RK Constructors, Inc. v. Fusco Corp.

• Decision Date: 06 December 1994
• Docket Number: No. 14997,14997
• Citation: 231 Conn. 381,650 A.2d 153
• Court: Connecticut Supreme Court
• Parties: RK CONSTRUCTORS, INC. v. FUSCO CORPORATION et al.

Page 153

650 A.2d 153

231 Conn. 381

RK CONSTRUCTORS, INC. v. FUSCO CORPORATION et al.

No. 14997.

Supreme Court of Connecticut.

Argued Sept. 22, 1994.

Decided Dec. 6, 1994.

Stephen J. Sinatro, West Hartford, for appellant (plaintiff).

Matthew G. Conway, Hartford, for appellee (named defendant).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and DUPONT, JJ.

CALLAHAN, Associate Justice.

The principal issue in this appeal is whether an employer may maintain a common law negligence action against a third party tortfeasor to recover for economic loss in the form of increased workers' compensation premiums and lost dividends arising out of the tortfeasor's negligence. The plaintiff, RK Constructors, Inc., brought this action against the defendant Fusco Corporation (Fusco) after Fusco's agent negligently injured the plaintiff's employee on a construction job site. ¹ The plaintiff claimed that as a result of Fusco's negligence, the plaintiff's workers' compensation experience modification rating was reduced, which, in turn, caused the plaintiff's insurance premiums to increase and a potential dividend to be lost. Fusco filed a motion to strike the first and third counts of the plaintiff's complaint for failure to state a cognizable cause of action and, after a hearing, the trial court, Koletsky, J., granted its motion. The plaintiff thereafter appealed from the trial court's judgment to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199(c). We affirm the judgment of the trial court.

The relevant facts may be summarized briefly as follows. ² On October 24, 1989, Richard M. Aldrich, an employee of the plaintiff, was working as a carpenter at a construction site in Hartford known as the Goodwin Square Building. Fusco was the general contractor on the project, and had leased a crane from the S.G. Marino Crane Service Corporation in order to move materials to and from various floors of the Goodwin Building. While the crane was in the process of lowering a load of lumber from the thirty-first floor of the building, several planks fell from the sling that held them and struck Aldrich, who was working on the ground below. Because of the accident, the plaintiff incurred a reduced workers' compensation experience modification rating, and, as a result, suffered an increase in its insurance premiums and lost an anticipated dividend that it claims it otherwise would have received.

The plaintiff's sole contention is that the trial court incorrectly struck counts one and three of its complaint in which it sought to recover its economic losses for failure to state a cause of action against Fusco. Specifically, the plaintiff argues that the court misconstrued the origin or cause of the injuries and relied upon inappropriate case law to justify its decision. We disagree.

"The motion to strike ... replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading." (Citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). In reviewing the granting of a motion to strike, we construe the facts alleged in the complaint in a light most favorable to the pleader. If facts provable under the allegations would support a defense or a cause of action, the motion to strike must be denied. Id. "In order to reverse the judgment of the trial court, therefore, this court must find that the allegations of the plaintiff's complaint, if proven, would constitute negligence of the defendant." Coste v. Riverside Motors, Inc., 24 Conn.App. 109, 111, 585 A.2d 1263 (1991). ³

The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986); Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983); W. Prosser & W. Keeton, Torts (5th Ed.1984) § 30, pp. 164-65. Our analysis in this case begins and ends with the first element, duty.

"The existence of a duty is a question of law and '[o]nly if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.' " Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990). If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant. Thus, "we must determine whether the [trial] court's conclusion that [Fusco] owed no duty to the plaintiff with respect to [causing an increase in workers' compensation insurance premiums] was 'legally and logically correct.' " Id., at 383, 576 A.2d 474.

Duty is a "legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." 2 D. Pope, Connecticut Actions and Remedies, Tort Law (1993) § 25:05, p. 25-7. Although it has been said that "no universal test for [duty] ever has been formulated"; W. Prosser & W. Keeton, supra, § 53, p. 358; our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. "The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised.... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Citation omitted; internal quotation marks omitted.) Frankovitch v. Burton, 185 Conn. 14, 20-21, 440 A.2d 254 (1981); Noebel v. Housing Authority, 146 Conn. 197, 200-201, 148 A.2d 766 (1959); Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402 (1941). Thus, initially, if it is not foreseeable to a reasonable person in the defendant's position that harm of the type alleged would result from the defendant's actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff.

A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally "foreseeable," yet for pragmatic reasons, no recovery is allowed. See, e.g., Maloney v. Conroy, 208 Conn. 392, 400-401, 545 A.2d 1059 (1988) (looking beyond foreseeability, this court imposed limitations on the right of a bystander to recover for emotional distress that allegedly resulted from medical malpractice of doctors in their treatment of the plaintiff's deceased mother). A further inquiry must be made, for we recognize "that 'duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." W. Prosser & W. Keeton, supra, § 53, p. 358. "While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree." (Internal quotation marks omitted.) Maloney v. Conroy, supra, at 401-402, 545 A.2d 1059. The final step in the duty inquiry, then, is to make a determination of "the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." W. Prosser & W. Keeton, supra, § 43, p. 281.

Although this court has never examined the precise issue of duty presented by this appeal, we conclude that the trial court correctly cited Steele v. J & S Metals, Inc., 32 Conn.Sup. 17, 335 A.2d 629 (1974), in support of its holding. In Steele, an employer had brought a negligence action against a third party tortfeasor who had injured the employer's key employee. The employer claimed that the injury to its employee caused its business to lose profits, and that the defendant was responsible to the employer for those damages. The defendant demurred, alleging that the plaintiff failed to state a viable cause of action. Despite the obvious foreseeability of the plaintiff's lost profits, the court nevertheless dismissed the plaintiff's complaint.

The plaintiff in the present case argues that Steele is inapposite for two primary reasons. First, it argues that the holding in Steele was premised upon the fact that the employer's damages resulted directly from the injuries suffered by the employee, whereas in the present case, the plaintiff's damages flowed from the accident itself. Second, the plaintiff argues that because Fusco, as an employer, must have been aware of the effects an accident would have upon the plaintiff's workers' compensation premiums and policy dividends, foreseeability existed and created a duty that may not be present in other contexts. We are unpersuaded.

Although it may have been foreseeable to Fusco that by causing an accident to the plaintiff's employee, the plaintiff's workers' compensation premiums would increase, this fact alone does not conclude our inquiry. We must proceed to make the further policy determination of whether Fusco's responsibility for its negligent conduct should extend to these particular consequences and this particular plaintiff. It is irrelevant to this determination whether the plaintiff's damages flowed from the accident itself or from the resulting injuries to its employee. We fail to see the distinction. What is...