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.

Several people dead after plane accident near Tweed New Haven Airport

Authorities have reported two fatalities after a small propeller plane crashed into two homes near Connecticut’s Tweed New Haven Airport.

The Federal Aviation Administration said the aircraft, a small multi-engine passenger plane, left Teterboro Airport in New Jersey early Friday morning and crashed into a residential area at 11:25 a.m. Officials believe the rainy weather caused poor visibility for the pilot, who crashed while trying to land at Tweed New Haven Airport. After being struck by the plane, both houses caught fire.

Emergency responders at the scene report that at least three people are missing, including the plane’s pilot and two young children who were in one of the houses at the time of the crash.

“We presume there is going to be a very bad outcome,” local fire chief Douglas Jackson said.

Our team at the Law Offices of Paul Levin, understands how devastating losing loved ones in such a tragic accident is and send their condolences to all those affected by this loss.

Wrongful Death Lawsuit Alleges That Improper Dose of Antipsychotic Medication Caused Woman’s Suicide

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Adderall_XR_20mg.jpgA woman filed a wrongful death lawsuit against the federal government earlier this year, alleging that an incorrect diagnosis and incorrect dosages of medication caused her sister’s 2010 suicide. The plaintiff in Grese v. United States claims that doctors with the Department of Veterans Affairs (VA) continued her sister on a medication known to have serious psychiatric side effects even after she had attempted suicide. The suit alleges multiple breaches of applicable standards of care for doctors and other medical professionals, and demands $5 million in damages.

The decedent, Kelli Grese, served in the U.S. Navy and was discharged in 1997, according to the Hampton Roads Daily Press. She began receiving treatment from the VA for psychiatric issues sometime afterwards, including medication and therapy, for post-traumatic stress disorder, substance abuse, and depression. Doctors diagnosed her with attention deficit disorder in 2008, according to the plaintiff’s complaint, and prescribed stimulant medications. Grese checked into a private psychiatric hospital in March 2009 where she received a diagnosis of severe depression. Doctors at the private hospital classified her at the time as a suicide risk, and noted that she suffered from paranoia and delusional thinking. After her discharge from the psychiatric hospital, the complaint alleges that the VA doctors did not modify her treatment plan despite changes in her condition.

Insurance Companies Seek Declaratory Judgment Regarding Duty to Defend or Indemnify Beverage Manufacturer in Products Liability Lawsuits

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800px-A_Man_Drinks_a_Four_Loko.jpgTwo insurance companies have filed suit in a federal court in Illinois, seeking a declaratory judgment that they are not obligated to defend or indemnify Phusion Products in a series of products liability and wrongful death lawsuits. Phusion manufactures the alcohol-based “energy drink” Four Loko, which has been the subject of multiple controversies and lawsuits in recent years. The current suit, Netherlands Insurance, et al v. Phusion Projects, Inc., et al, is at least the second suit declaratory judgment brought by The Netherlands Insurance Company and Indiana Insurance Company regarding Four Loko.

Phusion markets Four Loko in many areas as an “energy drink” that also contains alcohol. Like many popular energy drinks, it contains stimulants like caffeine and guarana. According to the Register Citizen, a 24-ounce can also contains an equivalent amount of alcohol as five shots of vodka. The beverage is popular among college students, but numerous cases of accidental overdose have reportedly resulted from excessive consumption.

A common allegation is that the effect of the stimulant ingredients, which may include a high level of caffeine, masks the effects of the alcohol, causing people to continue drinking past the point where they might have otherwise stopped. Recent lawsuits have alleged that consumption of the beverage proximately caused various injuries or deaths, including car accidents and shooting deaths. Several states, including Connecticut, have sought distributors’ cooperation in suspending shipments of the beverage, and Phusion has reportedly begun to sell non-caffeinated versions of the product in some states.

Expert Witness Required to Prove Defect in Airbag that Failed to Deploy, According to Appellate Court of Connecticut: Koutsoukos v. Toyota Motor Sales

111989_2445.jpgThe Appellate Court of Connecticut affirmed the dismissal of a products liability lawsuit, Koutsoukos v. Toyota Motor Sales, because the plaintiff did not present expert testimony regarding the allegedly defective product. The alleged defect involved the front driver’s side airbag of a vehicle that failed to deploy during an accident, resulting in the death of the plaintiff’s daughter, who was driving the vehicle. The plaintiff, acting as executor for his daughter’s estate, argued that the product defect was obvious to an ordinary consumer and that expert testimony was therefore unnecessary. The court disagreed, finding that the type of defect alleged by the plaintiff required supporting expert testimony.

Melissa Koutsoukos was killed in a single-car accident on April 9, 2006, when her 2006 Toyota Scion tC went off the road on Merritt Parkway in Trumbull, Connecticut. According to a reconstruction of the accident by a mechanical engineer retained by the defendants, as the vehicle went onto an exit ramp, it went off the road to the left, then went back onto the road and went into a clockwise spin. When the car went off the road on the right side, it had spun nearly 180 degrees and was traveling backwards. The rear left side of the vehicle struck a boulder, causing it to continue to spin clockwise. The front of the vehicle struck a lamp post, and it came to rest in the highway’s breakdown lane. The driver was reportedly not wearing a seatbelt, and the driver’s side airbag did not deploy. She was thrown from the vehicle and suffered fatal injuries.

The driver’s father, Dimitrios Koutsoukos, filed suit against Toyota Motor Sales, U.S.A., Inc., the vehicle’s manufacturer, and Crabtree Motors, Inc., the vehicle’s retailer, on April 9, 2008. The lawsuit alleged, pursuant to the Connecticut Product Liability Act, Connecticut General Statutes § 52-572m et seq., that the defendants were liable for Melissa Koutsoukos’ death because of a defect in the airbag. The suit only alleged that the airbag’s failure to deploy caused her death, not that it caused the accident itself.

Jury Assesses $2M Verdict Against Company that Patented, but Did Not Manufacture, Asbestos-Containing Products: Saldibar, et al v. A.O. Smith Corp., et al

244234_7882.jpgIn a Connecticut lawsuit alleging products liability and wrongful death for alleged asbestos exposure, Saldibar, et al v. A.O. Smith Corp., et al, a court denied a motion for summary judgment brought by a defendant that held patents on asbestos-containing products, but never manufactured them. The defendant, a trade association, alleged that it was not a “seller” as defined by Connecticut products liability law. A jury later found for the plaintiffs, and the court entered a judgment awarding them more than $2.2 million. The decision regarding the trade association defendant could significantly alter Connecticut products liability law by expanding the range of potential defendants.

The decedent, Hannibal Saldibar, was allegedly exposed to asbestos from various products when he served in the U.S. Navy as a petty officer from 1943 to 1946, and during the time he worked as a tile setter from his Navy discharge until 1979. He filed suit with his wife, Eleanor Saldibar, in April 2009 against various defendants for alleged violations of the Connecticut Product Liability Act (CPLA), Conn. Gen. Stat. § 52-572m. After Saldibar died from mesothelioma in 2010, the executor of his estate, Gail Acquarulo, substituted as a plaintiff. The lawsuit also alleged that the defendants possessed knowledge of the hazards of asbestos as far back as 1929, and it therefore claimed gross, wanton, willful, and malicious negligence.

One of the defendants, Tile Council of North America, moved for summary judgment in January 2010, arguing that it was not a “product seller” under the CPLA because it was not a “manufacturer, wholesaler, distributor, or retailer” of products. Conn. Gen. Stat. § 52-572m(a). It was, it claimed, a trade association that merely held a patent on mortar used in tile setting. The plaintiffs responded that the CPLA includes companies that hold themselves out as manufacturers. Tile Council replied that it never publicly presented itself as a manufacturer.

Connecticut Court Finds that Homeowner’s Insurance Policy Excludes Coverage for Motorcycle Accident Wrongful Death Lawsuit

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1262369_50725916.jpgThe Connecticut Court of Appeals affirmed a trial court’s ruling that an insurance company, under the terms of a homeowner’s policy it issued, is not responsible for covering a wrongful death claim arising from a motorcycle accident. The insurance company filed a suit for declaratory judgment in New London County Mutual Ins. Co. v Bialobrodec, based on a wrongful death lawsuit against its insured. The company asked the court to confirm its obligations under the insurance policy. The wrongful death lawsuit alleged multiple causes of action, including negligent supervision of the insured’s son, who allowed the decedent to use his motorcycle. The trial court in the declaratory action ruled in the insurance company’s favor, finding that the injury in question was the result of a motor vehicle accident, and that the policy excluded coverage for such accidents.

Adrian Bialobrodec allowed his friend TyCody Dzikiewicz to use his motorcycle at about 12:35 a.m. on September 1, 2008. TyCody reportedly suffered fatal injuries when he lost control of the motorcycle and hit a tree. The administrator of TyCody’s estate, Edward Dzikiewicz, filed suit against Adrian’s parents, Andrzej and Grazyna Bialobrodec, on November 5, 2009, alleging negligent supervision of Adrian, leading to TyCody’s death. The suit claimed that the Bialobrodecs were negligent in allowing Adrian to purchase the motorcycle and give it to TyCody to use. Dzikiewicz also named Adrian as a defendant in the lawsuit, alleging that he negligently failed to supervise TyCody and his use of the motorcycle.

Products Liability and Wrongful Death Claim Against Gun Manufacturer Thrown Out by Appeals Court

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320px-P80_pistole.jpgA wrongful death suit against a gun owner and the gun’s manufacturer has demonstrated the difficulty of pursuing a products liability claim involving a firearm. The Appeals Court of Massachusetts affirmed the trial court’s summary judgment for the defendants in Ryan v. Hughes-Ortiz, 81 Mass. App. Ct. 90 (Mass. App. Ct. 2012), finding that federal statutes bar recovery under the facts and circumstances of the case. The appeals court based its decision on the conduct of the decedent more than any condition of the gun.

Thomas Hughes owned a Glock 9mm Model 17 pistol, which he kept, along with other firearms, in a chest in a locked second-floor bedroom. Hughes testified that he helped Charles Milot reestablish himself after Milot’s release from an eighteen-month prison stay in November 2001. This included paying Milot for odd jobs at his home. Milot’s sister testified that Milot showed her two handguns at a family event in February 2002, which he said he got from Hughes’ house using a key he found. She said Milot agreed to return the guns to where he found them.

On February 25, 2002, Hughes left Milot at his house with instructions for repairs. When he returned, he found Milot’s body in the front doorway, where he was pronounced dead. Police concluded that, while Milot was attempting to return the pistol to its plastic case in the upstairs bedroom, the gun fired, striking Milot in the leg and hitting his femoral artery. Milot made it downstairs and was able to use the telephone before collapsing.

Settlement Reached in Wrongful Death Lawsuit over 2010 Boat Accident

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The parents of two Hungarian students who died when a barge collided with their tour boat in Philadelphia settled their wrongful death lawsuit against the companies that operated the two vessels and the city. The settlement occurred after two days of trial in federal court, after the judge urged the attorneys to try to settle the case. The defendants had asserted caps on liability based on federal maritime law.

The two students, 16 year-old Dora Schwendtner and 20 year-old Szabolcs Prem, drowned after an eighty-yard barge collided with their tour boat in July 2010. The tour boat, an amphibious “duck boat” that could both drive on land and water, had become disabled. Someone had reportedly left a radiator cap off of the engine, causing it to overheat in the 103-degree weather. The captain dropped anchor in the middle of a busy channel on the Delaware River near downtown Philadelphia, having mistaken steam coming off the engine for a fire. The duck boat reportedly lacked a radio and an emergency air horn. Thirty-seven passengers and crew were on board.

A tugboat was pushing the barge in the same channel. The tugboat captain, reportedly distracted by a family medical emergency, had moved to a part of the boat where he could not see the river in order to use his cellphone. He therefore did not see the duck boat, which was dead in the water in the barge’s path. The barge crashed into the duck boat, causing it to capsize and sending thirty-five passengers and crew into the water. Schwendtner and Prem were trapped on the boat, where they drowned. At least twenty-six people were injured. The tug pilot pleaded guilty to involuntary manslaughter in November 2011 and received a one-year prison sentence.