Panaro v. Electrolux Corp.

Citation208 Conn. 589,545 A.2d 1086
Decision Date16 August 1988
Docket NumberNo. 13402,13402
CourtSupreme Court of Connecticut
PartiesAnthony PANARO et al. v. ELECTROLUX CORPORATION et al.

Daniel A. Benjamin, with whom, on the brief, was Stephen Gates, Stamford, for appellants (named plaintiff et al.).

Garie J. Mulcahey, with whom, on the brief, was Arnold J. Bai, Bridgeport, for appellee (defendant Mary Ann Sheehan).

Before PETERS, C.J., and HEALEY, SHEA, GLASS and COVELLO, JJ.

ARTHUR H. HEALEY, Associate Justice.

The sole issue on this appeal is whether the defendant Mary Ann Sheehan, a full-time salaried company nurse, has the status of an independent contractor at her place of employment and therefore may be sued by a fellow employee despite the exclusivity provisions of the Workers' Compensation Act. General Statutes § 31-275 et seq. The named plaintiff, Anthony Panaro, brought an action for malpractice against his employer, the Electrolux Corporation (Electrolux), the named defendant, and the defendant Sheehan, a nurse employed by Electrolux. The plaintiffs 1 alleged that Sheehan's failure to exercise reasonable professional care increased the severity and risk of harm of a stroke that Panaro suffered at the Electrolux facility. The trial court, Lewis, J., granted the defendants' motion for summary judgment, concluding that the plaintiffs' "sole and exclusive remedy against Electrolux and Nurse Sheehan is the statutory proceeding of the Workers' Compensation Act." We find no error.

The complaint, documents, pleadings and affidavits, viewed in the light most favorable to the plaintiffs, reveal the following. Electrolux operated an industrial manufacturing business in Old Greenwich. The defendant Sheehan, a licensed, registered nurse, was hired by Electrolux in October, 1962, to serve as an industrial nurse at its medical facility located at the business. Under the direction of Joel Blumberg, the company physician, and William Blois, the director of human resources, the company medical facility served over 1200 Electrolux employees. The facility was maintained solely for the benefit of its employees. Sheehan worked forty hours a week, received a salary and fringe benefits, and her paycheck was subject to withholding for federal income tax and social security like that of any other regular full-time employee at Electrolux.

The plaintiffs' amended complaint alleged that at approximately 8:15 a.m. on May 12, 1983, Panaro bent down to lift and carry a thirty-pound box of pieces to a conveyor belt. He became "dizzy, foggy, sweaty and disorganized" and then proceeded to the company medical facility. The defendant Sheehan took Panaro's blood pressure, noticed his "dizzied" and disorganized state and had him rest for approximately one hour. Panaro was then sent back to work by Sheehan and, at approximately 3:30 p.m., was found slumped over a chair. Panaro was taken back to the medical facility and Sheehan then sent him to Stamford Hospital by company car. There he was diagnosed as having suffered a cerebrovascular accident, a stroke. Panaro alleges that he suffered various permanent injuries commonly associated with a stroke including brain damage, slurred speech, blurred vision, and muscular weaknesses throughout his body. Panaro was awarded compensation under the Workers' Compensation Act by a finding and award dated March 25, 1986. After the institution of this action, the defendants Electrolux and Sheehan pleaded a special defense that the suit was barred by General Statutes § 31-284(a) 2 and General Statutes § 31-293a, 3 the exclusivity provisions of the Workers' Compensation Act. The trial court granted the defendants' motion for summary judgment, opining that Connecticut would follow the majority rule, which rejects the dual capacity doctrine, and determining therefore the plaintiffs' exclusive and sole remedy against the defendants is the statutory proceeding of the Workers' Compensation Act.

On appeal, the plaintiffs claim that the trial court erred in rejecting the dual capacity doctrine by refusing to recognize that Sheehan, as a company nurse, could be an independent contractor as to one part of her service and an employee as to another part of her service and therefore fall outside the fellow employee rule of the Workers' Compensation Act. 4 We agree with the ruling of the trial court.

The dual capacity or independent contractor doctrine has never been addressed by this court in the context of workers' compensation. The doctrine 5 was first announced in Duprey v. Shane, 39 Cal.2d 781, 793, 249 P.2d 8 (1952), where the California Supreme Court permitted a nurse, who worked for a chiropractic partnership, to bring a medical malpractice claim against her employer after she had been injured in the course of her employment and allegedly had received negligent treatment from one of the partner physicians. The court found that a relationship of physician/patient had arisen in addition to that of employer/employee. This separate and distinct relationship gave rise to a duty, the breach of which permitted an action of malpractice. Id.; see also D'Angona v. County of Los Angeles, 27 Cal.3d 661, 669, 613 P.2d 238, 166 Cal.Rptr. 177 (1980); Hoffman v. Rogers, 22 Cal.App.3d 655, 662, 99 Cal.Rptr. 455 (1972); but see Dixon v. Ford Motor Co., 53 Cal.App.3d 499, 507, 125 Cal.Rptr. 872 (1975) (noting the refusal of several cases to extend the rationale of Duprey v. Shane, supra, to different factual contexts). More recently, the reach of the dual capacity doctrine in California has been limited by its legislature. Cal.Lab.Code § 3602 (Deering 1988).

A number of other jurisdictions have adopted the dual capacity or independent contractor doctrine in some form. See, e.g., Wright v. District Court, 661 P.2d 1167, 1171 (Colo.1983) (a company physician is an independent contractor); McDaniel v. Sage, 419 N.E.2d 1322, 1326 (Ind.App.1981) (a nurse is liable as an independent contractor); Guy v. Thomas Co., 55 Ohio St.2d 183, 190, 378 N.E.2d 488 (1978) (a hospital that has dual capacity as employer and health provider is liable to employee); Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 256, 439 A.2d 1162 (1982) (Roberts, J., concurring) (a hospital that has dual capacity as employer and health provider is liable to employee); but cf. McAlister v. Methodist Hospital of Memphis, 550 S.W.2d 240 (Tenn.1977); see also annot., 23 A.L.R.4th 1151, 1156 (1983); comment, "The Dual Capacity Doctrine: Piercing the Exclusive Remedy of Workers' Compensation," 43 U.Pitt.L.Rev. 1013, 1026-28 (1982) (survey of case law). Not all of the decisions cited above, however, concern the fact pattern present in the instant case: a claim of negligence against a full-time company nurse employed at a company facility other than a hospital. Some courts have held that company doctors should be treated differently from other fellow employees and be held liable for negligent treatment at the workplace. See, e.g., Wright v. District Court, supra. Other courts have permitted negligence claims against a doctor who serves the company as an independent contractor. See, e.g., Gay v. Greene, 91 Ga.App. 78, 81, 84 S.E.2d 847 (1954); McKelvy v. Barber, 381 S.W.2d 59, 63 (Tex.1964). The company physicians in those cases were not regular company employees but received a fee for services rendered. In other jurisdictions, it is the fact that hospital employees were involved that permitted liability against health care providers who employ them. See, e.g., Guy v. Thomas Co., supra; Tatrai v. Presbyterian University Hospital, supra. The logic of these decisions rests on the premise that a health care facility that is open to the public should not be shielded from liability simply because the patient it treats negligently happens to be one of its employees who is injured on the job.

The only case cited by the plaintiffs that actually holds that a company nurse at a facility other than a hospital can be sued for negligence is McDaniel v. Sage, supra. There a company nurse, who faced allegations of negligence in administering an injection, was not able to use the fellow employee rule of the Workmen's Compensation Act to preclude an action against her. Id., at 1326. The court held that a licensed registered nurse was engaged in an "independent profession" and "relied on her training, experience and skill as a professional...." Id., at 1325-26. The court concluded that the nurse's liability arose from her nurse/patient relationship and not from an employer/employee relationship, and therefore that the nurse was an independent contractor. Id., at 1326.

A greater number of jurisdictions, however, have rejected the dual capacity or independent contractor doctrine for alleged negligence by company physicians and nurses. See, e.g., Young v. St. Elizabeth Hospital, 131 Ill.App.3d 193, 196, 86 Ill.Dec. 389, 475 N.E.2d 603 (1985); Jones v. General Motors Corporation, 136 Mich.App. 251, 257-58, 355 N.W.2d 646 (1984); Boyle v. Breme, 187 N.J.Super. 129, 132, 453 A.2d 1335 (1982); Garcia v. Iserson, 33 N.Y.2d 421, 422-23, 309 N.E.2d 420, 353 N.Y.S.2d 955 (1974); Proctor v. Ford Motor Co., 36 Ohio St.2d 3, 6, 302 N.E.2d 580 (1973); Babich v. Pavich, 270 Pa.Super. 140, 145, 411 A.2d 218 (1979). Even before the legislature narrowed the dual capacity doctrine, courts in California limited Duprey v. Shane to its facts. In Dixon v. Ford Motor Co., supra, the court refused to hold an employer, its company nurse and its orderly liable for negligent treatment of an employee. The court noted that Duprey was "unique because the employer happened to be a doctor." Id., 53 Cal.App.3d at 507, 125 Cal.Rptr. 872. Other jurisdictions refuse to hold the employer liable for negligent actions by company physicians. See, e.g., Warwick v. Hudson Pulp & Paper Co., 303 So.2d 701, 703 (Fla.App.1974); Trotter v. Litton Systems, Inc., 370 So.2d 244, 247 (Miss.1979).

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