Martel v. Connor Contracting, Inc., 2017-342

• Citation: 2018 VT 107
• Case Date: October 12, 2018
• Court: United States State Supreme Court of Vermont

2018 VT 107

Ira Martel
v.
Connor Contracting, Inc., Jason Clark, and Stephen Connor

No. 2017-342

Supreme Court of Vermont

February Term, 2018
October 12, 2018

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Washington Unit, Civil Division

Mary Miles Teachout, J.

Vincent Illuzzi, Orleans, for Plaintiff-Appellant.

Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Defendants-Appellees Connor Contracting, Inc. and Stephen Connor.

John E. Brady of Brady/Callahan, Springfield, for Defendant-Appellee Jason Clark.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. CARROLL, J. This case is about two separate exceptions to the exclusivity rule of workers' compensation, the first of which applies when an employee is injured other than by accident, and the second of which applies when a person or entity can be held personally liable for an employee's injuries. Plaintiff Ira Martel appeals the trial court's decision granting summary judgment on his personal injury claims in favor of his employer, defendant Connor Contracting, Inc., and two co-employees, defendants Jason Clark and Stephen Connor. We hold that plaintiff's action against Connor Contracting is barred by the exclusive remedy provision of Vermont's Workers' Compensation Act. We further hold that plaintiff's action against the individual

Page 2

defendants is barred because the acts that plaintiff alleges give rise to liability fell within the scope of a nondelegable corporate duty and defendants, therefore, cannot be held personally liable for plaintiff's injuries. Accordingly, we affirm.

¶ 2. The following facts are undisputed except where otherwise noted. In August 2013, plaintiff was part of a four-person crew employed by Connor Contracting to perform roof repair work at the Montpelier Health Center. Defendant Jason Clark was the worksite foreperson, and defendant Stephen Connor was the treasurer of Connor Contracting and one of the company owners. While working on the project, plaintiff and the other members of the roofing crew used a personal-fall-arrest system (PFAS), which was safety equipment provided by Connor Contracting and required by the company's safety program rules, the federal Occupational Safety and Health Administration, and the Vermont Occupational Safety and Health Administration (VOSHA). See 29 C.F.R. § 1926.501(b)(2)(i) (2018) (requiring that employees be protected from falling by guardrail, safety net, or PFAS when working six feet or more above lower level); CFR 1910 Subpart D Walking Working Surfaces; Subpart I Personal Protective Equipment, Code of Vt. Rules 24 050 004, http://labor.vermont.gov/wordpress/wp-content/uploads/Subpart-D_Clean-text.pdf [https://perma.cc/B8C8-RGAE] (incorporating 29 C.F.R. § 1910.28(b)(1)(i) by reference and requiring employers to provide employees fall protection, including guardrail, safety net, or personal fall protection system, for work performed four feet or more above lower level). The PFAS is a four-part safety system: a harness worn by the worker; an anchor, which is typically part of the building where the work is taking place; a lanyard; and a D ring. The lanyard is attached to the anchor point and the D ring. The PFAS is designed to catch users if they fall off the elevated work surface and thereby prevent a potentially injuring impact.

¶ 3. The Health Center roofing project was scheduled for completion on August 13, 2015. Plaintiff and two other members of the original work crew remained at the site on the last

Page 3

day of the project, completing the final work on the soffit of the building's main roof.¹ Defendant Clark, the worksite foreman, was not on site. The soffit work had to be completed by standing on the roof of an entrance porch below the main roof because the mechanical boom lift at the site could not reach this particular area of the roof. The entrance porch roof was ten to fifteen feet above the ground. Plaintiff was completing the soffit work when he fell from the edge of the roof, hit the ground below, and was injured.² He was not wearing a PFAS at the time he fell. The parties dispute whether a complete PFAS system was still at the project site on that day and available for plaintiff's use. Plaintiff alleges that Connor Contracting had moved the D ring component of the PFAS to a different worksite the day before. More specifically, he alleges that defendant Clark removed the D ring from the site under the direction of defendant Stephen Connor. Thus, plaintiff alleges that he was left with only a harness and lanyard at the site and no way to attach the harness to an anchor point. Connor Contracting disputes the removal of the PFAS and states that defendant Clark left two harnesses and lanyards at the project site.³

¶ 4. Plaintiff filed a workers' compensation claim after his accident and received benefits. In July 2016, plaintiff filed this action, alleging separate causes of action against Connor Contracting and the individual defendants. Plaintiff sought damages in both—against Connor

Page 4

Contracting on the theory that the company had acted with substantial certainty of causing him injury or death when it removed parts of the PFAS from the Health Center worksite, and against the individual defendants on a coemployee-personal-liability theory based on the same alleged removal of required safety equipment. The trial court granted defendants summary judgment on both claims, deciding that workers' compensation provided plaintiff's sole remedy for the injuries he sustained, and accordingly plaintiff could not pursue an alternate remedy against either Connor Contracting or the individual defendants on the facts alleged. Plaintiff now appeals.

¶ 5. This Court reviews "summary judgment decisions de novo, using the same standard as the trial court." Gauthier v. Keurig Green Mountain, Inc., 2015 VT 108, ¶ 14, 200 Vt. 125, 129 A.3d 108. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a). A fact is material if it might affect the outcome of the action. Gauthier, 2015 VT 108, ¶ 14. When we consider the facts, "we give the nonmoving party the benefit of all reasonable doubts and inferences." H & E Equip. Servs., Inc., v. Cassani Elec., Inc., 2017 VT 17, ¶ 10, 204 Vt. 559 , 169 A.3d 1308 (quotation and alteration omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Gauthier, 2015 VT 108, ¶ 14 (quotation omitted).

¶ 6. Plaintiff raises two arguments on appeal. First, he argues that the trial court should have denied summary judgment for defendant Connor Contracting because the removal of PFAS components raises a jury question concerning whether Connor Contracting acted with the level of intent to injure plaintiff required to circumvent the exclusive remedy provision of the Workers' Compensation Act under Vermont law. Second, he asserts that the trial court should have denied summary judgment for the individual defendants because the actions of defendants Clark and

Page 5

Connor were outside of the scope of nondelegable corporate duties and thus gave rise to personal liability for plaintiff's injuries. We begin with plaintiff's argument as to Connor Contracting.⁴

¶ 7. Plaintiff's claim against Connor Contracting depends on whether his injuries can be said to have occurred "accidentally." If they occurred accidentally, then the Workers' Compensation Act bars an alternate remedy. Conversely, if plaintiff's injuries can be characterized as nonaccidental, then plaintiff may pursue an alternate remedy. Our analysis of this question therefore starts with the workers' compensation statute, which in the usual course provides an exclusive remedy—"the rights and remedies granted by [workers' compensation] to an employee on account of a personal injury for which he or she is entitled to compensation . . . shall exclude all other rights and remedies of the employee . . . at common law or otherwise on account of such injury." 21 V.S.A. § 622. An employee is entitled to collect workers' compensation benefits if the employee "receives a personal injury by accident arising out of and in the course of employment by an employer." Id. § 618(a)(1) (emphasis added). In this case, it is undisputed that plaintiff was a statutory employee of Connor Contracting for purposes of the Workers' Compensation Act, defendant Connor Contracting was plaintiff's statutory employer, and plaintiff was injured "in the course of [his] employment." Id.; see also id. §§ 601(3) (defining employer), 601(14) (defining employee). The only question, then, is whether plaintiff's injuries occurred "by

Page 6

accident" as that phrase is defined within the context of workers' compensation. Id. § 618(a). As explained more fully below, we hold that the trial court correctly granted summary judgment to Connor Contracting on this question.

¶ 8. Three cases are relevant to our discussion here: Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980) (per curiam); Mead v. Western Slate, Inc., 2004 VT 11, 176 Vt. 274, 848 A.2d 257; and Stamp Tech, Inc. v. Lydall/Thermal Acoustical, Inc., 2009 VT 91, 186 Vt. 369, 987 A.2d 292. In Kittell, the earliest of these three cases, the plaintiff alleged that he was injured after his employer had him operate a saw, without any training or experience, from which the employer had removed all safety equipment,...