Opinion
No. CV 01 0065857
May 28, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT #172 AND DEFENDANT'S MOTION TO STRIKE AFFIDAVIT #186
BACKGROUND
On November 11, 2003, the plaintiff, Scoff Chamberland, filed a third amended complaint against the defendants, John Labonte, Arthur Roberts d/b/a Merchant Farmers Transportation (Merchant Farmers), Wheelabrator Environmental Systems, Inc. (Wheelabrator) and Riley Energy Systems of Lisbon, Corp. (Riley). In this eleven-count complaint, the plaintiff alleges negligence (count one) and loss of consortium (count two) against LaBonte.
Scott and Sharon Chamberland, husband and wife, both filed the present lawsuit. For the purposes of this opinion, however, "plaintiff" refers to Scott Chamberland only.
Counts one and two of the third amended complaint are the only relevant counts for the purposes of this memorandum. Because they involve only LaBonte, he will be referred to as the "defendant."
The plaintiff alleges the following facts. On June 5, 1999, the plaintiff and defendant drove a garbage truck to the Lisbon Incinerator to dump refuse for their employer, Merchant Farmers. The Lisbon Incinerator was owned and operated by Wheelabrator and Riley. In the course of operating the garbage truck, the defendant caused the vehicle to suddenly jerk up and out in the air, just over a pit. The plaintiff reacted by jumping onto a concrete platform. The plaintiff suffered serious injuries as a result of the incident. Sharon Chamberland, the plaintiff's wife, alleges that she suffered loss of consortium as a result of her husbands' injuries.
On November 4, 2003, the defendant filed a motion for summary judgment on counts one and two, supported by a memorandum of law, the sworn affidavits of the defendant and Arthur Roberts, photographs of the garbage truck and the certified deposition testimony of the plaintiff. The defendant, a fellow employee of the plaintiff claims that the plaintiff's claim against him is barred by the exclusive remedy provisions of the workers' compensation act. General Statutes § 31-293a provides:
Because the third amended complaint is now the operative complaint; Practice Book § 10-6(a)(3); the defendant's motion for summary judgment, filed in response to the second amended complaint, is deemed directed to the third amended complaint. Practice Book § 10-61. See Mingrone v. Choice Auto Rental and Sales, LLC, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 00 0376032 (July 6, 2001, Skolnick, J.).
If an employee or, in the case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1.
The thrust of the defendant's motion is that the plaintiff's injury was not caused by the operation of a motor vehicle but instead was caused by the use of the dumping mechanisms on the truck and thus is not within the statutory exception.
On January 29, 2004, the plaintiff filed a memorandum in opposition to the defendant's motion for summary judgment, supported by the deposition testimony of the defendant and the sworn affidavit of Dr. Irving Ojalvo, an engineer.
On January 30, 2004, the defendant filed a motion to strike the affidavit of Ojalvo. On February 11, 2004, the plaintiff filed an objection to the defendant's motion to strike the affidavit of Ojalvo. The Ojalvo affidavit reads, in part, like a legal brief on behalf of the plaintiff. For reasons discussed below, that court finds that much of Ojalvo's affidavit is devoted to issues that are not material to the resolution of the defendant's motion for summary judgment. The court denies the defendant's motion to strike the Ojalvo affidavit but will consider the defendant's objections when considering what weight if any to give to the affidavit and in determining whether any material facts are in dispute.
For the purposes of this motion, the court finds that the following material facts are not in dispute. On June 5, 1999 Scott Chamberland and John Labonte were employed by Merchant Farmers Transportation. Immediately prior to the accident, the defendant John Labonte drove the garbage truck to the incinerator facility and backed it up adjacent to a garbage pit where the refuse in the body of the truck was to be dumped. The plaintiff Scott Chamberland was riding in the truck with Mr. Labonte. The defendant left the motor of the truck running, placed the transmission in neutral, engaged the maxi-brakes to prevent movement of the truck during the dumping process and activated the power take-off switch. The power take-off switch allowed the hydraulic pump and system to be powered from the truck's motor. The hydraulic system is not used to move the truck forward or backwards on the roadway, but provides power to a blade that clears the contents of the hopper into the body of the truck, to open the hopper at the back of the truck and to operate a ram in the body of the truck. The ram pushes the collected garbage out of the back of the track. The defendant John LaBonte then exited the driver's side door and the plaintiff, his fellow employee, exited the passenger's side door of the truck. Both parties proceeded to the back of the truck to uncouple the hopper from the body of the truck. Uncoupling the hopper enables the hydraulic system to lift the hopper and open up the back of the truck.
The defendant uncoupled the hopper on the driver's side of the truck and then proceeded towards the front of the truck. He stopped just behind the cab of the track where the controls for the hydraulic system that lifts the hopper and operates the ram are located. The plaintiff, on the passenger's side of the truck, uncoupled the hopper from the body of the truck and then grabbed a lever to clear the hopper of the garbage collected at the last stop before the truck arrived at the incinerator. While the plaintiff was holding the lever to clear the hopper, the defendant, without checking for the plaintiff's whereabouts, pulled a lever that raised the hopper of the truck. At that time, the plaintiff was holding on to a lever on the hopper. The plaintiff was thrust out and up into the air over the garbage pit. He then jumped from the lever on the hopper to the ground and was injured.
DISCUSSION
Practice Book § 17-49 provides that summary judgment shall be granted 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." "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003).
"Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such a disputed issue . . . It is not enough, however, 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 [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., supra, 263 Conn. 252-53.
The defendant argues that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law because the plaintiff's claim is barred by General Statutes § 31-293a. The defendant further asserts that the motor vehicle exception set forth in § 31-293a is inapplicable because the defendant was not operating a motor vehicle within the meaning of the statutory exception. The plaintiff argues that there is a genuine issue of material fact as to whether the defendant was operating a motor vehicle within the meaning of the motor vehicle exception.
General Statutes § 31-293a provides in relevant part: "If an employee or, in the case of his death, his dependent has a right to benefits or compensation under this chapter . . . such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless . . . the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1."
Our Supreme Court has considered the statutory exception to the exclusive remedy provision of the workers' compensation statute as it relates to a fellow employee's negligence in the operation of a motor vehicle. In Dias v. Adams, 189 Conn. 354, 456 A.2d 309 (1983), the plaintiff's decedent was injured when the basket of a backhoe stuck and killed him. The trial court ruled that the motor vehicle exception applied and allowed the plaintiff to recover. The Supreme Court reversed, reasoning, "it is clear that when the mishap took place, the defendant was doing nothing related to driving or moving the vehicle itself, which had been immobilized by switching the power from the treads to the boom. He was engaged only in operating the shovel. His negligence, which the jury found to have caused the accident, did not occur, therefore, in the operation of a motor vehicle, as § 31-293a requires for the exception allowing such a suit against a fellow employee." Id., 358.
Here, the parties dispute whether the garbage truck itself could move while performing lifting and emptying functions. The defendant states in his affidavit that a garbage truck cannot move from a stationary position when the maxi-brakes are applied and the power take-off is engaged. Roberts, the employer of both parties, states in his affidavit that the truck itself cannot be driven or moved while the power take-off switch is engaged. The plaintiff concedes in his deposition that the garbage truck itself typically does not move while the parties are recycling or dumping garbage. Dr. Ojalvo states that it is his opinion that it would be possible for the garbage truck to be driven when the power take-off switch is activated and the maxi-brakes engaged.
Whether or not the truck could be propelled by its motor in a forward or backward locomotion while the hydraulic system is powered and the maxi-brakes applied is a hypothetical that is not material for purpose of resolving this motion for summary judgment. Contrary to Ojalvo's hypothetical, the mechanical mechanism causing the plaintiffs' injuries in this case is clear and undisputed. The defendant had immobilized the garbage truck by engaging the maxi-brakes and placing the transmission in neutral. He then activated the power take-off switch to power the hydraulic system, allowing the defendant and the plaintiff to operate the hopper and ram functions. Both parties then exited the cab and the defendant pulled a lever located on the exterior part of the truck. It was at this time that the plaintiffs' injuries occurred. The moving part of the vehicle that set the stage for the plaintiff's injuries was the swing upward of the hopper from the back of the truck. Any coincidental movement of the wheels while the parties were outside of the cab undoubtedly resulted from the operation of the truck's lifting or dumping functions, rather than the operation (or driving) of the vehicle itself.
Dr. Ojalvo notes that he "reviewed Connecticut General Statutes sec. 31-293a and the cases cited by the defendant's brief relative to the opinions and technical expert issues relative to this accident." (Para. 12.) Dr. Ojalvo goes on to express his opinion that the plaintiff's injuries were "the result of the operation of a `motor vehicle'" and that the "risk involved in this case is not a `special hazard of the workplace.'" He also expressed opinions that the defendant was "operating a motor vehicle when the plaintiff sustained his injuries." These legal conclusions invades this province of this court and do not create issues of fact. It is for the court to interpret and apply the statutory language when the material facts are not in dispute.
In addition, the plaintiff's injury was not caused by the type of motor vehicle contemplated by § 31-293a. General Statutes § 14-1(47) defines a motor vehicle as, "any vehicle propelled or drawn by any nonmuscular power . . ." The statute provides a long list of exceptions to what constitutes a motor vehicle and ultimately excludes, "any other vehicle not suitable for operation on a highway." General Statutes § 14-1(47). Our Supreme Court defined motor vehicles in the context of the exception to the Workers' Compensation Act in Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 429 A.2d 943 (1980).
In Davey, the plaintiff was struck and injured by a hydraulic hoist attached to the flatbed of a truck. In order to operate the hoist, the truck engine had to be running. The hoist itself was controlled either by switches from the truck bed or a hand-held remote control. The defendant instructed the plaintiff to press a switch on the remote control that caused the hoist to strike some high tension wires, injuring the plaintiff. The Supreme Court rejected the plaintiff's argument that the hoist constituted a motor vehicle. The Court reasoned, "[General Statutes] § 14-1 specifically excludes any vehicle not suitable for operation on a highway. The hoist alone is clearly not suitable for operation on a highway. Moreover, the hoist was controlled not by the truck motor, but by remote controls which were held by the plaintiff on the ground. The hoist, therefore, cannot be considered a motor vehicle within the meaning of the exception." (Internal quotation marks omitted.) Davey v. Pepperidge Farms, Inc., supra, 180 Conn. 472-73.
Here, a garbage truck itself is clearly suitable for operation on highways and constitutes a motor vehicle. However, the inquiry of the court does not stop there because a garbage truck can perform additional functions that are unrelated to driving on a highway or transport. Similar to the hoist in Davey, the hopper that caused the plaintiffs' injuries is not suitable for operation on a highway alone. Independent of the truck motor and hydraulic systems, the hopper cannot function. Moreover, although the truck engine provided power to the hopper, it was controlled by a lever located on the exterior of that garbage truck. The hopper that caused the plaintiffs' injuries, therefore, is not a motor vehicle within the meaning of § 14-1.
The plaintiff asserts that Bailey v. Campanaro, Superior Court, judicial district of New Haven, Docket No. 282124, 3 Conn. L. Rptr. 390 (March 19, 1991, Berdon, J.), is factually analogous to the present case. In that case, the plaintiff and defendant drove a dump truck to a construction site to dump a load of fill. They continued to operate the motor of the truck in order to provide power to the body of the truck. To dump the load, the plaintiff had to fully raise the body of the truck and then drive the truck forward in small increments. The power take-off switch was not operating properly, so the plaintiff exited the cab and positioned himself between the body and frame of the truck to check the switch. At that time, the defendant pulled a lever which caused the truck body to lower on the plaintiff, causing him injuries. The trial court held that the injuries resulted from the operation of a motor vehicle because the movement of the body of the truck constituted movement of "an integral part of the motor vehicle." Id.
Despite the plaintiff's reliance on Bailey, the present case is factually dissimilar. The defendant in this case had applied the maxi-brakes and activated the power take-off switch. Both individuals had exited the cab of the truck and the defendant was operating a lever located on the exterior of the garbage truck to dump the refuse. Unlike in Bailey, neither individual was to reenter the cab of the truck and drive it forward in order to dump the refuse. The fact that the parties in Bailey had to drive the truck forward while dumping the load brings it within the purview of the motor vehicle exception because the parties moved, or drove, the truck itself. The parties here were operating mechanisms unrelated to the movement of the truck itself.
Furthermore, this court finds the policy rationale set forth by our Appellate Courts persuasive. In Dias, the Supreme Court stated, "[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.
In Fields v. Giron, 65 Conn. App. 771, 783 A.2d 1097 (2001), the Appellate Court recently precluded recovery under the motor vehicle exception based on a similar policy rationale. The plaintiff and defendant in that case were operating a company truck to remove a fallen tree. The defendant tied a rope to a tree and fed it through a block and tackle to attach the rope to the truck. He then pulled the truck forward, creating tension on the rope. While the defendant was attempting to remove the tree, the rope snapped and injured the plaintiff who was standing nearby. The court held that, "[t]he general public is not exposed to the risk entailed in removing a fallen free by using a rope that is fed through a block and tackle and then attached to a truck. This accident clearly had a distinct relationship to the hazards of employment. This accident involved a special hazard of the workplace and does not fall within the purview of the motor vehicle exception to the Workers' Compensation Act." (Internal quotation marks omitted.) Id., 775-76.
Dr. Ojalvo states that the hazard was not restricted to the worksite because a garbage truck travels on public roads. The operation of the hydraulic power system, however, has nothing to do with the operation of the garbage truck on public roads. It is necessary for packing and dumping refuse. Furthermore, the parties were not actually driving on a public road when the plaintiff was injured. The parties were outside of the garbage truck dumping refuse at an incinerator facility. Also, the general public is not engaged in driving a garbage truck, or in operating a hydraulic power system to pack and dump refuse.
Accordingly, based upon the undisputed material facts, this court holds that at the time this accident occurred the defendant John Labonte was not engaged in the "operation of a motor vehicle" as those terms are used in General Statute Sec. 31a-293a and further finds that the plaintiff and the defendant were exposed to special hazards of the workplace that were unique to their employment with Merchant Farmers. The plaintiff's claims against his fellow employee do not fall within the statutory exception. The defendant John Labonte's motion for summary judgment as to counts one and two is granted.
Cosgrove, J.