Opinion
No. CV 08 5003794S
December 14, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #139
The issue presented is whether the court should grant Peter Oliver's motion for summary judgment as to count seven of the plaintiff's amended complaint?
I FACTS
In an amended complaint dated March 18, 2009, the plaintiff, Melissa L. Slater, as coadministratrix of the estate of Crystal L. Slater, filed a seven-count wrongful death action against the defendants, Judson Construction, Inc., Nathan Judson (Judson), Patric Murray (Murray) and Peter Oliver (Oliver). The plaintiff alleges that Crystal L. Slater (Slater) was an employee of Judson Construction. Oliver hired Judson Construction to perform roofing work on property that he owned. On July 2, 2007, Slater, acting as an employee of Judson Construction, was working on the roof of Oliver's property when she fell approximately thirty feet and landed on a stone patio. Slater suffered serious injuries as a result of her fall from which she ultimately died on July 11, 2007.
Nathan Judson and Patric Murray are, respectively, the president and vice-president of Judson Construction, Inc.
On January 22, 2010, the court granted the plaintiff's motion for judgment against Judson Construction after the plaintiff and Judson Construction reached a settlement agreement in the amount of $1,000,000. Additionally, the plaintiff withdrew her action against Nathan Judson and Patric Murray on February 16, 2010. Thus, the only remaining cause of action in the present matter is count seven against Peter Oliver.
Counts one through six of the plaintiff's complaint are brought against either Judson Construction, Judson or Murray. Count seven, however, is brought against Oliver. In count seven, the plaintiff alleges that Slater's injuries and subsequent death were caused by Oliver's negligence and carelessness in that: "(a) he failed to exercise reasonable care to maintain a reasonably safe workplace; (b) he knew or should have known that the work he hired Judson Construction to perform [presented] peculiar risk of physical harm unless special precautions [were] taken, but he failed to provide in the contract that Judson Construction [had to] take such precautions; (c) he knew or should have known that the work he hired Judson Construction to perform [presented] peculiar risk of physical harm unless special precautions [were] taken, but he [failed] to exercise reasonable care to provide for the taking of such precautions; (d) he knew or should have known that a minor was performing hazardous roofing work on the [p]roperty in violation of General Statutes § 31-23, but he failed to exercise reasonable care to prevent [the] plaintiff's decedent from engaging in such work; (e) he was negligent in hiring . . . Judson and Murray, and negligently entrusted the performance of [an] inherently dangerous activity to them; and (f) he permitted roofing work on his property without requiring that Judson Construction, a New York corporation, comply with Connecticut's law prohibiting the use of a minor in an occupation which has been pronounced hazardous by Connecticut's Labor Department." The plaintiff further asserts that Oliver's negligent acts caused Slater's injuries and subsequent death and that Slater was only seventeen years old at the time of her death.
On January 29, 2010, Oliver filed the present motion for summary judgment as to count seven to which the plaintiff filed a memorandum in opposition on March 16, 2010. Oliver filed a reply brief on October 5, 2010. This matter was heard at the October 18, 2010 short calendar.
II DISCUSSION A Legal Standard
"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. Practice Book [§ 17-46]." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 119, 971 A.2d 17 (2009).
"[I]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 228, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 528 (2006). "[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment, [however] because the question is one of law . . . If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant." (Citation omitted; internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290-91, 818 A.2d 893, 897, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003).
B Parties' Arguments
Oliver argues that he is entitled to judgment as a matter of law because there are no genuine issues regarding his liability as he owed no duty of care to Slater. Specifically, Oliver asserts that a property owner is not liable for losses resulting from an independent contractor's negligence in the performance of their contract and that Slater's injury was not foreseeable to him. Rather, Judson Construction as the independent contractor is liable for any losses resulting from negligence in the performance of its work. According to Oliver, none of the exceptions to the rule that liability may not attach to a property owner as a result of an independent contractor's negligence apply to the present matter because: (1) he did not exercise control over the roofing work or supervise Judson Construction or Slater; (2) roofing work is not an "ultra-hazardous" activity; and (3) he was not negligent in hiring Judson or Murray. In support of his motion for summary judgment, Oliver submits his own affidavit and a signed proposal from Judson Construction.
In opposition to the motion for summary judgment, the plaintiff argues that there are several issues of material fact in dispute. The plaintiff submits the affidavit of Judson arguing that this affidavit raises several issues as to the alleged facts that Oliver puts forth in his affidavit. The plaintiff argues that, despite Oliver's representations to the contrary, there are questions in dispute regarding whether Oliver met and spoke with Slater at the job site, whether Oliver knew that Slater was younger than eighteen and whether Oliver had reason to know that Slater would be working on the roof of his apartment building on July 2, 2007.
Additionally, the plaintiff argues that Oliver had a legal duty to Slater because the "work contracted for is unlawful or intrinsically dangerous," thus triggering the exceptions to the rule that a premises owner is not responsible for the negligence of an independent contractor. According to the plaintiff, the present case lies at the "intersection" of these exceptions. The plaintiff contends that Connecticut law prohibits the employment of a minor in a "hazardous" activity. Specifically, the use of minors in construction work is unlawful and the department of labor has stated that roofing work is "hazardous" for minors. Thus, roofing is a hazardous occupation in which the employment of minors is prohibited. As a result, the plaintiff argues that "a premises owner who has reason to believe that a minor is being employed in roofing operations can reasonably be expected to foresee that the operations would be hazardous to a minor."
In his reply brief, Oliver argues that Judson's affidavit establishes that the roofing job was entirely controlled by Judson Construction, and the job was not supervised, overseen or directed by him. Specifically, Oliver notes that Judson attests to the fact that Oliver never spoke with Judson about safety precautions on the job or about using minors on the work site. Although Oliver concedes that he met Slater at the job site, he argues that he never saw her on the roof, and Judson has not attested that Oliver saw Slater on the roof. Rather, according to his own affidavit, Oliver only saw Slater picking up shingles on the ground. Thus, he would have no reason to believe that she was employed in a different capacity or that she engaged in roofing work. Furthermore, Oliver argues that the plaintiff fails to cite any legal authority for the proposition that he had a duty to interrogate Judson regarding the company's intentions for Slater's work.
Furthermore, Oliver argues that roofing work does not trigger the "illegal work" or the "inherently dangerous work" exceptions to the general rule that property owners are not liable for their independent contractor's negligence. Moreover, Oliver asserts that the exception relating to the hiring of an incompetent or untrustworthy contractor does not apply because the plaintiff fails to allege that Judson and Murray were incompetent or untrustworthy. Oliver submits an additional affidavit with his reply brief.
C Analysis
"Duty is a legal conclusion about relationships between individuals, made after the fact, and [it is] imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result . . ."
"A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 593-94, 945 A.2d 388 (2008).
"As a general rule, an employer is not liable for the negligence of its independent contractors . . . The explanation for [this rule] most commonly given is that, since the employer has no power of control over the manner in which the work is to be done by the contractor, it is to be regarded as the contractor's own enterprise and [the contractor], rather than the employer, is the proper party to be charged with the responsibility of preventing the risk, and bearing and distributing it." (Citations omitted; internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517-18, 825 A.2d 72, 78 (2003). "We have long held, however, that to 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 . . . So, too, the contractee or proprietor will be liable for injury which results from his own negligence." (Citations omitted; internal quotation marks omitted.) Id., 518.
In the present matter, the plaintiff seeks to hold Oliver, the property owner who hired Judson Construction, liable for Slater's death. Oliver moves for summary judgment on the ground that it is not liable for the negligence of Judson Construction or its president and vice president. The owner of the property cannot be held liable to an employee of an independent contractor "unless it is at fault based on its control of the premises, its negligent hiring, or any of the other exceptions listed in Pelletier II." Arauco v. Cooper Associates, LLC, Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 09 5007960 (April 29, 2010, Bellis, J.) In her complaint, the plaintiff has pleaded or attempted to plead the intrinsically dangerous, unlawful work and negligent hiring exceptions.
As the court finds that there is a genuine issue of material fact concerning the defendant's liability under the inherently dangerous exception, the court declines to address the other exceptions pleaded by the plaintiff.
Inherently Dangerous Exception
The plaintiff asserts that the work contracted for, as related to Slater, was intrinsically dangerous under General Statutes § 31-23(c) and the corresponding Regulations of Connecticut State Agencies. In other words, the plaintiff argues that the use of Slater, as a minor and in violation of this state's child labor laws, to perform roofing work transforms said work into an inherently dangerous activity such that Oliver is unable to assert the independent contractor defense. In contrast, Oliver contends that roofing work is not inherently dangerous and that Judson Construction's employment of a minor does not make it inherently dangerous.
A property owner may be liable to the employee of an independent contractor "[i]f the work contracted for [is] . . . intrinsically dangerous, or in its nature is calculated to cause injury to others . . ." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skansa Construction Co., supra, 264 Conn. 509, 518. "Connecticut courts to date have construed inherently dangerous activities very narrowly, limiting them to blasting, pile driving and the use of volatile chemicals . . . [R]oofing work in general [does not] rise to the extreme degree of danger necessary to find strict liability." (Citation omitted.) Annes v. D D Buildings, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 02 0172631 (March 9, 2004, Agati, J.) ( 36 Conn. L. Rptr. 587, 588); see also Arauco v. Cooper Associates, LLC, supra, Superior Court, Docket No. CV 09 5007960 ("[I]t is clear that, as a matter of law, installing a chimney, like roofing work, is the kind of work that, when properly done and with standard precautions would not naturally expose others to injury unless . . .").
Although Connecticut courts have concluded that roofing work is not inherently dangerous, the courts of our state have not had the opportunity to consider whether the employment of minors in roofing work, which is prohibited in this state, affects the inherently dangerous work exception with regard to a premises owner's liability. General Statutes § 31-23(c) provides in relevant part: "No minor under the age of eighteen years shall be employed or permitted to work in any occupation which has been or shall be pronounced hazardous to health by the Department of Public Health or pronounced hazardous in other respects by the Labor Department." The Regulations of Connecticut State Agencies § 31-23-1 provides in relevant part: "The employment of minors under 18 years of age in the following industries which are declared hazardous by the Connecticut State Labor Department, is prohibited, unless an investigation by a representative of the Division of Factory Inspection discloses that either a specific operation of a particular occupation or the conditions under which a particular occupation is performed are not unduly hazardous and the employer has received written approval of such specific operation or employment conditions from the State Labor Department." The state department of labor's website lists "roofing operations" as a "prohibited occupation" for "all minors under the age of eighteen."
A child labor law "takes into account that children are more susceptible to injury in the work place precisely because of the inexperience that is inherent in youthfulness." France v. Southern Equipment Co., 689 S.E.2d 1, 18 (W. Va. 2009) (Davis, J., dissenting). In fact, "[t]he child labor laws . . . are premised in part on the notion that a child is not competent to assess the risks of personal injury and exploitation attendant in the performance of hazardous activities." (Internal quotation marks omitted.) Blancato v. Feldspar Corp., 203 Conn. 34, 40, 522 A.2d 1235, 1238 (1987); see State v. Rottman, 6 Conn.Sup. 427, 429 (1938) ("Our more enlightened conception of the need of protective measures to preserve our youth is reflected in the great progress that has taken place in recent years in the enactment of laws for the protection of the health of our . . . children to save them from exploitation by the unscrupulous employer . . . in order that the child may become a healthy and useful citizen . . ."). "Indeed one court has correctly observed that [i]t cannot be disputed that a primary legislative purpose of the Child Labor Law is to protect minors in employment relationships from excessive risk of personal injury. A blanket prohibition against employment in such activities as [roofing] operations fosters that purpose." (Internal quotation marks omitted.) France v. Southern Equipment Co., supra, 689 S.E.2d 1, 18, citing Patterson v. Martin Forest Products, Inc., 774 So.2d 1148, 1151 (La.Ct.App. 2000).
In the present case, an analysis of whether a property owner can be held liable under a theory that a construction activity which is not considered inherently dangerous when performed by an adult can be transformed into an inherently dangerous activity by virtue of its performance by a minor presupposes that there is no genuine issue regarding whether Oliver knew or should have known that Slater was a minor. Examining the affidavits filed for and against the motion for summary judgment, drawing inferences from those affidavits and construing these facts in a light most favorable to the plaintiff, the court cannot find that Oliver has carried his burden of showing that absence of a genuine issue of material fact.
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Gianetti v. Health Net of Connecticut, Inc., 116 Conn.App. 459, 465, 976 A.2d 23 (2009). In considering a motion for summary judgment, the court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969).
In support of his argument, Oliver submits his own affidavit attesting in relevant part: "I did not know that Crystal Slater was younger than 18 years of age." The plaintiff argues, however, that Oliver knew or should have known that Slater was a minor and that the court can take judicial notice of the fact that "a person can observe that another person is young from meeting that person." In support of her argument, the plaintiff submits the affidavit of Judson in which Judson attests that Oliver met Slater at the job site prior to July 2, 2007, and that, after meeting Slater, Oliver made certain comments to Judson which "[Judson] took to be a reference to the fact that [Slater], a young female, was working on the job." In reply, Oliver submits a second affidavit attesting that he did meet Slater and that his "only comment to Mr. Judson related to the fact that they had a female on the job site. I did not know that she was a minor."
Additionally, in his first affidavit Oliver attests that he has "known . . . Murray since 1995 and had hired . . . Murray to work on other roofs . . ." In his second affidavit, Oliver attests that "[t]his was the sixth or seventh time that [he] had employed . . . Judson and . . . Murray to roof various projects. They had performed work for [him] in Massachusetts . . . and Connecticut . . . which work was accomplished by employees of their choice and with whom I had no contact beyond a simple `hello.'"
When viewing the evidence in the light most favorable to the non-moving party, the plaintiff, there are material facts in dispute regarding whether Oliver was capable of discerning if a particular employee was younger than required by law. Although Oliver attests that he did not know that Slater was a minor, it is reasonable to infer from Oliver's affidavits that over the course of his business dealings with Judson Construction, he became familiar with the type of employee hired by Judson Construction, including the average age of a Judson Construction employee. Moreover, there is evidence that Oliver commented on Slater's age or youthful appearance.
As such, viewing this evidence in the light most favorable to the plaintiff, genuine issues of material fact exist regarding whether Oliver knew or should have known that Slater was younger than eighteen. Accordingly, the court denies the defendant Oliver's motion for summary judgment.