Sharp v. Mitchell, 13168

• Decision Date: 06 September 1988
• Docket Number: No. 13168,13168
• Citation: 209 Conn. 59,546 A.2d 846
• Court: Connecticut Supreme Court
• Parties: Larry L. SHARP, Administrator (ESTATE OF David C. SHARP), et al. v. Norbert E. MITCHELL, Sr., et al.

Page 846

546 A.2d 846

209 Conn. 59

Larry L. SHARP, Administrator (ESTATE OF David C. SHARP), et al. v. Norbert E. MITCHELL, Sr., et al.

No. 13168.

Supreme Court of Connecticut.

Argued May 11, 1988.

Decided Sept. 6, 1988.

Joan C. Harrington, New Canaan, for appellants (plaintiffs).

Ronald D. Williams, Bridgeport, for appellees (defendants).

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

ARTHUR H. HEALEY, Associate Justice.

This appeal arises out of a wrongful death action brought on behalf of three men who were asphyxiated in an underground fuel storage facility while employed by the defendant Norbert E. Mitchell Company. The plaintiffs, administrators of the estates of David C. Sharp, Robert Vidal and Alois Entress, alleged that the defendants, Norbert E. Mitchell, Sr., and Norbert E. Mitchell, Jr., d/b/a Norbert E. Mitchell Company, negligently caused those deaths. The trial court, McDonald, J., granted the defendants' motion for summary judgment as to the counts of the plaintiffs' amended complaint that alleged negligence by the defendants, concluding that the exclusivity provision of the Workers' Compensation Act was constitutional. The trial court, Lavery, J., granted the defendants' second motion for summary judgment, concluding that the plaintiffs' claim that the defendants had a "dual capacity" was a separate cause of action and therefore was barred by the statute of limitations. ¹ We find no error.

The basic facts concerning this tragic incident are not disputed. The plaintiffs' decedents were employed by the defendant Norbert E. Mitchell Company, which is in the retail petroleum business. The facilities owned by the defendants included an underground facility that housed seven 25,000 gallon petroleum storage tanks. This underground storage area is approximately six feet wide, fifty feet long and ten feet high, with access to the tanks provided by a ladder through a thirty-six inch manhole. On February 3, 1983, the defendant Norbert E. Mitchell, Jr., instructed Sharp to enter the underground area and shut off a valve on one of the tanks. When Mitchell heard some banging noises, he sent Vidal into the underground storage area to aid Sharp. Vidal collapsed at the bottom of the ladder and Mitchell left the area to call for help. Entress then descended the ladder with a rope, but he also collapsed while on the ladder. Vidal and Entress were pronounced dead approximately one hour after the incident while Sharp was pronounced "brain dead" two days later, and shortly thereafter he was removed from life support systems.

Neither Sharp nor Entress was survived by dependents as defined by the Workers' Compensation Act. Their representatives were entitled to funeral expenses and their respective medical bills were paid directly to the hospital. Vidal's funeral expenses and medical bills were also paid and his dependents are currently receiving workers' compensation benefits.

The plaintiffs' first complaint was filed on August 10, 1983, and alleged that the deaths were caused by the intentional, serious and willful misconduct of the defendants. The defendants moved for summary judgment, contending that the "intentional misconduct" exception as outlined in Jett v. Dunlap, 179 Conn. 215, 221, 425 A.2d 1263 (1979), did not apply and therefore the action was barred by the exclusivity provision of the Workers' Compensation Act. General Statutes § 31-284(a). ² The plaintiffs agreed, for the purposes of the summary judgment motion, that the intentional misconduct exception did not apply and subsequently amended their complaint to allege negligence by the defendants and to argue that the exclusivity provisions of the Workers' Compensation Act violated article first § 10, of the constitution of Connecticut. On January 20, 1986, the plaintiffs further revised their complaint to allege that the defendants were negligent in designing and construcing the underground storage facility and therefore were liable under a "dual capacity" theory. ³ The defendants, who previously had filed a motion for summary judgment to the complaint that alleged negligence, planned to file another motion for summary judgment to the complaint that alleged a dual capacity theory. To facilitate matters for the court, the plaintiffs amended the complaint again. In a complaint dated September 19, 1986, the plaintiffs alleged in counts one, three and five that the defendants as employers had negligently caused the deaths of their decedents. In counts two, four and six, the plaintiffs alleged that the defendants had acted negligently in a capacity other than that of an employer when they designed and constructed the underground storage area. The parties stipulated that the pending motion for summary judgment would address the claims of negligence in counts one, three and five, and that the defendants would shortly file another summary judgment motion that would address the dual capacity claims in counts two, four and six. On October 1, 1986, the defendants filed that latter motion for summary judgment.

On October 21, 1986, the trial court, McDonald, J., granted the defendants' first motion for summary judgment, rejecting the argument of the plaintiffs that the Workers' Compensation Act violated article first, § 10, of the constitution of Connecticut. On February 2, 1987, the trial court, Lavery, J., granted the defendants' second motion for summary judgment, dated October 1, 1986, concluding that the plaintiffs' dual capacity claims were barred by the statute of limitations and by the exclusivity provisions of the Workers' Compensation Act.

On appeal, the plaintiffs claim that the trial courts erred in: (1) holding that the Workers' Compensation Act was constitutional as applied to the plaintiffs; (2) holding that the plaintiffs' dual capacity claims were barred by the statute of limitations; and (3) rejecting the dual capacity doctrine under the circumstances of this case. We conclude that the first and second issues raised by the plaintiffs on appeal were correctly decided by the trial courts and therefore we do not reach the third issue.

I

The plaintiffs argue that they should be permitted to sue the defendants for negligently causing the deaths of their decedents because the Workers' Compensation Act, as applied to them, violates article first, § 10, of the constitution of Connecticut. Under the Connecticut Workers' Compensation Act, the plaintiffs are limited to remedies under the act. General Statutes § 31-274 et seq.; see, e.g., Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 532, 494 A.2d 555 (1985); Sullivan v. State, 189 Conn. 550, 558, 457 A.2d 304 (1983); Jett v. Dunlap, supra, 179 Conn. at 217, 425 A.2d 1263. We agree with the defendants that the Workers' Compensation Act can withstand the plaintiffs' constitutional challenge.

Article first, § 10, of the constitution of Connecticut provides: "All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay." The plaintiffs reason that since a common law right to sue for wrongful death existed at the time of the ratification of the constitution of Connecticut in 1818 and that since such a right cannot be abolished by the legislature without providing a reasonable alternative remedy under Gentile v. Altermatt, 169 Conn. 267, 283, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S.Ct. 763, 46 L.Ed.2d 631 (1976), the Workers' Compensation Act is unconstitutional as applied to them. Although it is correct to say that article first, § 10, protects "constitutionally incorporated" common law or statutory rights from abolition or significant limitation, these rights include only those in existence in 1818. Id.; see also Daily v. New Britain Machine Co., 200 Conn. 562, 585, 512 A.2d 893 (1986).

After the briefs were filed in this case, this court announced the decision in Ecker v. West Hartford, 205 Conn. 219, 530 A.2d 1056 (1987), where we held that no action for wrongful death existed at common law in Connecticut. The Ecker court, after exhaustive research and analysis of previous Connecticut cases and the applicable law throughout the United States, concluded: "With only a few exceptions, courts in America have almost universally accepted, and continue to accept, 'the rule that a civil action for wrongful death was not recognized at common law, and that no such cause of action may be maintained except under the terms and authority of a statute.' 61 A.L.R.3d 906, 909, and authorities cited therein, 909-10 n. 3, and Sup. 59." Id., 227, 530 A.2d 1056. The court also held "that no action for wrongful death existed at common law or exists today in Connecticut except as otherwise provided by the legislature." Id., 231, 530 A.2d 1056. It is clear that Ecker controls this case concerning the issue of whether a common law right to sue for wrongful death existed at common law that would survive the adoption of the Connecticut constitution of 1818.

The plaintiffs maintained at oral argument that Ecker does not control the case before us for three reasons, none of which is persuasive. First, the plaintiffs summarily suggest that they are suing for personal injury and that Ecker involved a wrongful death claim. ⁴ The decedent in Ecker was an employee who was struck by a wooden canopy that fell from a building, resulting in his death the next day. The plaintiffs in this case are employees who were asphyxiated. Two were pronounced dead at the scene and the other died two days later. It is difficult to ascertain on what basis the plaintiffs can expect this court to treat these claimants differently. It is clear that both cases involve wrongful death and that any cause of action instituted on that basis is barred by Ecker.

In a related argument, the plaintiffs next claim that Gentile v....