Opinion
No. CV08-5005668S
July 16, 2010
MEMORANDUM OF DECISION
FACTS
The Plaintiff, John Lathrop, instituted this action against Malcolm Pirnie, Inc., to recover for injuries sustained when he fell, on April 6, 2006.
On that date, the Plaintiff, an employee of the Olin Corporation, was working at the New Haven Copper facility located at 79 Main Street, Seymour. While operating a wire machine in the factory, he stepped into a test hole, causing him to fall, and suffer personal injuries.
This action was made returnable April 29, 2009. The initial complaint, which is dated March 24, 2008, was served upon Malcolm Pirnie, Inc., on March 28, 2008.
Although Malcolm Pirnie, Inc. was the only defendant named in the initial complaint, the Defendant Glacier Drilling Company, LLC was made an Apportionment Defendant in a complaint, dated August 11, 2008. On September 12, 2008, the Plaintiff filed an Amended Complaint, naming both Malcolm Pirnie, Inc. and Glacier Drilling Co., LLC as defendants.
The Olin Corporation, John Lathrop's employer, is also a party to this action, having filed an Intervening Complaint dated June 13, 2008. The employer seeks reimbursement for benefits paid to the Plaintiff, pursuant to the Workers' Compensation Act.
In his Amended Complaint, the Plaintiff alleges that Malcolm Pirnie, Inc. performed environmental testing at the New Haven Copper factory. The testing was accomplished by drilling holes in the floor of the factory.
The contract between Malcolm Pirnie, Inc. and Olin Corporation is titled "Consulting Engineering Services Contract." The agreement is dated October 3, 2001, and defines the scope of the work as:
(a) Consultant, acting as an independent consultant, agrees to furnish personnel and undertake the performance of professional environmental consulting/engineering services described in Scope of Work as set forth in Schedule A hereto . . .
Schedule A defines the scope of the work as: "To be specified on individual release orders."
Malcolm Pirnie, Inc., acting pursuant to its agreement with Olin Corporation, engaged Glacier Drilling Co., LLC as a subcontractor, charged with performing the actual drilling work. The parties agree that Glacier Drilling Co., LLC, acting pursuant to its agreement with Malcolm Pirnie, Inc., began work at the Seymour factory on December 27, 2004. All work had been completed by January 17, 2005.
In his two-count Amended Complaint, the Plaintiff has alleged a single count addressed to each defendant. The negligence counts contain identical allegations of negligence as against both defendants, in paragraph 7 of the respective counts.
It is alleged that one or both of the defendants were negligent, in that:
a) in that they failed to maintain a the test hole in a safe and hazard-free manner;
b) in that they failed to inspect the test hole in a proper manner to insure that it was: in a safe and hazard-free condition;
c) in that they failed to properly cover the test hole;
d) in that they failed to put cones, barricades and/or warning signs to alert employees of the test hole and unsafe area;
e) in that they failed to properly warn employees of the condition that then and there existed;
f) in that they created this defective test hole;
g) in that they drilled a hole and failed to properly fill it in;
h) in that they knew or should have known of the aforesaid defective conditions, and failed to take appropriate measures to remedy the same.
Both defendants have moved for summary judgment. They claim that the Plaintiff's negligence cause of action is barred, pursuant to § 52-584 of the General Statutes which reads:
No action to recover damages for injury to the person . . . caused by negligence . . . shall be brought but within two years from the date when injury is sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . .
Work on the portion of the premises on which the Plaintiff fell concluded on January 17, 2005. Therefore, the Defendants maintain, the last day on which suit could have been brought was January 17, 2008. The complaint against Malcolm Pirnie was served on March 26, 2008.
The Plaintiff does not dispute that this: action was commenced more than three years after the date of the "act or omission complained of." He claims, however, that his claim is not governed by the three-year statute of repose contained in § 52-584, C.G.S., but by the seven-year limitation applicable to § 52-584a of the General Statutes;
a) No action . . . whether in contract, in tort or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction, or construction of, or land surveying in connection with, an improvement to real property; (3) for injury to property, real or personal, arising out of such deficiency; (C) for injury to the person or for wrongful death arising out of such deficiency . . . shall be brought against any architect, professional engineer, or land surveyor performing or furnishing the design, planning, supervision, observation of construction or construction of or land surveying in connection with such improvement, more than seven years after substantial completion of such improvement.
The Plaintiff maintains that the seven-year statute of limitations applies to Malcolm Pirnie, Inc., because it was performing engineering services, pursuant to its contract with Olin Corporation.
He argues that Glacier Drilling, LLC is also subject to the seven-year statute of limitations, because it was acting in connection with Malcolm Pirnie, Inc., in the performance of engineering services.
SUMMARY JUDGMENT-STANDARD OF REVIEW
A trial court may properly render summary judgment, when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and that the moving party is entitled to judgment as a matter of law. Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986); Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983).
The party moving for summary judgment has the burden of showing the absence as to any genuine issue of all material facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105 (1994).; Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 593 (2008). A material fact has been defined as one which will make a difference in the result of the case. United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).
In determining a motion for summary judgment, a court is required to view all of the evidence in the light most favorable to the non-moving party. Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202 (1995). The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict on the same facts. Neuhaus V. DeCholnoky, 280 Conn. 190, 199 (2006)
Although the purpose of a motion for summary judgment is to test for the presence of contested factual issues, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate, where the defect cannot be cured through re-pleading. Larobina v. McDonald, 274 Conn. 392, 401 (1995).
SECTION 52-584 IS THE STATUTE OF LIMITATIONS APPLICABLE TO THE PLAINTIFF'S CAUSE OF ACTION
Malcolm Pirnie contracted to furnish engineering and consulting services to the Olin Corporation. Therefore, the work at the Seymour factory involved professional engineering services, designed to identify contaminants and pollutants on the property.
However, the fact that Malcolm Pirnie, Inc. was providing engineering services, is not dispositive concerning the application of § 52-584a of the General Statutes to the plaintiff's cause of action.
In addition to demonstrating that engineering services were being provided, the statute requires that the services must be provided "in connection with an improvement to real property."
An improvement to real property has been defined as an alteration or development of the realty, in order to enhance or promote its use for a particular purpose. Metropolitan District v. Barkhamsted, 199 Conn. 294, 302 (1986). The term generally has reference to buildings, including any permanent structure or development, of the real property in question. Verna v. Commissioner of Revenue Services, 261 Conn. 102, 109 (2002).
In Grigerik v. Sharpe, 247 Conn. 293 (1998), the Supreme Court was faced with the question of whether § 52-584a applied, in a situation in which a proposed septic system and dwelling could not be constructed, due to professional negligence by an engineer. The Court held that the seven-year statute was applicable, based upon the facts presented.
In Grigerik, the Plaintiff agreed to purchase an undeveloped parcel for $16,000. As a condition of the sale, the seller agreed to perform certain work designed to insure the necessary approval as a building lot.
To that end, the defendant, an engineer, was hired, and engaged to perform three tasks; 1) to prepare a site plan of the property, 2) To design a subsurface septic system suitable for the property, and 3) to perform necessary soil testing.
The site plan was approved. However, when the application for a building permit was submitted to the town sanitarian, he refused to issue the permit, citing concerns about soil conditions on the site.
In an attempt to satisfy the sanitarian, so that construction could proceed, the plaintiff constructed a curtain drain and performed additional percolation tests. The additional efforts proved futile, when the plaintiff was informed that the contemplated sewage disposal system could not be built, and therefore no dwelling could be constructed on the property. A negligence action was instituted.
The Grigerik court rejected the claim § 52-584, C.G.S. applied to all actions against architects and engineers acting within the scope of their professional services. Grigerik v. Sharpe, supra, 305-06.
Although the contemplated improvement, the septic system, had not been constructed, the defendant argued that the seven-year statute was applicable, nevertheless.
Faced with a situation in which the negligence in the performance of engineering services was discovered before the contemplated improvement was begun, and that negligence was the reason the improvement could not be constructed, the court determined that § 52-584a was applicable to the negligence count, and the action survived. Grigerik v. Sharpe, supra, 308-09.
In this case, Malcolm Pirnie, Inc. was engaged by Olin Corporation to do soil testing, and to install monitoring wells. The abandoned well boring hole in which the Plaintiff fell was filled prior to January 15, 2005, and no further digging took place at that location. There is no claim that the test holes, whether dug for purposes of soil testing or well monitoring, were not dug according to appropriate standards, and were not suitable for the purposes intended. The alleged negligence, concerned the filling of the holes, following the tests.
It is not claimed that any negligence on the part of Malcolm Pirnie, Inc. prevented Olin Corporation from improving, renovating or constructing improvements on the 79 Main Street, Seymour property.
At the time the testing was undertaken, and completed, no specific construction on the property was envisioned, nor was any addition to the property contemplated. The Plaintiff fell in a depression in the factory floor, more than a year after all testing in the area had been completed.
The Plaintiff claims that the fact that "soil testing" was performed in Grigerik, means that testing for environmental contamination constitutes an "improvement," thus triggering the seven-year statute of limitation contained in § 52-584a, C.G.S. This claim is not well taken.
In Grigerik, the contemplated improvement was a septic system, which had been designed by the defendant, and was not approved by the town sanitarian. No improvement was either constructed, designed, or contemplated, concerning the New Haven Copper factory.
No negligence, as alleged against the defendants, prevented the alteration, reconstruction or remodeling of the factory.
Therefore, the Plaintiff's cause of action is not governed by the provisions of § 52-584a, C.G.S.
THE `ACT OR OMISSION COMPLAINED OF' IS OUTSIDE THE PERIOD OF REPOSE IN § 52-584 OF THE GENERAL STATUTES
Section 52-584 of the General Statutes provides that no action may be brought "more than three years from the date of the act or omission complained of . . ."
Since suit was instituted on March 24, 2006, and any allegedly negligent conduct could not have occurred after January 17, 2005, the Plaintiff's claims are barred by operation of the statute.
Although neither defendant was in control of the portion of the factory where the Plaintiff fell in April of 2006, that fact would not bar recovery, based upon principles of forseeability. Coburn v. Lenox Homes, Inc., 173 Conn. 567, 574 (1977); Minton v. Krish, 34 Conn.App. 361, 365 (1994)
However, in a claim governed by § 52-584, the statutory clock on the three-year statute of limitations begins to run when the negligent conduct occurs, not when injury is actually sustained. McDonald v. Haynes Medical Laboratory. Inc, 192 Conn. 427, 330 (1984); Johnson v. North Branford, 64 Conn.App. 643, 648 (2001). Pursuant to this rule, an action may be time-barred, even if no injury is sustained during the three years following the defendant's act or omission. Vilcinskas v. Sears, Roebuck Co., 144 Conn. 170, 174 (1956).
The seven-year statute of limitations does not apply to Glacier Drilling Co., LLC, in that the entity is not a licensed professional engineer, but was a subcontractor engaged to perform limited drilling work.
Suit against either defendant is barred, pursuant to the repose provision of § 52-584, the statute applicable to negligence actions.
In April of 2006, suit would have been timely against the entity in possession or control of the property. However, any such claim against Olin Corporation is barred by the exclusivity provision of the Workers' Compensation Act.
Section 32-284(a), C.G.S. — "An employer . . . shall not be liable for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees . . . All rights and claims between an employer . . . and employees . . . arising out of personal injury . . . sustained in the course of employment, are abolished . . ."
THE CONTINUING COURSE OF CONDUCT DOCTRINE DOES NOT APPLY
The Plaintiff claims that his action is timely, based upon the continuing course of conduct doctrine. This claim is not well taken, as to either defendant.
In order to support a finding of a continuing course of conduct which tolls the running of the statute of limitations, there must be evidence of the breach of a duty, which remained in existence after the completion of the original wrongful act. There must be either a special relationship between the parties giving rise to a continuing duty, or some later wrongful conduct of a defendant related to the prior act. Blanchette v. Barrett, 229 Conn. 256, 275 (1994); Cross v. Huttenlocker, 185 Conn. 390, 400 (1981)
There is no allegation that either defendant did any work on or near the specific location of the Plaintiff's fall after January 17, 2005. While work may have been ongoing in other parts of the facility, no negligent or improper conduct by either defendant at the site of the fall is alleged, between January of 2005 and April of 2006. Furthermore, no special relationship between the parties, such as physician-patient, or attorney-client existed, which would give rise to a continuing duty to act. Sherwood v. Danbury Hospital, 252 Conn. 193, 205 (2000); Blinkoff v. O G Industries, Inc., 113 Conn.App. 1, 15 (2009).
The continuing course of conduct doctrine has no application to the facts of this case.
CONCLUSION
The motion for summary judgment filed by the defendants Malcolm Pirnie, Inc. and Glacier Drilling Co. LLC, is GRANTED, as to both defendants.