Opinion
NNHCV176072027
10-24-2018
Matthew DiNicola v. Turner Construction Company et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Ozalis, Sheila A., J.
MEMORANDUM OF DECISION
OZALIS, J.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 2, 2017, the plaintiff, Matthew DiNicola, filed a Revised Complaint alleging the following facts. The defendant Turner Construction Company (Turner) was in control of and responsible for safety at a construction site at Yale New Haven Hospital (hospital), and the defendant Partitions, Inc. (Partitions), a drywall contracting company, was contracted to perform services at the hospital. The defendant Yale New Haven Health Services Corporation (Yale) owned, maintained, possessed, and controlled the hospital. The plaintiff alleges that on or about August 7, 2015, he was working as an employee of third-party defendant Fortin Electric (Fortin) when 12 pieces of sheetrock that were improperly stacked and secured fell onto him, causing him to suffer serious injuries. Count One of the plaintiff’s complaint alleges that the plaintiff’s injuries are the result of Turner’s negligence, Count Two alleges that they are the result of Partitions’ negligence, and Count Three alleges that they are the result of Yale’s negligence.
On April 16, 2018, Turner and Yale filed the instant motion for summary judgment on the First and Third Counts of the Revised Complaint and a supporting memorandum of law with exhibits attached. They argue that they are entitled to judgment as a matter of law because there is no genuine issue of material fact that they did not owe the plaintiff a legal duty to ensure his safety. On August 21, 2018, the plaintiff filed an objection to the defendants’ motion for summary judgment, and a supporting memorandum of law with exhibits attached. Turner and Yale subsequently filed a reply brief in further support of their motion for summary judgment. The court heard oral argument on the matter on September 10, 2018.
At oral argument, the plaintiff conceded that summary judgment should enter in Yale’s favor as to Count Three of the Revised Complaint.
II.
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." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "[T]he issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law." (Internal quotation marks omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290, 818 A.2d 893, cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). "[I]t is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ... Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case ... Accordingly, the rule that the party opposing summary judgment must provide evidentiary support for its opposition applies only when the moving party has first made out a prima facie case for summary judgment." (Citations omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320-21, 77 A.3d 726 (2013).
Turner argues that it is entitled to judgment as to Count One of the Revised Complaint as a matter of law because there is no genuine issue of material fact that it did not owe any legal duty to ensure the plaintiff’s safety. It asserts that, as demonstrated by language in its subcontracts with Partitions and Fortin, those defendants accepted responsibility for job site safety and liability for any injuries resulting from their work. Further, Turner claims that, although it did retain a general right to supervise work being done at the construction site, that general right does not translate into a general duty owed to all, as set forth by our Supreme Court’s holding in Archambault v. Soneco/Northeastern, Inc., 247 Conn. 20, 54-56, 946 A.2d 839 (2008). Lastly, Turner argues that it did not exercise control over the defect alleged by the plaintiff, so it cannot be held liable for his injuries. The plaintiff responds that Turner is liable because it, through its field engineer and assistant project safety manager, Kyle Richardson, exercised specific control over the defect when he reached an agreement with Partitions to allow sheetrock to be stacked in the manner that resulted in the plaintiff’s injuries. The plaintiff insists that such an agreement contradicts express terms set forth by Turner in its contract with Partitions, which require that materials be secured and that drywall is to be stored flat.
"To recover on a theory of negligence, the plaintiff must establish that the [defendant] owed a duty to [the injured person] and breached that duty ... The existence of a duty is a question of law ... Only if such a duty is found to exist does the trier of fact then determine whether the [defendant] violated that duty in the particular situation at hand." (Internal quotation marks omitted.) Vitale v. Kowal, 101 Conn.App. 691, 698, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).
"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, 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 ... Consistent with these exceptions ... a general contractor may, depending on the circumstances, be held liable to an employee of its subcontractor for its own negligence." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 517-19, 825 A.2d 72 (2003).
"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 ... [A]n exception to this rule is when the general contractor retains all or partial control over the work to be performed ... 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." (Citations omitted; internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 599, 945 A.2d 388 (2008).
In the present matter, Turner submits its subcontracts with Partitions and Fortin, which provide in relevant part: "The Subcontractor agrees that the prevention of accidents to workmen and property engaged upon or in the vicinity of the Work is its responsibility. The Subcontractor agrees to comply with all Federal, State, Municipal and local laws, ordinances, rules, regulations, codes, standards, orders, notices and requirements concerning safety as shall be applicable to the Work, including, among others, the Federal Occupational Safety and Health Act of 1970 and the Clean Water Act, as amended, and all standards, rules, regulations and orders which have been or shall be adopted or issued thereunder, and with the safety standards established or imposed during the progress of the Work by Contractor." Def.s’ Mem. In Supp. Summ. Judg. Ex. 1, Art. XXII; Def.s’ Mem. In Supp. Summ. Judg. Ex. 2, Art. XXII.
"The Subcontractor hereby assumes the entire responsibility and liability for any and all actual or potential damage or injury of any kind or nature whatsoever ... to all persons and entities, whether employees of the Subcontractor or any tier of the Subcontractor, or otherwise; or to all property ... caused by, resulting from, arising out of or occurring in connection with the execution of the Work, or in preparation for the Work, or any extension, modification, or amendment to the Work by change order or otherwise. Should any claims for such actual or potential damage or injury (including death resulting therefrom) be made or asserted, whether or not such claims are based upon an Indemnified Party’s alleged active or passive negligence or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of an Indemnified Party, the Subcontractor agrees to indemnify and save harmless the Indemnified Party from and against any and all such claims and further from and against any and all loss, cost, expense, liability, damage, penalties, fines or injury, including legal fees and disbursements, that the Indemnified Party may directly or indirectly sustain, suffer or incur as a result thereof and the Subcontractor agrees to and does hereby assume, on behalf of the Indemnified Party, the defense of any action at law or in equity which may be brought against the Indemnified Party upon or by reason of such claims and to pay on behalf of the Indemnified Party, upon demand, the amount of any judgment that may be entered against the Indemnified Party in any such action." Defs’ Mem. In Supp. Summ. Judg. Ex. 1, Art. XXIII; Defs’ Mem. In Supp. Summ. Judg. Ex. 2, Art. XXIII.
In light of these agreements, Turner has met its initial burden of demonstrating that there is no genuine issue of material fact that it did not owe the plaintiff a legal duty to ensure his safety. Despite this contractual language, however, the plaintiff asserts that Turner may be held liable because it exercised specific control over the dangerous condition that caused his injuries. See Pelletier v. Sordoni/Skanska Construction Co., supra, 286 Conn. 599. In support of this assertion, the plaintiff relies on Richardson’s deposition testimony and provisions of Turner’s contract with Partitions.
In his deposition, Richardson testified that he is a project safety manager and assistant superintendent for Turner; Pl.’s Mem. In Supp. Obj., Ex. C, p. 5; and that, on the date of the plaintiff’s alleged accident, he was acting in that capacity in regard to the construction project at the hospital. Pl.’s Mem. In Supp. Obj., Ex. C, pp. 12-14. Richardson further testified that he reached an agreement with representatives from Partitions regarding the manner in which sheetrock was to be stacked at the hospital construction site, which allowed for sheetrock to be stored horizontally on A-frames so that it would be mobile, and because there was not enough space to stack it flat on the ground. Pl.’s Mem. In Supp. Obj., Ex. C, pp. 68-73.
The plaintiff claims that such an agreement is inconsistent with the contractual terms set forth by Turner and Partitions in their subcontract agreement. Turner’s subcontract with Partitions provides in relevant part: "Materials shall be secured to prevent unintentional displacement." Pl.’s Mem. In Supp. Obj., Ex. D, Safety Additional Provisions for all Contractor Bid Packages, p. 5. "This Subcontractor to ensure that drywall is stored flat and not leaning vertically against any surface. It is expected that the drywall stacks will be stored on dollies to allow for portability." Pl.’s Mem. In Supp. Obj., Ex. D, Safety Additional Provisions for all Contractor Bid Packages, p. 10.
In light of these submissions, the plaintiff has demonstrated that a genuine issue of material fact exists as to whether Turner exercised control over the allegedly defective condition, such that it may be held liable for the plaintiff’s injuries. At the outset, the terms set forth in Turner’s subcontract agreement with Partitions support the plaintiff’s claim that Turner exercised control over the very condition alleged to be defective by the plaintiff- the manner in which sheetrock was stacked. Moreover, Richardson’s testimony provides further evidence of Turner’s control, as Richardson testified that he, on behalf of Turner, entered into an agreement with Partitions allowing for sheetrock to be stacked in a manner inconsistent with those defendants’ subcontract agreement, which is the precise defect alleged by the plaintiff to have caused his injuries. Accordingly, "the evidence on the question as to who had control of the area or instrumentality causing the injury is such that ... honest and reasonable [persons] could fairly reach different conclusions on the question," and therefore, "the issue should properly go to the jury." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., supra, 286 Conn. 599.
Furthermore, contrary to Turner’s assertion, our Supreme Court’s holding in Archambault v. Soneco/Northeastern, Inc., supra, 287 Conn. 54-56, does not require the granting of summary judgment in Turner’s favor here. In Archambault, the plaintiff was an employee of Soneco/Northeastern, Inc. (Soneco), a subcontractor, which entered into a subcontract with Konover Construction Corporation (Konover), a general contractor. Id., 22. After suffering injuries sustained as a result of the collapse of a trench that he was working on, the plaintiff filed a complaint against Konover and Soneco. Id., 22-23. In his complaint, the plaintiff alleged, inter alia, that Konover "breach[ed] ... its nondelegable duty to provide a safe work site by failing to ensure safe working conditions, to oversee the work site adequately, to supervise its independent contractors and their employees adequately, to inspect the work site and to enforce compliance with the applicable safety regulations in a proper manner." Id., 25. Konover subsequently filed a motion for summary judgment on the grounds that "it had no legal duty to the plaintiff and there was no evidence to support the plaintiff’s allegations of negligence." Id., 26. The trial court denied the motion. Id. Thereafter, the jury found in favor of the plaintiff. Id., 29. On appeal, Konover argued, inter alia s that "the trial court improperly instructed the jury that Konover had a nondelegable duty to the plaintiff to ensure a safe work site that precluded the jury from considering Soneco’s negligence in determining liability." Id., 45.
Our Supreme Court agreed with Konover, and in doing so, it found the following facts to be relevant. Under the subcontract between Konover and Soneco, Soneco agreed to provide a skilled and knowledgeable foreman to supervise the work, and to take various measures to maintain a safe work environment. Id., 46-47. The subcontract further provided that, if Soneco failed to comply with Konover’s safety directions, Konover could implement safety measures itself and deduct such costs from the amount due to Soneco under the subcontract. Id., 47-48. Soneco also assumed responsibility and liability for its work under the subcontract. Id., 48. At the time of entering into the subcontract, Konover gave Soneco a copy of its construction safety manual, which set forth the responsibilities of Konover’s safety administrators. Id. The manual also called for Konover’s development of site specific safety plans. Id., 48-49. John Zook, Konover’s safety director, testified that subcontractors were responsible for training their own workers, but if they were not, Konover’s superintendent would hold a training session or meet with the subcontractors’ foremen, who would then discuss such safety concerns with the workers involved. Id., 49-50. Zook further testified that James Simmons, Konover’s project superintendent, was responsible for making frequent inspections to ensure safety policies were being followed. Id., 50. Simmons subsequently testified that he was in "overall control" of the construction site. Id. Simmons further testified that, when he walked the site, he watched to make sure that work was being done safely, and that he had weekly meetings with subcontractors to discuss various safety issues. Id., 50-51. At the conclusion of trial, the court instructed the jury that Konover had a nondelegable duty to ensure a safe work site. Id., 52. The court also denied Konover’s motion to set aside the verdict and for a new trial, rejecting Konover’s claim that it had improperly instructed the jury that Konover had a nondelegable duty to ensure safety on the work site. Id.
The Supreme Court held that, "because a reasonable person could reach but one conclusion as to who exercised control over excavation of the trenches, the question was one for the court. We also conclude that the entity in control was Soneco, rather than Konover, and, therefore, the jury instructions were improper. The trial court relied on Konover’s subcontract agreement with Soneco, Konover’s own safety rules and the testimony of two Konover supervisors in determining that Konover had overall responsibility for safety on the work site and, therefore, a nondelegable duty to ensure that the work was performed safely. Overall responsibility for safety on the work site, however, 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, follow Konover’s project safety plan, maintain safe and healthful working conditions, provide required mechanical safeguards and personal protective equipment, and ensure that employees comply with established safety regulations and practices, including the proper use of all safety equipment provided. 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." (Internal quotation marks omitted.) Id., 54-55. Further, Konover’s safety manual "was not the source of a contractual or legal duty to provide a safe work site but was merely an informational tool." Id., 55. The safety manual did not involve "control over the manner in which specific tasks would be performed by the subcontractors’ employees." Id., 55-56.
The Supreme Court further held that "[t]he fact that two Konover supervisors, Zook and Simmons, testified that Konover had overall responsibility for safety on the work site or that Konover was the ‘controlling employer’ under OSHA does not mean that Konover had a nondelegable duty to provide a safe work site that precluded the jury from considering Soneco’s negligence. Neither Zook nor Simmons testified that Konover retained direct control over Soneco’s work, over Soneco’s employees or over the manner in which the work was to be performed, nor did either testify that Konover assumed direct control over, or interfered with, Soneco’s responsibility to perform its work safely ... To the contrary, both Zook and Simmons emphasized that, even though Simmons exercised general supervision over the work site, Soneco had direct responsibility for supervising the work of its employees. Accordingly, we conclude that the trial court improperly instructed the jury that Konover had a nondelegable duty to ensure a safe work site." (Citation omitted.) Id., 56. The Supreme Court reversed the judgment and remanded for a new trial. Id.
Unlike the plaintiff in Archambault, the plaintiff here does not claim that Turner is liable because it had a nondelegable duty to ensure safety at the work site where the plaintiff was injured. The plaintiff instead argues, and introduces evidence in support of his claim, that Turner exerted specific control over the manner in which drywall was stacked through Richardson’s agreement with Partitions’ representatives, which was inconsistent with the terms of Turner’s subcontract agreement with Partitions. Therefore, a genuine issue of material fact remains as to whether Turner exercised control over the manner in which specific tasks would be performed by Partitions’ employees, or interfered with Partitions’ responsibility to perform its work safely. Accordingly, this court finds that the holding of Archambault does not mandate the granting of summary judgment for Turner in the present case.
III.
CONCLUSION
On the basis of the foregoing, Turner Construction Company’s motion for summary judgment as to Count One of the Revised Complaint is denied and Yale New Haven Health Services Corporation’s motion for summary judgment as to Count Three of the Revised Complaint is granted. Judgment shall enter in Yale New Haven Health Services Corporation’s favor on the complaint.