Summary
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.
Summary of this case from Anberg-Dudas v. SpillaneOpinion
No. CV 02-0460536 S
April 29, 2003
MEMORANDUM OF DECISION MOTION FOR SUMMARY JUDGMENT #113
On February 6, 2002, the plaintiffs, Jamie Miller and Julie Miller, filed a three-count complaint against the defendants, Avery Jutkowicz and Wagner Engineering, LLC (Wagner Engineering), seeking damages for negligence and loss of consortium. The plaintiffs allege that Jamie Miller was a passenger in an automobile owned by Wagner Engineering and operated by Wagner Engineering's employee, Jutkowicz. Jutkowicz allegedly lost control of the automobile while driving on a slalom test rack in Lebanon Valley, New York. The plaintiffs allege that as a result of Jutkowicz losing control of the vehicle, the vehicle rolled over and caused Jamie Miller's injures. The plaintiffs also allege that Wagner Engineering is vicariously liable for Jutkowicz' actions. The plaintiffs further allege that, as a result of Jutkowicz' negligence, Julie Miller has suffered a loss of spousal consortium.
On February 26, 2002, Zero Roll Suspension, LLC (Zero Roll), filed a motion to intervene as a co-plaintiff. Zero Roll's motion was granted. Zero Roll's intervening complaint seeks reimbursement for the amounts paid, and those it may become obligated to pay, for Jamie Miller's medical care under the terms of the Workers' Compensation Act.
On April 15, 2002, the defendants filed an answer and special defenses. By way of special defense, the defendants claimed, inter alia, that the plaintiffs' action is barred by General Statutes § 31-293a. On July 2, 2002, the defendants filed a motion for summary judgment on the ground that there is no genuine issue of material fact and they are entitled to judgment as a matter of law. The defendants, in their memorandum in support of their motion for summary judgment, first argue that General Statutes § 31-284, the Workers' Compensation Act, is Jamie Miller's exclusive remedy against Wagner Engineering. Second, the defendants argue that New York law applies to the factual circumstances of Jamie Miller's claims against Jutkowicz. Third, the defendants argue that because New York law applies and New York recognizes the defense of assumption of the risk as a complete defense to negligence actions, summary judgment is appropriate because Jamie Miller assumed the risk of participating in a vehicle safety experiment. Finally, the defendants argue that if Connecticut law applies, the plaintiffs must allege and prove that Jutkowicz acted recklessly or with intent. In support of their motion for summary judgment, the defendants submit affidavits from Jutkowicz and the owner of Wagner Engineering, Todd Wagner.
In its memorandum of law in opposition to the defendants' motion for summary judgment, Zero Role argues that there remains a question of fact to be determined by a jury. Zero Role argues that Connecticut law establishes the standard of care by which to measure Jutkowicz' alleged actions and therefore an assumption of risk defense is inapplicable. Zero Role also argues that if New York applies, whether Jamie Miller assumed the risk is a factual question to be answered by the fact finder. The plaintiffs argue, in opposition to the defendants' motion for summary judgment, that Connecticut law applies to the present case, and therefore, the defendants are not entitled to summary judgment as to Jutkowicz because assumption of the risk in negligence cases has been abolished in Connecticut. Next, the plaintiffs argue that if New York law applies, assumption of the risk is a question of fact that must be decided by a jury. Finally, the plaintiffs concede that the defendants are entitled to summary judgment as to the vicarious liability claim against Wagner Engineering.
DISCUSSION
"Practice Book § [17-49] provides that 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 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 a 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." (Citations omitted; internal quotation marks omitted.) Gaynor v. Payne, 261 Conn. 585, 590-91, 804 A.2d 170 (2002).
Though the plaintiff does not articulate it, he is seeking to avail himself of the exception to the exclusivity of the Workers' Compensation Act found in § 31-293a. Section 31-293a states, in pertinent part: "If an employee or, in 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." (Emphasis added.) General Statutes § 31-293a.
Although 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. At the same time it has accorded the injured employee, in addition to workers' compensation, the same remedy he would have against a member of the general public who caused a motor vehicle accident.
Dias v. Adams, 189 Conn. 354, 359-60, 456 A.2d 309 (1983).
There is no dispute between the parties that Jamie Miller and Jutkowicz were co-employees, were employed by Wagner Engineering and were engaged in their employment at the time of the accident. Furthermore, there is no dispute that Jamie Miller was injured while Jutkowicz drove an automobile on a slalom test track. Finally, Jamie Miller is claiming that his injuries were caused by Jutkowicz' negligence.
Because Jamie Miller is claiming that his injuries occurred while he was in the course of his employment and that his injures were caused by the negligence of his fellow employee, his exclusive remedy, as a matter of law, is found in the Workers' Compensation Act. General Statutes § 31-293a. The plaintiff, however, implicitly argues that his claim falls into the exception found in § 31-293a, and that his "action is based on [his] fellow employee's negligence in the operation of a motor vehicle . . ." General Statutes § 31-293a.
The plaintiff, however, in the present case, "subjected himself to the special hazards of the workplace." (Internal quotation marks omitted.) Fields v. Giron, 65 Conn. App. 771, 775, 783 A.2d 1097, cert. denied, 258 Conn. 936, 785 A.2d 230 (2001). In Fields v. Giron, the plaintiff and defendant worked for a landscaping company. Id., 772. In attempting to remove a fallen tree, the defendant tied a rope around the tree, fed it through a block and tackle and attached the rope to the back of his company vehicle. Id., 773. As the defendant depressed the accelerator pedal, the rope snapped because of the tension and the block and tackle struck the plaintiff. Id. The plaintiff sued his co-worker, the defendant, claiming that the defendant's negligence caused his injury. Id. The defendant moved to strike the plaintiff's complaint on the ground that the Workers' Compensation Act was the plaintiff's exclusive remedy. Id. The plaintiff replied by arguing that General Statutes § 31-293a provides an exception to the exclusivity of the Workers' Compensation Act by permitting an employee to assert a tort claim against a fellow employee when the claim involves the fellow employee's negligent operation of a motor vehicle. Id. The trial court granted the defendant's motion to strike and the plaintiff appealed. Id.
The appellate court affirmed the trial court's decision on the ground that "[t]he risk of injury [the plaintiff] faced was not that risk of a motor vehicle accident faced by the general public as a common danger. Clearly, the accident . . . had a distinct relationship to the hazards of employment." (Internal quotation marks omitted.) Id., 775. The appellate court further reasoned that "[t]he general public is not exposed to the risk entailed in removing a fallen tree 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." (Internal quotation marks omitted.) Id., 775-76.
Similarly, in the present case, the general public is not exposed to the risk entailed in testing vehicle suspension systems on a slalom test track. The plaintiff "was not facing the hazards encountered by the general public as motorists . . ." (Internal quotation marks omitted.) Id., 775. Instead, the plaintiff, as part of his employ, was expected to travel in a vehicle that is intentionally driven in a reckless manner so as to test its suspension system and its roll over threshold. As a result, it is submitted that § 31-293a is not an applicable exception to the Workers' Compensation Act under the circumstances of this case. Accordingly, it is also submitted that Jutkowicz is entitled to summary judgment as a matter of law because the Workers' Compensation Act is Jamie Miller's exclusive remedy for the injuries he incurred while in the course of his employment. Moreover, because the plaintiff's action is barred by Connecticut's Workers' Compensation Act, it is also submitted that the court need not address the choice of law issue raised by the defendant.
Gilardi, J.