Opinion
No. CV 00-0074207
September 23, 2003
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#127) AND PLAINTIFFS' OBJECTION (#130)
Introduction
The complaint in this case alleges that the Defendants, Kelly S. and Angelo Carlone, hired Coombs Construction to provide framing services relative to the Defendants' construction of a new home. The Plaintiff, Steven M. Szestowicki, alleges that on September 28, 1998, while working at the property assisting with the construction, he was caused to fall through an opening in the first-floor deck and that he sustained injuries as a result of the fall. The Plaintiff claims that his fall and subsequent injuries were caused by the negligence and carelessness of the Defendants. The Plaintiff, Lisa Szestowicki, alleges she is Steven M. Szestowicki's wife and claims loss of consortium.
The Defendants have moved for summary judgment alleging that: "1) an employer of an independent contractor is not vicariously liable for the negligent acts of the contractor which result in injury to an employee of the subcontractor nor are they accountable to that employee for failing to exercise due care in the selection of an independent contractor; 2) liability for any defect in the premises rests with the party that has control and possession of the premises and not ownership; and 3) plaintiffs are collaterally estopped from relitigating the issue of control over the property, as the issue was fully and fairly litigated before the Workers' Compensation Commission."
Discussion
The standards for granting summary judgment are well settled. "`Pursuant to Practice Book § 17-49, 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 mater of law. Such questions of law are subject to plenary appellate review.' (Internal CT Page 10880-cm quotation marks omitted.) Mytych v. May Dept. Stores Co., 260 Conn. 152, 158-59, 793 A.2d 1068 (2002). In deciding whether the trial court properly determined that there was no genuine issue of material fact, we review the evidence in the light most favorable to the nonmoving party. BD Associates, Inc. v. Russell, 73 Conn. App. 66, 69, 807 A.2d 1001 (2002); Yancey v. Connecticut Life Casualty Ins. Co., 68 Conn. App. 556, 558, 791 A.2d 719 (2002)." Faigel v. Fairfield University, 75 Conn. App. 37, 39-40, 815 A.2d 140 (2003).
As to their first argument, the Defendants rely on the Appellate Court's decision in Ray v. Schneider, 16 Conn. App. 660, 670 (1988), where the court concluded "that an employer of an independent contractor may not be vicariously liable to the contractor's employees for an injury caused in the performance of inherently dangerous work on account of the contractor's failure to take the necessary safety precautions, or because the employer had a nondelegable duty to provide a safe work place." However, subsequent to argument on the Defendants' motion, the Supreme Court released its decision in Pelletier v. Sordoni/Skanska Construction Company, 264 Conn. 509, 517-18 (2003). There the Court noted that "[a]s a general rule, `an employer is not liable for the negligence of its independent contractors. Douglass v. Peck Lines Co., 89 Conn. 622, 627, 95 A. 22 (1915); W. Prosser W. Keeton, Torts (5th Ed. 1984) § 71, p. 509; 41 Am.Jur.2d, Independent Contractors § 29 (1995).' Gazo v. Stamford, 255 Conn. 245, 256-57, 765 A.2d 505 (2001); Alexander v. Sherman's Sons Co., 86 Conn. 292, 298, 85 A. 514 (1912); 2 Restatement (Second), Torts § 409, p. 370 (1965). `The explanation for [this rule] most commonly given is that, since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise, and [the contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it.' 2 Restatement (Second), supra, § 409, comment (b). This same rule applies, as a general matter, to general contractors as employers of independent subcontractors: a general contractor is not liable for the torts of its independent subcontractors. Douglass v. Peck Lines Co., supra, 89 Conn. 627. We have long held, however, that `[t]o 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 that the work is properly performed, the contractee will be responsible for CT Page 10880-cn resultant injury. Norwalk Gas Light Co. v. Norwalk, 63 Conn. 495, 28 A. 32; Lawrence v. Shipman, 39 Conn. 586; Alexander v. Sherman's Sons Co., [ supra, 86 Conn. 293]; St. Paul Water Co. v. Ware, 83 U.S. (16 Wall.) 566 [ 21 L.Ed. 485 (1873)]; Creed v. Hartmann, 29 N.Y. 591. So, too, the contractee or proprietor will be liable for injury which results from his own negligence. Lawrence v. Shipman, [ supra, 590].' (Emphasis added.) Douglass v. Peck Lines Co., supra, 627. Consistent with these exceptions, we have long held that, in the absence of statutory immunity based on the principal employer doctrine, discussed later in this opinion, a general contractor may, depending on the circumstances, be held liable to an employee of its subcontractor for its own negligence. See, e.g., Gigliotti v. United Illuminating Co., 151 Conn. 114, 193 A.2d 718 (1963); Greenwald v. Wire Corp. of America, 131 Conn. 465, 40 A.2d 748 (1944); King v. Palmer, 129 Conn. 636, 30 A.2d 549 (1943); Bogoratt v. Pratt Whitney Aircraft Co., 114 Conn. 126, 157 A. 860 (1932)." The Pelletier Court went on and held that "[a]n 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. He is not barred from doing so simply because, as Ray holds, the plaintiff is an employee of a subcontractor, rather than a member of the general public." (Footnote omitted.) The Court also concluded "that the reasoning of Ray is simply inconsistent with our law permitting employees of subcontractors to sue general contractors and cannot, therefore, bar the plaintiff's action against Sordoni [the general contractor]." Thus the Plaintiffs can pursue their claims against the Defendants and summary judgment must be denied on the first ground cited.
The Defendants next argue that summary judgment should be granted because liability for any defect in the premises rests with the party that has control and possession of the premises and not ownership, and that there is no dispute that the premises were under the control of the independent contractor, Coombs Construction. The Defendants cite Darling v. Burrone Bros., Inc., 162 Conn. 187, 196 (1972), where the Court stated: "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. Wright v. Coe Anderson, Inc., 156 Conn. 145, 151, 239 A.2d 493; Mann v. Leake Nelson Co., 132 Conn. 251, 254, 43 A.2d 461. The basic premise is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor. Trainor v. Frank Mercede Sons, Inc., 152 Conn. 364, 368, 207 A.2d 54." The Court also noted that "[w]here the evidence is such that the minds of fair and reasonable persons could reach but one conclusion as to the identity of the person exercising control, the CT Page 10880-co question is one for the court but, if honest and reasonable persons could fairly reach different conclusions on the question, then the issue should properly go to the jury for their determination. Trainor v. Frank Mercede Sons, Inc., 152 Conn. 364, 369, 207 A.2d 54; Johnson v. Pulidy, 116 Conn. 443, 445, 165 A. 355." Darling v. Burrone Bros., Inc., 162 Conn. 187, 192 (1972). From a review of the evidence submitted by all parties in regard to the motion for summary judgment, there is a genuine issue of fact as to who was in control of the premises, Coombs Construction, or the Defendants, as well as who was acting as general contractor regarding the building of the house. Therefore summary judgment must be denied on the second ground as well.
As to the third ground cited by the Defendants, they claim that the Plaintiffs are collaterally estopped from relitigating the issue of control over the property, as the issue was fully and fairly litigated before the Workers' Compensation Commission. "The legal responsibility for maintaining premises in a reasonably safe condition depends on who has possession and control of those premises. LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). `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.' (Internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn. App. 427, 432, 755 A.2d 219 (2000)." Mozeleski v. Thomas, 76 Conn. App. 287, 294 (2003).
The Defendants point out that the Workers' Compensation Commissioner found that "Richard Coombs controlled the site that claimant (Szestowicki) was injured on and directed all of claimant's activities at the site, i.e., as to what work to do and when." The Defendants claim that this finding is binding on the Plaintiffs and fatal to their claim.
"`Collateral estoppel, or issue preclusion, prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment.' (Citations omitted; internal quotation marks omitted.) Aetna Casualty Surety Co. v. Jones, 220 Conn. 285, 296, 596 A.2d 414 (1991)." Linden Condominium Association, Inc. v. McKenna, 247 Conn. 575, 596 (1999).
The issue before the Commissioner was whether the Plaintiff was an employee of Coombs or an independent contractor. For purposes of workers' compensation, Connecticut uses the right to control test in determining whether a person is an employee as opposed to an independent contractor. CT Page 10880-cp "The right to control test, utilized in this state, has been described as follows: `One is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained . . . The controlling consideration in the determination whether the relationship of master and servant exists or that of independent contractor exists is: Has the employer the general authority to direct what shall be done and when and how it shall be done — the right of general control of the work?' (Citation omitted.) Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629, 173 A.2d 497 (1961)." Hanson v. Transportation General, Inc., 45 Conn. App. 441, 443-44 (1997). The issue here is who had control of the premises such as to have the legal responsibility for maintaining the premises in a reasonably safe condition. The issue before the Workers' Compensation Commission was who had general control of Szestowicki's work. Thus the issue of control of the job site was not necessary to the Commissioner's decision and thus his decision does not foreclose relitigation of that issue here.
In any event, the Commissioner did not determine that Coombs had exclusive control of the job site. Recently in Van Nesse v. Tomaszewski, 265 Conn. 627, 631 (2003), the Plaintiff, an employee of a framing subcontractor, sued the general contractor for injuries incurred while he was working on a house the contractor was building. There the Court stated: "We recently have affirmed the rule that, although ordinarily a general contractor is not responsible for the torts of its independent subcontractors, one of the exceptions to that rule of nonliability applies where the general contractor retains or assumes control of the work involved. Pelletier v. Sordoni/Skanska Construction Company, 264 Conn. 509, 518, 825 A.2d 90 (2003). `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 CT Page 10880-cq fairly reach different conclusions on the question, then the issue should properly go to the jury.' Wright Coe Anderson, Inc., 156 Conn. 145, 151, 239 A.2d 493 (1968). In addition, the contractor's control need not be exclusive; it is sufficient if it be shared with another. Id., 154." Thus the finding of the Commissioner as to the control of the job site by Coombs is not conclusive as to the Plaintiffs' claims here. Therefore summary judgment must be denied on the third ground as well.
Conclusion
The Defendants' Motion for Summary Judgment is denied.
Jane S. Scholl, J. CT Page 10880-cr