CT Board of Education and Sovereign Immunity

CT Appellate Court:

Board of Education is not entitled to Sovereign Immunity where its employees fail to comply with terms of its anti-bullying policy.

The Connecticut Appellate Court this month in Palosz v. Town of Greenwich (Appellate Court Docket No. AC 40315) affirmed a trial court ruling that a Board of Education is not entitled to sovereign immunity where it is alleged to have failed to follow its anti-bullying policy. The court held that issues with the development, implementation, submission, and assessment of the policy all fall within the realm of state action and may afford sovereign immunity, but compliance with and enforcement of the policy (including the policing of student bullying and other behavior) do not, and rather fall within the “broad mandate of control” granted to municipalities over public schools.

Background

This appeal presents the latest ruling in a case that has spanned several years in the aftermath of the tragic 2013 suicide of a Connecticut high-schooler. The student’s family alleges that school employees had been aware of the bullying for years, and yet failed to address the problem despite what appears to be a robust, district-wide anti-bullying policy.

The district’s policy requires that any school board employee who witnesses an incident of bullying file an oral report of such an incident within twenty-four hours and a written report within forty-eight hours. It further requires an investigation of any reported bullying incident and, if the incident is verified, development of a student safety plan to prevent additional bullying. The child’s parents are to be notified within forty-eight hours of the report and are invited to discuss with school administrators the measures being taken to intervene and prevent further bullying. Repeated incidents of bullying necessitate development of a specific, written intervention plan.

Despite the implementation of what appears to be an extensive plan to combat bullying, and despite the fact that several school employees were “long aware” of the problem, the family states that none of the above measures were taken to prevent the “severe and continual verbal and physical bullying by [the student’s] fellow classmates.” The bullying was specifically described in a document prepared by the student’s former middle school to assist with transition to high school. Although the family alleges that at least two middle school assistant principals, his high school counselor, teachers, and other staff were aware of the bullying, apparently none of those school officials initiated the process of creating a student safety plan pursuant to the district’s overall anti-bullying plan.

Issue on Appeal

The legal issue in this appeal centered on whether the Defendant Board of Education was acting as an agent of the State of Connecticut when its employees failed to properly execute its anti-bullying plan. If so, then sovereign immunity applies, and a Claims Commissioner would be required to approve the claim before the family would be allowed to sue. The Appellate Court in this case held that the Board of Education was acting as an agent of the Town of Greenwich, not the State of Connecticut, and therefore sovereign immunity did not apply.

The school board argued that it was entitled to sovereign immunity in part because the statute requiring development of local anti-bullying plans (Conn. Gen. Stat. § 10-222d) subjects school boards to “ongoing state oversight and control”. The statute in question details reporting requirements for a district’s anti-bullying plan and states that school boards must require public schools to submit an assessment of their plan to the State’s Department of Education. The court disagreed with the school board, holding that the failure to properly execute the plan did not “control or interfere with the activities of the state.” The court explained that the school board acts as an agent of the state (and therefore receives sovereign immunity) where it works to develop and implement its anti-bullying plan, but acts as an agent of its municipality in properly enforcing the plan by policing student behavior pursuant to the “broad mandate of control” provided by Conn. Gen. Stat. § 10-240.

The court also denied sovereign immunity under the reasoning that the qualified immunity provided by § 10-222l would be superfluous if school boards were already protected for the same actions by sovereign immunity. Qualified immunity is granted pursuant to § 10-222l where school boards act in good faith to report, investigate, and respond to bullying under their anti-bullying plans, but immunity is specifically withheld in instances where a school board has acted with “gross, reckless, wilful or wanton misconduct.” Noting that the purpose of sovereign immunity is not only to protect the state from damages, but also to prevent the state from having to litigate whether it is ultimately liable, the court stated that the legislature could not have intended to grant sovereign immunity from all such claims where § 10-222l specifically permits liability in some circumstances. “Had the legislature agreed . . . that sovereign immunity barred claims like the one presented in this case, § 10-222l would have been unnecessary. It makes more sense that the legislature concluded instead that § 10-222l was necessary because local boards of education are not protected by sovereign immunity when their employees fail to comply with an anti-bullying policy.”

Conclusion

This case comes after a long list of cases decided by the Connecticut Superior Court, about half of which have held that local boards of education are not entitled to sovereign immunity in such cases and about half of which have held otherwise (see the Appellate Court’s opinion, footnote 10). The Defendant Town of Greenwich Board of Education may appeal this decision to the Connecticut Supreme Court. If they fail to do so, or if the Connecticut Supreme Court declines to hear the appeal, the family may continue suit at the trial court level.

CONNECTICUT CONSTRUCTION SITE WORKER INJURIES- LEGAL RECOURSE

CONSTRUCTION SITE SAFETY – THE GENERAL CONTRACTOR’S INFLUENCE OVER AND LIABILITY FOR RESIDENTIAL CONSTRUCTION SAFETY ,

     Following the Connecticut Supreme Court’s reversal of a multi million dollar verdict against a general contractor in favor of a severely injured worker employed by a sub- contractor in the case of Pelletier v Sordoni/ Skanska Construction Co., 286 Conn. 563(2008), many in the construction industry no doubt breathed a sigh of relief. The duties owed by general contractors and construction managers on a construction site to the employees of sub-contractors were brought into sharp focus and the message drawn from the outcome of that case may very well have exceeded the actual holding and discouraged members of Bar from pursuing Tort claims in its wake. That is not a desirable outcome from a public policy perspective nor has the final chapter been written on the viability of pursuing such claims in Connecticut. While pursuing individual client interests for the purpose of obtaining financial compensation, leaving politics aside, it seems fairly obvious that much good has been done by lawyers toiling in the field of products liability and medical negligence litigation in terms of promoting the public’s interest for safer products and the safer delivery of medical care. Case law has not always been favorably disposed to those pursuing such cases and there continue to be minefields and unresolved issues at the Trial Court level complicating the effort. However, overall, one can say that by enabling financial accountability and subjecting product design and medical decision making to the rigors of the marketplace, sub-standard products and practices do tend to be identified, modified or eliminated over time.

     In the same way, the Construction industry, and particularly the residential construction segment, appears ripe for an enhanced degree of legal scrutiny. Residential general contractors who do not insist on employing individuals and sub contractors that adhere to fair labor and wage practices, that do not inquire into their subcontractors work methodologies nor assess whether there is a manifest intent to comply with Federal OSHA work site regulations and other applicable industry customs and standards risk not only tort claims premised upon negligence but also punitive damage awards under theories of recovery including common law recklessness and statutory Unfair Trade Practices. Connecticut’s residential construction industry , though depressed given recent cyclical trends, still supports tens of thousands of skilled and semi- skilled workers who rely on it for their livelihood. Many such workers are persistently being exposed to an unnecessary risk of physical harm due to a lack of appropriate construction work site safety conditions, procedures and safety equipment with predictable consequences. Despite a veritable panoply of mandated precautions and hazard recognition procedures set forth in applicable Federal OSHA regulations and generally accepted construction industry standards for competent Builders utilizing their own employee labor, these are serially ignored in many instances. Connecticut Statute establishes the duty to provide a safe work site and the adoption of attendant work site safety procedures. ( See CGS 31-49 and CGS 31-370) but violations and short cuts effecting non employee laborers populating the trades may be overlooked or even encouraged in the interest of expediency and squeezing out profit margins. Many laborers are also not being compensated for their extended work hours in terms of State mandated overtime for non managerial employees. Some are being paid cash by low cost sub- contractors who couldn’t otherwise perform the work for less money than it would cost the general contractors to do by hiring their own employees. Others are themselves misclassified as “independent contractors” in an effort to avoid Federal and State Tax witholding and Social Security and Medicare contributions as well for similar reasons. This vulnerable class of workers in need of money will readily work for cash, accept sub-standard conditions or sub-standard wages, particularly when there is less work to be found. It is hard to believe that most general contractors who hire those sub-contractors that treat their employees in this manner are not aware of the economic bargain being struck. It is Connecticut’s public policy to look to those entities that have the right to control workplace conditions to exercise that control in a way that protects the workforce, not only to one’s own direct employees. Brennan v. Occupational Safety Health Review Commission 513 F 2d 1032 (2d Cir 1975); The Brennan case involved a multi-employer worksite where the Court found that the general contractor necessarily had over arching responsibilities as to all workers on site. Likewise, the Pelletier Court indeed recognized the continuing validity of the proposition that even when the general contractor is not in direct physical control of the site at the time that the sub-contractor is performing its work , either exertion or its retention of the right to control are sufficient grounds to establish the existence of a duty running in favor of the injured worker.. Pelletier et al v. Sordoni/Skanski Construction Co.,Supra. The word “control” has no legal or technical meaning and refers to the power or authority to manage, superintend, direct or oversee. Panori v Johnson 158 Conn 92 ( 1969). Notably, control need not be exclusive, it is enough if it is shared with another.Van Nesse v. Tomaszewsk,i 265 Conn 627 (2003). In a recent case involving a worker who fell from a significant height from a scaffold without any fall arrest system in place, my client was being paid piecemeal wages based upon the amount of roofing work he and his crew performed . His direct employer was a sub-contractor performing the roofing work for a general contractor who was aware of the pay arrangement. Needless to say, they were being incentivized to increase the pace of the work as it meant more money . Given such circumstances, many experienced tradesman ,such as my client, may not have been inclined to utilize fall protection even if it had been provided unless mandated to do so by the entity in control or with the authority to control the construction site ( the general contractor) because of its tendency to slow the pace of the work . In other situations, the deviation from recognized standards of care may stem from a lack of appreciation by the individual worker (or his employer) of the magnitude of the hazard involved or a lack of knowledge about how best to abate the danger posed by adhering to best industry practices, thus greatly enhancing the risk of injury.

     A general contractor that hires a sub-contractor who does not maintain standard insurances, comply with wage and Labor regulations, or who does not demonstrate the use of safety equipment applicable to the scope of the work delegated to them and monitor the site for safety practice compliance purposes should be hard pressed to rely on the general rule of non liability for the torts of its independent contractors as the basis for its defense. A general contractor with knowledge of a defect in the work or in the negligence of his sub contractor may be held directly liable. Swearsky v. Stanley Dry Goods Co., 122 Conn.7, (1936). Aside from actual knowledge, the liability for negligent selection of an independent contractor is one of the established exceptions to the general rule of non-liabiltiy of general contractors set forth in Pelletier v. Sordoni/Skanska Construction Co., supra, 264 Conn. 509 (2003), ( if the contractee negligently employ an incompetent or untrustworthy servants, the contractee will be responsible for the resultant injury) An independent contractor must be competent and skilled to relieve his employer of liability for his torts. Lawrence v Shipman, 39 Conn 586( 1873 ). The liability for negligently selecting a sub-contractor may be based upon not only what the Contractee knew or should have known at the time of hire but also what they learned while they continued to retain said contractor Shore v Stonington , 187 Conn 147 (1982). Federal law and Connecticut jurisprudence both support the finding of a duty to act where the issue has been considered and in effect voted upon by governmental agencies and technical groups with relevant knowledge and experience to the issues at hand. Wendland v. Ridgefield Construction Services, Inc. 184 Conn 173 (1981). (OSHA safety regulations are admissible as evidence of negligence and proper for a jury to consider). On construction sites, for example, workers have repeatedly died from scaffold falls and trench excavation collapses because basic mandated safety precautions were ignored . Many General Contractors naturally possess an understanding of the important role which accepted work site safety standards and sub-contractor hiring procedures have in assuring worker safety. Given sufficient experience background or knowledge, an earnest inquiry can readily demonstrate whether or not the sub contractor demonstrates adequate capabilities to perform work utilizing properly trained, equipped and supervised workers. It similarly takes very little time to inquire of the sub-contractor whether or not they hire undocumented workers, pay cash wages, overtime pay, make employer FICA and Medicare contributions, and carry workers compensation insurance in the event of accidental injury. Beyond the ken of a negligence claim on suitable facts allegations of recklessness and Unfair Trade Practices have a role to play. Sadly, some general contractors would rather not inquire into or pretend not to know about their sub-contractor’s deficient safety, wage and labor practices as they benefit financially from this less expensive source of non employee labor. It is part of their own method of doing business. To reputable general contractors, this is an unfair method of competition and an unfair business practice as well from the injured worker’s standpoint. The conduct at issue is decidedly unfair, deceptive, immoral and unscrupulous and may well violate the dictates of Connecticut General Statutes Section 42-110b, referred to as Connecticut’s Unfair Trade Practices Act (CUTPA).

     Johnson_&_Johnson_HQ_-_IMG_2615Given the high frequency of serious injuries in the construction field as compared to many other industries according to OSHA’s statistics, the gravity of the departure from ordinary care in carelessly hiring such a contractor smacks of recklessness. The applicability of a recklessness claim against a general contractor would further seem appropriately premised upon an awareness of the danger posed and the deliberate disregard of same, whether the motive is profit or sheer indifference.

Courts Review Liability of Brand-Name and Generic Drug Manufacturers in Products Liability Cases

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1185407_27290304.jpgQuestions of liability arise at times between manufacturers of brand-name prescription drugs and manufacturers of their generic equivalents. The U.S. Supreme Court ruled several years ago that federal law preempts state laws regarding drug labeling. This led the Alabama Supreme Court recently to find that a brand-name manufacturer could be held liable for a generic manufacturer’s failure to warn, as federal law required generic drugs to have identical labels as the brand-name drug. The U.S. Supreme Court is preparing to hear arguments in a case that seeks to hold a generic manufacturer liable for a design or manufacturing defect in the drug, with the manufacturer claiming that they are only allowed by federal law to copy the approved drug design.

The U.S. District Court for the Middle District of Alabama recently certified a question to that state’s supreme court regarding whether state law could hold a brand-name drug manufacturer liable for injuries caused by a generic equivalent from a different manufacturer. In re Wyeth V. Weeks, No. 1101397, slip op. (Ala., Jan. 11, 2013). The Alabama Supreme Court held that federal law, in the form of Food and Drug Administration (FDA) regulations, required generic manufacturers to use the same drug labels as those used for the brand-name drug. The court held that it was “not fundamentally unfair to hold the brand-name manufacturer liable” on a failure to warn claim, when the “alleged misrepresentations were drafted by the brand-name manufacturer and merely repeated by the generic manufacturer.” Slip op. at 52.

Connecticut General Contractor Granted Summary Judgment in Asbestos Products Liability Lawsuit

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800px-Asbestos_Shingles.jpgA Connecticut Superior Court judge granted summary judgment to a general contractor in two asbestos lawsuits in late November, ruling that it is not a “manufacturer” or “seller” within the meaning of the Connecticut Products Liability Act (CPLA). The court dismissed causes of action for violations of the CPLA and wrongful death in both Mazzaia v. A.O. Smith Corp., et al, No. CV-11-5029478 (Conn. Super. Ct., Nov. 29, 2012); and Selvidio v. Alfa Laval, Inc., et al, No. CV-11-6017088 (Conn. Super. Ct., Nov. 26, 2012). These cases may represent an important limitation on products liability claims in Connecticut.

Both cases involved decedents who allegedly developed mesothelioma, a form of cancer that primarily affects the lungs, due to asbestos exposure while working at a Pfizer Corp. plant in Groton, Connecticut. Donald Mazzaia’s executor alleged that he suffered asbestos exposure while serving in the U.S. Navy between 1959 and 1963 and while working for General Dynamics and Pfizer between 1963 and 1979. Joseph Selvidio’s executor alleged that he was exposed to asbestos-containing products while working at the Pfizer plant from 1973 to 1979. Both lawsuits alleged violations of the CPLA and liability under the Connecticut wrongful death statute.

The defendant that filed the motions for summary judgment, Skansa USA Building, Inc., is the successor-in-interest to W.J. Barney Corp. Barney had a contract with Pfizer to build its Groton facility, which was in effect from 1946 to 1977. In 1977, the two companies signed a new contract for “maintenance and general services” at the plant. Mazzaia at 4. According to affidavits produced by Skansa, the company did not sell or distribute materials unless directed to sell surplus products by Pfizer. Its responsibilities were almost entirely related to construction and maintenance, and while it purchased materials as part of providing services to Pfizer, Pfizer had the option of procuring materials independently of Barney.

Court Finds Warning Labels on Paint Stripper Comply with Federal Law, Denies Products Liability Claim

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1190912_22327225.jpgAn appeals court in Massachusetts, reviewing a failure-to-warn claim, examined federal regulations governing labels on hazardous products. The court upheld a directed verdict for the defendants in Namundi v. Rocky’s Ace Hardware, LLC, 81 Mass. App. Ct. 665 (Mass. App. Ct. 2012), holding that the warning label on a can of paint stripper complied with the Federal Hazardous Substances Act (FHSA).

The plaintiffs bought a can of “Ace Liquid Stripper” from a hardware store. The label on the front of the can reportedly included, near the bottom, the all-capitalized words “DANGER!” and “POISON!” with a skull-and-crossbones illustration. In slightly smaller all-capitalized letters, the label also included warnings about flammability, the dangers of swallowing the product, vapors, and skin contact. The label directed consumers to more-detailed “HEALTH HAZARD INFORMATION” on the can’s back panel.

The plaintiffs stored the can of stripper in their basement, reportedly near a gas water heater. The heater’s pilot light ignited vapors from the stripper, which caused a flash fire resulting in severe burns to both plaintiffs. They filed suit against the manufacturer and the retailer, alleging that the labels on the can were inadequate, that the can was defective, and that the product was unreasonably dangerous. The trial court granted a directed verdict to the defendants on the question of the warning label, holding that it complied with the requirements of the FHSA, found in 15 U.S.C. § 1261 et seq. and 16 C.F.R. § 1500 et seq. The jury then entered a verdict finding the defendants not liable for any design defect.