Ferryman v. City of Groton

• Decision Date: 18 July 1989
• Docket Number: No. 13558,13558
• Citation: 212 Conn. 138,561 A.2d 432
• Court: Connecticut Supreme Court
• Parties: Eugene K. FERRYMAN, Administrator (ESTATE of Michael FERRYMAN) v. CITY OF GROTON.

Page 432

561 A.2d 432

212 Conn. 138

Eugene K. FERRYMAN, Administrator (ESTATE of Michael FERRYMAN) v. CITY OF GROTON.

No. 13558.

Supreme Court of Connecticut.

Argued April 6, 1989.

Decided July 18, 1989.

Ronald J. Cohen, New Haven, for appellant (defendant-third party plaintiff city of Groton).

Thomas F. Maxwell, Jr., with whom were Charles H. Gifford, Groton, and, on the brief, Timothy G. Atwood, Bridgeport, for the appellees (third party defendant General Dynamics Corp. et al.).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

COVELLO, Associate Justice.

This is a negligence action seeking to recover damages for the wrongful death of the plaintiff's decedent. The dispositive issue is whether an employee-employer relationship between a plaintiff and a third party defendant bars a claim for indemnity brought by the original defendant against the third party defendant. Because there are allegations of an independent relationship between the defendant and the third party defendant/employer, we conclude that the employee-employer relationship between the plaintiff's decedent and the third party defendant/employer does not bar the third party action.

On July 9, 1986, the plaintiff, Eugene K. Ferryman, as administrator, commenced this action seeking damages from the defendant, the city of Groton, for the death of Michael J. Ferryman. The complaint alleged that Groton was the owner of an electrical substation within the city limits. On July 3, 1985, the plaintiff's decedent entered the substation area to cut grass and remove weeds. While there he came in contact with a high voltage line and was instantaneously electrocuted. The complaint further alleged that all of this occurred by reason of Groton's negligence in the maintenance and operation of the substation.

On November 9, 1987, Groton filed a motion to implead, as third party defendants, the Electric Boat Division of General Dynamics Corporation (Electric Boat), an alleged co-owner of the substation, and Charlie R. Franklin, an Electric Boat employee. ¹ The trial court, Tamborra, J., granted the motion.

Groton's third party complaint alleged that "[t]he electrical substation was owned, operated, maintained and controlled by Electric Boat" and that Groton "owned only the transformers and the metering equipment at the electrical substation." The complaint further alleged that "Electric Boat controlled access to the electrical substation" and that Franklin, "an employee and agent of Electric Boat, unlocked the gate surrounding the electric substation, making it possible for Ferryman to enter the area of the substation." Further, the complaint alleged that if Ferryman's death was caused by anyone's negligence, it was the negligence of Electric Boat and Franklin. Finally, the complaint alleged that both Electric Boat and Franklin "had control of the situation to the exclusion of the City of Groton, and the City of Groton did not know of Electric Boat's or Franklin's negligence, had no reason to anticipate it and could reasonably rely on them to act otherwise." The complaint claimed indemnification.

On December 28, 1987, Electric Boat and Franklin filed a motion to strike the third party complaint in its entirety contending that the "exclusive remedy" provisions of the Workers' Compensation Act found in General Statutes § 31-284(a) barred the prosecution of the third party complaint against Electric Boat, Ferryman's employer. This statute provides in part: "All rights and claims between employer and ... representatives ... of such employees, arising out of ... death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter...." The trial court, Hurley, J., granted the motion, rejecting Groton's argument that the third party complaint alleged an independent legal relationship between Groton and Electric Boat, thus entitling Groton to indemnification. Groton declined to plead over, ² and the trial court thereafter rendered judgment on the stricken complaint in favor of both third party defendants. Groton filed a timely notice of a reservation of its right to appeal. ³ On November 1, 1988, the plaintiff and Groton filed a stipulated judgment for the plaintiff to recover $450,000 in the underlying action. Groton thereafter appealed to the Appellate Court the earlier judgment that followed the granting of the motion to strike. We then transferred the matter to ourselves pursuant to Practice Book § 4023.

"The motion to strike, Practice Book, 1978, § 151, replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading. Practice Book, 1978, § 152; cf. McAnerney v. McAnerney, 165 Conn. 277, 282, 334 A.2d 437 (1973). The motion to strike, like the demurrer, admits all facts well pleaded. Cf. Cyr v. Brookfield, 153 Conn. 261, 263, 216 A.2d 198 (1965); Weaver v. Ives, 152 Conn. 586, 589, 210 A.2d 661 (1965). 'The allegations are entitled to the same favorable construction as a trier would be required to give in admitting evidence under them; Benson v. Housing Authority, 145 Conn. 196, 199, 140 A.2d 320 [1958]; and if facts provable under the allegations would support a defense or a cause of action, the demurrer [motion to strike] must fail. Cyr v. Brookfield, [supra].' Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 (1973)." Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980).

"Ordinarily there is no right of indemnity or contribution between joint tort-feasors." Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965). "Where, however, one of the defendants is in control of the situation and his negligence alone is the direct immediate cause of the injury and the other defendant does not know of the fault, has no reason to anticipate it and may reasonably rely upon the former not to commit a wrong, it is only justice that the former should bear the burden of damages due to the injury." Preferred Accident Ins. Co. v. Musante, Berman & Steinberg Co., 133 Conn. 536, 543, 52 A.2d 862 (1947). "Under the circumstances described, we have distinguished between 'active or primary negligence,' and 'passive or secondary negligence.' Kaplan v. Merberg Wrecking Corporation, supra [152 Conn. at p.] 415 ." Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 698, 535 A.2d 357 (1988). We have permitted recovery even absent a finding of an express or implied agreement as between the two tortfeasors to exercise reasonable care. Kaplan v. Merberg Wrecking Corporation, supra, 152 Conn. at p. 411, 207 A.2d 732. The third party complaint here was carefully drawn so as to allege circumstances that would give rise to an application of the Kaplan doctrine.

Electric Boat and Franklin argue, however, that the original complaint alleges that Ferryman was an employee of Electric Boat, and that the exclusive remedy provisions of the workers' compensation statute, i.e., General Statutes § 31-284(a), insulate them from the indemnification claim. Electric Boat claims that its liability arising from the death of its employee is limited to that imposed by the Workers' Compensation Act and that if recovery is permitted in this case, it could be paying more than the act requires.

While we have never considered this precise legal issue, we have considered a similar factual circumstance. In Farm Bureau Mutual Automobile Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 107 A.2d 406 (1954), an employee was injured while riding as a passenger in a truck leased to her employer. The employee's injuries were caused by the operator of the truck, a fellow employee. The employee obtained judgment against the owner/lessor of the truck pursuant to a statute that made the lessor of a motor vehicle liable for injuries caused by the operation of the vehicle while leased, just as if the owner had been the operator of the vehicle. ⁴ Id., 542, 107 A.2d 406.

The insurance carrier for the owner of the truck brought suit as subrogee of its insured against the employer/lessee of the truck. We allowed recovery by the insurance carrier against the employer reasoning that the employer's liability to the owner of the truck was "predicated upon the leasing of the truck [and was] not based upon any duty that the [employer] owed to [its employee] but upon an entirely independent and separate duty owed to [the lessor]." Id., 554, 107 A.2d 406.

Having found an independent, legal duty owed by the employer/lessee to the owner/lessor, not simply an active/passive negligence relationship which we now conclude would be inadequate, we permitted recovery even though the party originally injured was an employee of the employer/lessee. This view comports with the position taken by the majority of other jurisdictions that have considered this issue. See 2A A. Larson, Workmen's Compensation Law § 76.

"When the third party, in a suit by the employee, seeks recovery over against a contributorily negligent employer, contribution [or indemnification ⁵ is ordinarily denied on the ground that the employer cannot be said to be jointly liable in tort to the employee because of the operation of the exclusive-remedy clause. But...