Opinion
No. X02 CV 01-0177433-S
February 10, 2005
RULING ON HANDY RENT-ALL'S MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Marcin Mazurek ("the plaintiff") fell from a ladder placed on scaffolding. This decision addresses the liability of the company that rented the scaffolding to a business that, in turn, provided the scaffolding to a contractor who employed the plaintiff.
I
The undisputed facts establish that, on December 7, 1998, defendant Avila, LLC d/b/a/ Handy Rent-All Center ("Handy") rented four units of scaffolding to defendant Thomas F. DeJoseph d/b/a/ Sperry Rail Service and/or Sperry Rail, Inc. ("Sperry"). Each unit of scaffolding contained a warning sticker that stated, among other things, "DO NOT use boxes, ladders, or any other means to increase the working height." The sticker also contained a circular diagram that depicts the use of a ladder on scaffolding with a diagonal line crossing through it — much like our now commonplace diagrams in no smoking zones. Handy also gave Sperry a booklet entitled "Safety Rules and Instructions for bil-jax Multi-Purpose Scaffold." On page eleven, which was entitled "Scaffolding Safety Rules," rule six states: "NEVER USE LADDERS OR MAKESHIFT DEVICES on tops of scaffold to increase height." According to Handy's custom and practice, it would have provided the safety booklet in a manilla envelope labeled in bold red typeface: "WARNING." The warning stated the following:
It is imperative that you read and fully understand and follow all instructions and safety regulations contained herein. Any use of this equipment other than in strict accordance with these instructions shall be at the worker's risk and may result in serious injury to him and others — REMEMBER SAFETY IS THE RESPONSIBILITY OF BOTH EMPLOYER AND WORKERS.
(Affidavit of Kevin D. Smith, Jr., ¶¶ 3-14, 20-22; Affidavit of Glenn Lois, ¶¶ 4, 6.)
An affidavit submitted by the plaintiffs' expert, Andrew H. Sims, Jr., states that "[b]ased upon my review of the deposition of Glenn Rooney, Avila did not provide to Sperry Rail, its agents, servants and employees, the manufacturer or owner's manual prepared by the scaffolding manufacturer which delineates and states the equipment limitations, special warnings, intended uses and maintenance requirements." (September 16, 2004 affidavit of Andrew H. Sims, ¶ 22.) Under the standards discussed below, this statement is not cognizable on summary judgment because it is not based on personal knowledge and does not constitute admissible evidence. See note 4 infra and accompanying text. Moreover, the affidavit misstates the deposition testimony of Rooney, the Sperry agent who rented the scaffolding from Handy. At the deposition, counsel asked Rooney: "[w]ere you given any documents when you rented other than the receipt for the rental?" Rooney replied: "We were given instructions on the assembly — how do to [sic] assemble." (Rooney deposition, p. 60.) The only such document that the parties have identified is the booklet discussed above that contained both instructions and safety rules.
From at least the beginning of December 1998, the plaintiff, an employee of plaintiff-intervenor Anco Engineering, Inc. ("Anco"), was working pursuant to a contract in which Sperry engaged Anco to perform repairs and welding on Sperry's railroad car. (Amended Revised Complaint ("Complaint"), count one, ¶¶ 6, 8, 12; Plaintiff's September 30, 2004 affidavit ("Plaintiff's affidavit"), ¶ 11.) Through December 23, 1998, the plaintiff worked, without incident, on a ladder placed on scaffolding constructed by Anco. On December 30, 1998, the plaintiff noticed new scaffolding at the job site, which was in fact the scaffolding rented by Sperry. The plaintiff, who does not fully understand English, allegedly did not receive any warnings or instructions from Anco or Sperry concerning use of a ladder on the new scaffolding. The plaintiff placed a ladder on the scaffolding and began working. Unfortunately, the plaintiff fell and sustained serious injuries. (Plaintiff's affidavit, ¶¶ 3, 11, 12, 16-19, 23-40.) Plaintiff and his wife, plaintiff Marianna Mazurek, have now sued Handy, as well as Sperry and two other defendants, charging Handy with fifty specifications of negligent and reckless conduct, including that Handy failed to provide adequate warnings.
The plaintiffs' complaint is a tribute to legal prolixity. The seventy-two page complaint contains sixteen counts, each of which contains or incorporates an astounding forty-one or more specifications of liability. Counts four, eight, twelve, and sixteen are directed against Handy. These counts allege, respectively, negligence, recklessness, and, on behalf of plaintiff Marianna Mazurek, negligent and reckless loss of consortium. Handy moves for summary judgment on these counts.
Counts two, six, ten, and fourteen, which are against Sperry, contain or incorporate fifty-eight specifications of liability. A prior version of the complaint contained or incorporated fifty specifications of liability against Handy in each of the four counts against it. After oral argument of this motion, the plaintiffs reviewed the complaint and deleted nine specifications and revised others. The plaintiffs, with the consent of the defendants, then filed an amended revised complaint dated February 4, 2003, which the court agrees to consider as the operative complaint for this motion and the case.
In an October 29, 2004 ruling, the court wanted in part and denied in part defendant Sperry's motion for summary judgment on counts two, six, ten, and fourteen. Upon review of that ruling, the court has discovered that the second sentence of the first full paragraph on page six should read "Both Veitch and Rooney . . ." instead of "Both Veitch and Sperry . . ."
II
The party moving for summary judgment has the initial burden to bring forward evidentiary facts showing the absence of any material factual dispute. See Doty v. Shawmut Bank, 58 Conn.App. 427, 430, 755 A.2d 219 (2000). Correspondingly, "the party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Id. "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] . . ." (Internal quotation marks omitted.) United Services Automobile Association v. Marburg, 46 Conn.App. 99, 110, 698 A.2d 914 (1997). "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book (1998 Rev.) §§ 17-45 and 17-46 . . . which contradict those stated in the movant's affidavits and documents and show that there is a genuine issue for trial. If he does not so respond, summary judgment shall be entered against him." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 58 Conn.App. 430. Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See United Services Automobile Association v. Marburg, supra, 46 Conn.App. 110; Practice Book § 17-46.
Practice Book § 17-45 provides in part: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
Practice Book § 17-46 provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. See Doty v. Shawmut Bank, supra, 58 Conn.App. 431. The test is "whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Id. In addition, summary judgment is available to test the legal sufficiency of the complaint. See Gaudino v. East Hartford, 87 Conn.App. 353, 357-58 (2005); Drahan v. Board of Education, 42 Conn.App. 480, 498 n. 17, 680 A.2d 316, cert. denied, 239 Conn. 921, 682 A.2d 1000 (1996).
Pane v. Danbury, 267 Conn. 669, 674 n. 7, 841 A.2d 684 (2004), cited by the plaintiffs, is not to the contrary. The court in Pane stated that it would address the legal sufficiency of the complaint on review of a motion for summary judgment because the plaintiff did not challenge the propriety of doing so. But the court did not suggest that it would not have done so without the plaintiff's consent. Id. Indeed, the court has previously stated, without limitation, that summary judgment is available to test legal sufficiency, see Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 408-09, 279 A.2d 540 (1971), and has approved the use of summary judgment to address the legal issue of the existence of a duty, which is one of the issues here. See Gould v. Mellick Sexton, 263 Conn. 140, 155, 819 A.2d 216 (2003). Although the Appellate Court had once held that summary judgment is not available to test legal sufficiency, Burke v. Avitable, 32 Conn.App. 765, 772, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993), it has now implicitly overruled that case. See Gaudino v. East Hartford, supra, 87 Conn.App. 357-58. Summary judgment, after all, is appropriate when "the moving party is entitled to judgment as a matter of law." Practice Book § 17-49. Particularly because of restrictions on the motion to strike or the complexity of the case, it is often necessary to address the legal sufficiency of a complaint on summary judgment.
III A
Paragraph thirteen of count four contains forty-one specifications of negligence against Handy. After an initial round of briefs in this case, the court asked the parties to brief the issue of whether General Statutes § 52-572n (a), the exclusive remedy provision of the Connecticut Product Liability Act ("the act"), bars these specifications. Handy now contends that the exclusivity rule bars all specifications in count four.
General Statutes 52-572n (a) provides: "A product liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." "It is now beyond dispute that this provision provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim." (Internal quotation marks omitted.) Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000).
There is no disagreement that Handy qualifies as a "product seller" within the statutory definition providing that "[t]he term `product seller' also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products." General Statutes § 52-572m(a). The more difficult question is whether the various specifications alleged by the plaintiffs fall within the meaning of the term "product liability claim" in § 52-572n(a). The statutory definition provides as follows:
"Product liability claim" includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. "Product liability claim" shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent.
General Statutes § 52-572m(b).
The clearest case is the plaintiffs' allegation that Handy "failed to warn the Plaintiff of the unreasonably dangerous and hazardous conditions of the scaffolding its [sic] supplied to the construction site." (Complaint, count four, ¶ 13(I).) This allegation falls squarely within the statutory definition of "product liability claim" as encompassing "warnings" and the "breach of or failure to discharge a duty to warn or instruct." General Statutes § 52-572m(b). This issue is also governed by our Supreme Court's decision in Allard v. Liberty Oil Equipment Co., supra, 253 Conn. 787, in which the court held that an apportionment complaint that alleged, among other things, "negligently failing to provide adequate warnings . . ." constituted a "product liability claim" within the meaning of the statutory definition. Id., 790 n. 4, 799-800.
Contrary to the plaintiffs' argument, Allard is not distinguishable on the ground that the negligence allegations arose in an apportionment complaint. The Allard Court observed that "[i]t is now beyond dispute that [§ 52-572n(a)] provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim." (Internal quotation marks omitted.) Allard, supra, 253 Conn. 800. The court then added: "we fail to see why, if claimant may not avoid the exclusivity provision of § 52-572n(a) by casting his pleading in common-law terms, a defendant seeking to bring in an apportionment defendant should be permitted to do so." (Emphasis in original.) Allard, supra, 253 Conn. 800. The court thus found that the negligence claims made in that case were subject to the exclusivity provision, regardless of whether they appeared in an original complaint or an apportionment complaint. The court then went on to find that the apportionment statute did not allow for claims falling within the scope of product liability. Id., 800-06 ("In addition, the provisions of § 52-572h, as amended by P.A. 99-69, lead us to the same conclusion.") But that finding was clearly an alternative basis for its decision and did not negate the court's earlier holding, relied upon here, that the allegations in the apportionment complaint were not sustainable as negligence claims but rather fell within the scope of product liability.
The other forty specifications do not clearly fall within the product liability act. These specifications make wide-ranging allegations, from Handy's creation or maintenance of dangerous conditions "on the premises at the work site" to Handy's negligence in "[hiring and retaining] its agents, servants, and/or employees, who selected and/or erected and/or assembled said scaffolding and/or ladder system." (Complaint, count four, ¶ 13 (I) and (p).) To the extent that the court can decipher the meaning of these labyrinthian allegations, the court can find no binding or persuasive appellate authority holding that similar allegations fall within a product liability statute. The purpose of Connecticut's statute is "to protect people from harm caused by defective and hazardous products." (Internal quotation marks omitted) Vitanza v. Upjohn Co., 257 Conn. 365, 381, 778 A.2d 829 (2001). Most of the plaintiffs' allegations seem to focus on the conduct of Handy rather than the nature of the product. Accordingly, the court concludes that, based on the foregoing analysis, only the failure to warn specification in paragraph 13 (I) falls within the product liability act.
The plaintiffs suggest that, if the court finds that any of the specifications against Handy fall within the product liability act, then the case should proceed on that theory under the current complaint. While it is true that the label given a count does not control its legal characterization, that fact does not mean that the plaintiffs may just attach the correct label to their fourth count and then go forward. The cases concluding that counts or complaints labeled as "negligence" actually fell within the product liability statute have not merely overlooked the labeling of the count but rather have affirmed trial court actions granting motions to strike or motions for summary judgment. See Allard, supra. 253 Conn. 790 (affirming granting of motion to strike); Winslow v. Lewis-Shepard, Inc., 212 Conn. 462, 465, 562 A.2d 517 (1989) (same); Daily v. New Britain Machine Co., 200 Conn. 562, 565-66, 512 A.2d 893 (1986) (affirming grant of summary judgment). The apparent reasoning is that the exclusivity provision "[denies] a claimant the option of bringing common-law causes of action for the same claims," (internal quotation marks omitted) Allard, supra; 253 Conn. 800, but does not necessarily guarantee that the claimant has pleaded a product liability cause of action. In this situation, the pleadings may well fail to state the elements of a product liability cause of action even though the gravamen of the claim falls within the scope of the act. In addition, the defendant may have entirely different defenses depending on the precise language of the claim once it is pleaded under the product liability statute. Therefore, the appropriate remedy is not merely to deem count four to allege product liability insofar as it alleges failure to warn, but rather to grant the motion for summary judgment as to that specification.
The plaintiffs misquote Allard to state that "the labels placed on the allegations by the parties are not controlling." (Plaintiffs' memorandum, p. 16.) The plaintiffs provide no page citation from Allard for this quote, nor could they. The quote comes from Ganim v. Smith Wesson Corp, 258 Conn. 313, 348, 780 A.2d 98 (2001), which cites Allard for this proposition, but does not quote it.
In a prior opinion in this case, the court approved the use of partial summary judgment as to some but not all specifications within a count. Mazurek v. Great American Insurance Co, Superior Court, judicial district of Waterbury, Docket No. 177433 (December 16, 2004) (Schuman, J.) ( 38 Conn. L. Rptr. 402).
Moreover, even if the court considered the complaint to allege a product liability action based on the failure to warn, the plaintiffs could not prevail. The central issue under the product liability act is whether there was a failure to warn that made the scaffolding defective. General Statutes § 52-572q (a); Vitanza v. Upjohn Co., supra, 257 Conn. 373. As Handy has argued, there is no genuine factual dispute over whether there was a failure to warn. In section I of this ruling, the court enumerated the clear warnings that Handy provided, in a variety of locations and forms, against placing a ladder on the scaffold.
General Statutes § 52-572q (a) provides: "A product seller may be subject to liability for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided."
Aside from the evidence already discussed, see note 1 supra, the contrary evidence presented by the plaintiffs consists of testimony from their scaffolding expert, Andrew H. Sims, that Handy had a duty to provide the Scaffold Industry Association's "Code of Safe Practices Notice" or "similar instructions" when it rented the scaffolding to Sperry. (September 16, 2004 Affidavit of Andrew H. Sims ("Sims affidavit"), ¶¶ 5-8.) Although the defendant raises several objections to this testimony, it is not necessary to resolve them here because the testimony does not create a genuine factual issue. In pertinent part, the Code of Safe Practices Notice states "Do not use ladders or makeshift devices on top of scaffolds to increase the height." (Sims affidavit, Exhibit B, ¶ I.) This warning and the warnings actually provided, which stated "DO NOT use boxes, ladders, or any other means to increase the working height" and "NEVER USE LADDERS OR MAKESHIFT DEVICES on tops of scaffold to increase height" are certainly "similar instructions." Therefore, the warnings actually provided satisfy even the standard announced by the plaintiff's expert.
Indeed, Handy's expert has provided uncontradicted testimony that "[t]he various warnings regarding the erection and use of [the] scaffolding set forth in pages 11 and 12 of the Safety Rules booklet . . . are substantially similar to the [Code of Safe Practices Notice] and exactly the same in warning against placing a ladder on the scaffolding." (Affidavit of John Palmer, ¶ 56.) In view of this evidence, there is no genuine issue of material fact concerning the allegation that Handy failed to provide adequate warnings. Accordingly, even if the court were to deem the existing complaint a product liability complaint insofar as it alleges failure to warn, the defendant would be entitled to summary judgment on that specification.
B
For those negligence specifications not falling within the product liability act, and as alternative consideration for the one specification that does fall within the act, Handy contends that it had no duty under the common law to the plaintiff. This contention focuses on the fact that Handy did not do business with the plaintiff, but rather rented the scaffolding to Sperry, which in turn contracted with Anco, which in turn employed the plaintiff.
Ordinarily, the determination of whether a duty exists is a question of law. See LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). It is therefore appropriate for determination on summary judgment. See Gould v. Mellick Sexton, 263 Conn. 140, 155, 819 A.2d 216 (2003); Pion v. New England Telephone Co., 44 Conn.App. 657, 660, 691 A.2d 1107 (1997). A duty may arise from a statute, a contract, or the common law. See Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). The plaintiffs' brief essentially argues that the defendant's duty arises from the common law. (Plaintiff's brief, pp. 17-21.) Therefore, the applicable test for the determination of a duty entails:
The complaint contains numerous specifications alleging that Handy violated the federal Occupational and Safety Act (OSHA) and the regulations promulgated thereunder. The plaintiffs do not argue that these authorities create a statutory duty of a rental company such as the defendant to an ultimate user such as the plaintiff. Nor would violation of OSHA in and of itself constitute breach of a duty or negligence per se. At most, OSHA violations constitute evidence of breach of duty. See Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 177, 81, 439 A.2d 954 (1981).
(1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . .
(Internal quotation marks omitted.) Murdock v. Croughwell, 268 Conn. 559, 566, 848 A.2d 363 (2004).
The first prong of this test is a test for foreseeability. See Lodge v. Arett Sales Corp., 246 Conn. 563, 572-73, 717 A.2d 215 (1998). To meet this test, the defendant must be able to foresee the general nature of the harm suffered, though not necessarily the exact nature of the harm. Id., 573. "What is relevant . . . is the . . . attenuation between [the defendant's] conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand." (Internal quotation marks omitted.) Id., 574. "[A] defendant [is] not required to take precautions against hazards [that are] too remote to be reasonably foreseeable." (Internal quotation marks omitted.) Id., 575. The court must bear in mind that, in hindsight, almost all harms are literally foreseeable. Id. Thus, "[l]iability may not be imposed merely because it might have been foreseeable that some accident could have occurred; rather, liability attaches only for reasonably foreseeable consequences." (Emphasis in original.) Id., 577.
In this case, it may well have been foreseeable that, if the plaintiff put a ladder on a scaffolding, he would fall. But the precipitating action of placing a ladder on the scaffolding was not reasonably foreseeable to Handy. In the safety booklet as well as on the scaffolding itself, Handy provided clear warnings against use of a ladder. It cannot be reasonably foreseeable that users of the scaffolding would ignore such clear warnings. The contrary conclusion would mean that renters or manufacturers could not protect themselves from liability by providing clear warnings.
Further, Handy had no business relationship with the plaintiff or, apparently, information that he would be using the scaffolding. (Lois affidavit, ¶ 8; Smith affidavit, ¶¶ 16-19.) Indeed, the rental contract between Handy, which in the contract was the "Dealer," and Sperry which was the "Customer," provided that use of the equipment "by anyone other than the Customer or his employees without Dealer's permission" was a "prohibited [use]." (Smith affidavit, ¶ 4, Exhibit A, ¶ 5(d):) Under these circumstances, the "attenuation between [the defendant's] conduct, on the one hand, and the consequences to and the identity of the plaintiff, on the other hand . . .," (Internal quotation marks omitted) Lodge v. Arett Sales Corp., supra, 246 Conn. 574, is sufficiently great as to render the harm reasonably unforeseeable.
In any event, "[a] simple conclusion that the harm to the plaintiff was foreseeable . . . 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 . . ." (Internal quotation marks omitted) Murrillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 479, 823 A.2d 1202 (2003). "Essential to determining whether a legal duty exists is the fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong." (Internal quotation marks omitted.) First Federal Savings Loan Association of Rochester v. Charter Appraisal Co., 247 Conn. 597, 605, 724 A.2d 497 (1999). "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.) Murrillo v. Seymour Ambulance Association, Inc., supra, 264 Conn. 480.
There are several important policy considerations here. First, as the plaintiff alleges, he has already received workers' compensation benefits from his employer. (Complaint, count one, ¶ 7.) "The fact that the plaintiffs' recovery against the defendants would exceed that which would be available as workers' compensation benefits cannot justify the imposition of liability for an accident that was not a reasonably foreseeable consequence of the defendants' negligent conduct." Lodge v. Arett Sales Corp., supra, 246 Conn. 579.
Second, in many cases in which a worker is injured by a defective product, the worker will have a remedy under the product liability act. The absence of privity of contract, as in this case, is not a barrier. "Liability to the user or consumer for breach of [the duty not to sell a product in a defective condition] attaches regardless of whether or not there exists any contractual relation or privity of contract between the seller and the user or consumer." Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 501, 365 A.2d 1064 (1976). As a matter of public policy, it is less necessary to stretch the concept of duty in negligence cases to reach remote users such as the plaintiff when, at least in cases when the product is defective, the user would have an alternative remedy under product liability law.
Although the case cited arose under the Restatement rules for strict liability in tort prior to the enactment of the product liability act in 1979, see Vitanza v. Upjohn, supra, 257 Conn. 380-81, the Supreme Court has recently made clear that "strict liability and product liability are forms of the same tort." Allard v. Liberty Oil Equipment Co., supra, 253 Conn. 804.
Third, although there is no binding Connecticut authority on point, general principals of tort law adopted here and elsewhere support the view that a seller or renter of property is liable to third parties only under a set of conditions that does not exist in this case. Analysis begins with section 388 of the Restatement (Second) of Torts. See Murdock v. Croughwell, supra, 268 Conn. 566-75 (discussing the Restatement as part of its public policy analysis of whether a duty exists). Section 388 provides as follows:
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
2 Restatement (Second) Torts, § 388, pp. 300-01 (1965). Up until subsection (c), section 388 addresses the foreseeability of the user and the use of the property in question. The court has already discussed this issue and concluded that the use and user in this case were not reasonably foreseeable to Handy. But even if Handy could have foreseen this accident happening to the plaintiff, Handy would be liable under this section only if, under subsection (c), it "[failed] to exercise reasonable care to inform [him] of its dangerous condition or of the facts which make it likely to be dangerous." As also discussed, Handy's clear warnings, in a variety of locations and forms, against placing a ladder on the scaffold satisfied its duty to provide information about the relevant dangers. Handy would have no further duty under the Restatement.
Section 407 of the Restatement expressly extends such duties to persons who lease chattels. See 2 Restatement (Second) Torts, § 407, p. 366 (1965).
Several courts in other states have applied § 388 in the precise context of suits against companies that had rented scaffolding. See Rinkleff v. Knox, 375 N.W.2d 262, 267-69 (Iowa 1985); Miller v. Macalester College, 262 Minn. 418, 428, CT Page 2498 115 N.W.2d 666 (1962). Other courts have utilized similar general tort principles in limiting the duty of businesses to third-party users of their products or services. See Clark v. Rental Equipment Co., 300 Minn. 420, 427, 220 N.W.2d 507 (1974); Fernandez v. Otis Elevator Co 4 A.D.3d 69, 72-73, 772 NY.52d 14 (2004). These cases are consistent with the general rule of Connecticut tort law that there is "only a limited duty to take action to prevent injury to a third person." Fraser v. United States, 236 Conn. 625, 632, 674 A.2d 811 (1996).
In sum, the availability of alternative remedies as well as the traditionally limited duty under the common law of a business to a remote user of its products represent important public policy reasons against the creation of a duty broader than the duty to warn in these circumstances. This finding, coupled with the reasonably unforeseen nature of the harm, warrants a conclusion that Handy had no additional duty to the plaintiff in this case. Since duty is an essential element of negligence, see Murdock v. Croughwell, supra, 268 Conn. 566, the plaintiff cannot prevail in count four of the complaint.
In view of this conclusion, it is unnecessary to reach Handy's additional argument that, as a matter of law, there was no breach of any duty in this case.
IV
The other counts against Handy are readily resolved: Given that Handy had no duty to the plaintiff other than possibly the duty to warn, which it discharged, the plaintiffs cannot maintain count eight, alleging recklessness, any more than they can maintain the negligence action. See Sheiman v. Lafayette Bank Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985). Counts twelve and sixteen, the loss of consortium counts, also fail because they are derivative causes of action that depend on the legal existence of the predicate or underlying action, which the plaintiffs here cannot sustain. See Musorofiti v. Vlcek, 65 Conn.App. 365, 375-76, 783 A.2d 36, cert. denied, 258 Conn. 938, 786 A.2d 426 (2001). Accordingly, the court grants Handy's motion for summary judgment in its entirety.
V
Handy also moves for summary judgment on count one of its cross-claim against Sperry, which count alleges contractual indemnity: In view of the granting of Handy's motion for summary judgment, it is unnecessary to reach the question of whether Sperry has a contractual obligation to indemnify Handy.
VI
The court grants Handy's motion for summary judgment against the plaintiffs in its entirety.
It is so ordered.
Carl J. Schuman Judge, Superior Court