Opinion
UWYCV116010309S.
12-07-2012
Vittorio J. PEZZO v. VEOLIA WATER NORTH AMERICA OPERATING SERVICES, LLC et al.
UNPUBLISHED OPINION
ROBERT B. SHAPIRO, JUDGE.
This personal injury matter, which is premised on claims of negligence and carelessness, is before the court concerning the defendant United Rentals, Inc.'s (United) motion for summary judgment. United contends that it is entitled to judgment as a matter of law since there is no evidence to support the plaintiff's claims and since it owed no duty to the plaintiff.
The court heard oral argument on November 13, 2012. After consideration, for the reasons stated below, the motion is granted.
I
Background
In the second count of his complaint, the plaintiff, Vittorio J. Pezzo, alleges that, on or about June 9, 2009, as an employee of Best Welding Co., LLC (Best Welding), he was working at a waste water treatment plant (WWTP), located in Naugatuck, Connecticut, where Best Welding had a contract with the operators of the WWTP, which called for Best Welding to fabricate and install stainless piping. The plaintiff alleges that, while performing his work for Best Welding at the premises, he was using a Genie Model SLA20 material lift (lift), which Eric Johnson, president and owner of Best Welding, rented from United. See complaint, second count, ¶ ¶ 6, 12.
The operators are also defendants in this matter but the plaintiff's claims against them are not the subject of United's motion for summary judgment.
The plaintiff alleges that he was using the lift to lower steel piping from a platform bridge on the premises when the lift tipped over, pinning his left arm against a support railing, causing him to sustain serious injuries, including multiple fractures to his arm. See complaint, ¶ ¶ 7, 14. In paragraph 8, he alleges that " the lift was set up on a platform bridge that was not wide enough to accommodate the front legs of the lift, causing the legs to protrude off of the platform bridge making the lift inherently unstable and dangerous." In paragraph 9, he alleges that " [t]he casters on the bottom of the front legs of the lift were not in contact with the surface area, but instead were protruding off the edge of the platform bridge, a condition which also rendered the lift inherently unstable and dangerous."
In addition, the plaintiff alleges that the lift was tied to the railings on the platform bridge and/or other parts of the environment surrounding it, by winch straps which would have been unnecessary if the lift was properly set up on a stable surface large enough to accommodate its legs. He alleges that the winch straps and protruding legs and casters of the lift represented a condition which was unsafe. See complaint, second count, ¶ 11.
The plaintiff alleges that United and/or its agents, servants and/or employees were negligent and careless in one or more of five ways, in that they: " (a) failed to warn Eric Johnson and/or personnel of Best Welding, such as the [p]laintiff that operation of the lift without the front leg casters on a stable surface renders the lift unstable and dangerous; (b) failed to instruct or train Eric Johnson and/or personnel of Best Welding such as the [p]laintiff, in the proper and safe set-up and operation of the lift; (c) failed to supply Eric Johnson and/or personnel of Best Welding, such as the [p]laintiff, with the proper operator's manual for the lift; (d) failed to determine whether Eric Johnson and/or the personnel of Best Welding such as the [p]laintiff were qualified and competent to operate the lift; and (e) failed to warn Eric Johnson and/or personnel of Best Welding that the lift required a surface area that was large enough to accommodate the legs of the lift, fully extended, for safe operation." See complaint, second count, ¶ 13.
Additional references to the factual background are set forth below.
II
Standard of Review
" 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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Rodriguez v. Testa, 296 Conn. 1, 6-7, 993 A.2d 955 (2010).
" When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 305, 999 A.2d 700 (2010).
" 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." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
III
Discussion
" [T]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury [.]" (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 538, 51 A.3d 367 (2012).
" The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand ... 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 ... Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action ... [T]he test for the existence of a legal duty of care entails (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 ... [A] duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Citations omitted; internal quotation marks omitted.) Id., at 538-39. " [N]ot all injuries that are foreseeable give rise to a legal duty. Because foreseeability is a necessary component of duty, the absence of foreseeability forecloses the existence of a duty of care ... The converse is not [true, however]: the conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself, create a duty of care ... Thus, foreseeability is not commensurate with duty, and proof of foreseeability does not establish the existence of a duty of care ... 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 ... In accordance with these principles, the two part test for the existence of a legal duty invokes the question of foreseeability, and ... the question of policy ... Thus, when a duty is not found to exist under the public policy prong of the test, there is no need to perform an analysis under the foreseeability prong." (Citations omitted; internal quotation marks omitted.) Ryan Transportation, Inc. v. M & G Associates, 266 Conn. 520, 528-29, 832 A.2d 1180 (2003).
Since the existence of a legal duty is a question of law, the court properly may decide that summary judgment is warranted where a defendant establishes that there is no evidence to support the legal conclusion that it owed a duty to the plaintiff. See Vitale v. Kowal, 101 Conn.App. 691, 699, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).
In support of its motion, United submitted a copy of the rental contract between Best Welding and United, and transcripts of deposition testimony by the plaintiff and by Eric Johnson. In response, the plaintiff presented copies of the rental contract; an operator's manual for the lift; a photograph of the lift; deposition transcript of the testimony of Jason Frazao, United's Danbury, Connecticut branch manager; deposition transcript of the testimony of the plaintiff and excerpts of the transcript of deposition testimony by Eric Johnson.
Thus, both sides rely on depositions. Summary judgment may be based on deposition testimony. See James v. Valley-Shore YMCA, Inc., 125 Conn.App. 174, 182-83, 6 A.3d 1199 (2010), cert. denied, 300 Conn. 916, 13 A.3d 1103 (2011). The court addresses below each of the claims of negligence alleged by the plaintiff against United.
A
Failure To Warn and Failure To Instruct
As discussed above, the plaintiff alleges that United failed to warn Eric Johnson and/or personnel of Best Welding, such as the plaintiff, that operation of the lift without the front leg casters on a stable surface renders the lift unstable and dangerous and that the lift required a surface area that was large enough to accommodate the legs of the lift, fully extended, for safe operation. Similarly, the plaintiff also alleges that United failed to instruct or train Eric Johnson and/or personnel of Best Welding, such as the plaintiff, in the proper and safe set-up and operation of the lift.
In his deposition, Johnson testified that Best Welding rented the lift from United and provided it for the plaintiff to use at the WWTP. See Johnson deposition, pp. 40, 48, 51. Frazao, United's branch manager, testified that United is an equipment rental company, which rents heavy construction equipment. See Frazao deposition, p. 14.
According to the plaintiff's deposition testimony, prior to working for Best Welding at the WWTP, he was an experienced rigger who had been trained to operate various types of lifts by safety personnel. See plaintiff's deposition, pp. 38-41. Once or twice previously he had worked with similar lifts in his employment for Industrial Riggers, where he worked for two years as a rigger. See plaintiff's deposition, p. 41.
On the day of the alleged incident, the plaintiff set up the lift. He testified that he knew how it was done from his experience at Industrial Riggers. See plaintiff's deposition, p. 88. The plaintiff testified that, since he felt he knew how to do it, at no time did he ask for help in determining how to set up the lift. See plaintiff's deposition, pp. 173-74.
The Supreme Court addressed the duty owed by a lessor of equipment in Mazurek v. Great American Insurance Co., 284 Conn. 16, 930 A.2d 682 (2007), which was cited by United in its memoranda and discussed by both sides at oral argument. There, in a case involving a fall at a work site, the plaintiff alleged negligence against the defendant/lessor of scaffolding, including that the defendant/lessor failed to warn the plaintiff of dangers associated with the scaffolding and allowed dangerous conditions on the work site. See id., 284 Conn. at 20. The Supreme Court concluded that " any claims that [the lessor] breached a duty to warn the plaintiff of the dangerous and hazardous conditions of the scaffolding are barred by the exclusivity provisions of the product liability act [‘ General Statutes § 52-572m et seq., ] ... [and] that the trial court properly granted [the lessor's] motion for summary judgment as to the remaining allegations because [the lessor] had no duty to control the means and methods of the plaintiff's work, to supervise the plaintiff, or to ensure the plaintiff's safety on the work site." Id., 284 Conn. at 26. The Supreme Court reiterated that " the plaintiff has not established that [the lessor] had a right to control or affect conditions on the work site, much less a duty to do so." Id., 284 Conn. at 31.
" General Statutes § 52-572m(b) provides in relevant part that a ‘ [p]roduct liability claim’ includes all claims or actions brought for personal injury ... caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product' and ‘ shall include, but is not limited to, all actions based on the following theories ... breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent ...’ ‘ 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.’ General Statutes § 52-572q(a). A ‘ [p]roduct seller’ includes ‘ lessors or bailors of products who are engaged in the business of leasing or bailment of products.’ General Statutes § 52-572m(a)." (Emphasis added; internal quotation marks omitted.) Mazurek v. Great American Insurance Co., supra, 284 Conn. at 27.
Here, as in Mazurek, the plaintiff raises no claim pursuant to the product liability act. See id., 284 Conn. at 28. Notwithstanding the forseeability of injury to users of the lift, any claims of a breach of duty by United, as a lessor engaged in the business of leasing construction equipment, to warn of any dangers associated with the lift, are barred by the exclusivity provisions of the product liability act. See id., 284 Conn. at 28, 30-31 n. 12. Under these circumstances, there is no material issue of fact as to whether United provided warnings, since any such claim is barred by the product liability act.
The same analysis applies to the claims that United failed to provide instruction or training in the proper and safe set-up and operation of the lift. See General Statutes § 52-572m(b), and other portions of the product liability act, quoted above in Mazurek v. Great American Insurance Co., supra, 284 Conn. at 27.
B
Manual
The plaintiff also alleges that United failed to supply Eric Johnson and/or personnel of Best Welding, such as the plaintiff, with the proper operator's manual for the lift. Frazao, United's branch manager, testified that United always provides a manual when it rents a machine. See Frazao deposition, pp. 22-23.
In his deposition testimony, the plaintiff stated that he saw no manual, but that he " wasn't looking." See plaintiff's deposition, p. 173. In his testimony, Johnson stated that while such lifts usually have a pocket on them where the manual is kept or a chain holding the manual, he could not recall whether the lift came with a manual when he rented it from United Rentals. See Johnson deposition, pp. 67, 108-09. The plaintiff has not presented evidence to prove that United failed to provide Best Welding with the operator's manual.
In addition, the plaintiff's and Johnson's testimony demonstrate that there is no causal link between any failure to provide a manual and the alleged incident, since their testimony shows that providing a manual would not have mattered. See Grenier v. Commissioner of Transportation, supra, 306 Conn. at 538. Neither would have looked at such a manual; both testified that, in view of their prior experience in using similar lifts in the past, review of a manual was unnecessary.
The plaintiff testified that he never sought to look at an instruction manual for the lift. See plaintiff's deposition, pp. 173, 177. He sought no help in determining how to set up the lift since he felt he knew how to do it. See plaintiff's deposition, pp. 173-74.
Johnson testified that he does not review manuals for lifts when he rents them, since " it's like driving a car: I don't review the manual to drive a car every time I drive a car because I've used it before." See Johnson deposition, p. 68. He stated that he reviewed a manual for a lift which was similar to the one that he rented for the project at issue before he started Best Welding. See Johnson deposition, p. 68.
In view of the deposition testimony, which shows that providing a manual for the lift would not have mattered, no material issue of fact is presented concerning the alleged failure by United to provide a manual, since no causal link between the alleged breach of duty and the alleged injuries has been shown. See Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1990) (" A ‘ material’ fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Internal quotation marks omitted.))
C
Failure To Determine Qualifications and Competence
Concerning the plaintiff's allegation that United failed to determine whether Johnson and/or the personnel of Best Welding, such as the plaintiff, were qualified and competent to operate the lift, the Supreme Court's decision in Mazurek v. Great American Insurance Co., supra, 284 Conn. at 26, 30-31 n. 12, is applicable here also. Since, as a renter of equipment, United " had no duty to control the means and methods of the plaintiff's work, to supervise the plaintiff, or to ensure the plaintiff's safety on the work site, " id., it had no duty to determine whether the personnel of Best Welding, including Johnson and the plaintiff, were qualified and competent to operate the lift. Similarly, it had no duty to ensure that Best Welding rented the proper lift. Accordingly, any alleged failure to ascertain whether Best Welding and/or its personnel, including the plaintiff, were qualified or competent to use the lift cannot be the basis for a finding of liability for negligence by United.
In view of this determination, the court need not consider United's arguments concerning the language of the rental contract concerning operation of the lift by qualified personnel.
CONCLUSION
For the reasons stated above, there is no genuine issue as to any material fact. United's motion for summary judgment is granted. It is so ordered.