YOUNG
Darren Bye ("Bye") and his wife ("Mrs. Bye") (collectively, the "Byes") bring this suit for damages against his employer, Cianbro Corporation
The Byes initially filed a complaint in the Connecticut Superior Court on December 10, 2008. Notice Removal, Attach. 2, Compl., ECF No. 1-2. The case was removed to the District of Connecticut on December 15, 2009. Notice Removal, ECF No. 1. On September 1, 2010, the Byes amended their initial complaint,
On December 14, 2012, Cianbro filed a motion for summary judgment against the Byes' second amended complaint, appending to its motion a memorandum of law in support and a statement of undisputed facts. Def. Cianbro Corps.' Mot. Summ. J. ("Cianbro's Mot. Summ. J."), ECF No. 98; Cianbro's Mot. Summ. J., Attach. 1, Def. Cianbro Corps.' Mem. Law Supp. Mot. Summ. J. ("Cianbro's Mem."), ECF No. 98-1; Cianbro's Mot. Summ. J., Attach. 2, Local Rule 56(a)1 Statement ("Cianbro's SOF"), ECF No. 98-2. The Byes submitted a brief in opposition to Cianbro's motion on February 11, 2013. Pls.' Objection Def.'s Mot. Summ. J. ("Byes' Opp'n"), ECF No. 105. One week later, Cianbro filed a brief in reply to the Byes' opposition. Reply Pls.' Objection Def. Cianbro Corp.'s Mot. Summ. J., ECF No. 107. On February 27, 2013, the Byes responded to Cianbro's statement of undisputed facts and submitted their own statement of disputed facts. Pls.' Resp. Def.'s Local Rule 56(a)1 Statement & Pls.' Local
In 2004, the Connecticut Department of Transportation (the "DOT") resolved to undertake an extensive rehabilitation and repainting of the Washington Bridge (the "Bridge"), a bascule-type drawbridge spanning the Housatonic River that connects the towns of Milford and Stratford. Second Am. Compl. ¶¶ 3, 6. The DOT hired Cianbro, a construction and civil engineering company, as the general contractor for the project. See id. ¶ 7. In order to perform their work on the project, Cianbro employees were expected to access a series of electrical platforms and bascule pits situated underneath the roadway in the Bridge's bascule piers and to navigate a number of ladders. Id. ¶¶ 10-11.
The Bridge features two bascule pits, one of which is located on the structure's west side. See id. ¶¶ 12-13. The principal access point to the west bascule pit is through a hatchway on the Bridge's sidewalk, which leads to a small, concrete platform (reachable via a ladder approximately five feet in length) and two successively higher platforms (reachable via a ladder approximately twenty feet in length). Id. ¶¶ 13, 15. The second-level platform features a hinged metal trapdoor that covers a ladder that stretches ten feet down to the first-level platform. Id. ¶ 19. This trapdoor has to be fixed in an open position whenever someone seeks access to the west bascule pit via the second-level platform. Id. ¶¶ 20, 22. Because of the significant effort required to open and close the trapdoor, Cianbro had the trapdoor wired open. Id. ¶ 24. With the trapdoor wired open, however, there were no safeguards or so-called "fall protections" that would prevent tumbles from the second-level
On the morning of December 11, 2006, Bye, a project engineer employed by Cianbro, was deployed to the Bridge to conduct quantity measurements
This Court has diversity jurisdiction pursuant to 28 U.S.C. section 1332. The Byes are citizens of Maryland, whereas Cianbro is incorporated in Maine. Notice Removal ¶ 6. In addition, the amount in controversy exceeds $75,000. Id.
A trial court may grant a motion for summary judgment only if the moving party demonstrates that there exists no genuine issue of material fact in the case. Fed. R.Civ.P. 56(a). In evaluating the merits of a summary judgment motion, the Court is free to review depositions, affidavits, interrogatory answers, and any other documents that have been filed in the case. See Fed.R.Civ.P. 56(c)(1)(A). The moving party carries the burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the evidence provides a sufficient basis upon which a reasonable jury could find for the nonmoving party, then a "genuine" issue of fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is deemed "material" if it "might affect the outcome of the suit under the governing law." Id. In ruling on a summary judgment motion, the court is required to view the facts "in the light most favorable to the nonmoving party." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). While the court is obligated to review the record in its totality, "it must disregard all evidence favorable to the moving party that the jury is not required to believe," even if such evidence is unopposed by the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
Section 31-284(a) of Connecticut's Workers' Compensation Act (the "Act"), Conn. Gen.Stat. §§ 31-275 to -355b, provides to an employee the exclusive remedy for any personal injuries suffered by said employee that "aris[e] out of and in the course of his employment." Conn. Gen.
Bye seeks coverage only under the substantial-certainty exception to the Act's exclusivity provision, as articulated in Suarez I and Suarez II. Byes' Opp'n 6. To enjoy the benefits of this exception, an injured employee "must show more than that [a] defendant exhibited a lackadaisical or even cavalier attitude toward worker safety." Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006) (alteration in original) (quoting Stebbins v. Doncasters, Inc., 263 Conn. 231, 234, 819 A.2d 287 (2003) (per curiam)) (internal quotation marks omitted). In essence, the employee "must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm." Id.
Bye raises three primary arguments in favor of his position. Bye first contends that Cianbro, in tying open the trapdoor and swing gate at the second-level platform of the Bridge's west bascule pit, failed to follow not only established Occupational Safety and Health Administration ("OSHA") regulations but also its own internal safety policies, thereby exposing Bye to a substantially certain risk of injury. Byes' Opp'n 7-10. As purported confirmation of Cianbro's wrongdoing, Bye draws this Court's attention to an OSHA citation itemizing myriad safety violations at the Bridge worksite; a host of remedial measures implemented after the incident; and an abundance of fall protection protocols by which Cianbro, through its workplace safety guidelines, had promised to abide. See Byes' Opp'n 7-12; see also Byes' SOF ¶¶ 1-4, 12; Byes' Opp'n, Ex. G, Citation & Notification Penalty 9,
Bye appears to offer more than sufficient proof of negligent — or perhaps even reckless — conduct on the part of Cianbro in its management of the Bridge worksite. He has failed, however, to produce any persuasive evidence to suggest that Cianbro intended to cause him injury. See Suarez II, 242 Conn. at 279, 698 A.2d 838 ("[T]he common-law liability of the employer cannot ... be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury." (quoting 6 A. Larson & L. Larson, Workmen's Compensation § 68.13, at 13-12 to -13 (1997)) (internal quotation mark omitted)). It is a well-settled point of law in Connecticut that an employer's noncompliance with existing health and safety regulations or departure from informal workplace safety practices, standing alone, does not give rise to tort liability when an employee suffers injury properly attributable to such institutional shortcomings. Motzer v. Haberli, 300 Conn. 733, 745-46 (2011) (collecting cases). The fact that OSHA deemed the tied-open trapdoor and swing gate perilous to employee safety and assessed penalties against Cianbro in the wake of Bye's accident does not disturb this time-tested principle. See Estate of Richard by Cunningham v. Am. Wrecking Corp., 134 F.Supp.2d 252, 261-62 (D.Conn.2001) (Droney, J.) (entering summary judgment against a demolition worker who suffered fatal injuries despite the fact that an OSHA citation and notification of penalty "found that [the defendant employer] committed `Willful' violations of OSHA regulations in connection with the incident at issue" and that "several omissions by [the defendant employer] ... exposed workers to `serious physical harm and death,'" id. at 261). Moreover, remedial measures taken to correct or improve dangerous conditions that precipitated a workplace accident cannot be used retroactively as a means of imputing to an employer the purposeful intent to have the accident come to pass in the first instance. Cf., e.g., Fed.R.Evid. 407 (disallowing the use of subsequent remedial measures to prove
Bye also alleges that "Cianbro explicitly instructed it [sic] employees not to use personal protective equipment while working on the second level platform of the west bascule pier." Byes' Opp'n 12. This allegation is belied, however, by the Byes' own responses to Cianbro's statement of facts: the parties agree that Cianbro neither ordered Bye to conduct quantity measurements on the Bridge without the use of fall protection equipment nor forbade Bye from taking his own safety precautions. Cianbro's SOF ¶¶ 12, 15; Byes' Resps. Cianbro's SOF ¶¶ 12, 15. Courts have found the distinction between the presence versus the absence of employer directives to be meaningful in analogous situations. Compare Buckman v. J.P. Carroll Constr. Co., No. CV 980576511S, 2000 WL 420705, at *4 (Conn.Super.Ct. Apr. 6, 2000) (Peck, J.) (denying a motion for summary judgment where issues of "whether the defendants required [the allegedly injured roofing employee] to work on the roof without scaffolding or other safety devices and in weather conditions that were inherently dangerous" remained in dispute), with White v. Morgan Contracting, Inc., No. CV030826377, 2005 WL 1869041, at *2 (Conn.Super.Ct. July 14, 2005) (Booth, J.) (granting summary judgment against a roofer who fell while working on a renovation project because "[t]here [was] no indication that the employer ever instructed him to work without a harness or prohibited him from working with a harness"). Taking all intendments in Bye's favor, a reasonable jury could perhaps find that higher-ups at Cianbro told Bye that fall protection equipment would not in fact be necessary to complete the task at hand given the presence of the swing gate, as Bye so suggests. See Byes' SOF ¶ 8. Even so, this conduct hardly rises to the level of intentionality needed to place Bye's claim beyond the scope of the Act's exclusivity provision. See Suarez I, 229 Conn. at 112, 639 A.2d 507 ("[T]he intentional conduct in which the defendant engaged [must be] tantamount to a deliberate infliction of harm comparable to an intentional left jab to the chin." (quoting 2A A. Larson, Workmen's Compensation § 68.13, at 13-71 (1990)) (internal quotation marks omitted)). The restriction on employee tort recovery for unintentional workplace injuries serves as a kind of assured quid pro quo for the strict-liability regime to which employers are subject. See Richard A. Epstein, The Historical Origins and Economic Structure of Workers' Compensation Law, 16 Ga. L.Rev. 775, 800-03 (1982) (describing the "compensation bargain" implicitly struck between employers and employees in workers' compensation schemes). Indeed, this is the very animating rationale that specifically informed the passage of Connecticut's Workers' Compensation Act itself. Driscoll v. Gen. Nutrition Corp., 252 Conn. 215, 220-21, 752 A.2d 1069 (2000) (proclaiming that the Act's exclusivity provision "manifests a legislative policy decision that a limitation on remedies under tort law is an appropriate trade-off for the benefits provided by workers' compensation").
Finally, Bye contends that Mark Zagrobelny ("Zagrobelny"), a senior project engineer
Loss of consortium is generally defined as "the loss of services, financial support, and the variety of intangible relations that exist between spouses living together in marriage." Greci v. Parks, 117 Conn.App. 658, 675, 980 A.2d 948 (2009) (quoting Shegog v. Zabrecky, 36 Conn.App. 737, 751, 654 A.2d 771 (1995)) (internal quotation mark omitted). "[E]ither spouse has a claim for loss of consortium shown to arise from a personal injury to the other spouse caused by the negligence of a third [party]." Hopson v. St. Mary's Hosp., 176 Conn. 485, 496, 408 A.2d 260 (1979). Because a loss-of-consortium claim is merely derivative of a claim brought by an injured spouse against her employer, the former is barred as matter of law if the latter is ultimately unsuccessful on the merits. See id. at 494, 408 A.2d 260.
Because Bye has failed sufficiently to demonstrate his eligibility to claim coverage under the substantial-certainty exception, see supra section II.B, Mrs. Bye's loss-of-consortium claim cannot lie.
For the foregoing reasons, the Court GRANTS Cianbro's motion for summary judgment, ECF No. 98, in full.
