Mancini v. Bureau of Public Works of Metropolitan Dist.

• Citation: 167 Conn. 189,355 A.2d 32
• Court: Supreme Court of Connecticut
• Decision Date: 27 August 1974
• Parties: Carmen MANCINI et al. v. BUREAU OF PUBLIC WORKS OF the METROPOLITAN DISTRICT. John LaCAPRA et al. v. The METROPOLITAN DISTRICT.

Page 32

355 A.2d 32

167 Conn. 189

Carmen MANCINI et al. v. BUREAU OF PUBLIC WORKS OF the METROPOLITAN DISTRICT.

John LaCAPRA et al. v. The METROPOLITAN DISTRICT.

Supreme Court of Connecticut.

Aug. 27, 1974.

Jerome E. Caplan, Hartford, with whom was Steven D. Bartelstone, Hartford, for the appellants (named plaintiff et al.) in the first case.

Robert M. Dombroff, Bloomfield, with whom, on the brief, were Walter B. Schatz, Hartford, and Edward G. Pizzella, Newington, for the appellant (named plaintiff) in the second case.

Raymond B. Green, Hartford, with whom was Charles W. Page, Hartford, for the appellee (defendant) in each case.

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ. LOISELLE, Associate Justice.

The plaintiffs, Carmen Mancini and Patrick J. Joyce in one action, and John LaCapra in another, sought to recover from the defendant for injuries and damages incurred when an after-blast of dynamite occurred in the area where they were working. Each plaintiff brought an action in two counts, one based on negligence, and a second on absolute liability. The negligence counts were framed in terms of the defendant's own negligence in failing to take preventive measures to protect the plaintiffs although it knew that the work to be performed on its behalf involved an inherently dangerous operation, and that injury and damage would naturally and obviously result unless precautions were taken. Cf. Bonczkiewicz v. Merberg Wrecking Corporation, 148 Conn. 573, 172 A.2d 917. The absolute liability counts charged that the work performed on behalf of the defendant involved an inherently dangerous operation which necessarily or obviously exposed the plaintiffs to injury and which caused their injuries. After a joint trial, the jury returned separate verdicts on each count for the defendant, and the plaintiffs joined in filing this appeal.

The plaintiffs claimed to have proved the following: ¹ The vast majority of sewers laid on behalf of the defendant were laid by independent contractors, but some were laid by the defendant's employees. The defendant's charter authorized the defendant to build, create, maintain, alter or repair sewers throughout its district. In July, 1963, the defendant entered into a contract with Helm Construction Company, hereinafter referred to as Helm, to install a sewer line in the town of Rocky Hill. The contract required Helm to remove any rock found during excavation and provided for additional payments for this work. The removal of rock would frequently require blasting, and the specifications of the contract contained provisions regulating the transportation, storage and handling of explosives.

On Wednesday, December 11, 1963, dynamite was exploded in a certain area in the trench under the direction of an employee of Helm. Five holes had been drilled for the blast, and three sticks of dynamite had been placed in each hole. Four instantaneous- and six delayed-blasting caps had been used to detonate the dynamite. Only seven of the sticks of dynamite and five of the caps exploded, leaving eight sticks of dynamite and five blasting caps unexploded. On Friday, December 13, 1963, the plaintiffs were working in the area of the trench when the plaintiff Mancini, operating a jack hammer, hit a blasting cap causing the explosion which injured the plaintiffs. The cap and dynamite which exploded on that day were from a hole in which dynamite had been placed on the previous Wednesday.

The defendant claimed to have proved that it was subject to workmen's compensation laws, and was authorized by its charter to build, create, maintain, improve, alter or repair sewers.

The claims of proof of the plaintiffs and the defendant were far more extensive, but the above-recited facts are sufficient to discuss the dispositive issue on appeal.

Under § 31-291 ² of the General Statutes, the principal employer of an independent contractor may be liable to pay for injuries sustained by an employee of the latter under the Workmen's Compensation Act. If a principal employer is liable for compensation under the act, the employee is barred from any common-law action against it. Farrell v. L. G. DeFelice & Son, Inc., 132 Conn. 81, 89-91, 42 A.2d 697; Zimmerman v. MacDermid, Inc., 130 Conn. 385, 388, 34 A.2d 698; Bogoratt v. Pratt & Whitney Aircraft Co., 114 Conn. 126, 133-135, 157 A. 860. The defendant pleaded its liability as a principal employer under this statute as a special defense to each count of each plaintiff's complaint.

The court correctly charged the jury as follows: 'Three main essentials are involved in the statute. One, the relation of the principal employer and contractor must exist in work wholly or in part for the former. Two, the work must be in, on or about premises controlled by the principal employer; and, three, the work must be a part or process in the trade or business of the principal employer.' See Kasowitz v. Mutual Construction Co., 154 Conn. 607, 611, 228 A.2d 149; Battistelli v. Connohio, Inc., 138 Conn. 646, 649, 88 A.2d 372; Crane v. Peach Bros., 106 Conn. 110, 113, 137 A. 15. The plaintiffs contend, however, that the court subsequently committed error because the charge on this special defense, in effect, directed the jury to find two of the elements for the defendant, and because the charge improperly guided the jury and failed to direct the jury to find for the plaintiffs on the remaining element, control of the premises.

After the outline of the three factors quoted above, the court discussed each one in greater detail. On the first element, the court charged as follows: 'The . . . first requirement you should have little trouble with as all parties practically admit this fact. That is the relation of principal employer and contractor must exist in work wholly or in part for the former.' After discussing the element of control of the premises, the court proceeded to charge the jury on the 'part and process' requirement: '(O)f course you know that we have before us here the Charter of the company and the Charter of the company says that the Metropolitan District was engaged in the construction, that they had powers, at any rate, under this Charter to construct sewers and I think some of the evidence was presented to you here to the effect that not only did the Metropolitan District hire independent contractors to dig sewers or to construct sewers but they also did it on their own. So, I don't think you will have very much trouble in deciding that question because if the work is of such character that it ordinarily or appropriately would be performed by the Metropolitan District's own employees in the performance of its business, or as an essential part in the maintenance thereof, it is part and parcel of the work of the Metropolitan District, otherwise not.' In addition to the instructions directly involved with the issue of the principal employer-contractor relationship, and the 'part and process' requirement, the court's charge on control also instructed on how the jury was to deal with the other two elements. Immediately after first discussing the principal employer issue, the court stated: 'The real controversy revolves around the question as to whether the area where the blasting was being done was in, on or about the premises controlled by the defendant within the purview of the statute.' On three subsequent occasions, in distinguishing between control as it arose in another defense and control of the premises under the workmen's compensation statute, the court's instructions were substantially as follows: 'If under the principal employer defense you find that Helm was in control of the premises then this defense would be of no avail on the part of the defendant. If you find that the defendant has proven it was in control of the premises, this would defeat the plaintiffs on all counts.' On none of these occasions did the court mention the other two elements required under the statute. The cumulative effect of these instructions was to limit the jury's consideration of this defense to whether the defendant had established that it had control of the premises.

On occasion, some or all of the elements of the statute have been removed from the consideration of the jury. See Gigliotti v. United Illuminating Co., 151 Conn. 114, 118, 193 A.2d 718; Hoard v. Sears Roebuck & Co., 122 Conn. 185, 188 A. 269. Generally, however, whether the work in which the independent contractor is engaged is a 'part or process in the trade or business' of the principal employer is a question of degree and fact. Grenier v. Grenier, 138 Conn. 569, 571, 87 A.2d 148; see Gigliotti v. United Illuminating Co., supra, 151 Conn. 120, 193 A.2d 718. The plaintiffs contend that there was no evidence as to whether the defendant had engaged in blasting when laying sewer lines. Although there is some support for the argument that the 'work to be done' is to be given this narrow construction; cf., Battistelli v. Connohio, Inc., supra; Crane v. Peach Bros., supra; doing so would contravene the frequent support given to a broad interpretation of the act. See King v. Palmer, 129 Conn. 636, 640, 30 A.2d 549; Massolini v. Driscoll, 114 Conn. 546, 553, 159 A. 480. Furthermore, under the terms of the statute, the actual cause of the injury is irrelevant to its applicability. Consequently, the absence of any showing that the defendant engaged in blasting is not fatal to the defense.

'(T)he words 'process in the trade or business' . . . (include) all those operations which entered directly into the successful performance of the commercial function of the principal employer.' King v. Palmer, supra, 129 Conn. 640-641, 30 A.2d 552. The issue has also been framed in terms of whether the defendant's employees ordinarily or appropriately would perform the work in question; Kasowitz v. Mutual Construction Co., supra, 154 Conn. 613, 228 A.2d 149; Gigliotti v. United Illuminating Co., supra, ...