Opinion
3567/09.
Decided March 10, 2011.
BURKE, LIPTON GORDON, Attorneys for Defendant, White Plains, New York.
BY: Ashley E. Sproat, Esq., URIEL E. GRIBETZ, ESQ., Attorney for Plaintiff, White Plains, New York.
Plaintiff is a resident of New York and defendant Hobbs, Incorporated ("Hobbs") is a corporation incorporated under the laws of the State of Connecticut and licensed to do business in the State of New York. Hobbs was the general contractor which had contracted to demolish an existing structure and to rebuild a new single-family residence for the owners of property located in Greenwich, Connecticut. Hobbs subcontracted the masonry work to MFA Masonry ("MFA"), of which plaintiff was an employee. Plaintiff allegedly sustained injuries when he fell from a ladder while performing work at the project site in Connecticut and has brought this action for damages alleging violations of New York Labor Law §§ § 200, 240 and 241, as well as common law negligence. Hobbs now moves for summary judgment dismissing plaintiff's causes of action with respect to alleged violations of the New York State Labor Law on the ground that Connecticut, rather than New York law applies. Hobbs further moves for summary judgment dismissing plaintiff's common law negligence claim on the ground that, under Connecticut law, he cannot establish a prima facie case of negligence.
"In the context of tort law, New York utilizes interest analysis to determine which of two competing jurisdictions has the greater interest in having its law applied in the litigation. The greater interest is determined by an evaluation of the facts or contacts which * * * relate to the purpose of the particular law in conflict" ( Padula v. Lilarn Prop. Corp., 84 NY2d 519, 521, quoting Schultz v. Boy Scouts, 65 NY2d 189, 197 [internal quotations omitted]; DeMasi v. Rogers , 34 AD3d 720 , 720). In determining which state has the greater interest, a court must consider: "(1) what are the significant contacts and in which jurisdiction are they located; and (2) whether the purpose of the law is to regulate conduct or allocate loss" ( Padula v. Lilarn Prop. Corp., 84 NY2d at 521).
As to the first inquiry, plaintiff is a domiciliary of New York, Hobbs is a foreign corporation licensed to do business in New York, and the alleged tort occurred in Connecticut. The other relevant actors, which include plaintiff's employer MFA (a New York domiciliary), and the owners of the property (Connecticut domiciliaries), are not parties to this lawsuit.
Turning now to the second inquiry, "a distinction must be made between a choice-of-law analysis involving standards of conduct and one involving the allocation of losses" ( Id. at 521-522, citing Schultz v. Boy Scouts, 65 NY2d at 198). If conflicting conduct-regulating laws are at issue, "the law of the jurisdiction where the tort occurred will generally apply because that jurisdiction has the greatest interest in regulating behavior within its borders" ( Id. at 522, quoting Cooney v. Osgood Mach., 81 NY2d 66, 72 [internal quotations omitted]; DeMasi v. Rogers, 34 AD3d at 721). "Loss allocating rules, on the other hand, are those which prohibit, assign or limit liability after the tort occurs" ( Padula v. Lilarn Prop. Corp., 84 NY2d at 522). Where the conflicting rules at issue are loss allocating, the rule of the common domicile will apply ( Id.).
Since Labor Law §§ 240 and 241 are primarily conduct-regulating rules, they are not to be applied to the resolution of a tort which occurred in Connecticut (see Id.; Hardzynski v. ITT Hartford Ins. Co., 227 AD2d 449, 449; Huston v. Hayden Bldg. Maintenance Corp., 205 AD2d 68, 70). Labor Law § 200 is also a conduct-regulating statute and does not apply to a work site in Connecticut ( Id. at 70; see also Floria v. Fisher Dev., 309 AD2d 694, 695; Feris v. Port Auth. of New York New Jersey, 40 AD3d 276, 276; Seda v. Port Auth. of New York New Jersey, 29 AD3d 305, 305). Accordingly, plaintiff's causes of action based on the New York State Labor Law are dismissed.
Turning now to Hobbs' motion for summary judgment as to the claim for common law negligence, the moving party bears the burden of establishing "the nonexistence of any material fact" ( Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219, quoting Hryniewicz v. Wilson, 51 Conn.App. 440, 443, 722 A.2d 288 [internal quotations omitted]). In order to satisfy this burden, "[i]t is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward * * * evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute" ( Id., quoting Gambardella v. Kaoud, 38 Conn.App. 355, 358, 660 A.2d 877 [internal quotations omitted]). Unless the affidavits of the moving party affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case, summary judgment should be denied ( Id. at 431).
"Correspondingly, the 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 an issue" ( Id. at 430, quoting Hryniewicz v. Wilson, 51 Conn.App. 440, 443, 722 A.2d 288 [internal quotations omitted]). The party opposing the motion "must recite specific facts * * * which contradict those stated in the movant's affidavits and documents and show that there is a genuine issue for trial" ( Id., quoting Hryniewicz v. Wilson, 51 Conn.App. at 444 [internal quotations omitted]). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment" ( Norse Sys. v. Tingley Sys., 49 Conn.App. 582, 591, 715 A.2d 807).
In making its determination on a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party ( Fernandez v. Estate of Ayers, 56 Conn. 332, 334, 742 A.2d 836), and "[t]he test is whether a party would be entitled to a directed verdict on the same facts" ( Hryniewicz v. Wilson, 51 Conn.App. at 443).
Applying these principles, the Court must determine whether there is any genuine issue regarding Hobb's common law negligence for plaintiff's injuries. Under Connecticut law, "[t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury * * * Contained within the first element, duty, there are two distinct considerations * * * First, it is necessary to determine the existence of a duty and then, if one is found, it is necessary to evaluate the scope of that duty * * * The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand" ( Pelletier v. Sardoni/Skanska Constr. Co., 286 Conn. 563, 593, 945 A.2d 388, quoting Considine v. Waterbury, 279 Conn. 830, 859, 905 A.2d 70 [internal quotations omitted]). The issue presented, therefore, is whether or not Hobbs owed a duty to plaintiff, for in the absence of such a duty, plaintiff cannot recover in negligence from Hobbs ( Maffucci v. Roayl Park Ltd. Partnership, 243 Conn. 552, 567, 707 A.2d 15).
As a general rule, a general contractor is not responsible for the torts of its independent contractors ( Van Nesse v. Tomaszewski, 265 Conn. 627, 631, 829 A.2d 836). However, as the Connecticut Supreme Court has long held "[t]o this general rule there are exceptions" ( Archambault v. Soneco/Northeastern, 287 Conn. 20, 53, 946 A.2d 839). Specifically, the Supreme Court has identified four exceptions: 1) if the work contracted for is unlawful, or such as may cause a nuisance, or is intrinsically dangerous; 2) if the general contractor negligently employed an incompetent or untrustworthy subcontractor; 3) if the general contractor reserves in the contract itself general control over the subcontractor or his servants, or over the manner of doing the work, or if in the progress of the work assumes control or interferes with the work; or 4) if the general contractor is under a legal duty to see that the work is properly performed ( Pelletier v. Sordoni/Skanska Constr. Co., 264 Conn. 509, 518, 825 A.2d 72).
"The premise underlying the general rule that an independent subcontractor is liable for losses resulting from negligence in the performance of its work is that the assumption and exercise of control over the offending area is deemed to be in the independent contractor" ( Pelletier v. Sardoni/Skanska Constr. Co., 286 Conn. at 599, quoting Darling v. Burrone Bros., 162 Conn. 187, 196, 292 A.2d 912 [internal quotations omitted]).
Plaintiff has asserted three of these exceptions in the present case. First, he claims that Hobbs owed him a duty because Hobbs had control over the ladder and/or the work site. "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" ( Doty v. Shawmut Bank, 58 Conn.App. at 432, quoting Panaroni v. Johnson, 158 Conn. 92, 98, 256 A.2d 246 [internal quotations omitted]; see also Mozeleski v. Thomas, 76 Conn.App. at 294).
Hobbs maintains that it neither owned nor exercised control over the ladder, and did not retain any degree of control or oversight as to the method and manner of the work to be performed by MFA. In support of its contention, Hobbs has submitted the affidavit of Mark O'Connell, the deposition testimony of plaintiff, Bruce Laskay and Mark O'Connell, as well as the subcontractor agreement ("Subcontractor Agreement") and master subcontract agreement ("Master Subcontract Agreement") between Hobbs and MFA.
Pursuant to the provisions of the Subcontractor Agreement, MFA was required to adhere to all OSHA and Hobbs' safety standards and to furnish its employees with hard hats, as well as eye and ear protection. In the event an employee of MFA arrived at the work site without a hard hat, the Subcontractor Agreement provided that Hobbs would provide one at the cost of $50 each, the cost to be deducted from the contract price. The terms of this agreement further required MFA to furnish a full time field supervisor who would meet and work with Hobbs' safety director.
The Master Subcontract Agreement, which was incorporated by reference into the Subcontractor Agreement, required that all work was "to be performed and furnished under the direction and to the satisfaction of both the Architect and Contractor." Pursuant to ¶ 11 thereof, MFA agreed to accept liability for any injury, claim, loss, damage or expense from any cause other than Hobbs' negligence. In addition, MFA assumed "the entire responsibility and liability for all work, supervision, labor and materials." While the Master Subcontract Agreement did provide for the use of the general contractor's equipment "from time to time as an accommodation" to MFA, its equipment was not to be used without the express authorization from Hobbs' project manager or field supervisor.
According to the deposition testimony of Mark O'Connell, he is the director of safety and health for Hobbs and is responsiblefor performing site safety inspections, answering any safety-related questions of Hobbs' employees with respect to their job site, and the ordering of safety supplies for Hobbs' personnel. With respect to the construction site at issue in the present case, Mr. O'Connell testified that he was responsible for making sure that the work being performed at the job site was being done in accordance with both OSHA regulations and Hobbs' safety regulations. In addition to a family safety orientation with the owners of the property, he periodically visited the job site. Of the approximate ten visits he made to the job site, two or three of the visits were made at the time when MFA was installing the chimney; none of the visits were made during the time that MFA was working on the facade of the structure. On these occasions, the MFA employees were using scaffolding, not a ladder. He further testified that he did not recall ever seeing a ladder during his site visits, but had very little knowledge regarding the overall supervisory duties performed by another Hobbs employee, Bruce Laskay, and the day-to-day conduct of work at the job site.
Hobbs also relies upon the deposition testimony of Mr. Laskay who, as the construction supervisor for the job site, was the liason between Hobbs, the property owners, architects, engineers, subcontractors and Town of Greenwich. He testified that in this capacity, he was responsible for overseeing the timeline of the project, scheduling work, materials, deliveries, and seeing that the subcontractors working at the site were being productive and performing the work in a safe manner. He further testified that he would direct employees of subcontractors "as far as various tasks that were necessary to maintain a schedule of the project," but that typically the workers "were directed" by their own company or supervisors. However, "[o]ften times [he] would go to [the supervisors] first, and then they would direct accordingly. There was sort of a chain of command."
Mr. Laskay further testified that MFA was hired to perform masonry work at the site and that MFA was required to provide its own scaffolding and equipment. According to Mr. Laskay, the owner of MFA usually instructed his own employees, but in the event an issue arose, Mr. Laskay would speak directly with the employee. According to his testimony, he never gave plaintiff any instructions as to the work he performed on the rear of the structure, nor did he provide him with a ladder. In fact, he had no recollection of there being an extension ladder at the job site.
In opposition to the motion, plaintiff contends that Hobbs controlled the instrumentality and/or the premises. In support of his position, plaintiff relies on the Subcontractor Agreement and the deposition testimony of Bruce Laskay. He has also submitted the standard form of agreement between Hobbs and the owners of the property ("General Contractor Agreement"), his affidavit and his deposition testimony.
Under § 3.1.4 of the General Contractor Agreement, Hobbs agreed to furnish supervision, workers and materials and to perform the work in an "expeditious and economical manner." This section was modified to provide that Hobbs was to "furnish construction services and construction administration and construction management services," and to use its "best efforts" to perform the construction project "in an expeditious and economical manner, including efficient business administration and supervision." The term "construction services" was described in § 3.3.0 as overseeing and managing "all labor and materials necessary to complete the [construction project]." Hobbs was further required to coordinate and schedule all work, to ensure that "all workmanship and materials [were] of a fist class quality," to make sure the construction project was completed in a timely manner, and to keep the work site clean and free of dangerous conditions at the end of each work day. Hobbs' warranty to the owners of the property included "remedy for defect or for damage or abuse caused by any person acting for, with, under, at the direction of [Hobbs], its employees, invitees, officers, independent contractors, subcontractors, sub-subcontractors during the Contract."
Plaintiff testified at his examination before trial that generally he reported for work at MFA's garage in Port Chester, New York where he would receive instructions from his boss, Mike Accello, or Mr. Accello's father or brother. He testified that on the day of the accident, he was instructed by Mike Accello to report to the job site to do "a little bit of cleaning in the back part of the house and to make the joints that [he] had to do in the top part of the stone." He further testified that MFA did not have any ladders at the job site and that the ladder he used belong to Hobbs. He based his claim that the ladder was owned by Hobbs on the fact that the ladder was already on the job site when he arrived. He further testified that the only equipment located at the job site which belonged to MFA was scaffolding which had been placed on the front of the structure. On the day of the accident, he used the ladder without the permission of Hobbs and/or its project superintendent since no one else was present but himself.
Hobbs argues that the evidence submitted in support of its motion establishes that it only had general supervision of safety at the work site and, therefore, the exceptions of nonliability do not apply. In contrast, plaintiff argues that there is evidence from which a reasonable juror could find that Hobbs exercised control over the instrumentality — the ladder — and/or the work site. "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 fairly reach different conclusions on the question, the issue should properly go to the jury" ( J.E. Wright v. Coe Anderson, 156 Conn. 145, 150-151, 239 A.2d 493). Additionally, "the contractor's control need not be exclusive; it is sufficient if it [is] shared with another" ( Archambault v. Soneco/Northeastern, 287 Conn. 20, 53-54, 946 A.2d 839, quoting Pelletier v. Sordoni/Skanska Constr. Co., 264 Conn. 509, 518, 825 A.2d 72 [internal quotations omitted]).
Here, there are outstanding issues of fact as to Hobbs' supervision and control which preclude the granting of summary judgment as to plaintiff's common law negligence claim (see Florio v. Fisher Dev., 309 AD2d 694). Furthermore, Hobbs has failed to meet its burden on summary judgment with respect to plaintiff's claims that Hobbs negligently employed an incompetent or untrustworthy subcontractor and that Hobbs owed a duty of care because the masonry work on the facade of the structure was "intrinsically dangerous."
Hobbs did not address these claims in its reply. To the extent that the argument made in ¶ 13 of the affidavit in support of Hobbs' motion arguably addresses the issue of the negligent hiring doctrine, all three cases cited by Hobbs therein were decided prior to the Supreme Court's decision in Pelletier II. The Supreme Court's decision set forth in Pelletier v. Sordoni/Skanska Constr. Co., ( 262 Conn. 372, 815 A.2d 82), was superceded by Pelletier v. Sordoni/Skanska Constr. Co., ( 264 Conn. 509), in which the abrogation of the Appellate Court's ruling in Ray v. Schneider, ( 216 Conn.App. 660, 548 A.2d 461), was also recognized.
The Court notes, however, that under Connecticut Law, the installation of a facade, like roofing work, "is not the kind of work that, when properly done, naturally would expose others to injury unless special preventive measures were taken" ( Pelletier v. Sordoni/Skanska Constr. Co., 286 Conn. at 598). As stated by the Supreme Court in Pelletier II, "[o]ur reasoning is consistent with that of other jurisdictions that have rejected claims alleging that construction work is inherently dangerous" ( Id., citing Robinson v. Poured Walls of Iowa, 553 N.W.2d 873, 877 [excavation of trench]; Rice v. Delta Air Lines, 217 Ga.App. 452, 458 [work on scaffolding]).
Lastly, the Court notes that in its reply Hobbs argues for the first time that the plaintiff's claims are barred by the exclusivity provision of Connecticut General Statutes § 31-284(a). Although this argument was improperly raised for the first time in its reply papers (see Forest River v. Steward, 34 AD3d 474; Calderone v. Harrel, 237 AD2d 318), Hobbs has failed to establish its applicability to the present case.
Accordingly, it is hereby
ORDERED, that plaintiff's motion for summary judgment insofar as it seeks dismissal of plaintiff's New York Labor Law claims is GRANTED; and it is further
ORDERED, that plaintiffs' motion to dismiss plaintiff's claim for common law negligence is DENIED; and it is further
ORDERED, that this matter is referred to the Settlement Conference Part, Room 1201, for a conference on April 15, 2011 at 9:30 a.m.
The foregoing constitutes the Decision and Order of the Court.