Opinion
No. CV09-5007960S
April 29, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #129
Facts
The plaintiff, Ivan Arauco, filed a two-count complaint in negligence against the defendants, Zbigniew Brzuszko and Cooper Associates, LLC on December 31, 2008. The plaintiff alleges injuries arising out of a construction accident. Before the court is Cooper Associates' motion for summary judgment as to count two and, for the purposes of this memorandum, the party will be referred to as the defendant.
In the complaint and numerous other documents, this defendant is identified as Bruzuszko. In the writ of summons, however, his name is spelled "Brzuszko" Therefore, the latter name is the one that is used in the court's records and in this memorandum.
The plaintiff alleges the following in the original complaint, which remains the operative complaint. The individual defendant "was a general contractor . . . hired to do business on the [p]remises located at 333 Webbs Hill Road, Stamford, Connecticut." Brzuszko "was subcontracted by the defendant Cooper Associates, LLC, to perform services on the premises." The plaintiff "was employed with Quality Building Products, Inc." "On January 23, 2007 . . . the plaintiff, was installing a chimney on the roof of the building on the [p]remises when the chase surrounding the chimney collapsed and he was caused to fall from the roof." The foregoing allegations are incorporated into both counts. In count one as against Brzuszko, the plaintiff alleges, inter alia, that "[t]he injuries and losses suffered by the [plaintiff] were caused by the negligence and carelessness of [Brzuszko] in one or more of the following ways: [he] failed to properly install the chase around the area where the plaintiff was installing the chimney [and he] failed to properly fasten the chase to the roof of the building . . ."
In count two, as against the defendant, the plaintiff alleges the following facts. "The injuries and losses suffered by the [plaintiff] were caused by the negligence and carelessness of the [defendant], in one or more of the following ways: [It] reserved general control over the contractor [Brzuszko] and his servants; the work performed by [Brzuszko] was intrinsically dangerous and reasonably calculated to cause injury to others; [it] employed an incompetent and/or untrustworthy contractor and; [it] is under a legal duty to see that the work is properly performed; [it] failed to properly inspect the work performed by [Brzuszko]; [it] failed to properly oversee and monitor the work performed by [Brzuszko]; [it] failed to warn the [p]laintiff of the unsafe and hazardous condition; [it] knew or in the exercise of reasonable care should have known that the chase was improperly fastened to the roof and directing others to finalize the work on the chimney would result in serious injury; [it violated] OSHA regulations including but not limited to § 1926.501(a) and § 1926.501(b)." As a result, the plaintiff alleges that he sustained physical injuries, including a lateral meniscus tear of his right knee, incurred and will incur medical expenses and loss of earnings.
"OSHA is the federal Occupational Safety and Health Administration created by the Occupational Safety and Health Act of 1970 with broad powers to regulate workplace safety." Santos v. Ashforth Co., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 02 0192764 (February 13, 2009, Jennings, J.).
On August 21, 2009, the defendant filed a motion for summary judgment as to count two on the ground that, "as the general contractor, it is not liable for the negligence of its independent subcontractors . . . There is no genuine issue of material fact but that it was [Brzuszko] who was responsible for the chimney chase in question and thus this defendant is entitled to judgment as a matter of law." The defendant submitted as evidence a certified copy of Brzuszko's sworn deposition testimony. On December 21, 2009, the plaintiff filed a memorandum of law in opposition on the ground that genuine issues of material fact exist, and submitted three exhibits. The defendant filed a reply on January 4, 2010. The court heard oral argument at short calendar on February 8, 2010.
The plaintiff submitted the following evidence in opposition to the defendant's motion: Exhibit A is a copy of the summons and complaint; Exhibit B is a certified copy of the deposition of Michael Cooper; Exhibit C is a certified copy of the deposition of Brzuszko, including copies of the exhibits referenced therein.
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. 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). "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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . 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." Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).
"[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). "Summary judgment is particularly ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation." (Internal quotation marks omitted.) Busque v. Oakwood Farms Sports Center, Inc., 80 Conn.App. 603, 607, 836 A.2d 463, 465 (2003), cert. denied, 267 Conn. 919, 841 A.2d 1190 (2004). "[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).
The defendant argues that it is "well-established law in Connecticut that a `general contractor is not liable for the torts of its independent subcontractors.'" The defendant relies on two Connecticut Supreme Court cases which, it argues, "defined much more clearly the outlines of the potential liability of a general contractor in these situations." It argues that "the relevant issue is who has `control over the area or instrumentality causing the injury' . . . and not who had overall responsibility for safety on the job site." Here, it maintains, "there is no genuine issue of material fact but that the chase in question was constructed by [Brzuszko]." The plaintiff argues in response that "genuine issues of material fact exist as to (1) the status of the construction of the chase, (2) the inspection performed, (3) whether [the defendant] knew or should have known the status of the construction and (4) whether it was reasonable given the circumstances that [the defendant] inform the [p]laintiff to commence work." The plaintiff maintains that the cases cited by the defendant "differ greatly with the present case as the [p]laintiff here does not claim that the [g]eneral [c]ontractor is negligent merely because it is liable for the negligence of its subcontractors but that the [g]eneral [c]ontractor [is] directly liable to the plaintiff for its own actions."
The defendant also argues that "the plaintiff cannot use the alleged violation of OSHA as a ground of recovery against [it]." "Both the federal and state OSHA statutes [ 29 U.S.C. § 653(b)(4) and General Statutes § 31-369(b)] provide that such regulations may not be used to create a private cause of action for injuries arising out of or in the course of employment . . . Mingachos v. CBS, Inc., 196 Conn. 91, 112-13, 491 A.2d 368 (1985). Nor can OSHA furnish a basis for a jury instruction on negligence per se . . . Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 181, 439 A.2d 954 (1981). OSHA regulations, if applicable, [however] may be used as evidence of the standard of care in a negligence action against an employer. Wagner v. Clark Equipment Co., 243 Conn. 168, 188, 700 A.2d 38 (1997)." (Internal quotation marks omitted.) Perkowski v. Rogers, Superior Court, judicial district of Fairfield, Docket No. CV 03 0401002 (September 5, 2003, Doherty, J.) (denying defendant's request to revise complaint because plaintiff was "not alleging negligence per se and the references to OSHA in these paragraphs do not give rise to an independent cause of action").
In the present case, the plaintiff does not allege negligence per se and the references to OSHA do not give rise to an independent cause of action.
Our Supreme Court has explained: "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 . . .
"This same rule applies, as a general matter, to general contractors as employers of independent subcontractors: a general contractor is not liable for the torts of its independent subcontractors . . . We have long held, however, that [t]o this general rule there are exceptions . . ." (Internal quotation marks omitted.) Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 53, 946 A.2d 839 (2008).
"[In Pelletier v. Sordoni/Skansa Construction Co., 264 Conn. 509, 517, 825 A.2d 72 (2003) (" Pelletier II"), our Supreme Court] held that an employee of a subcontractor is not restricted as a matter of law from pursuing a claim against a general contractor. The court stressed, however, that in order to succeed on its claim, the plaintiff employee must establish a basis for the contractor's liability to him under the case law; that is, show that the facts fall within one of the exceptions to the general rule of nonliability of a general contractor." Santos v. Ashforth Co., Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 02 0192764 (February 13, 2009, Jennings, J.). These Pelletier II exceptions are whether 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." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skansa Construction Co., supra, 264 Conn. 518.
As one court has noted: "[T]he exceptions listed by the Pelletier [II] court are all fault-based. Thus, instead of establishing vicarious liability, these exceptions in fact create a basis for direct liability of the employer or general contractor for its own negligence or fault. In other words, the exceptions cited by Pelletier [II] are in fact exceptions, but to a different rule than the one it discusses. The law could perhaps be better summarized by stating that an employer or general contractor is not vicariously liable for the torts of its independent contractor and is not directly liable to an employee of the independent contractor unless it is at fault based on its control of the premises, its negligent hiring, or on any of the other exceptions listed in Pelletier [II]." Mazurek v. Great American Ins. Co., Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 01 0177433 (October 29, 2004, Schuman, J.), appeal dismissed, 284 Conn. 16, 930 A.2d 682 (2007). Accord Pellegrino v. Jack, Superior Court, judicial district of Fairfield, Docket No. CV 06 5006035 (December 2, 2008, Bellis, J.) ( 46 Conn. L. Rptr. 736, 740 n. 2).
" Pelletier II remanded the case for trial. The case was tried to a jury . . . Following a jury verdict for the plaintiffs which the trial court declined to set aside, both parties appealed and the case went to the Supreme Court for a third time: Pelletier v. Sordoni/Skansa Construction Co., 286 Conn. 563, [ 945 A.2d 388] (2008). ( Pelletier III). On the plaintiffs' cross appeal one of the issues was the trial court's refusal to instruct the jury that Sordoni (the general contractor) had a duty as the general contractor to exercise reasonable care with respect to any part of the work site or inspection process over which it retained control. The court held, on the particular facts of Pelletier (a claim that the general contractor had a duty to inspect the weld which failed, permitting a steel beam to fall on the plaintiff, an employee of the structural steel subcontractor which subcontractor had a contract obligation to inspect all welds), that the general contractor was not in control of the fabrication and inspection of welds, because `. . . a fair and reasonable person could reach but one conclusion as to who exercised control . . .' In reaching that position the court relied on the fact that the contract documents required the subcontractor to fabricate and inspect the welds at its own shop, thus clearly demonstrating that the general contractor did not retain control over `the area or instrumentality' that caused the plaintiff harm. 286 Conn. 602." (Internal quotation marks omitted.) Santos v. Ashforth Co., supra, Superior Court, Docket No. X08 CV 02 0192764.
In the present case, the plaintiff, who is an employee of Quality Building, an independent subcontractor, seeks to hold the defendant, the general contractor, liable for his injuries. The defendant moves for summary judgment on the ground that it is not liable for the negligence of Brzuskco, one of its independent subcontractors. A general contractor cannot be held liable to an employee of an independent subcontractor unless it is at fault based on its control of the premises, its negligent hiring, or on any of the other exceptions listed in Pelletier II. In his complaint, the plaintiff has pleaded four Pelletier II exceptions. Thus, in order to be entitled to summary judgment on the issue of its own liability, the defendant must present evidence sufficient to support a finding that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law as to each exception. The court will address in turn each of the Pelletier II exceptions alleged.
I
In Pelletier II the court noted that a general contractor may be liable to an employee of a subcontractor "if he reserve[s] 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[s] control or interfere[s] with the work." Pelletier v. Sordoni/Skansa Construction Co., supra, 264 Conn. 518. The plaintiff alleges that the defendant "reserved general control over the contractor [Brzuszko] and his servants." The defendant maintains that it did not exercise control over the instrumentality that caused the injury, the chase, and relies on the deposition testimony of Brzuszko. The plaintiff maintains that issues of material fact remain in dispute regarding the defendant's control.
"[A]n exception to the [general contractor nonliability] rule is when the general contractor retains all or partial control over the work to be performed. [ Pelletier II, supra, 264 Conn. 518.] 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 [person] 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 [persons] could fairly reach different conclusions on the question, the issue should properly go to the jury . . . In addition, the contractor's control need not be exclusive; it is sufficient if it be shared with another." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skansa Construction Co., supra, 286 Conn. 599. Accord Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. 53-54.
In Pelletier III, "the question [was] one for the court because a fair and reasonable person could reach but one conclusion as to who exercised control over the fabrication of the welds." Pelletier v. Sordoni/Skansa Construction Co., supra, 286 Conn. 599-600. The court concluded that "Sordoni subcontracted the fabrication and inspection of the structural steel elements, including all welds, to Berlin Steel. It thus had no control over the shop in which the inspections were to be performed, other than to require that the welds be inspected." Id., 602.
In Archambault, the court noted: "[There was no testimony] that Konover retained direct control over Soneco's work, over Soneco's employees or over the manner in which the work was performed, nor [was there testimony] that Konover assumed direct control over, or interfered with, Soneco's responsibility to perform its work safely . . . [There was testimony] that Soneco had direct responsibility for supervising the work of its employees." (Citation omitted.) Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. 56. The court concluded, based upon the contracts and other evidence presented that, as a matter of law, Soneco controlled the area or instrumentality, the trench, that caused the injury. Id., 54.
In Piwko v. Lacava Construction Co., Superior Court, judicial district of Hartford, Docket No. CV 08 5018235 (November 30, 2009, Sheldon, J.), the court granted the general contractor's motion for summary judgment, noting that "[w]here 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." In that case, the general contractor submitted evidence including "the defendant's agreement with [the subcontractor which] expressly provide[d] that: `[The subcontractor] will supply all [labor and materials . . . [It] shall complete its contractual obligations utilizing its own work forces, materials when designated and on its own work schedule. [The general contractor] shall have no right or obligations to supervise [the subcontractor's] workers or exercise control over [its] performance of its obligations.'" Id. The general contractor also submitted affidavits which "state[d] 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 [the general contractor] did not interfere with or supervise the plaintiff's work." Id. The court found that "the evidence put forth by the defendant [general contractor] 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." Id.
Summary judgment is inappropriate, however, when the evidence on the question of who had control of the area or instrumentality causing the injury fails to establish that the moving party did not have control. See Santos v. Ashforth Co., supra, Superior Court, Docket No. X08 CV 02 0192764 (denying general contractor's motion when defendant argued that it "had only general overall supervision over safety at the [work site], while the plaintiffs argue[d] that there is evidence from which a reasonable juror could find that [the general contractor] went beyond the role of an overall supervisor and exercised control over the manner in which subcontractors performed their duties so as to ensure safety"); Capella v. Daddio, Superior Court, judicial district of New Haven, Docket No. CV 06 5007123 (June 12, 2008, Bellis, J.) (denying homeowner's motion when "[w]ith respect to the issue of control over the manner in which the work was to be done by the plaintiff, the affidavits of the parties establish that the issue remains in dispute and open for interpretation").
In the present case, the defendant maintains that it did not exercise control over the instrumentality that caused the injury and relies on the deposition testimony of Brzuszko. The defendant argues that there is no issue of material fact that the chase was the instrumentality that caused the injury. There is no issue of fact that "the chase in question was constructed by [Brzuszko], this defendant's independent subcontractor. The deposition testimony . . . makes clear that [the] defendant did not direct or control his work nor [did it retain] control over the manner in which he performed his work." The defendant maintains that it has thus met its burden as to the question of control of the instrumentality.
"Q: Did Mr. Cooper tell you how to perform your work?
A: No.
Q: Did Mr. Cooper inform you when to come to work?
A: No.
****
Q: And when you did the invoice, you knew that you were going to have to do a chase?
A: Yes.
Q: All right. So when it came time for you to actually [build] the chase . . . did Mr. Cooper tell you how to construct the chase?
A: No.
Q: Did he tell you how to attach it to the roof?
A: No.
Q: With the other work that you performed, the demolition in the other rooms, the framing, the trim work, et cetera, did Mr. Cooper tell you how you should do the framing?
A: No."
(Defendant's Motion for Summary Judgment, Exhibit A [Brzusko Deposition], pp. 19, 29-30).
The plaintiff has presented evidence in the form of the deposition testimony of Michael Cooper. Cooper testified that one of his job responsibilities was to coordinate when the subcontractors came to the site to begin work. Specifically, he testified regarding the plaintiff's employer: "[I]n order for me to call Quality to come, I knew the chimney had to be up. I knew the trim had to be around the top so they could install the metal covering." The plaintiff maintains that this is evidence that the defendant was responsible for inspecting the premises to determine when a subcontractor should come to work. This, he argues, raises issues of fact as to the status of the construction of the chase and whether it was reasonable that the defendant direct the plaintiff to begin work
"Q: Did you actually have to inspect any of the work done by the subcontractors?
A: No . . . Inspect? I mean yeah, inspect the quality of the roofing work, you know to make sure that — you know but not go in on the roof and make sure every nail was in there, but just to look to make sure it was all looking correct. Most of the inspections are done by the building inspector."
(Plaintiff's Memorandum in Opposition to Summary Judgment; Exhibit B [Cooper Deposition], p. 10.)
"Q: So would it be fair to say that you needed to know where the subcontractors were in the job so you can determine what other work had to be done so you could move on to the next phase?
A: Correct . . .
****
Q: So, one of your job responsibilities was to coordinate when the subcontractors came?
A: Correct."
(Cooper Deposition, supra, p. 11.)
"Q: To your knowledge, was the work done by [Brzuszko] on the chimney completed on January 23, 2007?
A: I would say yes, because in order for me to call Quality to come, I knew the chimney had to be up. I knew the trim had to be around the top so they could install the metal covering." (Cooper Deposition, supra, p. 15.)
That Brzuszko admits that the defendant did not tell him how to construct the chase or how to attach it to the roof does not, by itself, demonstrate that the defendant exercised no control over the chase. Moreover, the plaintiff has presented evidence which raises questions of material fact as to whether the defendant exercised control over the chase.
II
A general contractor may be liable to an employee of a subcontractor "[i]f the work contracted for be . . . intrinsically dangerous, or in its nature is calculated to cause injury to others." Pelletier v. Sordoni/Skansa Construction Co., supra, 264 Conn. 518. The plaintiff alleges that "the work performed by [Brzuszko] was intrinsically dangerous and reasonably calculated to cause injury to others." The defendant argues that the Supreme Court in Pelletier III "specifically rejected the notion that construction work is inherently dangerous."
The Supreme Court in Pelletier III concluded "as a matter of law that the fabrication and inspection of welds is not the kind of work that, when properly done, naturally would expose others to injury unless special preventive measures were taken . . . Our reasoning is consistent with that of other jurisdictions that have rejected claims alleging that construction work is inherently dangerous. See, e.g., Robinson v. Poured Walls of Iowa, Inc., 553 N.W.2d 873, 877 (Iowa 1996) (excavation of trench, when done with standard precautions, involves ordinary, rather than `peculiar,' risk of harm, even though trench may collapse and result in injury or death if improperly excavated); see also Rice v. Delta Air Lines, Inc., 458 S.E.2d 359, 361 (Garages D-4 and C-1. App. 1995) (work on scaffolding not inherently dangerous, but only as result of contractor's negligence in constructing scaffolding improperly)." Pelletier v. Sordoni/Skanska Construction Co., supra, 286 Conn. 598. "Connecticut courts to date have construed inherently dangerous activities very narrowly, limiting them to blasting, pile driving and the use of volatile chemicals . . . There is no evidence here that the construction work involved any of these activities, nor does roofing work in general rise to the extreme degree of danger necessary to find strict liability." (Citation omitted.) Annes v. DD Builders, LLC, Superior Court, judicial district of Waterbury, Docket No. CV 02 0172631 (March 9, 2004, Agati, J.) ( 36 Conn. L. Rptr. 587, 588).
In the present case, as he alleges in the complaint, "[the plaintiff] was installing a chimney on the roof of the building on the [p]remises when the chase surrounding the chimney collapsed and he was caused to fall from the roof." Based on the law as outlined above, it is clear that, as a matter of law, that 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 special preventive measures were taken.
III
"A distinct exception to the general rule of nonliability arises when `the contractee negligently employ[s] an incompetent or untrustworthy contractor.'" Mazurek v. Great American Ins. Co., supra, Superior Court, Docket No. X02 CV 01 0177433. See Pelletier v. Sordoni/Skansa Construction Co., supra, 264 Conn. 518. The plaintiff alleges that "[the defendant] employed an incompetent and/or untrustworthy contractor." As in Pelletier II, supra, 264 Conn. 529, the plaintiff's claim in this case is that the defendant negligently hired Brzuszko, an independent contractor who was not the plaintiff's employer, who was incompetent to perform the work involved and that, as a consequence of that independent contractor's lack of due care, the plaintiff was injured. "The plaintiff has clearly made such allegations . . . Neither side has addressed these allegations in its brief. It remains, however, the burden of the moving party . . . to make an initial showing of entitlement to summary judgment . . . Because [the moving party] has not discharged this burden, it is not entitled to summary judgment on these allegations." (Citations omitted.) Mazurek v. Great American Ins., Co., supra, Superior Court, Docket No. X02 CV 01 0177433.
"In order to recover for negligent hiring, the plaintiffs must prove that their injuries occurred as a result of [the defendant's] negligence in failing to select a fit and competent employee to perform the job. Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982). Specifically, the plaintiffs must prove that [the defendant] knew or should have known before hiring [the contractor] that it was reasonably likely to engage in the specific conduct complained of by the plaintiffs and that the specific conduct caused the plaintiffs' injuries. DeMaria v. Country Club of Fairfield, Superior Court, [judicial district of Fairfield], Docket No. CV 02 0342621 (January 17, 2003, Thim, J.)." Mazurek v. Great American Ins. Co., Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 01 0177433 (January 8, 2009, Eveleigh, J.) (granting summary judgment on negligent hiring ground based on evidence submitted).
In the present case, the defendant has not met its burden on summary judgment because it has not addressed this allegation or presented evidence related thereto.
IV
In Pelletier II, the court, as another exception, stated "if he is under a legal duty to see that the work is properly performed, the contractee will be responsible for resultant injury." Pelletier v. Sordoni/Skansa Construction Co., supra, 264 Conn. 518. The plaintiff alleges that the defendant "is under a legal duty to see that the work is properly performed." The defendant relies on Archambault for the proposition that "[o]verall responsibility for safety on the work site . . . does not necessarily translate into a nondelegable duty." It maintains that in Archambault and Pelletier III, "the general contractor there had considerably more control and supervision over the job site than there is any evidence of in the instant matter. Nevertheless, in each case, the Supreme Court held, as a matter of law, that the general contractor was not responsible for the acts of its independent subcontractor."
In Pelletier III, the Supreme Court addressed whether the general contractor "had [a] legal duty to the plaintiff under principles of common-law negligence . . ." Pelletier v. Sordoni/Skansa Construction Co., supra, 286 Conn. 594. In concluding that it did not, the court reasoned: "There was no reason for Sordoni [the general contractor] to foresee that Berlin Steel [the subcontractor] would not fulfill its contractual obligatigns to inspect all welds. Accordingly, in light of the protections provided by Sordoni's subcontracts with Berlin Steel and Professional Services to fabricate and inspect the welds, we conclude that the physical harm suffered by the plaintiff would not have been foreseeable to an ordinary person in Sordoni's position. Consequently, Sordoni had no legal duty to the plaintiff under principles of common-law negligence and the trial court properly declined to instruct the jury on that claim." Id., 595-96.
In Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. 27, our Supreme Court examined whether the general contractor, Konover, "had a nondelegable duty to provide a safe work site." The trial court had instructed the jury that it could not consider the negligence of a nonparty, Soneco, the excavation and site work subcontractor. Id., 27-28. Our Supreme Court concluded that the trial court had erred in this instruction. Id., 45-46. "Overall responsibility for safety on the work site . . . does not necessarily translate into a nondelegable duty. Konover's subcontract agreement with Soneco required that Soneco comply with all applicable federal, state and local safety rules and regulations [and] follow Konover's project safety plan . . . In addition, Soneco assumed `the entire responsibility and liability for all work, supervision, labor and materials' provided under the subcontract agreement until final acceptance of the work by the owner. Soneco also agreed to accept liability for any loss, damage or destruction from any cause other than Konover's sole negligence. The trial court cited no provisions of the subcontract agreement, and we have found none, to support its conclusion that Konover had a nondelegable duty to ensure safety on the work site." Id., 54-55.
The defendant here, however, has presented no evidence — either by affidavit, deposition testimony, contract or otherwise — as to its responsibilities on the job site. The defendant has not met its burden on summary judgment because it has not presented sufficient evidence that would permit the court to determine whether it was "under a legal duty to see that the work [was] properly performed."
Conclusion
The defendant has failed to submit evidence that would establish that there is no genuine issue of material fact as to its liability. Accordingly, because the defendant has not met its burden, the defendant's motion for summary judgment is denied.