Opinion
No. (X02) CV 01-0177433-S
October 29, 2004
RULING ON SPERRY'S MOTION FOR SUMMARY JUDGMENT
Plaintiffs Marcin and Marianna Mazurek have filed a complaint against various defendants including Thomas F. DeJoseph d/b/a/ Sperry Rail Service and/or Sperry Rail, Inc. ("Sperry") as a result of injuries Marcin Mazurek ("the plaintiff") sustained on December 30, 1998 as an employee of plaintiff-intervenor Anco Engineering, Inc. ("Anco"). The plaintiff alleges that he fell from a scaffolding system while working on Sperry property pursuant to a contract in which Sperry engaged Anco to perform repair work and welding on Sperry's railroad car. Sperry now moves for summary judgment primarily on the basis of the rule that a general contractor or owner is not liable for negligence to the employee of an independent contractor or subcontractor.
I
The seventy-three page complaint contains sixteen counts. Counts two, six, ten, and fourteen are directed against defendant Sperry. These counts allege, respectively, negligence, recklessness, and, on behalf of plaintiff Marianna Mazurek, negligent and reckless loss of consortium. Sperry moves for summary judgment on these counts.
The party moving for summary judgment has the initial burden to bring forward evidentiary facts showing the absence of any material factual dispute. See Dow v. Shawmut Bank, 52 Conn.App. 427, 430, 755 A.2d 219 (2000). Correspondingly, "the party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Id. "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] . . ." (Internal quotation marks omitted.) United Services Automobile Association v. Marburg, 46 Conn.App. 99, 110, 698 A.2d 914 (1997). "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book (1998 Rev.) §§ 17-45 and 17-46 . . . which contradict those stated in the movant's affidavits and documents and show that there is a genuine issue for trial. If he does not so respond, summary judgment shall be entered against him." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 58 Conn.App. 430. Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See United Services Automobile Association v. Marburg, supra, 46 Conn.App. 110; Practice Book § 17-46.
Practice Book § 17-45 provides in part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
Practice Book § 17-46 provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. See Doty v. Shawmut Bank, supra, 58 Conn.App. 431. The test is "whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Id. "[T]he standards of summary judgment are strictly and forcefully applied." (Internal quotation marks omitted.) Id.
II
The general rule is 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.
(Internal citations omitted.) Darling v. Burrone Brothers, Inc., 162 Conn. 187, 196, 292 A.2d 912 (1972). The same rule applies to entities in the relation of contractor and subcontractor. See Wright v. Coe Anderson, Inc., 156 Conn. 145, 151, 239 A.2d 493 (1968). To this rule, however, there are exceptions. Thus,
[i]f the work contracted for be unlawful, or such as may cause a nuisance, or is intrinsically dangerous, or in its nature is calculated to cause injury to others, or if the contractee negligently employ an incompetent or untrustworthy contractor, or if he reserve 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, or if he is under a legal duty to see that the work is properly performed, the contractee will be responsible for the resultant injury.
(Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 518, 825 A.2d 72 (2003). In addition, "a general contractor may, depending on the circumstances, be held liable to an employee of its subcontractor for its own negligence." Id., 518-19.
The Pelletier Court identifies these situations as exceptions to the rule that "an employer is not liable for the negligence of its independent contractors," Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 517, and to the rule that "a general. contractor is not liable for the torts of its independent contractors." Id., 518. The Court's statement in this regard does not appear to be entirely accurate. The general rule that an employer or general contractor is not liable for the negligence or torts of its independent contractors is one negating vicarious or no-fault liability. See id., 528 n. 12; Latulippe v. Mary Catherine Development Corp., Superior Court, judicial district of Hartford, Docket No. 535457 (April 3, 1996 Corradino, J.) ( 16 Conn. L. Rptr. 517). In contrast, the exceptions listed by the Pelletier Court are all fault-based. Thus, instead of establishing vicarious liability, these exceptions in fact create a basis for direct liability of the employer or general contractor for its own negligence or fault. In other words, the exceptions cited by Pelletier are in fact exceptions, but to a different rule than the one it discusses. The law could perhaps be better summarized by stating that an employer or general contractor is not vicariously liable for the torts of its independent contractor and is not directly liable to an employee of the independent contractor unless it is at fault based on its control of the premises, its negligent hiring, or on any of the other exceptions listed in Pelletier. In this case, the plaintiff does not argue that Sperry is vicariously liable but rather argues that Sperry is liable based upon fault. The court will examine several of the Pelletier "exceptions" as a possible basis this fault.
The plaintiff has charged Sperry with an astounding fifty-seven specifications of negligence, which are repeated in the count charging recklessness. Most of the plaintiff's allegations seek to establish Sperry's direct liability based upon its management of the work site. The plaintiff alleges, for example, that Sperry failed to maintain a reasonably safe work place, failed to warn the plaintiff of unreasonably dangerous conditions, and failed to inspect the work done on its premises. (Complaint, counts two and six, ¶¶ 13a, s, z.)
As the plaintiff's brief acknowledges, the critical issue raised by these allegations is whether Sperry had the right to control Anco and the workplace. The plaintiff properly quotes case law establishing in an analogous context that "[t]he test of the relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent." Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 697, 651 A.2d 1286 (1995), quoted in Plaintiffs' brief, p. 8. Other case law similarly provides that "[i]f the contract provides that the employer retains no control over the details of the work, but leaves to the other party the determination of the manner of doing it, without subjecting him to the control of the employer, the party undertaking the work is a contractor and not a mere employee." Darling v. Burrone Brothers, Inc., supra, 162 Conn. 195. Ultimately, "[t]he word `control' has no legal or technical meaning distinct from that given in its popular acceptation . . . and refers to the power or authority to manage, superintend, direct or oversee." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 58 Conn.App. 432. "Where the evidence on the question as to who had control of the area or instrumentality causing the injury is such that the mind of a fair and reasonable man could reach but one conclusion as to the identity of the person exercising control, the question is one for the court, but, if honest and reasonable men could fairly reach different conclusions on the question, the issue should properly go to the jury." (Internal quotation marks omitted.) Van Nesse v. Tomaszewski, 265 Conn. 627, 631, 829 A.2d 836 (2003). See also Pion v. Southern New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d 1107 (1997) ("The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law.")
Much of this case law arises in the context of determining whether an individual is an employee or an independent contractor for purposes of deciding eligibility for unemployment compensation, workers' compensation, or similar benefits, which is not the precise question here. See Latimer v. Administrator, 216 Conn. 237, 248, 579 A.2d 497 (1990). But the test for determining whether an owner or general contractor has sufficient control over a subcontractor to become liable appears to be the same. See Darling v. Burrone Brothers, Inc., supra, 162 Conn. 195-96. The reason for this similarity is that, if the owner has sufficient control over its hiree, then the hiree in effect becomes an employee and the owner might then become directly liable for torts committed against the employees of the hiree. If the owner does not have sufficient control, then the hiree in effect becomes an independent contractor, thus invoking the general 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." Id., 196.
Sperry has submitted the deposition testimony of Alastair Veitch, who was the top person at Sperry responsible for the railroad car project, and the deposition testimony and affidavit of Glenn Rooney, who was a planner with Sperry. Both Veitch and Sperry were present at meetings with Anco during which the parties decided the terms of an oral contract concerning the project. Together, the evidence from Veitch and Rooney establishes that Sperry entered into an oral contract with Anco to have it perform various tasks including welding the outer skin onto the structure of the railroad car. Pursuant to the agreement, Sperry decided just the "general flow" of the work or "what was required to be done," while Anco dictated the "specifics of how its employees performed the work." To that end, Anco was required to provide a foreman on site to supervise its employees in all aspects of their work. This Anco supervisor was also necessary because most of Anco's staff did not speak English and Sperry could not communicate with them. Anco was responsible for the safety and safe work practices of its employees while they worked. Sperry was not responsible for the instruction or safe work habits of Anco employees while they performed on the rail car project.
This evidence satisfies Sperry's initial burden on summary judgment to bring forward evidentiary facts showing the absence of any material factual dispute on the issue of the right to control. The evidence shows that, pursuant to the agreement between the parties, Sperry "[retained] no control over the details of the work, but [left] to [Anco] the determination of the manner of doing it . . ." Darling v. Burrone Brothers, Inc., supra, 162 Conn. 195. The agreement specifically contemplated that Anco was responsible for the safety of employees like the plaintiff. Accordingly, Sperry has shown from its evidence that it did not have the right to control the work.
The plaintiff launches several attacks on this evidence, but they fall far wide of the mark. First, the plaintiff faults Sperry for stating in its brief that it was the "overseer" of the project and claims that Sperry has thereby admitted that it had the right to control. (Plaintiff's brief pp. 7, 12.) Sperry's brief, and the evidence it presents, make clear, however, that it ardently contests the issue of control. The court is not persuaded by the plaintiff's captiousness, especially when the evidence weighs entirely against the plaintiff's position. Further, under our law "the contractor's control need not be exclusive; it is sufficient if it be shared with another." Van Nesse v. Tomaszewski, supra, 265 Conn. 631. "The 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, CT Page 16308 76 Conn.App. 287, 293, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). Thus the fact that Sperry, as an overseer, decided the "general flow" of the work or "what was required to be done" did not convert its status to that of an employer of Anco. See also Darling v. Burrone Brothers, Inc., supra, 162 Conn. 193 (fact that general contractor was "present at the job site, indicated to subcontractor "where to dig the ditch and how deep to dig it, periodically checked . . . and marked the area . . . does not demonstrate control of the manner and means of accomplishing the digging.")
The plaintiff makes no claim that the fact that Sperry imposed certain minimum safety requirements such as wearing hard hats and safety glasses (Veitch deposition, p. 66) affects the right to control. Even if the plaintiff made such a claim, it would appear to fall within the rule that the owner may "give the contractor instructions on minor details without destroying the independent character of the contractor." Mozeleski v. Thomas, supra, 76 Conn.App. 293.
Second, the plaintiff claims that the testimony of Glenn Rooney is hearsay because, at most he was only present during the negotiations but did not directly participate. (Plaintiff's brief, p. 11.) Even assuming that this factual premise is true, it would not benefit the plaintiff. The words used to enter into a contract, as related by any witness who heard them spoken, are not hearsay but instead are verbal acts. See Gyro Brass Manufacturing Corp. v. United Automobile Workers, 147 Conn. 76, 80, 157 A.2d 241 (1959); Tait's Handbook of Connecticut Evidence § 8.8 (3rd ed. 2001).
Given that Sperry has discharged its initial burden on summary judgment, the plaintiff "must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 58 Conn.App. 430. This the plaintiff has failed to do. Although the plaintiff has attached to his brief his own affidavit, the affidavit of a purported expert in job site safety and construction supervision, and portions of the deposition of Alastair Veitch, the plaintiff's brief fails to provide any specific citations to this evidence on the issue of control. The plaintiff's brief is inadequate, as it is counsel's job, not the court's, to marshal the applicable evidence. See Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999).
Equally deficient are the affidavits themselves. Neither of the affiants relied upon by the plaintiff on the issue of the right to control the work claims even to have been present at the discussions between Sperry and Anco concerning this issue. As plaintiff's counsel ultimately conceded at oral argument, these affiants do not have firsthand knowledge of which party accepted the right to control. Accordingly, this evidence is not admissible and not properly considered on summary judgment. United Services Automobile Association v. Marburg, supra, 46 Conn.App. 110; Practice Book § 17-46.
The court will accept the supplemental affidavit of Zenon Kolakowski, who certifies that he correctly translated the plaintiff's affidavit from Polish into English. The court will also accept the plaintiff's supplemental submission of the deposition testimony of Veitch but, as discussed above, this testimony generally contributes to Sperry's case that it did not have the right to control the means and manner of the work.
Plaintiff's reliance on these affidavits is ironic in view of his concomitant claim that the court not consider the testimony of Glenn Rooney, who actually was present at the meetings.
The plaintiff's affidavit also includes a number of allegations that Sperry supervisors would give directions on what work to do and what safety measures were required. It is not clear how the plaintiff could testify to these matters in view of his additional allegation that he does not fully speak or understand the English language. Moreover, as the plaintiff's brief ironically emphasizes, the issue is not actual control but rather the right to control, and the plaintiff has no first hand knowledge of which party accepted the incidents of the right to control during the contract negotiations.
Thus, the defendant has met his burden on summary judgment of showing the absence of a factual dispute concerning the right to control and the plaintiff has failed to file any counter affidavits that contain admissible evidence on this issue. Accord Mozeleski v. Thomas, supra, 76 Conn.App. 293. "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book (1998 Rev.) §§ 17-45 and 17-46 . . . which contradict those stated in the movant's affidavits and documents and show that there is a genuine issue for trial. If he does not so respond, summary judgment shall be entered against him." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 58 Conn.App. 430. Based on these standards, the court concludes that Sperry is entitled to summary judgment on its claim that it did not have the right to control the workplace. Therefore, absent some exception, Sperry can invoke the general rule of the nonliability of an owner or general contractor to employees of independent contractors or subcontractors. See Darling v. Burrone Brothers, Inc., supra, 162 Conn. 196.
III
The plaintiff attempts to rely on an exception to the general rule by suggesting that he has made claims of direct negligence against Sperry. The plaintiff identifies these claims of direct negligence as allegations that Sperry failed to warn the plaintiff about the condition of the scaffolding and that Sperry negligently directed the plaintiff to work on the scaffolding. (Plaintiff's brief, p. 10-11.) The plaintiff's brief, however, fails to cite to any of the fifty-seven specifications of negligence that actually make these allegations, and the court has found none that specifically alleges that Sperry negligently directed the plaintiff to work on the scaffolding. Given the voluminous specifications of negligence, the plaintiff's failure to include one with specificity is inexcusable. The absence of a specific allegation in the complaint is crucial, because "[t]he issue must be one which the party opposing the motion is entitled to litigate under [its] pleadings and the mere existence of a factual dispute apart from the pleadings is not enough to preclude summary judgment." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 245, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995).
Paragraph 13ff of counts two and six alleges that Sperry was negligent and reckless by placing a ladder upon an unstable base. The plaintiff's brief does not identify this specification as an allegation of direct negligence. Nor does the plaintiff claim that this specification, or any other specification, falls under the exception to the general rule of nonliability for situations in which owners or general contractors "in the progress of the work assume control or interfere with the work." Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 518. Because the plaintiff's brief attempts to raise the issue of direct negligence and the question of right to control versus actual control, but does not mention, much less analyze, this specification in either context, the court considers the matter abandoned. See Merchant v. State Ethics Commission, supra, 53 Conn.App. 818.
In any event, with regard to the failure to warn and any other allegations that implicate the responsibility for safety at the work site, the plaintiff cannot sustain its case under the theory of direct negligence. It is true, as mentioned, that direct or active negligence can constitute an exception to the general rule of the nonliability of owners and general contractors that do not have the right to control the work. See Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 518-19, 528. However, the plaintiff cannot circumvent the general rule of nonliability simply by relabeling an aspect of the right to control as "direct negligence." To permit such a result would be to reward artful pleading alone. "Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so." (Internal quotation marks omitted.) Seguro v. Cummiskey, 82 Conn.App. 186, 192, 844 A.2d 224 (2004). In order for Sperry to owe the plaintiff a duty to warn or other duty of care involving safety, it must have had the right to control the workplace. See Pelletier v. Sordoni/Skanska Construction Co., Superior Court, judicial district of Waterbury, Docket No. 155184, § III (August 6, 2004 Alander, J.). Because the court has ruled that Sperry is entitled to summary judgment on the right to control, the plaintiff cannot prevail on a theory of failure to warn or on any other theory labeled "direct negligence" that in reality implicates the responsibility for safety and the right to control the workplace.
IV
A distinct exception to the general rule of nonliability arises when "the contractee negligently employ an incompetent or untrustworthy contractor . . ." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 518. The plaintiff has clearly made such allegations in subparagraphs 13aa, 13bb, and 13cc of count two, which are then incorporated into the other counts against Sperry. Neither side has addressed these allegations in its brief. It remains, however, the burden of the moving party, in this case Sperry, to make an initial showing of entitlement to summary judgment. See Doty v. Shawmut Bank, supra, 58 Conn.App. 430. Because Sperry has not discharged this burden, it is not entitled to summary judgment on these allegations.
V
Sperry argues in the alternative that, if the court finds that Sperry did possess the right to control the means and methods of work, then the plaintiff was in effect an employee of Sperry and his action is barred by the immunity conferred by the workers' compensation act. This theory appears dubious because, under General Statutes § 31-291, a "principal employer" does not have immunity from a civil action brought by an injured employee "unless such principal employer has paid compensation benefits . . ." and there is no evidence that Sperry has made such payments. See Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 522-26. The court need not decide the issue, however, because the court has found that Sperry is entitled to summary judgment on its claim that it did not have the right to control.
VI
Although Sperry moves for summary judgment on all counts against it, its brief does not address the loss of consortium counts. Loss of consortium is a derivative cause of action in that it is dependent on the legal existence of the predicate or underlying action. See Musorofiti v. Vlcek, 65 Conn.App. 365, 375-76, 783 A.2d 36, cert. denied, 258 Conn. 938, 786 A.2d 426 (2001). If an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium fails as well. Id., 376. Thus, it is appropriate to hold in this case that plaintiff Marianna Mazurek's loss of consortium claim is barred or allowed to the same extent as her husband's. The effect of this approach is to grant summary judgment on counts ten and fourteen except for subparagraphs 13aa, 13bb, and 13cc.
VII
The court grants Sperry's motion for summary judgment except for subparagraphs 13aa, 13bb, and 13cc in counts two, six, ten, and fourteen, as to which the court denies the motion.
It is so ordered.
Carl J Schuman Judge, Superior Court