Mazurek v. Great American Ins. Co.

• Decision Date: 25 September 2007
• Docket Number: No. 17831.,No. 17830.,17830.,17831.
• Citation: 930 A.2d 682,284 Conn. 16
• Court: Connecticut Supreme Court
• Parties: Marcin MAZUREK et al. v. GREAT AMERICAN INSURANCE COMPANY et al.

930 A.2d 682

284 Conn. 16

Marcin MAZUREK et al. v. GREAT AMERICAN INSURANCE COMPANY et al.

No. 17830.

No. 17831.

Supreme Court of Connecticut.

Argued April 10, 2007.

Decided September 25, 2007.

Timothy Brignole, with whom, on the brief, was Juri Taalman, Hartford, for the appellants (plaintiffs).

Gary C. Kaisen, for the appellee in Docket No. SC 17830 (defendant Avila, LLC).

Kevin C. Hines, with whom, on the brief, was Richard A. Roberts, Cheshire, for the appellee in Docket No. SC 17831 (defendant Thomas F. DeJoseph).

BORDEN, KATZ, VERTEFEUILLE, ZARELLA and SULLIVAN, Js.^*

SULLIVAN, J.

In these appeals,¹ the named plaintiff, Marcin Mazurek,² challenges the trial court's rulings in his action for negligence, recklessness, and loss of consortium stemming from injuries he sustained in a workplace accident. In the first appeal, the plaintiff claims that the trial court improperly concluded that the defendant, Avila, LLC, doing business as Handy Rent-All Center (Handy), was entitled to summary judgment on the entirety of the complaint on the ground that Handy did not owe a duty of care to the plaintiff. In the second appeal, the plaintiff claims that the trial court improperly rendered partial summary judgment in favor of the defendant, Thomas F. DeJoseph, doing business as Sperry Rail Service and/or Sperry Rail, Inc. (Sperry), because summary judgment is inappropriate when it does not dispose of all specifications of liability in a particular count. Alternatively, he claims that summary judgment improperly was rendered because the general rule that property owners are not liable for injuries to employees of independent contractors did not apply when there was a genuine issue of material fact as to whether Sperry had retained control of the workplace. We disagree with the plaintiff's claim in the first appeal, and accordingly, affirm the judgment of the trial court. Because we conclude that the trial court's partial summary judgment in favor of Sperry was not a final judgment, notwithstanding the agreement made by the parties in an attempt to confer jurisdiction on this court, we dismiss the second appeal.

The record reveals the following relevant facts and procedural history. In December, 1998, Sperry hired the plaintiff's employer, Anco Engineering, Inc. (Anco), pursuant to an oral contract, to perform repairs and welding on Sperry's railroad car. In order to conduct welding work on the exterior of the rail car, Anco erected a stationary platform scaffolding. The plaintiff and other Anco employees used ladders and step stools, supplied by Sperry, on the stationary scaffolding in order to reach the roof of the rail car. The plaintiff worked under these conditions without incident until December 23, 1998.

On December 7, 1998, Sperry rented four units of mobile scaffolding from Handy. Each unit of scaffolding displayed a warning sticker that stated, among other things: "DO NOT use boxes, ladders, or any other means to increase the working height." The sticker also contained a circular diagram that depicted the use of a ladder on scaffolding with a diagonal line crossing through it. Handy also gave Sperry a booklet entitled "Safety Rules and Instructions for bil-jax Multi-Purpose Scaffold." Rule six of the safety instructions stated: "NEVER USE LADDERS OR MAKESHIFT DEVICES on tops of scaffold to increase height." Handy's custom and practice was to provide the safety booklet in a manila envelope labeled "WARNING" in bold red typeface and stating that "[i]t is imperative that you read and fully understand and follow all instructions and safety regulations contained herein. Any use of this equipment other than in strict accordance with these instructions shall be at the worker's risk and may result in serious injury to him and others." The rental contract prohibited the use of the scaffolding equipment "by anyone other than [the] [c]ustomer or his employees without [Handy's] written permission." At the time of rental, the mobile scaffolding units were the only make and model of scaffolding that Handy had available. Although Handy did not ask Sperry's purpose for renting the scaffolds, Sperry informed Handy that the scaffolds were "rented for an as needed basis" and that they "wanted scaffolding to work around a rail vehicle for someone to stand on." Sperry required only that the "scaffolding was approved by [the federal Occupational Safety and Health Act (OSHA), 29 U.S.C. § 651 et seq.]."

On December 30, 1998, when the plaintiff returned to work following the holiday break, he noticed that the Anco stationary platform scaffolding had been removed and replaced with the mobile scaffolding that Sperry had rented from Handy. The plaintiff, who does not fully understand English, did not receive any warnings or instructions from Anco or Sperry concerning the use of a ladder on the new scaffolding. The plaintiff placed a ladder on the scaffolding and began to work. Shortly thereafter, the mobile scaffolding tipped away from the rail car and fell, causing the plaintiff to fall to the ground below and sustain serious injuries.

On February 4, 2005,³ the plaintiff filed an amended sixteen count complaint alleging negligence, recklessness, negligent loss of consortium, and reckless loss of consortium against Handy, Sperry, Great American Insurance Company (Great American),⁴ and Kevin Smith, doing business as Durant's Rental Center and Sales and Service, also known as Durant's Rental Center (Durant's).⁵ The plaintiff's negligence claims allege that the defendants failed to warn the plaintiff of dangers associated with the scaffolding, violated numerous OSHA provisions, negligently hired personnel and allowed dangerous conditions on the work site. On January 23, 2001, Anco filed an intervening complaint to recover sums that had been paid to the plaintiff pursuant to the Workers' Compensation Act, General Statutes § 31-275 et seq.

On September 16, 2004, Sperry filed a motion for summary judgment as to all counts. Sperry claimed that it owed no duty to the plaintiff because "it did not control the means and methods of the plaintiff's work, did not supervise the plaintiff and was not required to ensure the safety of the plaintiff." Sperry also claimed that, if the trial court found that Sperry did control the plaintiff's means and methods of work, it would satisfy the "`right to control' test for purposes of workers' compensation [law]" and recovery "would be barred by the exclusivity provision of the Workers' Compensation Act. . . ."

On October 29, 2004, the trial court rendered partial summary judgment in favor of Sperry,⁶ leaving only the claims alleging negligent employment of an incompetent or untrustworthy contractor. The trial court concluded that the evidence revealed that in the oral contract between Sperry and Anco, Sperry retained no control over the details of the work. Anco was responsible for determining the manner of performance and for the safety of its employees. Accordingly, the court concluded that Sperry did not have the right to control the workplace and, therefore, could invoke the general rule that an owner or general contractor is not liable to employees of independent contractors or subcontractors.⁷

On December 16, 2004, the trial court denied the plaintiff's motion to reargue the motion for summary judgment with respect to Sperry. The trial court concluded that Practice Book § 17-51⁸ provides authority for the court to render partial summary judgment on some specifications of liability within various counts and to deny summary judgment as to the remaining specifications within those counts. The trial court also refused to consider the plaintiff's additional arguments because a motion to reargue "`is not to be used as an opportunity to have a second bite of the apple or to present additional cases or briefs which could have been presented at the time of the original argument.'" On January 18, 2005, the trial court denied the plaintiff's motion for determination pursuant to Practice Book § 61-4.⁹

On January 27, 2005,¹⁰ Handy filed a motion for summary judgment as to all counts of the complaint, or alternatively on certain portions of the counts. Handy claimed that the plaintiff's claims against it were barred by the Connecticut Product Liability Act, General Statutes § 52-572m et seq. Handy also claimed that a rental company owes no common-law duty to a third party user of equipment that was rented to another party and that, if a common-law duty was owed to the plaintiff, Handy had acted properly under the circumstances.

On February 10, 2005, the trial court rendered summary judgment in favor of Handy on the entirety of the plaintiff's complaint. The trial court concluded that the portion of the complaint alleging Handy's failure to warn the plaintiff about the dangers associated with the scaffolding was barred by the exclusivity provision of the product liability act; see General Statutes § 52-572n (a); and that, even if the complaint properly had pleaded a failure to warn under the act, Handy would be entitled to summary judgment because there is no genuine factual dispute that Handy had provided proper warnings. With respect to the negligence specifications not barred by the act, and as an alternative ground for rendering summary judgment on the failure to warn claim, the trial court concluded that Handy owed no common-law duty to the plaintiff. The trial court reasoned that it was not foreseeable that users of the scaffolding would ignore such clear warnings against placing a ladder on top of it. The court also concluded that Handy could not foresee the plaintiff's use of the scaffolding because Handy had no business relationship with the plaintiff or any information that he would be using the scaffolding. The trial court also concluded that public policy weighed against imposing a duty on Handy for several reasons. First, the court recognized that the plaintiff already had received...