Opinion
No. X06-CV-179632 S
March 1, 2005
MEMORANDUM OF DECISION
The plaintiff Lynnette Milligan, as the administrator of the estate of Bernard Milligan and on her own behalf, has brought this action for damages against, inter alia, the defendant WM Properties of Connecticut, Inc. ("WM Properties") claiming that its negligence caused the death of her husband, Bernard Milligan, when a trench in which he was working collapsed on top of him. WM Properties has moved for summary judgment on the following four counts of the complaint asserted against it: the first and second counts of the complaint brought on behalf of the estate of Bernard Milligan which allege negligence and recklessness, respectively, and the fifth and sixth counts brought on behalf of Lynette Milligan which allege loss of consortium based on negligence and recklessness, respectively.
The plaintiff alleges in her complaint that, in November 2000, WM Properties, as the property manager for the Merrit View commercial building, hired Quality Mechanical Plumbing Contractors, LLC (Quality Mechanical) to locate and repair a possible leak in a water main running from the street to the Merit View building. Bernard Milligan was the owner and president of Quality Mechanical. The plaintiff further alleges that, as part of the water main project, the defendant Jeffrey Blizzard d/b/a Storm Construction excavated a trench to expose the water main. No trench box, trench sleeve or other kind of shoring or framing was used in the trench to prevent it from caving in. On December 13, 2000, while Bernard Milligan was working in the trench, it collapsed, killing him.
WM Properties contends that it is entitled to judgment as a matter of law because there exists no genuine issue of fact regarding its control of the work site. Specifically, the defendant maintains that the plaintiff has not brought forward evidence to counteract its affidavits averring that it did not have control over the digging of the trench. The plaintiff asserts that she has set forth sufficient facts establishing that a genuine dispute exists as to the possession and control of the work site to warrant presenting the issue to a jury. The plaintiff also maintains that, irrespective of the issue of control, she has submitted evidence of WM Properties' liability based on a breach of its nondelegable duty to insure that special precautions are taken where work involves a peculiar unreasonable risk of physical harm to others.
"Summary judgment is a method of resolving litigation when 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 . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450 (1993). 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. Cortes v. Cotton, 31 Conn.App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158 (1997).
"It is not enough for the opposing party merely to assert the existence of such a disputed issue. The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted and citations omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06 (1994).
It is undisputed that WM Properties was the property manager of the subject property and it hired Quality Mechanical to excavate and repair a possibly leaking water main on the property. Quality Mechanical subsequently retained Jeffrey Blizzard doing business as Storm Construction to assist it in excavating a trench so it could view and, if necessary, repair the water main. It is also undisputed that Quality Mechanical was acting as an independent contractor with respect to this project. "As a general rule, an employer is not liable for the negligence of its independent contractors." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517 (2003). There are recognized exceptions to the general rule and the plaintiff contends that it has submitted evidence that two of them apply here. "[T]o this general rule there are exceptions, among them these: If the work contracted for be unlawful, or such as may cause a nuisance, or 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 assume 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." Id., 518. The plaintiff contends that WM Properties remains liable for the negligent failure to shore up the trench because it retained control over the premises and because the digging of the trench involved an intrinsically dangerous activity.
"[A]n independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work." (Internal quotation marks omitted.) Darling v. Burrone Bros., Inc., 162 Conn. 187, 195 (1972).
The plaintiff first argues that, by retaining control over the subject property generally, WM Properties is liable for the negligent construction of the trench. I do not agree. The control retained by the employer of an independent contractor which will subject the employer to liability for the negligent work of the independent contractor is control over the contractor or over the manner of doing the work, Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 518, or control of the area or instrumentality causing the plaintiff's injury, Van Nesse v. Tomaszewski, 265 Conn. 627, 631 (2003).
The plaintiff next asserts that she has submitted evidence that WM Properties retained control over the digging of the trench. The plaintiff points to evidence that WM Properties wanted the project completed on an expedited basis. I do not agree that evidence that WM Properties wanted the project done quickly is sufficient for a reasonable juror to conclude that WM Properties maintained control over the digging of the trench. Direction as to the time expected to accomplish the work does not constitute control over the means and methods of the work.
The plaintiff also contends that her affidavit and that of Darnell Burgess contain evidence that WM Properties directed Bernard Milligan to go into the trench when it was improperly framed. The affidavit of Burgess states that "a gentleman from WM" came to the site and spoke to Milligan. Thereafter, Milligan stated that "We gotta get this done" and proceeded to go into the trench. Linda Milligan's affidavit states that "Even though [Bernard Milligan] had told WM that the pipe was not leaking, they directed him to continue and replace the pipe anyway." Neither affidavit contains direct evidence that WM Properties directed Milligan to go into the trench while it was improperly framed. Nor does either affidavit contain circumstantial evidence of such an order. The most that can be reasonably inferred from the affidavits is that WM Properties wanted the project completed and completed quickly.
Finally, the plaintiff argues that summary judgment is not warranted because she has submitted evidence that the digging of the trench in this case involved intrinsically dangerous work that required special precautions and that WM Properties violated its nondelegable duty to insure that such precautions were taken. I agree.
Section 413 of the Restatement (Second) of Torts provides that "one who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer (a) fails to provide in the contract that the contractor shall take such precautions, or (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions." This principle in various forms is one of long-standing and the Restatement cites Bower v. Peate, L.R. 1 Q.B.D. 321 (1876) as a source of the rule. "[A] man who orders a work to be executed, from which, in the usual course of things, injurious consequences to his neighbor must be expected to arise . . . cannot relieve himself of his responsibility by employing some one else . . ." Id., 326. The principle dates back even farther in Connecticut. In Lawrence v. Shipman, 39 Conn. 586, 589 (1873), the court opined that "If I employ a contractor to do a job for me which in the progress of its execution obviously exposes others to unusual peril, I ought, to be responsible . . . for I cause acts to be done which naturally expose others to injury." See also Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 528 (1893) ("It is a sound a rule of law as of morals, that when, in the natural course of things, injurious consequences will arise to another from an act which I cause to be done, unless means are adopted by which such consequences may be prevented, I am bound, so far as it lies within my power to see to the doing of that which is necessary to prevent the mischief. Failure to do so would be culpable negligence on my part. Bower v. Peate, L.R. 1 Queen's Bench Div. 321.") The rule has also found modern application in this state. In Bonczkiewicz v. The Merberg Wrecking Corporation, 148 Conn. 573 (1961), our Supreme Court affirmed a judgment awarding damages for the death of the named plaintiff's decedent against the owners of a building where the death resulted from the negligent failure of an independent demolition contractor hired by the owners to construct an adequate fence to prevent debris from the demolition of the building from striking the decedent. The Supreme Court held that an employer of an independent contractor is liable for negligently failing to take preventive precautions or causing them to be taken where the employer knew or should have known that the work was of such a character that, even if it was duly performed, it would obviously and naturally, even though not necessarily, expose others to probable injury unless preventive measures were taken. Id., 579. See also Taylor v. Conti, 149 Conn. 174, 172 (1962).
The rule of liability set forth in Section 413 of the Restatement has been referred to as the "doctrine of peculiar risk," Tolland v. Sunland Housing Group, Inc., 18 Cal.4th 253, 258, 955 P.2d 504, 74 Cal.Rptr.2d ___ (1998), and "is concerned with the special risks peculiar to the work to be done, and arising out of its character, or out of the place where it is to be done, against which a reasonable man would recognize the necessity of taking special precautions," Restatement (Second), Torts § 413, comment (b), (1965). Whether the employer of the independent contractor should have known that the work involves peculiar risk for which special precautions are necessary will depend on the extent of the employer's knowledge and experience in the field of the work to be done. Id., comment (e). Although the employer may not have reason to know at the time he enters into the contract that conditions will arise which require special precautions, if in fact such conditions do arise which he knows or should know of, he is required to insure that special precautions are taken. Id., comment (d).
The plaintiff claims that she has submitted substantial evidence that the repair work on the water main called for by WM Properties' contract with Quality Mechanical required work to be done, in this case, excavation of a deep trench, that was likely to create a peculiar risk of unreasonable harm to others unless special precautions were taken. The plaintiff has submitted an affidavit from a construction expert that the trench was 14 feet deep at its deepest point, 20 to 25 feet long and 10 feet wide; it was located on a steep embankment; it was dug in soil that contained large pieces of debris; and it lacked cave-in protection, such as a trench box, trench sleeve, or shoring. The expert also opined in his affidavit that the trench was "visibly and obviously unsafe." This evidence raises a legitimate issue as to whether WM Properties, as the property manager, knew or should have known that conditions arose during the course of the work which required that special precautions be taken. See Restatement (Second), Torts § 413, comment (d) (1965). See also Beckman v. Butte-Silver Bow County, 299 Mont. 389 (2000) (The court held that digging a trench constituted an intrinsically dangerous activity that required special precautions); Griesel v. Dart Industries, Inc., 23 Cal.3d 578, 587 (1979), overruled in part on other grounds, Privette v. Superior Court, 5 Cal. 4th 689, 696 (1993) (The court held that the digging of a 9-foot trench involved a peculiar risk of physical harm which required the taking of special precautions such as adequate shoring or sloping), and Widman v. Rossmoor Sanitation, Inc., 36 Cal. Comp. Cas 937, 945, 19 Cal.App.3d 734, 97 Cal.Rptr. 52 (1971) (The court held that the employer of an independent contractor hired to excavate a trench knew or should have known that the digging of a 14-foot trench was likely to create a peculiar risk of physical harm to others unless special precautions, such as bracing or shoring, were taken).
WM Properties cites Burgess v. WM Properties of Conn., Inc., Superior Court, judicial district of Bridgeport, Docket No. CV03-0398812 (January 27, 2005) (Doherty, J.) as support for its position that summary judgment should enter in its favor. In Burgess, the plaintiff Hubert Burgess was injured in the same trench collapse as the plaintiff here. The court granted WM Properties' motion for summary judgment on the grounds that the plaintiff failed to submit any evidence that WM Properties was in control of the digging of the trench, a finding that I have also made here. The court in Burgess was apparently not presented with the claim which the plaintiff presents in this case that WM Properties is liable because the excavation of the trench was likely to create a peculiar risk of unreasonable harm to others unless special precautions were taken. It is this claim and the evidence presented in support of it that prevents the entry of summary judgment in this case.
WM Properties asserts that the digging of a trench does not qualify as an exception to the general rule that an employer is not liable for the negligence of its independent contractor because it is not an inherently dangerous activity. It argues that courts in Connecticut have very narrowly construed inherently dangerous activities and limited such activities to blasting, pile driving and highly volatile chemicals. I am not persuaded. The activities cited by WM Properties have been determined by the appellate courts to be ultrahazardous activities for which strict liability applies. See Whitman Hotel Corp. v. Elliott Watrous Engineering Co., 137 Conn. 562, (1951) (blasting and explosives); Caporale v. C.W. Blakeslee Sons, Inc., 149 Conn. 79, 85 (1961) (pile driving); and Green v. Ensign-Bickford Co., 25 Conn.App. 479, 482-83 (1991) (research experiments involving highly volatile chemicals). Here, the plaintiff does not seek to impose strict liability on WM Properties for an ultahazardous activity, see § 519 of the Restatement (Second), Torts (strict liability for abnormally dangerous activities), but liability for failing to insure that special precautions were taken with respect to an activity that involved a peculiar unreasonable risk of physical harm to others, see § 413 of the Restatement (Second), Torts.
WM Properties also contends that the principle of liability for peculiar risks recognized by § 413 of the Restatement (Second), Torts does not apply to the plaintiff because he is not within the class of people covered by the rule. Specifically, the defendant argues it owed no duty to the plaintiff because the peculiar risk doctrine covers "a peculiar unreasonable risk of physical harm to others," (emphasis supplied), and the plaintiff, as the person in control of the excavation, may not be considered within the umbrella of "others" toward whom the duty applies. I am not persuaded.
To the extent WM Properties is arguing that, as the employer of an independent contractor, it owes no duty to employees of the independent contractor, its claim has been rejected by our Supreme Court. See Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509 (2003). The defendants further claim that it owed no duty to Milligan because he was the person in control of the excavation is an issue for which conflicting evidence has been presented. The testimony of Jeffrey Blizzard is that Milligan directed and supervised the excavation of the trench. The testimony of Joseph Gundeck is that Blizzard make the decisions as to how the trench was to be dug and whether any shoring or framing was to be done. In light of this conflicting evidence, there exists a genuine issue of material fact and entry of summary judgment is not appropriate.
In light of the above, the defendant WM Properties' motion for summary judgment is hereby denied.
BY THE COURT
Jon M. Alander Judge of the Superior Court