Ray v. Schneider

• Citation: 16 Conn.App. 660,548 A.2d 461
• Decision Date: 04 October 1988
• Docket Number: No. 6133,6133
• Court: Connecticut Court of Appeals
• Parties: Donald RAY Jr. v. Raymond P. SCHNEIDER, et al.

Page 461

548 A.2d 461

16 Conn.App. 660

Donald RAY Jr. v. Raymond P. SCHNEIDER, et al.

No. 6133.

Appellate Court of Connecticut.

Argued June 7, 1988.

Decided Oct. 4, 1988.

Paul B. Groobert, Manchester, with whom was Van Starkweather, for appellant (plaintiff).

David S. Williams, Bridgeport, for appellees (named defendants, et al.)

Raymond F. Parlato, Willimantic, filed a brief for appellee (defendant Cheryl Stanton).

Before DUPONT, C.J., and BORDEN and SPALLONE, JJ.

DUPONT, Chief Judge.

The plaintiff appeals from the judgments rendered in this personal injury action subsequent to the granting by the trial court, Kelly, J., of the motion made by the defendants Raymond P. Schneider and Robert F. Welsh to strike the first count of the plaintiff's amended complaint, and the granting by the trial court, Byrne, J., of the motion made by the defendant Cheryl Stanton, doing business as Competitive Contracting Company (CCC), for summary judgment on the second count of the plaintiff's amended complaint. ¹ The plaintiff claims that the trial courts erred (1) in concluding that he failed to state a cause of action for vicarious liability and for direct liability in negligence against the defendants Schneider and Welsh, and (2) in concluding that his tort claim against the defendant CCC, his employer, was barred under the exclusivity of remedy provisions of the Workers' Compensation Act, General Statutes § 31-275 et seq. We find no error.

The following facts are pertinent to the issues on appeal. The defendants Schneider and Welsh hired the defendant CCC, an independent contractor, to excavate a trench and to install sewer, water and gas utility pipelines for several buildings which were being added to an existing shopping center. Schneider and Welsh had proprietary interests in the shopping center either as owners, lessees or developers. The plaintiff was an employee of CCC. On October 5, 1982, the plaintiff was working in a trench excavated by CCC when the wall of the trench caved in on him, inflicting severe bodily injuries.

In his amended complaint, the plaintiff alleges that his injuries were due to the incompetence of his employer in excavating the trench. Specifically, he claims that the collapse of the trench occurred because (1) the trench, which was 280 feet long and more than five feet deep, was excavated in subsoil consisting of loose and unstable soil, rocks and other loosely compacted fill materials, (2) the earthen walls of the trench were not shored or braced, (3) the trench walls did not have a sufficient angle of repose as required by various regulations, ordinances and building codes, (4) excavated trench materials and fill were left in too close a proximity to the open trench, and (5) the trench walls were subject to vibrations generated by the construction equipment being operated in the nearby area and by vehicular traffic at the shopping center, including large delivery trucks.

The trial court struck the first count of the amended complaint against Schneider and Welsh, concluding that as a matter of law (1) they were not vicariously liable to the contractor's employee for the defendant contractor's alleged failure to take the necessary safety precautions where work is inherently dangerous or where they had a nondelegable duty to provide a safe workplace, and (2) to the extent that the complaint alleged that they failed to hire the independent contractor with reasonable care, they were not liable to the contractor's injured employee for negligence in failing to exercise reasonable care in the selection of an independent contractor.

I

JUDGMENT IN FAVOR OF SCHNEIDER AND WELSH

A VICARIOUS LIABILITY FOR NEGLIGENCE OF INDEPENDENT CONTRACTOR

The plaintiff argues that the trial court erred in striking the first count of the amended complaint for failure to state a cause of action in negligence on the basis of vicarious liability. The plaintiff makes essentially two claims. He argues that Schneider and Welsh are liable for the contractor's alleged failure to take the necessary safety precautions because (1) the work performed was inherently dangerous, and (2) because a nondelegable duty by the defendant to provide a safe workplace arose out of a grant of authority, which in this case was the sewer permit from the town of Killingly. We conclude that although Schneider and Welsh might be vicariously liable to members of the general public under these circumstances for harm caused by the negligence of an independent contractor employed by them, they cannot as a matter of law, be held vicariously liable to an employee of the negligent independent contractor.

Ordinarily, an employer of an independent contractor, absent an act of negligence on his own part, is not liable to others for the negligent acts of the contractor. Douglass v. Peck & Lines Co., 89 Conn. 622, 627, 95 A. 22 (1915). There are, however, several exceptions to the nonliability rule. For example, where the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation, the employer may be vicariously liable to others for the negligent acts of the independent contractor. See id.; 41 Am.Jur.2d, Independent Contractors § 41; 2 Restatement (Second), Torts §§ 413, 416, 424, 427. ²

There is no question that these exceptions apply to allow third persons, such as innocent bystanders, to maintain a negligence action against the employer. The more difficult question, however, is whether the employees of the independent contractor also fall within those class of persons protected by the exceptions to the nonliability rule. The Connecticut appellate courts have not decided this issue. Assuming that the work performed by the independent contractor in this case was inherently dangerous and agreeing that an employer may not contract away his liability to the general public for harm caused in the performance of that activity, we conclude that such vicarious liability does not extend to the employees of the independent contractor. See, e.g., Scofi v. McKeon Construction Co., 666 F.2d 170 (5th Cir.1982); Evans v. Transportation Maritime Mexicana, 639 F.2d 848 (2d Cir.1981); Vagle v. Pickands Mather & Co., 611 F.2d 1212 (8th Cir.1979), cert. denied, 444 U.S. 1033, 100 S.Ct. 704, 62 L.Ed.2d 669 (1980) (applying Minnesota law); Bramer v. United States, 595 F.2d 1141 (9th Cir.1979); Chavis v. Finnlines Ltd., O/Y, 576 F.2d 1072 (4th Cir.1978); Jones v. United States, 399 F.2d 936 (2d Cir.1968); Lipka v. United States, 369 F.2d 288 (2d Cir.1966), cert. denied, 387 U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d 997 (1967); Galbraith v. United States, 296 F.2d 631 (2d Cir.1961); Wallach v. United States, 291 F.2d 69 (2d Cir.), cert. denied, 368 U.S. 935, 82 S.Ct. 373, 7 L.Ed.2d 197 (1961); Hurst v. Gulf Oil Corporation, 251 F.2d 836 (5th Cir.1958); Ackerman v. Gulf Oil Corporation, 555 F.Supp. 93 (D.N.D.1982) (applying North Dakota law); Sloan v. Atlantic Richfield Co., 552 P.2d 157 (Alaska 1976); Welker v. Kennecott Copper Co., 1 Ariz.App. 395, 403 P.2d 330 (1965); Jackson v. Petit Jean Electric Co-op, 270 Ark. 506, 606 S.W.2d 66 (1980); Florida Power & Light Co. v. Price, 170 So.2d 293 (Fla.1964); Pearson v. Harris, 449 So.2d 339 (Fla.App.1984); Peone v. Regulus Stud Mills, Inc., 113 Idaho 374, 744 P.2d 102 (1987); Texas Eastern Transmission Corporation v. Seymour National Bank, 451 N.E.2d 698 (Ind.App.1983); Johns v. New York Blower Co., 442 N.E.2d 382 (Ind.App.1982); King v. Shelby Rural Electric Co-Op Corporation, 502 S.W.2d 659 (Ky.1973), cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 235 (1974); Vertentes v. Barletta Co., 392 Mass. 165, 466 N.E.2d 500 (1984); Sierra Pacific Power Co. v. Rinehart, 99 Nev. 557, 665 P.2d 270 (1983); Cooper v. Metropolitan Government, 628 S.W.2d 30 (Tenn.App.1981); Humphreys v. Texas Power & Light Co., 427 S.W.2d 324 (Tex.App.1968); Humble Oil & Refining Co. v. Bell, 180 S.W.2d 970 (Tex.App.1943); Epperly v. Seattle, 65 Wash.2d 777, 399 P.2d 591 (1965); Jones v. Chevron U.S.A., Inc., 718 P.2d 890 (Wyo.1986); see also annot., 34 A.L.R.4th 914, 934-48, and cases cited therein; note, "Liability to Employees of Independent Contractors Engaged in Inherently Dangerous Work: A Workable Workers' Compensation Proposal," 48 Fordham L.Rev. 1165 (1980); contra Rooney v. United States, 634 F.2d 1238 (9th Cir.1980) (applying California law); Van Arsdale v. Hollinger, 68 Cal.2d 245, 437 P.2d 508, 66 Cal.Rptr. 20 (1968).

The issue before us necessitates consideration of whether an employee of an independent contractor has a status significantly distinguishable from a member of the general public with respect to the employer's duty to compensate for injury caused by the negligence of the independent contractor. Vertentes v. Barletta Co., supra, 466 N.E.2d at 505-506 (Abrams, J., concurring). We begin our analysis by acknowledging that the imposition of vicarious liability on the employer of an independent contractor when that contractor is negligent in performing inherently dangerous work resulting in harm to a member of the general public "is grounded in a recognition that the possibility of harm to others is so great when the work activity is inherently dangerous that the law tolerates it only on terms insuring the public against injury." Jackson v. Petit Jean Electric Corporation, supra, 270 Ark. at 510, 606 S.W.2d 66. Accordingly, an employer who benefits from the performance of inherently dangerous work may not be shielded from the responsibility to provide safety measures and precautions designed to insure against injury by delegating the performance of the work to an independent contractor. Vicarious liability in such a case is intended "to protect those who have no direct involvement with the hazardous activity, are only...