Dias v. Adams

• Decision Date: 01 March 1983
• Citation: 456 A.2d 309,189 Conn. 354
• Court: Connecticut Supreme Court
• Parties: Virginia DIAS, Administratrix (ESTATE OF Jose DIAS) v. Joseph ADAMS.

Page 309

456 A.2d 309

189 Conn. 354

Virginia DIAS, Administratrix (ESTATE OF Jose DIAS) v.Joseph ADAMS.

Supreme Court of Connecticut.

Argued Dec. 3, 1982.

Decided March 1, 1983.

Paul E. Pollock, Bridgeport, for appellant(defendant).

Robert R. Sheldon, Bridgeport, with whom, on the brief, was T. Paul Tremont, Bridgeport, for appellee(plaintiff).

Before PETERS, HEALEY, PARSKEY, SHEA and GRILLO, JJ.

SHEA, Associate Justice.

The defendant has appealed from a judgment upon a verdict for the plaintiff administratrix awarding damages for the death of Jose Dias, which occurred after he was struck by the shovel of a backhoe being operated by the defendant, Joseph Adams.Both the decedent and the defendant were employed by the same construction company.In a special defense the defendant pleaded the applicability of General Statutes § 31-293a, ¹ which generally bars suits against fellow employees where workers' compensation is available to the injured employee.In her reply the plaintiff admitted that the accident was covered by the Workers' Compensation Act and that the defendant was a co-employee of the decedent.She claimed that her action could be maintained, nevertheless, under the exception in § 31-293a which permits a suit against a fellow employee "for negligence in the operation of a motor vehicle as defined in section 14-1."The trial court, in denying the motion of the defendant to set aside the verdict, held that the plaintiff's suit fell within this exception.This determination is the subject of the present appeal, in which the sole issue raised by the defendant is whether at the time of the accident he was operating a motor vehicle as contemplated by § 31-293a.We conclude that he was not so engaged and find error.

The facts relevant to the question before us are not disputed.On December 18, 1975, the plaintiff's decedent, Jose Dias, and the defendant, Joseph Adams, were employed by D.German Construction Company, Inc., and were installing sewer pipes on Wigwam Lane, a public highway in Stratford.Adams was operating an Ackerman backhoe while Dias was in a trench wrapping a chain around the bars of a steel box which the backhoe was to remove from the trench.Suddenly the shovel on the backhoe, to which one end of the chain was attached, dropped and struck Dias, who was severely injured and died as a result.

The backhoe was a self-propelled machine which used a diesel engine as its energy source both for locomotion and for movement of the boom to which the shovel or "bucket" was attached.It moved, not on rubber-tired wheels, but on two continuous metal treaded belts.The controls were situated in the cab of the backhoe, and the same levers which controlled its locomotion could also be used to operate the shovel once the operator manipulated a certain valve to transfer the power of the engine from the treads to the boom.The shovel could not be operated while the backhoe was in motion.At the time of the accident the operator had moved the valve into the proper position for operation of the shovel.

The defendant relies upon two grounds for support of his claim that the exception "for negligence in the operation of a motor vehicle" is inapplicable: (1) that the backhoe was not a "motor vehicle" as delineated in General Statutes § 14-1(26), ² to which § 31-293a refers for definition of that term; and (2) that he was not engaged in operating the backhoe as a motor vehicle when the accident occurred.As we agree with the second contention, we shall not discuss the first.

In Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 429 A.2d 943(1980), the situation was quite similar to the present case.There the plaintiff was injured when a hydraulic hoist attached to a flatbed truck was unloading some concrete blocks.The plaintiff had driven the truck to the delivery site and had operated the hoist, which used the truck engine as its power source, until it became stuck in an upright position.The movement of the hoist was controlled either by switches from the truck bed or by hand held switches attached to a twenty-foot cable.After the plaintiff had telephoned his employer, the defendant, a fellow employee, who was a mechanic, came to the scene.The defendant decided that the truck and hoist should be returned to the employer's plant for repairs.He instructed the plaintiff, who was standing beside the truck holding the hand control device, to move the hoist.The plaintiff pressed a switch which caused the hoist to move and strike some high voltage wires.The accident resulted.

We held in Davey that the hoist attached to the truck and being controlled at the time of the accident by remote controls on the ground was not a "motor vehicle" as defined by General Statutes § 14-1(26).Id., 472-73, 429 A.2d 943.We also indicated, moreover, "that operation as it refers to a motor vehicle relates to the driving or movement of the vehicle itself or a circumstance resulting from the movement of the vehicle."Id., 472 n. 1, 429 A.2d 943;seeGeneral Statutes § 14-1 (32);State v. Swift, 125 Conn. 399, 404, 6 A.2d 359(1939).

In the case before us it is clear that, when the mishap took place, the defendant was doing nothing related to driving or moving the vehicle itself, which had been immobilized by switching the power from the treads to the boom.He was engaged only in operating the shovel.His negligence, which the jury found to have caused the accident, did not occur, therefore, in the operation of a motor vehicle, as § 31-293a requires for the exception allowing such a suit against a fellow employee.

The plaintiff relies upon differences between the backhoe and the vehicle described in Davey to escape the effect of that precedent, particularly the fact that the controls which operated the shovel on the backhoe were an integral part of it, unlike those for the hoist in Davey which were not situated in the cab of the truck.We did say in Davey that "[t]here is nothing to suggest that the use of any mechanical or...