Opinion
No. X06-CV-95-00155184 S
August 6, 2004
MEMORANDUM OF DECISION
This action returns to this court on remand from the Connecticut Supreme Court. In Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509 (2003), the Supreme Court reversed the judgment of the trial court (McWeeny, J.) which had granted summary judgment to the defendant Sordoni/Skanska Construction Company (Sordoni) on the plaintiffs' negligence claim against it. The trial court had entered summary judgment on the basis of the general contractor nonliability rule in Ray v. Schneider, 16 Conn.App. 660, cert. denied, 209 Conn. 822 (1988) that an injured employee of a subcontractor, unlike members of the general public, may not sue a general contractor for damages based on the general contractor's negligence. The Supreme Court rejected the general contractor nonliability rule recognized in Ray v. Schneider, supra and held that an injured employee of a subcontractor may sue the general contractor, if he can establish a basis for the contractor's liability to him under our case law. Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 527.
The Supreme Court affirmed the trial court's entry of summary judgment on the plaintiff's breach of CT Page 11232-dt contract claim against Sordoni and its entry of summary judgment on the plaintiff's negligence claim against the defendant Professional Services Industries, Inc.
Sordoni has now filed a new motion for summary judgment with respect to the first and third counts of the plaintiffs' third amended complaint which, respectively, assert a claim of negligence by the plaintiff Norman Pelletier and a claim of loss of consortium by his wife, the plaintiff Reine Pelletier. Sordoni asserts that the undisputed facts establish that the plaintiff's claims fail to fall under any of the exceptions recognized in Pelletier, supra, to the general rule that a general contractor is not liable for the torts of its independent CT Page 11232-dj subcontractor.
Since the claim of Reine Pelletier is derivative of the claim of Norman Pelletier, I will henceforth refer to Norman Pelletier as the plaintiff.
The following undisputed facts are taken from the Supreme Court's decision in Pelletier v. Sordoni/Skanska Construction Co., supra. "At the time of the incident giving rise to this action, Sordoni was the general contractor for the `Pitney Bowes project,' a building under construction for a large shipping company, Pitney Bowes, Inc. (Pitney Bowes). The plaintiff was an employee of Berlin Steel Construction Company (Berlin Steel), the structural steel fabrication and erection subcontractor for the project. Sordoni hired Professional Services to inspect the work performed by Berlin Steel."
"Under its subcontract with Sordoni, Berlin Steel had the responsibility to provide all of the structural steel for the Pitney Bowes project, and to ensure its integrity. This included the duty to weld connections in the structural steel that would allow for the interconnection of steel members as a load-bearing, structural frame for the building. Furthermore, Berlin Steel had the duty to inspect those welds, ensuring their ability to bear weight. Under its contract with Berlin Steel, Sordoni reserved the right to inspect the structural steel, `solely for [its own] benefit.' The contractual documents emphasized that Sordoni's `[i]nspection and acceptance, or failure to inspect, shall in no way relieve [Berlin Steel] from [its] responsibility to furnish satisfactory material strictly in compliance with the [c]ontract [d]ocuments.'" "On June 20, 1994, the plaintiff suffered serious physical injuries in an accident at the Pitney Bowes construction site. At the time of the accident, he was working beneath the building's large steel frame, which his employer, Berlin Steel, had been hired to build. The plaintiff was in the process of installing metal sheet flooring between two steel columns when several of his coworkers interrupted his work to install a two ton crossbeam between the columns. The plaintiff stepped away while his coworkers bolted the crossbeam to seat connections, which are steel flanges that enable the interconnection of large structural members, located on each of the columns. One of the seat connections, on column 313, had been only tack welded to the column. A CT Page 11232-dk tack weld is a weak, provisional weld, which is intended only to hold a piece in place pending a full, load-bearing weld. The tack weld on column 313 did not immediately give way under the load of the crossbeam. After his coworkers secured the crossbeam to the seat connections on the columns, the plaintiff returned to work beneath the crossbeam. Within minutes, the seat connection broke and the corresponding end of the crossbeam fell, striking him. The plaintiff suffered severe injuries and is currently recovering workers' compensation benefits from Berlin Steel for his injuries." Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 512-14.
Additional undisputed facts are pertinent to the pending motion for summary judgment. The fabrication of the steel columns by Berlin Steel was performed at its fabrication facility, not at the project site. The weld at the subject seat connection was performed by Berlin Steel at the fabrication facility. When the failed seat connection was welded to the column at Berlin Steel's fabrication facility, it was never fully welded, and a final weld was never performed. After welding, a Berlin Steel inspector was responsible for inspecting all welds performed. The Berlin Steel inspector failed to inspect the weld of the failed seat connection.
"Summary judgment is a method of resolving litigation when 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 . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman Mutual Casualty Co., 214 Conn. 573, CT Page 11232-dl 578 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158 (1997). See also Practice Book § 17-49. The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06 (1994).
Sordoni maintains that it is entitled to the entry of summary judgment because there is no evidence that it breached any duty that it owed to the plaintiff or that it reserved control over the fabrication of the steel. The plaintiff contends that it has submitted sufficient evidence to place in dispute whether Sordoni is directly liable for the plaintiff's injuries. The plaintiff asserts that the evidence establishes that Sordoni negligently employed an incompetent subcontrator, Berlin Steel; breached its contractual and statutory duties to the plaintiff, maintained control over the work of Berlin Steel and engaged in negligent conduct which was directly responsible for the plaintiff's injuries, any one of which would establish Sordoni's liability for the plaintiff's injuries. I agree with the defendant that the plaintiff has failed to proffer evidence which, if credited by a fact finder, would satisfy any of the exceptions to the general rule that a general contractor is not liable for the negligence of its independent subcontractors.
In Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 509, our Supreme Court enunciated the principles that govern the responsibility of a general contractor for injuries suffered by employees of its independent subcontractors. "[A] general contractor is not liable for the torts of its independent subcontractors. We have long held, however, that to this general rule there are exceptions, among them these: If 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 CT Page 11232-dm that the work is properly performed, the contractee will be responsible for resultant injury. So, too, the contractee or proprietor will be liable for injury which results from his own negligence." (Citations and quotation marks omitted.) Id., 518. The rationale for the general rule of nonliability for general contractors is that, since the general contractor has no power of control over the manner in which the work is to be done by the independent subcontractor, it is to be regarded as the subcontractor's own enterprise, and the subcontractor, rather than the general contractor, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it. Id., 517-18.
I
The plaintiff first contends that it has offered evidence that Sordoni was negligent in employing an incompetent subcontractor, Berlin Steel. The plaintiff points to testimony that Berlin Steel utilized welders who were not properly certified and to undisputed evidence that Berlin Steel failed to inspect all of the welds as required by its contract with Sordoni. The plaintiff argues that this evidence establishes that Sordoni was negligent in initially hiring or in retaining Berlin Steel and that such negligence caused the plaintiff's injuries. I do not agree.
In Furlong v. New York, 83 Conn. 568 (1910), our Supreme Court recognized the imposition of liability upon an employer for the negligent employ of an incompetent employee whose actions injure another. Like an employer, a general contractor has the duty to exercise reasonable care in selecting and retaining fit and competent subcontractors. Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 518. But to establish liability, the plaintiff here must do more than establish a duty; he must also show that the duty was breached and the breach caused him injury. "Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so. The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Citation omitted; CT Page 11232-dn internal quotation marks omitted.) Seguro v. Cummiskey, 82 Conn.App. 186, 192 (2004). With respect to his claim of negligent employ, the plaintiff has not proffered evidence that Sordoni breached its duty to use reasonable care in hiring and retaining Berlin Steel.
The plaintiff submitted the deposition testimony of Albert J. Moore, who testified that the welder who performed the weld at the failed seat connection had an outdated certification under the terms of the contract. There is no evidence, however, that Sordoni knew or should have known prior to hiring Berlin Steel that Berlin Steel employed improperly certified welders. There is also no evidence that Sordoni knew or had reason to suspect that inadequately certified welders were being used by Berlin Steel at any time during the execution of the contract. Without such evidence, the plaintiff can not establish that Sordoni breached its duty to use reasonable care in employing Berlin Steel.
Similarly, the plaintiff has failed to proffer evidence that Sordoni knew or should have known that Berlin Steel was not inspecting all of the welds as required by its contract with Sordoni. The mere fact that Berlin Steel did not inspect all of the welds does not show that Sordoni was negligent in hiring the fabricator. The test is whether Sordoni knew or should have known that Berlin Steel was an incompetent fabricator; not whether Berlin Steel was in fact incompetent. Cf. Beach v. Jean, 46 Conn.Sup. 252, 234 (1999).
Moreover, the record is devoid of any evidence that the outdated certification of the welder was a cause of the accident which injured the plaintiff. To prevail, the plaintiff must prove that the defendant's conduct was a proximate cause of the plaintiff's injuries. Doe v. Manheimer, 212 Conn. 748, 757 (1989), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995). Proximate cause is defined as an actual cause that is a substantial factor in the resulting harm. Id. According to Moore's deposition, the March 17, 1994 contract required that welders be certified within the previous twelve months and the welder's certification was dated CT Page 11232-do November 4, 1982. The plaintiff has not suggested in any way that the lack of a more recent certification was a substantial factor in causing the defective weld.
II
The plaintiff argues that Sordoni was under a legal duty to see that the work of Berlin Steel under its subcontract was properly performed. Specifically, the plaintiff claims that Sordoni had the contractual duty to inspect Berlin Steel's work and the contractual and statutory duty to insure that the work met specifications. I do not agree.
First, the plaintiff maintains that the contract that Sordoni entered into with Pitney Bowes imposed upon Sordoni the duty to inspect Berlin Steel's work and to insure that it conformed with contract specifications. The plaintiff cites various provisions in the Pitney Bowes contract including one which requires Sordoni to "review and inspect the work of the subcontractors on a regular basis for defects and deficiencies in such work and for conformance with the Drawings and Specifications." This claim fails as our Supreme Court previously determined in Pelletier v. Sordoni/Skanska Construction Co., supra, that the provisions of the contract between Sordoni and Pitney Bowes did not create legal duties of Sordoni to subcontractors and their employees and it specifically rejected the plaintiff's claim that Sordoni's contact with Pitney Bowes created a duty owed by Sordoni to the plaintiff. Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 531-32.
The plaintiff also contends that Sordoni's contract with Berlin Steel imposed a duty on Sordoni to inspect the work of Berlin Steel and to confirm that it met contract specifications. The plaintiff cites two provisions of this contract: Section 10.1 and Section 10.5. The plaintiff asserts that these sections imposed upon Sordoni the responsibility for inspecting Berlin Steel's work and the obligation to notify Berlin Steel of defective work. A reading of the entire contract between Sordoni and Berlin Steel indicates that the plaintiff's interpretation of Sordoni's duties is not CT Page 11232-dp reasonable.
Section 10.1 of the contract simply allows, but does not mandate, that Sordoni inspect Berlin Steel's work. Similarly, Section 10.5 authorizes Sordoni to order Berlin Steel to correct defective work which has come to the attention of Sordoni. Moreover, the plaintiff's reading of the contract ignores the "Structural Steel" addendum to the contract which provides that Berlin Steel "is fully responsible" for inspection and testing and merely reserves to Sordoni the right to inspect Berlin Steel's work "solely for [Sordoni's] benefit." It was this language in Sordoni's contract with Berlin Steel which caused the Connecticut Supreme Court to conclude that "Under its subcontract with Sordoni, Berlin Steel had the responsibility to provide all the structural steel for the Pitney Bowes project, and to insure its integrity." Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 512-13. Sordoni's subcontract with Berlin Steel cannot be reasonably read to impose upon Sordoni an independent duty to Berlin Steel and its employees to inspect the steel fabricated by Berlin Steel and confirm its adequacy.
Finally, the plaintiff maintains that Sordoni had a duty pursuant to General Statutes §§ 29-276b(c) and 29-276c(b) to inspect the work of Berlin Steel and insure that it was in compliance with approved plans and specifications. The undisputed evidence reveals that the duties imposed on a general contractor by these statutory provisions are unrelated to the accident that injured the plaintiff in this case.
Section 29-276b(c) provides that, for structures which exceed a specified threshold limit, the "general contractor involved in such project shall sign a statement of professional opinion affirming that the completed construction is in substantial compliance with the approved plans and design specifications." (Emphasis supplied.) Section 29-276c(b) states that, prior to the issuance of a certificate of occupancy for such a structure, the local building official shall require a statement signed by the general contractor affirming its professional opinion that the " completed structure or addition is in substantial compliance with the approved CT Page 11232-dq plans and specifications on file with such building official." (Emphasis supplied.)
It is undisputed that the accident in this case occurred because a single defective weld gave way during the erection of the fabricated steel framework for the building. To establish Sordoni's liability for the accident, the plaintiff must establish that Sordoni had the duty to inspect Berlin Steel's work, and specifically to inspect its welds, prior to or during the construction of the building. The statutory provisions cited by the plaintiff impose no such duty on Sordoni. Those provisions merely require an affirmance after completion of construction that the structure is in substantial compliance with the approved plans and specifications. Moreover, it was not inconsistent with its statutory duty to affirm substantial compliance for Sordoni to reasonably rely on the inspection by others with a duty to inspect, such as, in this case, its subcontractor, Berlin Steel, and Professional Services.
III
The plaintiff also argues that he has submitted evidence that Sordoni maintained sufficient control over Berlin Steel and the manner in which Berlin Steel performed its work to establish liability.
In order for Sordoni to owe the plaintiff a duty of care, it must be shown that Sordoni had control of the area or instrumentality causing the plaintiff's injury. Van Nesse v. Tomaszewski, 265 Conn. 627, 631 (2003). "The 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." (Citation omitted.) Panaroni v. Johnson, 158 Conn. 92, 98 (1969). In situations in which an independent contractor, such as Berlin Steel, is employed, "the basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor." Darling v. Burrone Bros., Inc., 162 Conn. 187, 196 (1972).
It is undisputed that the steel framework at issue in CT Page 11232-dr this case was fabricated by Berlin Steel at its fabrication facility and that the defective weld at the seat connection which ultimately gave way causing injury to the plaintiff was made by a Berlin Steel employee at that facility. The plaintiff has submitted no evidence that Sordoni in any way controlled or directed the manner in which Berlin Steel fabricated the steel or performed the weld. Rather, he relies on general provisions of Sordoni's contract with Pitney Bowes that Sordoni will supervise, manage, coordinate, direct and monitor the work of its subcontractors and that Sordoni was responsible for safety at the construction project. A general contractor's general right and responsibility to supervise and direct the work of a subcontractor is, in and of itself, insufficient to establish the control necessary to make the general contractor liable for an independent contractor's negligent conduct. Darling v. Burrone Bros., Inc., supra, 162 Conn. 193.
Since "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," Wright v. Coe Anderson, Inc., 156 Conn. 145, 151 (1968), and the defendant is entitled to summary judgment on this issue.
IV
The plaintiff also contends that Sordoni was directly negligent in causing the plaintiff's injuries. He asserts that Sordoni's failure to inspect Berlin Steel's work resulted in a defective weld in the seat connection of the fabricated steel framework, ultimately causing injury to the plaintiff.
"Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so." Seguro v. Cummiskey, 82 Conn.App. 186, 192 (2004). The determination whether a duty exists between individuals is a question of law. Id. Accordingly, to prevail on this claim, the plaintiff must establish that Sordoni had the common-law duty to inspect the welds made by Berlin Steel during the fabrication of the CT Page 11232-ds steel framework at its facility.
I have previously rejected the plaintiff's claims that Sordoni had a contractual or statutory duty to inspect the welds made by Berlin Steel during fabrication. See part II of this opinion.
"`Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.' (Citations omitted; internal quotation marks omitted.) Jaworski v. Kiernan, 241 Conn. 399, 405, 696 A.2d 332 (1997)." Vaillancourt v. Latifi, 81 Conn.App. 541, 546-47 (2004).
It was not foreseeable under the facts of this case that the plaintiff would be injured by the failure of Sordoni to inspect the welds of Berlin Steel. There is no evidence that Sordoni knew or should have known that there were defective welds in the steel framework fabricated by Berlin Steel or that Berlin Steel was not conducting the inspections required of it under its contract with Sordoni. Sordoni could not have foreseen that it needed to inspect all the welds made by Berlin Steel to prevent a steel column for giving way during the erection of the building framework and injuring the plaintiff.
V
In light of the above, summary judgment is hereby entered on the first count of the plaintiff's third amended complaint which asserts a claim by Norman Pelletier of negligence against Sordoni. Summary judgment is also entered on the third count alleging loss of consortium by Reine Pelletier as it is merely derivative of her husband's claim. Schiano v. Bliss Exterminating Co., 57 Conn.App. 406, 414 n. 7 (2000).