Opinion
No. CV00-0156948S
September 24, 2003
MEMORANDUM OF DECISION
The plaintiff is a carpenter who was employed by AA. Drywall. Turner Construction Company hired AA to work on the Waterbury Criminal Courthouse project. While working on the project, the plaintiff was injured when he fell in a trench that had been dug by another subcontractor, Xenelis Construction. The plaintiff brought a workers' compensation claim against the employer and this action in negligence against the general contractor. Turner brought an apportionment complaint against Xenelis, and the plaintiff pled over as to Xenelis. Turner now moves for summary judgment on the grounds that it cannot be liable to the employee of an independent contractor.
DISCUSSION
"[S]ummary 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 . . . A material fact is a fact that will make a difference in the result of the case . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . ." (Citation omitted; internal quotation marks omitted.) DaCruz v. State Farm Fire Casualty Co., 69 Conn. App. 507, 511, 794 A.2d 1117 (2002). "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 . . ." (Citation omitted.) Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "The test is whether a party would be entitled to a directed verdict on the same facts." Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).
Count one of the plaintiff's complaint alleges that the plaintiff's CT Page 10881-bd injuries and losses were caused by the conduct of Turner Construction in one or more of the following ways:
a. They allowed the subject trench to exist then and there in an unprotected condition;
b. They failed to erect a barricade, railings or construction tape barrier around the trench when they knew or should have known of its existence;
c. They failed to cover the trench with some sort of temporary surface or flooring such as plywood;
d. They failed to provide adequate and reasonable lighting then and there so as to render the trench visible;
e. They failed to provide adequate lighting in violation of C.F.R. § 1926.26;
f. They failed to reasonably inspect the subject area to seek out the existence of hazards such as the subject unprotected trench;
g. They failed to adequately inspect the subject area in violation of C.F.R. § 1926.20;
h. They failed to properly supervise their agents, servants or employees responsible for the creation of the subject trench;
i. They failed to reasonably warn the plaintiff of the existence of the unprotected trench.
Turner argues that the contract between it and AA Drywall and the Connecticut Supreme Court's decisions in Ray v. Schneider, 16 Conn. App. 660 (1988), and Pelletier v. Sordoni/Skanska Construction, 262 Conn. 372 (2003), preclude a finding of liability against Turner.
The contract between Turner and AA Drywall does not preclude the plaintiff from bringing an action in negligence against Turner. The contract, which is boilerplate and presumably signed also by other subcontractors, provides for Turner's control over compliance with established safety standards. See 2 Restatement (Second), Torts, § 409, comment (b), pp. 370-371 for the principle that non-delegable duties of an employer are an exception to the general rule that the employer is not liable for the negligence of an independent contractor. CT Page 10881-be
The defendant's reliance on Pelletier v. Sordoni/Skanska, 262 Conn. 372 (2001), and on Ray v. Schneider, 16 Conn. App. 660 (1988), is misplaced. In Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509 (2003), the Connecticut Supreme court held that an injured employee of the subcontractor may sue the general contractor if he can establish a basis for the contractor's liability to him under our case law:
[A] general contractor is not [usually] 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 it 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 assumed 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 resultant injury . . . Consistent with these exceptions, we have long held that, in the absence of statutory immunity based on the principal employer doctrine a general contractor may, depending on the circumstances, be held liable to an employee of its subcontractor for its own negligence . . .
(Citations omitted; Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska, supra at 518.
Under General Statutes § 31-291, a general contractor cannot claim principal employer status for the purpose of avoiding the plaintiff's negligence action unless he had actually paid for the plaintiff's workers' compensation benefits. There is no claim that Turner paid for workers' compensation benefits for the plaintiff.
CONCLUSION
The plaintiff's right to bring suit against the general contractor is not affected by the contract between the employer and the general contractor. Based on the allegations in the complaint, an issue of fact exists as to whether Turner comes within one of the exceptions to the general rule regarding nonliability of general contractors for the torts of independent subcontractors. The motion for summary judgment is accordingly denied.
GALLAGHER, J.