Moonan v. Clark Wellpoint Corp.

• Decision Date: 10 February 1970
• Citation: 159 Conn. 178,268 A.2d 384
• Court: Connecticut Supreme Court
• Parties: Kathy P. MOONAN et al. v. The CLARK WELLPOINT CORPORATION.

Page 384

268 A.2d 384

159 Conn. 178

Kathy P. MOONAN et al. v. The CLARK WELLPOINT CORPORATION.

Supreme Court of Connecticut.

Feb. 10, 1970.

Sanford J. Plepler, Manchester, with whom, on the brief, were Rolland Castleman and Lewis Segal, Manchester, for appellants (plaintiffs).

John F. Scully, Hartford, with whom, on the brief, was David T. Ryan, Hartford, for appellee (defendant).

Before KING, C.J., and ALCORN, THIM, RYAN and LOISELLE, JJ.

RYAN, Associate Justice.

This action was brought on behalf of the plaintiff Kathy Moonan, a minor, by her mother and next friend, to recover damages for personal injuries alleged to have been sustained because of the negligence of the defendant. In a second count, the child's mother seeks to recover damages for expenditures for medical, surgical and hospital care required as a result of the injuries. The jury returned a verdict for the defendant, and, following the court's refusal to set aside the verdict, the plaintiffs have appealed to us from the judgment rendered.

The plaintiffs' assignments of error relate solely to the trial court's instructions to the jury. The correctness of the charge is determined by the claims of proof of the parties. Practice Book § 635; Levett v. Etkind, 158 Conn. 567, 569, 265 A.2d 70. The plaintiffs made the following claims of proof: On July 17, 1960, the date of the occurrence complained of, the plaintiff Kathy P. Moonan, aged fifteen months, resided with her parents, Russell Moonan and the plaintiff Marilyn Moonan, in Bolton. At that time, Moonan was employed in Bolton by the defendant, the Clark Wellpoint Corporation, which manufactured pumps and associated equipment used in lowering water tables. The defendant's premises consisted of a single wood frame building, which had a main entrance on the south and a sliding door on the east, and adjacent land. The building contained pumping equipment, machinery for the manufacture and repair of such equipment, office furniture and furnishings, and miscellaneous supplies. Outside of the building on the south were pipe and pipe-fitting racks, and on the north pipes were placed on the ground. Prior to July 17, 1960, the plaintiff Kathy Moonan and her sister, Linda, aged five, had visited the defendant's premises during both regular and overtime working hours, and, although Kathy was sometimes accompanied by both parents, at times she was accompanied only by her father. On occasion, children of employees would accompany their mothers to the premises to provide their fathers with transportation home, and these children at times wandered about the premises, entered the shop building and played in the parking area adjacent to the shop building and in the field north of the shop building. William S. Clark, president of the corporation, usually was on the premises each day and was generally aware of the activities there. He knew that the children of employees would visit the premises and was present when numerous children, including the plaintiff Kathy Moonan, were on the premises.

The plaintiffs claimed to have also proved: The defendant company had no rule forbidding children from visiting the premises, and Clark neither objected to nor advised against Moonan's bringing his children to the premises. On July 17, 1960, the defendant used 'Oakite L.S.D.' (Liquid Steam Detergent) in its business and had a drum of it in the shop which it purchased from the manufacturer, Oakite Products, Inc. Oakite L.S.D. is a heavy duty alkaline cleaner, consisting of 25 percent liquid caustic soda (sodium hydroxide), 5 percent surfactants, 5 percent chelating agents, 2.5 percent sodium silicate and 62.5 percent water. It is highly caustic or corrosive to human tissues, and the manufacturer recommended to its customers that it not be allowed to come in contact with human tissue or skin. The defendant through Clark and Moonan had actual knowledge of the nature of Oakite L.S.D. A drum of Oakite L.S.D. was on the floor inside the north wall of the building. In July, this chemical was used with a steam cleaning machine, which was kept in the yard to the east of the defendant's building, in the vicinity of the large sliding door. For convenience, the defendant's employees would pour the Oakite L.S.D. from the drum into an uncovered two-quart glass jar provided by Clark. The jar was kept at all times uncapped, and no rule had been promulgated requiring the employees to keep it covered. Oakite L.S.D. when left exposed to the air, crystallizes and has a milky white appearance. Moonan was a superintendent of the defendant corporation, and his duties included, inter alia, the promulgation of safety rules, regulations and procedures. In April, 1960, approximately one week after his appointment as superintendent, Moonan established an unwritten rule which was explained to those employees of the defendant employed in July, 1960. The rule required all employees to keep and store the container into which they customarily poured the Oakite L.S.D. on a cabinet shelf inside the building immediately after use. He provided the cabinet for the purpose of storing Oakite L.S.D. and other dangerous substances to avoid recurrence of injuries to employees who had been burned by this chemical prior to July 17, 1960, and to revent injuries to persons coming on the premises. On Friday, July 15, 1960, the glass jar was used by the defendant's employees outside the building in conjunction with the operation of the steam cleaning machine.

The plaintiffs made the further claims of proof: The defendant had a seasonal business requiring Moonan to work overtime, and, when he went to the defendant's premises on Sunday, July 17, 1960, at approximately 7 p.m. to wait for a truck which he was to load with material to be delivered at a job site the next day, he was acting as the agent and employee of the defendant, in furtherance of corporate business, and within the scope of his authority. The Moonan home was about one-half mile from the shop, and Moonan brought his wife and the two children with him so that his wife could assist him in measuring pipe, as she had done on prior occasions. After all of them had entered the building through the main entrance, Moonan got some tape and chalk, left the building through the sliding door and proceeded to walk toward a pipe rack. As he left, he observed the jar which he had last seen on Friday while it was being used by the employees of the defendant in conjunction with the operation of the steam cleaning machine lying on the ground on its side near the sliding door, and he recognized it as the jar used on Friday for measuring Oakite L.S.D. On prior occasions, the defendant's employees had left the jar lying on the ground near the steam cleaning machine in contravention of the rule requiring employees to return the jar to the cabinet shelf after use. Moonan walked past the jar and did not remove it from its position on the ground. As he left the building his children followed him as he expected them to do, and Marilyn Moonan assumed that the children were going to play in the yard as they had done on prior occasions. Kathy followed her father through the large sliding door and out of the building. Upon reaching the pipe rack north of the building, Moonan heard Kathy cry out and immediately ran toward her. Within a few seconds after Kathy left the building, Marilyn Moonan heard her cry out and immediately ran toward her. When they arrived at her side, Kathy was crouched over the jar in the pathway which runs parallel to the easterly wall of the building about two to three feet from the side of the building. She was bleeding from the mouth and then commenced vomiting. In addition, there was a white foamy substance about her lips and mouth. A foam results whenever Oakite L.S.D. is mixed with water. At approximately 8:30 p.m., Moonan returned to the defendant's premises and observed that the glass jar contained approximately two tablespoons of Oakite L.S.D. Kathy had swallowed some Oakite L.S.D. All injuries sustained by Kathy resulted from her ingestion of Oakite L.S.D. on July 17, 1960, at approximately 7 p.m.

The defendant made the following claims of proof: Russell Moonan, a salaried employee of the defendant, was not paid to work on weekends, and Clark did not know that he was working on the day in question. At approximately 7 p.m., Moonan and his family went to the plant and went inside the building, where Moonan got some tape and chalk from his desk. He then went outside while his wife and children remained inside. They were alone on the premises. The Moonan children were sometimes on the premises when they came with their mother to pick up their father and when Moonan took his children on the premises after working hours. They usually played in the driveway in front of the building and would pick flowers. Moonan would not allow either child to play on the premises without his supervision and never thought they would be wandering about the premises unsupervised. Clark never saw the employees' children wandering about the premises unsupervised. Kathy Moonan was fifteen months old and able to walk on July 17, 1960, and her father did not know that she was outside the building and never saw her with the jar. Before using the steam cleaner, the jar would be filled with Oakite L.S.D. and then emptied into the cleaner. Clark did not see the jar on July 16, 1960, when he worked at the plant, and Moonan stated on October 10, 1960, that he did not notice the jar prior to the accident. At one time Russell Moonan was a party plaintiff to this action. Moonan did not tell anyone that he saw the jar on the ground outside the building on July 17, 1960, and he did not know that anything was in the jar on July 17, 1960. He took the jar into his possession on July 17, 1960, but never found out what was in it. When Moonan got a Kathy after hearing her scream, he noticed that her lip was bleeding as if it had...