MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT

SILBERT, JUDGE.

This is a legal malpractice action in which the plaintiff alleges that the defendant, her former attorney, negligently failed to file suit against her co-employee, whose alleged negligence, she claims, caused her to sustain injuries. In the underlying case, the plaintiff alleges that she was employed by the Davey Tree Expert Company and was cleaning cut tree branches and limbs by putting them into a wood chipper while in the course of her employment on a public highway in the town of Newtown, Connecticut. She alleges that as she was performing her assignment, her co-employee got into the truck and backed it up, causing the attached wood chipper to run over her foot.

The plaintiff hired Attorney Spillane to represent her for any and all claims arising out of that occurrence, and the defendant did pursue a workers' compensation claim on her behalf. He did not, however, file a suit against the plaintiff's co-employee within the applicable statute of limitations, and it is that failure which is the subject of the present action.

The defendant now seeks summary judgment, contending that because workers' compensation was the plaintiff's exclusive remedy, the defendant could not have been negligent in failing to file a separate action against the plaintiff's co-worker. In response, the plaintiff argues that General Statutes § 31-293a applies an exception to the exclusivity rule when a plaintiff's injuries are caused by a co-worker's negligence in the operation of a motor vehicle.

Although the instant motion contends that the defendant attorney in this case is entitled to judgment as a matter of law, it in fact asks this court to determine that, if the defendant attorney had in fact brought an action against this plaintiff's co-employee, that co-employee would have been entitled to judgment as a matter of law. If § 31-293a of the general statutes would not have permitted the plaintiff to recover against her co-employee, she may not recover against her former attorney for failing to sue that co-employee.

It is apparent that the legislature, in enacting this exception, had in mind preserving to a potential plaintiff the right to pursue a cause of action arising out of ordinary negligence as opposed to workplace negligence. The paradigm case would be one in which a plaintiff and his co-employee would be assigned to a work site some distance from the employer's main place of business. To get there, the co-employee would have to drive the plaintiff to the site in a motor vehicle and, on the way, there would be an accident. Even though the accident would have taken place in the scope of the employment of both the plaintiff and co-employee, the legislature had preserved the right of the plaintiff to bring an action against the co-employee for vehicular negligence, such as, for example, failure to grant the right-of-way, following too closely, improper turn, etc.

In the seminal case on this subject, Dias v. Adams, 189 Conn. 353, 456, A2d 309 (1983), our Supreme Court reversed a trial court ruling that the motor vehicle exception applied to an accident that occurred while the co-employee was operating a vehicle-mounted shovel, noting that "it is clear that when the mishap took place, the defendant was doing nothing related to driving or moving a vehicle itself . . ." Id. 189 Conn. at 358. Most Superior Court cases since Dias have quoted the following language in attempting to define the scope of the exception:

[a]lthough the legislative history of § 31-293a is not especially revealing, there is some evidence that the intention was to distinguish `simple negligence on the job' from negligence in the operation of a motor vehicle. Unlike the special hazards of the work place, the risk of a motor vehicle accident is a common danger to which the general public is exposed. Particular occupations may subject some employees to a greater degree of exposure to that risk. The nature of the risk remains unchanged, however, and in many employments it is no greater than for the general public. The legislature has chosen, therefore, not to extend the immunity given to fellow employees by §§ 31-293a to accidents having a less distinct relationship to the hazards of the employment. Dias v. Adams, supra, 189 Conn. 359-69.

It is thus apparent that the legislature, in enacting this exception, had in mind preserving to a potential plaintiff the right to pursue a cause of action arising out of ordinary negligence as opposed to workplace negligence.

Despite this guidance contained in Dias, trial court decisions have varied widely in their interpretation of the exception. In Chamberland, et al. v. Labonte, et al., CV01-0065857, Superior Court judicial district at Putnam, (Cosgrove J.), 2004 Ct.Sup. 8339, for example, the co-employee was operating a garbage truck at the Lisbon incinerator when he caused the vehicle to suddenly jerk up and out into the air causing the plaintiff to react by jumping onto a concrete platform, where he was injured. The court concluded that the defendant was not engaged in the operation of a motor vehicle within the meaning of the exception and granted summary judgment in favor of the defendant.

Similarly, in Colangelo v. Heckelman, CV-01-0168331, judicial district of Waterbury at Waterbury, February 17, 2004 (Alvord, J.) 2004 Ct.Sup. 2078, 36 Conn. L. Rptr. 527, the situation involved a plaintiff who was struck by an automobile driven by a co-employee within the confines of the Torrington Honda dealership garage. The plaintiff had been working in an automotive repair bay for inspections on vehicles when the incident occurred. The court concluded that the plaintiff "was not facing the hazards encountered by the general public as motorists . . ." (internal quotation marks omitted) and was not entitled to bring a cause bf action within the exception. In Miller et al. v. Jutkowicz et al., 2003 Ct.Sup. 5579, 34 Conn. L. Rptr. 536, CV02-0460536, Superior Court judicial district of New Haven at New Haven, April 29, 2003 (Gilardi, J.), the plaintiff was a passenger in an automobile owned by the employer and operated by a co-employee on a slalom test track. The defendant lost control of the vehicle, causing injuries to the plaintiff. The court concluded that the general public is not exposed to this kind of risk, which, rather, is one that is intimately associated with the nature of the work. The court found that § 31-293a did not provide an exception to the plaintiff in this matter.

On the other hand, in Muscetta v. Kimball, CV01-0186306, judicial district of Stamford, Norwalk, at Stamford, July 22, 2002 (D'Andrea J.), 2002 Ct.Sup. 9122, the plaintiff, who was standing on a garbage truck, was injured when the co-employee driver stopped the vehicle suddenly. The court denied summary judgment, but apparently because it felt that there were genuine issues of material fact in dispute regarding whether the defendant was in fact operating the vehicle, the plaintiff's injuries resulted from circumstances relating to the movement of the vehicle and/or that the accident resulted from a special hazard in the workplace.

In Stewart v. Heffernan, CV00-0801396, Superior Court, judicial district of Hartford at Hartford, November 14, 2001 (Koletsky, J.) 2001 Ct.Sup. 15380, 30 Conn. L. Rptr. 698, the plaintiff was attempting to load milk crates onto his employer's truck when the defendant, the driver of the truck, pulled away from the dock causing the plaintiff to fall. Judge Koletsky first brushed aside the defendant's contention that because the accident did not occur on a common roadway, it could not fall within the exception. Citing Ahern v. Cooper, Superior Court, judicial district of Waterbury, Docket No. 141741S (April 5, 1999) (Leheny, J.) ( 24 Conn. L. Rptr. 336), the court concluded that the exception might apply even if the accident did not occur on a public roadway. The court went on, however, to conclude that the accident involved a defendant who "was engaged in the ordinary use of the truck and the plaintiff did not subject himself to the special hazards of his employment." The court therefore found the general statutes § 31-293a exception applicable to the plaintiff's claim.

The defendant in Fields v. Giron, 65 Conn.App. 771, 783 A.2d 1097 (2001), was operating a company truck on private property. He tied a rope to a fallen tree, fed the rope through a block and tackle and then attached the rope to the back of the company truck. He then operated the company truck creating tension on the rope, which broke, with the result that the block and tackle catapulted toward the plaintiff striking him and causing him to suffer injuries. The Appellate Court concluded that this was a hazard of the workplace, not a danger to which the general public was exposed, and held that the exception did not apply.

In Ferreira v. Pisaturo, 41 Conn.Sup. 326, 351-2, (1989), the court concluded that working in an open trench in close proximity to a piece of heavy construction equipment compacting earth in a portion of that trench was not one of the hazards "encountered by the general public as motorists or even pedestrians walking on or alongside a highway open to the public."

The strongest case for the plaintiff . . . and the hardest to reconcile with Dias . . . is Bailey v. Campanaro Construction Co., Docket No. 282124, Superior Court, judicial district of New Haven, March 19, 1991 (Berdon, J.), 3 Conn. L. Rptr. 390, 1991 Ct.Sup. 7199. In this case, the plaintiff had driven a dump truck from a construction site, intending to dump a load of fill. When he had difficulty raising the load, he enlisted the aid of a co-employee to look under the truck. While under the truck, that employee pushed a lever which caused the dump body to lower and injure the plaintiff Finding that "the movement of a lever of a running dump truck which caused its body to move" constituted operation of a motor vehicle within the meaning of § 31-293a, Judge Berdon reached the apparent conclusion, difficult for the undersigned to accept, that this was an ordinary use of the truck and the plaintiff had not subjected himself to the special hazards of his employment.

It is thus apparent that efforts to invoke the § 31-293a exception in situations that do not neatly fit either inside or outside the paradigm have caused vexing problems for the judges faced with motions for summary judgment in such matters. It appears to the undersigned that reluctance to "deny a plaintiff his day in court" has led to occasional forced readings of the language of the exception and some tortured findings of a genuine issue of material fact in dispute as to whether the conduct of the defendant involved the negligent operation of a motor vehicle. In this case, however, the plaintiff and her co-employee had arrived safely at the job site and were engaged in the special hazards of their job, the placing of downed branches into a wood chipping device. The co-employee's actions in manipulating the truck that in turn caused the wood chipper to roll over the plaintiff's foot were not the sort to which members of the general public would have been exposed, as, for example, they would have, had this co-employee been driving negligently on the roadway en route to the work site. Rather, the hazards arose out of the nature of the work itself, manipulating the wood chipper so that it and the plaintiff could accomplish their required tasks. Although the co-employee was clearly "operating" a "motor vehicle," so were the defendant-employees in Miller, et al., v. Jutkowicz, et al, and Colangelo v. Heckelman, supra, and here, as in those cases, the exception does not apply because the plaintiffs were engaged in the special hazards of their respective employments.

Based on the undisputed facts, the court finds that the actions of the plaintiff's co-employee did not fit within the motor vehicle exception contained within General Statutes § 31-293a. Because the plaintiff could not have maintained a cause of action against the co-employee as a matter of law, this defendant can not be found to have been professionally negligent as a result of his failure to pursue such a cause of action on her behalf. The defendant is thus entitled to judgment as a matter of law, and the motion for summary judgment is therefore granted.

Jonathan E. Silbert, Judge