Pelletier v. Sordoni/Skanska Const. Co.

• Decision Date: 22 April 2008
• Docket Number: No. 17775.,17775.
• Citation: 945 A.2d 388,286 Conn. 563
• Court: Connecticut Supreme Court
• Parties: Norman PELLETIER et al. v. SORDONI/SKANSKA CONSTRUCTION COMPANY.

945 A.2d 388

286 Conn. 563

Norman PELLETIER et al. v. SORDONI/SKANSKA CONSTRUCTION COMPANY.

No. 17775.

Supreme Court of Connecticut.

Argued October 16, 2007.

Decided April 22, 2008.

Daniel J. Krisch, with whom were Kimberly A. Knox and, on the brief, Jeffrey L. Ment, Joseph B. Burns and Sumy Rhee, legal intern, Hartford, for the appellant-appellee (defendant).

William H. Clendenen, Jr., with whom were Kevin C. Shea, Nancy L. Walker and, on the brief, Kathryn A. O'Brien and Frank B. Velardi, New Haven, for the appellees-appellants (plaintiffs).

Raymond A. Garcia, Jane I. Milas, New Haven and Antonino M. Leone, filed a brief for the Connecticut Building Congress as amicus curiae.

Anthony J. Natale and Richard F. Wareing, Hartford, filed a brief for the Construction Management Association of America, Southern New England Chapter, et al., as amici curiae.

Robert F. Carter, Woodbridge, filed a brief for the Connecticut Council on Occupational Safety and Health as amicus curiae.

David N. Rosen, New Haven, filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

ROGERS, C.J., and NORCOTT, ZARELLA, SULLIVAN and CORRADINO, Js.

ZARELLA, J.

This appeal arises out of the remand order in Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 527, 825 A.2d 72 (2003), in which we held that an injured employee of an independent subcontractor may bring an action in negligence against the general contractor if the employee can establish a legal and factual basis for the general contractor's liability. Upon remand, the negligence claims brought by the injured named plaintiff, Norman Pelletier, and his wife, the plaintiff Reine Pelletier,¹ against the defendant, Sordoni/Skanska Construction Company (Sordoni), were tried to a jury, which returned a verdict for the plaintiff. After granting the plaintiff's motion for post-judgment interest and attorney's fees pursuant to General Statutes § 52-192a,² the trial court rendered judgment for the plaintiff in the amount of $41,417,065.15. On appeal,³ Sordoni claims that the trial court improperly: (1) concluded that, as general contractor for the project, Sordoni owed the plaintiff a nondelegable duty of care under § 1307 of the Building Officials and Code Administrators International, Inc., (BOCA) National Building Code⁴ to inspect all steel welds at the construction site; (2) concluded that a violation of the building code constitutes negligence per se, rather than "some evidence" of negligence; and (3) declined to admit evidence of, and charge the jury on, the doctrine of excusable negligence. In his cross appeal, the plaintiff claims that, although he prevailed at trial, the court improperly precluded the jury from finding Sordoni liable on any ground other than statutory negligence when the court declined his request to charge the jury on Sordoni's duty to use due care under: (1) principles of common-law negligence; (2) the rule that a general contractor must ensure that its independent subcontractors take special precautions when the work involves a peculiar and unreasonable risk of physical harm; and (3) the rule that a general contractor who retains control over all or a portion of the work performed by its independent subcontractors must ensure that the work is properly performed. We reverse the judgment of the trial court.

The following undisputed facts are set forth in Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. at 512-14, 825 A.2d 72. "At the time of the incident giving rise to this action, Sordoni was the general contractor for the `Pitney Bowes project,' a building under construction for a large shipping company, Pitney Bowes, Inc. (Pitney Bowes). The plaintiff was an employee of Berlin Steel Construction Company (Berlin Steel), the structural steel fabrication and erection subcontractor for the project. Sordoni hired [Professional Services Industries, Inc., (Professional Services)] to inspect the work performed by Berlin Steel.

"Under its subcontract with Sordoni, Berlin Steel had the responsibility to provide all of the structural steel for the Pitney Bowes project, and to ensure its integrity. This included the duty to weld connections in the structural steel that would allow for the interconnection of steel members as a load-bearing, structural frame for the building. Furthermore, Berlin Steel had the duty to inspect those welds, ensuring their ability to bear weight. Under its contract with Berlin Steel, Sordoni reserved the right to inspect the structural steel, `solely for [its own] benefit.' The contractual documents emphasized that Sordoni's `[i]nspection and acceptance, or failure to inspect, shall in no way relieve [Berlin Steel] from [its] responsibility to furnish satisfactory material strictly in compliance with the [c]ontract [d]ocuments.'

"On June 20, 1994, the plaintiff suffered serious physical injuries in an accident at the Pitney Bowes construction site. At the time of the accident, he was working beneath the building's large steel frame, which his employer, Berlin Steel, had been hired to build. The plaintiff was in the process of installing [sheet metal] flooring between two steel columns when several of his coworkers interrupted his work to install a two ton crossbeam between the columns. The plaintiff stepped away while his coworkers bolted the crossbeam to seat connections, which are steel flanges that enable the interconnection of large structural members, located on each of the columns. One of the seat connections, on column 313, had been only tack welded to the column. A tack weld is a weak, provisional weld, which is intended only to hold a piece in place pending a full, load-bearing weld. The tack weld on column 313 did not immediately give way under the load of the crossbeam. After his coworkers secured the crossbeam to the seat connections on the columns, the plaintiff returned to work beneath the crossbeam. Within minutes, the seat connection broke and the corresponding end of the crossbeam fell, striking him. The plaintiff suffered severe injuries and is currently recovering workers' compensation benefits from Berlin Steel for his injuries."

On August 22, 1995, the plaintiff commenced the present action. "In his complaint,⁵ the plaintiff alleged negligence as to both Sordoni⁶ and Professional Services and breach of contract as to Sordoni alone.⁷ Both defendants moved for summary judgment. Sordoni argued that, pursuant to the rule set forth by the Appellate Court in Ray v. Schneider, 16 Conn.App. 660, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988), it could not be held liable in negligence to the employee of its independent subcontractor. Sordoni also argued that the contract that was alleged in count two of the complaint did not exist. Professional Services argued that it did not owe a duty to the plaintiff under its subcontract with Sordoni. The trial court granted both motions for summary judgment and rendered judgment for the defendants accordingly." Id., at 512, 825 A.2d 72. The plaintiffs appealed from the trial court's judgment to this court. On July 1, 2003, we reversed the judgment on the negligence claim against Sordoni and remanded the case for further proceedings, but affirmed the judgment in all other respects. Id., at 538, 825 A.2d 72.

On remand, Sordoni again moved for summary judgment on the plaintiff's claims of negligence and loss of consortium. Sordoni argued that the undisputed facts established that the claims did not fall within any of the exceptions recognized in Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. at 518, 825 A.2d 72, to the rule that a general contractor may not be held liable for the torts of its independent subcontractor.⁸ The trial court granted summary judgment for Sordoni⁹ and the plaintiff moved to reargue and reconsider. The plaintiff claimed, in part, that the trial court had not examined all of the relevant factors in determining whether Sordoni owed him a duty. These included interpretation of Berlin Steel's subcontract in light of Sordoni's other contractual and statutory duties, the duties Sordoni expressly had assumed for safety at the job site and the requirements of the Connecticut building code. On December 16, 2004, the court vacated its prior decision and denied Sordoni's motion for summary judgment.

The court explained that it previously had neglected to consider Sordoni's regulatory obligations under the building code; Regs., Conn. State Agencies § 29-252-1a; to inspect the welds fabricated by Berlin Steel because the plaintiff had failed to raise the issue in its opposition to the motion.¹⁰ The court nevertheless determined following reconsideration,¹¹ that the building code imposed a separate and distinct obligation on Sordoni, as the permit applicant, to conduct special inspections of all steel welds to ensure that they conformed to contract and building code specifications. The court explained: "The problem with Sordoni's claim [that it had no legal duty to inspect the welds] is that it sweeps away the obligation imposed on the permit applicant by various sections of the BOCA ... [code] to provide for special inspections." The court thus concluded, in light of evidence submitted by the plaintiff that Sordoni was the permit applicant and had failed to ensure that all welds were inspected, that the motion for summary judgment had been improvidently granted.

On January 7, 2005, the plaintiff filed a motion for summary judgment as to Sordoni's liability on the remaining negligence claims,¹² arguing that the court had determined that there was no issue of material fact regarding Sordoni's failure to provide special inspections of all steel welds under the building code. The court denied the motion on May 5, 2005, concluding that, although Sordoni had a legal duty to inspect the welds and the undisputed facts supported the plaintiff's claim of a violation under the code, the fact...