Opinion
No. X-08 CV02-0192764S
June 24, 2008
Memorandum of Decision on Defendant Jose Gomez d/b/a Gola Roofing's Motion for Summary Judament (No. 184)
Procedural/Factual Background
The plaintiffs Jose Santos and Oscar Pena were injured during the course of their employment with defendant Jose Gomez d/b/a/ Gola Roofing ("Gola Roofing") on November 9, 2000. On that date the plaintiffs were hired by Gola to apply roofing paper to the New Canaan Teen Center, then under construction. Gola Roofing was hired the previous day by the roofing subcontractor, defendant Antonelli Roofing to put up the roofing paper on an expedited schedule because of a forecast of rain which could cause damage to work previously done by Antonelli Roofing and the general contractor, defendant AP Construction, Inc. The plaintiffs both fell from the steeply pitched roof of the Teen Center when one or more roof brackets supporting the planks upon which they were standing collapsed, causing the planks and both plaintiffs, who were not wearing safety harnesses or any other restraining device, to fall approximately 27 feet to the edge of the roof where they hit the scaffolding which failed to stop their fall, and then fell about another 14 1/2 feet from the eave onto a concrete slab. The plaintiff Jose Santos, whose claims are at issue by the pending motion for summary judgment, struck his head on a 2-foot high brick wall as he fell to the concrete. He suffered serious injuries including a traumatic brain injury with cognitive, linguistic, and behavior deficits. Detailed factual claims will be reviewed in the following discussion of the issues under consideration.
Counsel has represented that defendant AP Construction, Inc. is the same entity as the named defendant Ashforth Co., Inc.
Count Three of the Amended Complaint states the claim of plaintiff Jose Santos ("hereinafter "plaintiff") against his employer defendant Gola Roofing. Plaintiff alleges in that count that his fall and resulting injuries were caused by the intentional misconduct of his employer Gola Roofing who required him to work on the roof when it knew or should have known that the injuries sustained by him were substantially certain to occur. The allegations of intentional misconduct include claims of inadequate scaffolding and planks, with inadequate and improperly installed brackets, failure to provide personal fall arrest systems, failure to comply with OSHA safety rules, and failure to give the plaintiff proper training and instruction. The defendant Gola Roofing has moved for summary judgment on the Third Count, claiming that there is no genuine issue as to any material fact, and that it is entitled to judgment on the grounds that, pursuant to Conn. Gen. Stat. § 31-284, the plaintiff's exclusive remedy against the defendant Gola Roofing for his work-related injuries is workers' compensation benefits, and the plaintiff has failed to set forth any facts which would show that the defendant employer either intentionally caused the plaintiff's injuries or that the employer was substantially certain that the plaintiff's injuries were likely to occur as a result of its acts and conduct. The plaintiff has objected to the motion for summary judgment claiming that the evidence put forth demonstrates a material issue of fact as to the defendant's belief that its conduct was substantially certain to result in the fall and injuries suffered by the plaintiff. The court agrees with the plaintiff's position.
It is not entirely clear whether the plaintiff Oscar Pena is joining in the Third Count, since, unlike all other counts, the Third Count has no preliminary legend identifying the claimant and the alleged responsible defendant. The singular "plaintiff's" and the plural "plaintiffs" are both used in the Third Count. But since the Third Count incorporates paragraphs 1 though 11 of Count One (which alleges only the claims and injuries of Jose Santos) and there is no allegation in this count of the injuries claimed by Oscar Pena, the court will treat the Third Count as being the claim only of the plaintiff, Jose Santos against Gola Roofing. If it is later determined that Oscar Pena is joining in the Third Count, the ruling on this motion for summary judgment would apply to him as well, since their status is identical for purpose of the issue raised by this motion.
Discussion
Summary Judgment "shall be rendered forthwith if the 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." Practice Book § 17-49. "The Motion for Summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279 (1989). "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 . . . If a genuine issue exists, it must be left to a later determination after a full hearing." (Citations omitted.) Siudyla v. ChemExec Relocation Systems, Inc., 23 Conn.App. 180, 184 (1990).
"A genuine issue has been variously described as a triable, substantial or real issue of fact; . . . and has been defined as one which can be maintained by substantial evidence." (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378 (1969). "A `material' fact has been defined adequately and simply as a fact which will make a difference in the result of the case . . . `Issue of Fact' encompasses not only evidentiary facts in issue but also questions as to how the trial would characterize such evidentiary facts and what inferences and conclusions it would draw from them." (Internal quotation marks omitted.) Id. at 379.
In seeking summary judgment, the movant has the burden of showing the nonexistence of any issue of fact. Allstate Ins. Co. v. Barron, 269 Conn. 394, 405 (2004). Once that burden is met, however, "the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore cannot refute evidence properly presented to the court." Id. at 405. A motion for summary judgment "is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." Beebe v. East Haddam, 48 Conn.App. 60, 64 (1998). In deciding a motion for summary judgment the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank Trust Company v. Benson, 176 Conn. 304, 309 (1978). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647 (1982); New Milford Savings Bank v. Roina, 38 Conn.App. 240, 243-44 (1995).
In this case there is no dispute between the parties as to the underlying facts. Neither party has submitted an affidavit. The defendant relies entirely on excerpted deposition testimony of the plaintiff Oscar Pena and of the full deposition transcript of Gola Roofing foreman Hector Comacho who hired both plaintiffs on the morning of the fall, and was working with them on the roof when the fall occurred. The plaintiff relies on several photographs of the Teen Center site taken after the accident, an OSHA accident report, and also an excerpt from the Hector Comacho deposition transcript. The area of disagreement goes to the inferences to be drawn from those underlying facts as to the belief or lack of belief by Gola Roofing (in the person of its foreman Hector Comacho) that its deliberate acts or omissions were substantially certain to cause the plaintiff's injuries.
Mr. Comacho did not fall from the roof when the bracket collapsed and the planks fell to the ground he was able to grab onto a remaining bracket and hold on until he was rescued from the roof by an employee of AP Construction using a forklift.
Since the underlying facts are crucial to that inquiry, they will be summarized.
Mr. Comacho had worked in the roofing business for about eleven years, at first for a company named H. Fuentes Roofing, and then, starting about two or three months before this accident as a foreman for Gola Roofing, owned by Jose Gomez. On the day prior to the accident at about 3 p.m. Mr. Comacho got a call from "Joe" the secretary at Antonelli Roofing, asking Gola Roofing to put roofing paper on the Teen Center roof the next day, since it was scheduled to rain. This was the type of roofing job within Mr. Comacho's experience. He said he had "done this kind of work for thousands, thousands, thousands of times for eleven years" and "didn't need anyone to teach him how to do it." (Tr. 19.) Joe told him in that phone call it was "kind of a tall building; and what we needed was some extra equipment like planks, scaffolding, brackets." ( Id.) Per Gola's usual arrangement with Antonelli, Mr. Comacho knew he would go to Antonelli's warehouse and pick up tools or equipment he needed for the job in addition to the tools and equipment Gola had available. Mr. Comacho went to look at the job site that afternoon and then went by the Antonelli warehouse in Stamford to discuss tool and equipment needs. During that conversation he asked Joe about safety harnesses and was told that none were available. He also testified that his employer Jose Gomez "doesn't use harnesses." (Tr. 69.) On the way to the job site the next morning he picked up materials and tools and some planks and brackets at the Antonelli warehouse to supplement the Gola planks and brackets he already had. He felt, however, that he still didn't have enough planks and brackets for the job so he called the owner of Gola Roofing and told him he only had about eight planks and twelve brackets whereas he should have about twenty planks and sixty brackets to do the job. He and Mr. Gomez agreed to do the work in a different way, by working the roof in sections (rather than the full width of the roof) using the number of planks and brackets they had available. They had worked this way before, and it could be done with eight planks and twelve brackets, but it would take longer. He testified that he "would not have done the job if [he] felt it was unsafe to do so" (Tr. 25) and that he wouldn't jeopardize [his] workers or himself by doing a job that [he] felt was unsafe to do." (Tr. 26.)
On the way to the job site Mr. Comacho also stopped at the Stamford Dunkin Donuts and hired plaintiffs Oscar Pena and Jose Santos to help him with this job. He had worked with Pena before and had arranged to meet him at the Dunkin Donuts. He met Mr. Santos for the first time there as a person looking for work and hired him after ascertaining that he had some roofing experience. The three of them arrived at the site and set up for the job. They set up ladder scaffolding along the eave of the roof and nailed brackets to the roof using three nails per bracket even though there were enough holes for five nails. (Mr. Comacho testified that "Because in the eleven years that I've been in the business we never used five nails.") (Tr. 29.) (The brackets, including a certain "lower section" could actually accommodate up to eight nails.) The brackets were spaced eleven feet apart to accommodate twelve-foot long planks. The planks that day were installed in tiers of two, side by side, on three brackets, with the middle bracket of the thee supporting the inside end of both planks, one overlapping the other.
In lieu of safety harnesses they installed initially a safety rope CT Page 11421 secured at the peak of the roof and hanging down in the center of the span between the planks. But, as they worked down from the top of the rope to the lower area where the fall occurred they had removed the rope because they felt that as they got a little bit lower it was a little bit safer and the rope was not needed. (Tr. 45.)
The roofing paper to be installed came in rolls about 36 inches wide, weighing about 30 pounds. The paper was being nailed to the particle board roof deck using compressed air nail guns, fed by hoses from an air compressor on the ground. The three men would stand on the two planks at the level they were working. Pena would start the process by nailing one end of paper to the roof and unrolling it toward Santos who would continue the unrolling and nailing and pass it on to Comacho who would nail it to the roof until he got to the end of the plank and then cut off the paper from the roll and pass the roll back through Santos back to Pena who would start the same process at the next layer down. In the process of passing the roll from Comacho to Santos on one occasion, the roll dropped to the plank right at the middle bracket causing the bracket to fail and slip from the roof, followed by the planks they were standing on, causing Mr. Pena and Mr. Santos to fall ultimately to the ground, sustaining their injuries.
On the question of the use of safety harnesses, Mr. Comacho testified:
Q. Okay. Did you feel that you needed a harness to safely perform this job on the day in question?
A. Yes, that's why we installed the rope.
Q. Okay. Why did you do the job if you felt that you couldn't do it safely without a harness?
A. It is not that the job was especially dangerous. I wouldn't call it that. It's normal not to use harnesses. It's not something that you can say, yes, you do need or, no, you don't. It depends on the circumstances.
Q. Okay. Did you feel that you could safely perform this job without a harness if you used a rope and followed the procedures that you follow?
A. Yes, the rope helps a lot.
(Tr. 69-70).
Conn. Gen. Stat. § 31-284(a) provides:
An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action 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 as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.
In Jett v. Dunlap, 179 Conn. 215, 217 (1979) the Supreme Court created a narrow exception to the exclusivity provision of § 31-284(a), quoted above, in situations where the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct. In Mingachos v. CBS, Inc., 196 Conn. 91 (1985) the Court declined the invitation to extend the Jett v. Dunlap exception to include injuries to employees resulting from intentional or wilful or reckless violations by the employer of safety standards established pursuant to federal or state law, such as OSHA, stating that "intent refers to the consequences of an act . . . [and] denotes that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to follow from it. 1 Restatement (Second) Torts 8A (1965)." (Citation omitted. Internal quotation marks omitted.) Id. at 101. The intentional tort exception to the rule of workmen's compensation exclusivity was further refined in Suarez v. Dickmont Plastics, Inc., 229 Conn. 99 (1994) (" Suarez I") (granting of summary judgment for employer reversed and remanded) and Suarez v. Dickmont Plastics, Inc., 242 Conn. 255 (1997) (" Suarez II") (failure to grant motion to set aside verdict for plaintiff employee reversed; judgment for defendant employer directed.) In Suarez II the court said:
[The exception] cannot be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury . . . What is being tested is not the degree of gravity of the employer's conduct, but, rather, the narrow issue of intentional versus accidental conduct . . . In defining intent we have stated that `intent refers to the consequences of an act . . . [and] denote[s] that the actor desires to cause [the] consequences of his act or that he believes that the consequences are substantially certain to follow from it . . . (Citations omitted.). 242 Conn. at 279.
The most recent appellate iteration of the intentional tort exception to the exclusive workmen's compensation remedy occurred in Martinez v. Southington Metal Fabricating Company, 101 Conn.App. 796 (2007) where the Appellate Court in 2-1 decision upheld the granting of a summary judgment for an employer even though the plaintiff employee had presented expert testimony that the employer's large number of safety violations and lack of training created a situation where the employee's injuries were substantially certain to occur, the court emphasizing the requirement that the plaintiff must show the employer's subjective belief — not the objective certainty — that the injuries were substantially certain to occur. Drawing on recent appellate decisions, the court fully stated the twofold test:
Since Suarez, the exception to exclusivity has been further elucidated. The substantial certainty test permits a plaintiff to maintain a cause of action against an employer where the evidence is sufficient to support an inference that the employer deliberately instructed an employee to injure himself . . . The plaintiff must allege facts to establish either that the employee actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur. (Substantial certainty standard.) Under either theory of employer liability, however, the characteristic element [of wilful misconduct] is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Not only the action producing the injury but the resulting injury must be intentional . . . Although it is less demanding than the actual intent standard, the substantial certainty standard is, nonetheless, an intentional tort claim requiring an appropriate showing of an intent to injure . . . It is important to note that the substantial certainty standard is a subset of the intentional tort exception . . . To satisfy the substantial certainty standard, a plaintiff must show more than that a defendant exhibited a `lackadaisical or even cavalier' attitude toward worker safety . . . Rather a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm. (Citations and internal quotation marks omitted.) 101 Conn.App. at 803-04.
The plaintiff in this case is not claiming that this motion for summary judgment should be denied because there is an issue of fact under the actual intent standard, and there is absolutely no evidence that Mr. Comacho actually intended to injure the plaintiff whom he had just met for the first time mere hours before the accident occurred. The issue is to be decided exclusively under the "less demanding" substantial certainty standard. Under that standard, there is no doubt but that Gola Roofing performed intentional acts and omissions — sending the plaintiffs to work on the roof without safety harnesses, removing the safety rope before the job was finished, and using only three nails to hold the roof brackets. The precise issue therefore comes down to this: does the evidence of these intentional acts and omissions of the employer reasonably support an inference that Gola Roofing in the person of its foreman Hector Comacho believed that the plaintiff's injuries were substantially certain to occur? Gola Roofing has met its initial burden of demonstrating no material issue of fact to support such an inference. Mr. Comacho has given sworn deposition testimony, quoted above, that he would not have done the job if he felt it was unsafe to do so and that he wouldn't jeopardize his workers or himself by doing a job that he felt was unsafe. As defendant points out there is also a strong inference that Mr. Comacho did not believe that injuries were inevitable to be drawn from the fact that Mr. Comacho himself went up on the roof to work side-by-side with the two plaintiffs. The burden therefore shifts to the plaintiff to demonstrate an evidentiary foundation or a factual predicate to support an inference that there was such a belief. The evidence brought forth must be sufficient to amount to a genuine issue of material fact. "[T]ypically, [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred." (Citations and internal quotation marks omitted.) Martinez, supra, 101 Conn.App. at 799. A plaintiff will fail to raise a genuine issue of material fact if ". . . the plaintiff's claim is so unenforceable as a matter of law that no factual development could possibly justify a right to recovery." Suaraz I, supra, 229 Conn. at 110. Recognizing that the defendant's evidentiary position can only be characterized as strong, the court nonetheless, after viewing the evidence in the light most favorable to the nonmoving plaintiff, has concluded after considerable deliberation that the evidence pointed out by the plaintiff does raise a genuine issue of material fact. The court bases this conclusion primarily on Mr. Comacho's testimony about safety harnesses and the safety rope. After inspecting the roof on the afternoon before the accident, he went to the Antonelli warehouse and asked for safety harnesses, which would warrantably support an inference that he considered them necessary to prevent injury on this job. He then equivocated considerably in his testimony about safety harnesses. When asked if he felt that safety harnesses were needed to safely perform this job on the day in question, he said "yes" and added ". . . that's why we installed the rope." In light of that answer he was asked if he felt he could safely perform this job without a harness if he used a rope, and he answered, "Yes, the rope helps a lot." (Tr. 69-70.) But the undisputed evidence is that the rope was removed before the accident occurred because the job had moved somewhat lower on the roof where he considered it "a little bit safer." (Tr. 45.) Yet the photographs submitted by plaintiff depict a roof with uniform steepness from peak to eave, and it is undisputed that from the point on the roof where the bracket failed, the plaintiff fell some 27 feet to the eave and more than 14 additional feet to the ground beneath. The amount of additional "safety" from that position on the roof as compared to a position closer to the peak is questionable at best. Since the presence of the rope was the factor in Mr. Comacho's mind that made the job safe without a harness, a jury could infer that the removal of the rope made the job inherently unsafe in Mr. Comacho's view. Whether or not such an inference would overcome the strong inference that Mr. Comacho's natural instinct to protect his own safety would have stopped him from going on the roof himself if he believed the job to be unsafe is not for this court to decide. I have decided that there is at least a factual evidentiary predicate for a reasonable inference to the contrary. The weighing of opposing inferences of intent is the province of the jury: "A specific intent to produce injury is not the only permissible inference to be drawn from [the] defendant's conduct, but it is one that a jury should be permitted to consider. It is for the finder of fact, not the court on summary judgment, to determine what inferences to draw." Suarez I, supra, 229 Conn. at 111. At trial, there could be "factual developments" ( Suarez I, supra) which would justify a right to recovery. For instance, a jury might place less emphasis on Mr. Comacho's presence on the roof from evidence that he — unlike the day-laborer plaintiffs — was willing to assume considerable risk to protect his position with Gola Roofing, or to continue to get roofing work from Antonelli Roofing or AP Construction. Only the crucible of a full trial on the merits can develop the evidentiary nuances to weigh and apply the competing inferences as to his knowledge and intent. See Buckman v. Carroll Construction Co. et al, Docket No. CV98-0576511S, Superior Court, Judicial District of Hartford at Hartford (April 6, 2000, Peck, J.), 2000 Ct.Sup. 4135 (Summary judgment denied under the substantial certainty standard — genuine issue of material fact found from evidence, inter-alia, that employer sent employee to work on snow covered roof without a safety harness or other protective device); and Rovasto v. Wells Fargo Armored, Docket No. CV98-062143S, Superior Court, Judicial District of Milford at Milford (January 29, 2001, Nadeau, J.), 2001 Ct.Sup. 830-t; 29 Conn. L. Rptr. 159 (Summary judgment denied under the substantial certainty standard — refusal to provide armored car driver with a bulletproof vest).
Order
For the foregoing reasons the defendant Gola Roofing's motion for summary judgment is denied.