Opinion
No. CV 05-5000728-S
February 15, 2008
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This action arises from an alleged incident in which Jose Navarro, employee of an independent contractor hired to perform snow removal and other landscaping duties at Wesleyan University, sustained injuries as a result of slipping on snow and ice in the course of performing his duties for the defendant, Wesleyan University.In count one of his amended complaint the plaintiff alleges that his injuries were caused by the carelessness and negligence of the defendant in one or more of the following ways: (1) the area in which the accident occurred was covered with snow and/or ice; (2) no sand, salt or abrasive materials had been placed in the area in which the accident occurred; (3) no attempt had been made to remove the snow and/or ice from the area; (4) the condition had existed for an unreasonable period of time, with no remedial action taken; (5) the area is not cordoned off to prevent its use by the plaintiff and (6) the defendant failed to inspect the area for snow and/or ice; the defendant knew, or should have know of the condition and should have taken steps to remedy the situation.
In their memorandum of law in support of their motion for summary judgment, the defendant argues that the defendant owed no duty to the plaintiff to remedy or warn of the alleged defective condition because the plaintiff was an employee of defendant's independent contractor specifically employed for the purpose of alleviating the ice and/or snow condition, and was working in that capacity at the time of the accident. In his memorandum of law in opposition to the defendant's motion for summary judgment, the plaintiff argues that the defendant owed a nondelegable duty of care to the plaintiff, as an employee of the independent contractor hired to perform snow removal services. The plaintiff argues that whether the plaintiff was responsible for removing snow and/or ice at the site of the incident is an issue of fact.
"The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand . . . The test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 250 (2001).
"Ice and snow removal is a type of service that is undertaken in contemplation of protecting third persons, and injuries resulting from a slip and fall are foreseeable." Gazo v. Stamford, supra, 253. Indeed, a landowner has a nondelegable duty to keep its premises safe including from the potential injuries that could result from the accumulation of ice and snow. See id. "The nondelegable duty doctrine means that the party with such a duty may not absolve itself of liability by contracting out the performance of that duty. Both the Appellate Court and courts of other jurisdictions have held that a nondelegable duty doctrine means that a party may contract out the performance of a nondelegable duty, but maw not contract out his ultimate legal responsibility." Id., 255. "Should the owner or occupier of the premises hire a contractor to maintain the property the owner or occupier is vicariously liable for the consequences arising from the contractor's tortious conduct." Smith v. Greenwich, 278 Conn. 428, 460 (2006).
"Ordinarily, an employer of an independent contractor, absent an act of negligence on his own part, is not liable to others for the negligent acts of the contractor . . . There are, however, several exceptions to the nonliability rule. For example, where the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation, the employer may be vicariously liable to others for the negligent acts of the independent contractor." (Citation omitted.) Roy v. Schneider, 16 Conn.App. 660, 664, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988). In Pelletier v. Sardoni/Sakanska Construction Co., 264 Conn. 509 (2003), the Supreme Court rejected the nonliability rule as to general contractors, pursuant to Conn. Gen. Stat. § 31-291. The court does not understand that decision as abrogating this defense as to property owners.
"The owner of premises is not responsible (however) to an independent contractor for injuries from defects or dangers which the contractor knows of, or ought to know. But if the defect or danger is hidden and known to the owner and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this he is liable for resultant injury. The same rule applies to the servants of the contractor and to the subcontractor and his servants." Douglass v. Peck Lines Co., 89 Conn. 622, 629, (1915).
In the instant case, the defendant contracted and entered into maintenance agreement for the removal of snow and ice with an independent contractor, Stonehedge Landscaping. The maintenance agreement reveals that it was Stonehedge's responsibility "to provide all necessary supervision, personnel and equipment to perform snow removal services to Wesleyan University." Maintenance agreement, page 5. On the day the plaintiff sustained injuries, he was called in to perform snow and ice removal services earlier than normal due to the developing icy conditions at the defendant's campus. (Burghoff deposition page 43.) Subsequently, the plaintiff fell and suffered injuries while trying to unload empty boxes into a dumpster. (Navarro deposition page 53.)
The defendant did have a nondelegable duty to keep its premises safe with respect to third persons, however it did not owe this duty to the plaintiff, an employee of its independent contractor hired to perform snow and ice removal services because the defendant was executing those services when he suffered injuries. The plaintiff knew or should have known of the icy conditions that existed at the defendant's premises, since he was called in to work earlier than normal to alleviate said condition at the defendant's premises. In his deposition, the plaintiff admits that the area in which he fell "looked wet" that he "didn't pay-attention" to the conditions in the area and "wasn't worried about" the area being slippery. Navarro deposition page 67. Moreover Stonehedge Landscaping was responsible for plowing and sanding the area in which the plaintiff fell and sustained injuries, thus negating the plaintiff's argument that there is an existing issue of fact of whether the defendant or Stonehedge Landscaping was responsible for maintaining that area. (Burghoff deposition page 50.)
In count two of the amended complaint, the plaintiff's wife Minerva Navarro alleges that as a result of the negligence of the defendant, she was deprived and will be deprived of the consortium of her husband, Jose Navarro. The claim is derivative of Jose Navarro's claim. Summary judgment is rendered against Jose Navarro, summary judgment must also be rendered against Minerva Navarro.