Opinion
No. HHD CV 08 5018235
November 30, 2009
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
This action arises out of injuries sustained by the plaintiff, Mikolaj Piwko, within the scope of his employment. The following facts are undisputed. At all times relevant hereto, the plaintiff was employed by Quality Insulation, Inc. (Quality), a subsidiary of Cary Corporation/MCs East. On April 6, 2006, the plaintiff was installing insulation at a residential lot owned by the defendant general contractor, Lacava Construction Company, pursuant to an agreement between Quality and the defendant. While the plaintiff was perched on an interior scaffold, the wheels of the scaffold moved suddenly, and one of the wheels fell into a large hole in the plywood floor. As a result, the scaffold dipped dramatically, causing the plaintiff to lose his balance and fall violently to the floor. At the time of the accident, the plaintiff had not locked the wheels of the scaffold. The hole at issue was one of several holes that had been cut through the plywood floor for purposes of installing a heating, ventilating and air conditioning system. None of the holes were covered or marked. Neither the plaintiff nor Quality was responsible for the holes.
There is some dispute as to the size of the hole. Evidence put forth by the defendant suggests that the hole may have been six by six inches instead of nine by nine inches, as alleged by the plaintiff. This dispute, however, is immaterial for purposes of this Motion.
The relevant procedural history of this Motion is as follows. The plaintiff commenced this action by service of process on March 5, 2008. Cary Corporation/MCs East filed an intervening complaint on April 30, 2008, seeking reimbursement for sums it has paid or become obligated to pay to the plaintiff as workers' compensation benefits in connection with the injuries for which he seeks damages from the defendant in this case. On January 13, 2009, the plaintiff filed an amended four-count complaint in which he alleges negligence on the part of the defendant in Count One. In particular, in Count One, the plaintiff alleges that the defendant exercised control over the subcontractors working on the site, including Quality. On April 17, 2009, the defendant filed a Motion for Summary Judgment as to Cary Corporation/MCs East's intervening complaint and Count One of the plaintiff's complaint. The defendant submitted a memorandum in support of its Motion. The plaintiff filed a memorandum of law in opposition to the Motion on May 27, 2009. On that same day, Cary Corporation/MCs East filed an objection to the Motion, wherein it adopted the plaintiff's memorandum of law in opposition. The matter was first heard on the short calendar on September 28, 2009. On October 15, 2009, the defendant filed a supplemental memorandum in support of its Motion. The plaintiff filed his supplemental memorandum in opposition to the Motion on November 9, 2009. The matter was heard again on the short calendar on November 16, 2009.
The defendant has implead the following three independent contractor defendants into the action: Automatic TLC Fuel Oil; Quality Insulation, Inc.; and Durfey Heating Systems. These three defendants, however, are not involved in this motion.
The amended complaint is the operative complaint, and thus any references to "the complaint" are to that pleading.
Count Two of the plaintiff's complaint, which is not at issue in this motion, alleges liability on the part of the defendant under a theory of premises liability. Counts Three and Four allege negligence against Automatic TLC Fuel Oil and Quality Insulation, Inc. respectively.
At the short calendar on September 28, 2009, the Court requested that the parties submit supplemental materials.
"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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court . . ." (Internal quotation marks omitted.) Allstate Ins. Co. v. Barron, 269 Conn. 394, 406, 848 A.2d 1165 (2004).
In its Motion for Summary Judgment, the defendant argues that the undisputed facts establish that it is entitled to judgment as a matter of law because: (1) its actions were not a proximate cause of the plaintiff's complained-of injuries and losses; and (2) the plaintiff's claim does not fall within any of the exceptions to the rule that a general contractor may not be held liable for the torts of its independent contractor, as recognized in Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 518, 825 A.2d 72 (2003) (Pelletier, J.). The defendant submitted evidence in support of its Motion.
The defendant submitted the following: a copy of the agreement between the defendant and Quality Insulation, Inc.; Cary Corporation/MCs East's answers to interrogatories; the plaintiff's statement of accident/worker related injury; a copy of the plaintiff's workers' compensation claim; a copy of the agreement between the defendant and Automatic TLC Fuel Oil; the affidavit of Joseph Mielcarek, a construction supervisor/foreman for the defendant at the time of the incident; the affidavit of Joseph Lacava; and the supplemental affidavit of Joseph Lacava.
In his memoranda in opposition to the Motion, the plaintiff argues that the Motion should be denied because there remains a factual dispute about: (1) the degree to which the hole in question caused the accident; (2) the identity of the parties which exercised control over the hole; and (3) the unanticipated nature of the hole.
In support, the plaintiff offers his affidavit in which he states that he routinely used the scaffold without locking the wheels because ordinarily the wheels were able to move over the holes. He states that he did not and could not reasonably have expected that the wheels of the scaffold would fall into a hole because holes of that size were highly unusual as that particular hole was larger and more dangerous than the those he routinely encountered. He also indicates that someone boarded up the hole after his accident. Lastly, he says that the hole in question was not created by him or any other employee of Cary Corporation/MCs East. These statements, however, are not relevant for purposes of whether Lacava Construction Company exercised control over the area or instrumentality that caused the injury, which is the material fact at issue in this Motion.
Our courts have repeatedly articulated the general rule that "a general contractor is not liable for the torts of its independent subcontractors." Pelletier I., supra, 264 Conn. 518. "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." Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 599, 945 A.2d 388 (2008) ( Pelletier II). Nevertheless, "[a]n injured employee of a subcontractor may sue the general contractor, if he can establish a basis for the contractor's liability to him under our case law." Pelletier I, supra, 527. In particular, the Supreme Court has identified the following four exceptions to the general rule that will permit recovery from the general contractor: (1) where the work contracted for is intrinsically dangerous; (2) where the independent contractor hired is incompetent or untrustworthy; (3) where the general contractor has a legal duty to see that the work is performed properly; and (4) where the general contractor retains or assumes control over the subcontractor's work. See id., 518; see also Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 53-54, 946 A.2d 839 (2008).
Thus, an exception to the rule of non-liability exists where the general contractor retains or assumes "control of the area or instrumentality causing the injury." (Internal quotation marks omitted.) Van Nesse v. Tomaszewski, 265 Conn. 627, 631, 829 A.2d 836 (2003). "[T]he contractor's control need not be exclusive; it is sufficient if it be shared with another." Id. Where the evidence on the question of who had control of the area or instrumentality causing the injury establishes that the general contractor did not have control, summary judgment is appropriate. See Burgess v. W M Properties of Connecticut, Inc., Superior Court, judicial district of Fairfield, Docket No. CV 03 0398812 (January 28, 2005, Doherty J.).
In the present case, the evidence put forth by the defendant establishes that the defendant did not have control over the area or instrumentality that caused the injury because it did not control the scaffold or the work done by the plaintiff. In particular, the defendant's agreement with Quality expressly provides: "[Quality] will supply all labor and materials . . . [Quality] shall complete its contractual obligations utilizing its own work forces, materials when designated and on its own work schedule. [Lacava Construction Company] shall have no right or obligations to supervise [Quality's] workers or exercise control over [Quality's] performance of its obligations." Likewise, the affidavits of Joseph Mielcarek and Joseph Lacava state that at the time of the accident, the plaintiff was using a scaffold provided by his employer with the wheels not properly locked and that Lacava Construction Company did not interfere with or supervise the plaintiff's work.
Prior to the submission of supplemental memoranda, the plaintiff had objected to the admissibility of the agreements submitted by the defendant on the basis that they were not properly authenticated, as required by § 9-1(a) of the Connecticut Code of Evidence. The defendant's submission of the supplemental affidavit of Joseph Lacava, however, subsequently satisfied this requirement.
In his memorandum in opposition to the Motion, the plaintiff argues that the holes, and not his failure to lock the scaffold, caused his injury. To the extent that the holes, as opposed to the scaffold, caused the plaintiff's injury, the defendant's evidence establishes that it lacked control over those as well. Specifically, the supplemental affidavit of Joseph Lacava states that Lacava Construction Company did not create or control any holes in the plywood flooring at the work site. Additionally, he states that Lacava Construction Company did not retain control over the work done by the heating, ventilating, and air conditioning subcontractor, Automatic TLC Fuel Oil.
The plaintiff has not put forth any evidence in support of this claim.
The agreement between the defendant and Automatic TLC Fuel Oil is silent as to the parties' delegation of control.
As part of his claim that the holes, and not his failure to lock the scaffold, caused his injury, the plaintiff also argues that the cases cited by the defendant; Pelletier I, supra, 264 Conn. 509, and Archambault, supra, 287 Conn. 20; are distinguishable because they involved situations where the subcontractor with control was also the plaintiff's employer. In the present case, the plaintiff contends, the defendant should be liable because there is no evidence that the holes were created by the plaintiff's employer. This argument is unpersuasive for two reasons. First, as explained above, the plaintiff has not put forth any evidence in support of his claim that the holes, and not his failure to lock the scaffold, caused his injury. Second, the exceptions articulated in Pelletier I, supra, 264 Conn. 509, and Archambault, supra, 287 Conn. 20, have not been interpreted in the narrow manner suggested by the plaintiff. See Burgess v. W M Properties of Connecticut, Inc., supra, Superior Court, Docket No. CV 03 0398812 (summary judgment granted where evidence established that other independent contractors, and not the defendant general contractor, controlled the area where the accident occurred).
Accordingly, the defendant has satisfied its burden of proving that there is no genuine issue as to whether the defendant had control over the area or instrumentality that caused the injury. As the plaintiff has not submitted any evidence to establish that an issue of material fact exists, the defendant is entitled to judgment as a matter of law because the plaintiff's claim does not fall within any exception to the general rule that a general contractor is not liable for the torts of its independent subcontractors.
CONCLUSION
For the foregoing reasons, the defendant's Motion for Summary Judgment must be granted.
Accordingly, IT IS SO ORDERED this 30th day of November 2009.