable claims of recklessness against the defendant general contractor.
The owner is one step removed on a number of levels. The owner does not have (based on the absence of any affirmative allegations) any direct contractual control over the subcontractor. There is no reasonable inference of knowledge of safety practices relevant to roofing, and no factual basis for actual knowledge. There are no factual allegations relating to actual presence in an ongoing supervisory capacity. There are conclusory allegations of actual knowledge of hazardous conditions, etc., but no factual recitations as to how this defendant might have had such knowledge; to the extent that there are complementary allegations of " should have known, " there are no factual allegations suggesting a basis for such constructive knowledge.
Our courts have recognized that conclusory assertions are not entitled to deference in the context of a motion to strike. See, e.g., Melfi v. City of Danbury, 70 Conn.App. 679, 686, 800 A.2d 582, 587 (2002); cert. denied, 261 Conn. 922, 806 A.2d 1061 (2002) (" conclusory statements absent supportive facts insufficient to survive motion to strike"). Although in most instances a claim of adverse-party knowledge might be deemed factual, the context in this case-contractual and functional isolation from the actual construction process-suggests a need for a more detailed factual basis for such an assertion. Otherwise, actual knowledge always could be summarily asserted, without any anchor in facts that are subject to direct proof. " It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom." American National Fire Insurance Co. v. Schuss, 221 Conn. 768, 778, 607 A.2d 418 (1992). Indeed, Schuss arguably is especially appropriate here, as the case involved an attempt to characterize intentional conduct (arson) as unintentional conduct (negligence) for the purpose of invoking insurance coverage (for subrogation). Here, there is an attempt to characterize an indirect relationship (owner hiring independent contractor (general contractor) in turn hiring independent contractor (subcontractor)) as involving recklessness, either through the one-step-removed hiring process or claimed failure to supervise and intercede, with only conclusory assertions relating to the conduct of the owner.
Consistent with ethical/professional obligations, the plaintiff may have a good faith belief that he can prove sufficient knowledge of the circumstances to permit a claim of recklessness on the part of the owner, but those circumstances need articulation. The lack of involvement of an owner in supervision or control over a subcontractor (absent particularized circumstances), even if proven, would not support a reasonable inference of recklessness as such a lack of involvement/control is generally (presumptively?) the goal of engaging a general contractor as an intermediary. For example, is there any factual assertion that might support a claim that the owner would recognize any of the claimed hazardous conditions with respect to the installation of roofing, much less recognize the risk associated with any such condition (with the implicit additional consideration that despite the presumed expertise of the general contractor and the subcontractor, neither has seen fit to take corrective action)?
The defendant owner has not challenged the sufficiency of the negligence claims directed to it; there is nothing of a true factual nature that has been alleged that would support a claim of the type of aggravated tortious behavior that might constitute recklessness. Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent . . . [W]e have described recklessness as a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . (Internal quotation marks and citations, omitted.) Matthiessen v. Vanech, 266 Conn. 822, 832-33, 836 A.2d 394, 402 (2003).
Conclusion
The court is satisfied that there is no basis for characterizing the work described in the complaint as inherently dangerous or ultrahazardous, sufficient to allow claims based on that characterization to proceed against any of the moving defendants.
The claim of recklessness directed to the general contractor (Westchester) is legally sufficient, given the allegations of control, presence on scene, etc., all of which could provide a factual basis for the level of disregard of consequences implicit in actionable recklessness. At this stage, the court is not concerned with proof but rather whether, if the facts alleged are proven, the plaintiff would be able to recover.
Finally, the claim of recklessness directed to the owner does not satisfy that threshold. The remoteness of the owner, as alleged, is not bridged by the formulaic/conclusory allegations directed to that defendant; there need to be facts that support a level of tortious misconduct that satisfies that aggravated standard, and the current complaint does not suffice.
Accordingly, the motion to strike filed by defendant Archer (#131.00) is granted; the seventh and tenth counts of the operative revised complaint (#123.00) are stricken. The motion to strike filed by defendant Westchester (#132.00) is granted as to the eighth count and denied as to the eleventh count.