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Martel v. Connor Contracting, Inc.

Supreme Court of Vermont

October 12, 2018

Ira Martel
v.
Connor Contracting, Inc., Jason Clark, and Stephen Connor

          On Appeal from Superior Court, Washington Unit, Civil Division Mary Miles Teachout, J.

          Vincent Illuzzi, Orleans, for Plaintiff-Appellant.

          Pietro J. Lynn and Sean M. Toohey of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Defendants-Appellees Connor Contracting, Inc. and Stephen Connor.

          John E. Brady of Brady/Callahan, Springfield, for Defendant-Appellee Jason Clark.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          CARROLL, J.

         ¶ 1. This case is about two separate exceptions to the exclusivity rule of workers' compensation, the first of which applies when an employee is injured other than by accident, and the second of which applies when a person or entity can be held personally liable for an employee's injuries. Plaintiff Ira Martel appeals the trial court's decision granting summary judgment on his personal injury claims in favor of his employer, defendant Connor Contracting, Inc., and two co-employees, defendants Jason Clark and Stephen Connor. We hold that plaintiff's action against Connor Contracting is barred by the exclusive remedy provision of Vermont's Workers' Compensation Act. We further hold that plaintiff's action against the individual defendants is barred because the acts that plaintiff alleges give rise to liability fell within the scope of a nondelegable corporate duty and defendants, therefore, cannot be held personally liable for plaintiff's injuries. Accordingly, we affirm.

         ¶ 2. The following facts are undisputed except where otherwise noted. In August 2013, plaintiff was part of a four-person crew employed by Connor Contracting to perform roof repair work at the Montpelier Health Center. Defendant Jason Clark was the worksite foreperson, and defendant Stephen Connor was the treasurer of Connor Contracting and one of the company owners. While working on the project, plaintiff and the other members of the roofing crew used a personal-fall-arrest system (PFAS), which was safety equipment provided by Connor Contracting and required by the company's safety program rules, the federal Occupational Safety and Health Administration, and the Vermont Occupational Safety and Health Administration (VOSHA). See 29 C.F.R. § 1926.501(b)(2)(i) (2018) (requiring that employees be protected from falling by guardrail, safety net, or PFAS when working six feet or more above lower level); CFR 1910 Subpart D Walking Working Surfaces; Subpart I Personal Protective Equipment, Code of Vt. Rules 24 050 004, http://labor.vermont.gov/wordpress/wp-content/uploads/Subpart-D_Clean-text.pdf [https://perma.cc/B8C8-RGAE] (incorporating 29 C.F.R. § 1910.28(b)(1)(i) by reference and requiring employers to provide employees fall protection, including guardrail, safety net, or personal fall protection system, for work performed four feet or more above lower level). The PFAS is a four-part safety system: a harness worn by the worker; an anchor, which is typically part of the building where the work is taking place; a lanyard; and a D ring. The lanyard is attached to the anchor point and the D ring. The PFAS is designed to catch users if they fall off the elevated work surface and thereby prevent a potentially injuring impact.

         ¶ 3. The Health Center roofing project was scheduled for completion on August 13, 2015. Plaintiff and two other members of the original work crew remained at the site on the last day of the project, completing the final work on the soffit of the building's main roof.[1] Defendant Clark, the worksite foreman, was not on site. The soffit work had to be completed by standing on the roof of an entrance porch below the main roof because the mechanical boom lift at the site could not reach this particular area of the roof. The entrance porch roof was ten to fifteen feet above the ground. Plaintiff was completing the soffit work when he fell from the edge of the roof, hit the ground below, and was injured.[2] He was not wearing a PFAS at the time he fell. The parties dispute whether a complete PFAS system was still at the project site on that day and available for plaintiff's use. Plaintiff alleges that Connor Contracting had moved the D ring component of the PFAS to a different worksite the day before. More specifically, he alleges that defendant Clark removed the D ring from the site under the direction of defendant Stephen Connor. Thus, plaintiff alleges that he was left with only a harness and lanyard at the site and no way to attach the harness to an anchor point. Connor Contracting disputes the removal of the PFAS and states that defendant Clark left two harnesses and lanyards at the project site.[3]

         ¶ 4. Plaintiff filed a workers' compensation claim after his accident and received benefits. In July 2016, plaintiff filed this action, alleging separate causes of action against Connor Contracting and the individual defendants. Plaintiff sought damages in both-against Connor Contracting on the theory that the company had acted with substantial certainty of causing him injury or death when it removed parts of the PFAS from the Health Center worksite, and against the individual defendants on a coemployee-personal-liability theory based on the same alleged removal of required safety equipment. The trial court granted defendants summary judgment on both claims, deciding that workers' compensation provided plaintiff's sole remedy for the injuries he sustained, and accordingly plaintiff could not pursue an alternate remedy against either Connor Contracting or the individual defendants on the facts alleged. Plaintiff now appeals.

         ¶ 5. This Court reviews "summary judgment decisions de novo, using the same standard as the trial court." Gauthier v. Keurig Green Mountain, Inc., 2015 VT 108, ¶ 14, 200 Vt. 125, 129 A.3d 108. Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a). A fact is material if it might affect the outcome of the action. Gauthier, 2015 VT 108, ¶ 14. When we consider the facts, "we give the nonmoving party the benefit of all reasonable doubts and inferences." H & E Equip. Servs., Inc., v. Cassani Elec., Inc., 2017 VT 17, ¶ 10, 204 Vt. 559, 169 A.3d 1308 (quotation and alteration omitted). "Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Gauthier, 2015 VT 108, ¶ 14 (quotation omitted).

         ¶ 6. Plaintiff raises two arguments on appeal. First, he argues that the trial court should have denied summary judgment for defendant Connor Contracting because the removal of PFAS components raises a jury question concerning whether Connor Contracting acted with the level of intent to injure plaintiff required to circumvent the exclusive remedy provision of the Workers' Compensation Act under Vermont law. Second, he asserts that the trial court should have denied summary judgment for the individual defendants because the actions of defendants Clark and Connor were outside of the scope of nondelegable corporate duties and thus gave rise to personal liability for plaintiff's injuries. We begin with plaintiff's argument as to Connor Contracting.[4]

         ¶ 7. Plaintiff's claim against Connor Contracting depends on whether his injuries can be said to have occurred "accidentally." If they occurred accidentally, then the Workers' Compensation Act bars an alternate remedy. Conversely, if plaintiff's injuries can be characterized as nonaccidental, then plaintiff may pursue an alternate remedy. Our analysis of this question therefore starts with the workers' compensation statute, which in the usual course provides an exclusive remedy-"the rights and remedies granted by [workers' compensation] to an employee on account of a personal injury for which he or she is entitled to compensation . . . shall exclude all other rights and remedies of the employee . . . at common law or otherwise on account of such injury." 21 V.S.A. § 622. An employee is entitled to collect workers' compensation benefits if the employee "receives a personal injury by accident arising out of and in the course of employment by an employer." Id. § 618(a)(1) (emphasis added). In this case, it is undisputed that plaintiff was a statutory employee of Connor Contracting for purposes of the Workers' Compensation Act, defendant Connor Contracting was plaintiff's statutory employer, and plaintiff was injured "in the course of [his] employment." Id.; see also id. §§ 601(3) (defining employer), 601(14) (defining employee). The only question, then, is whether plaintiff's injuries occurred "by accident" as that phrase is defined within the context of workers' compensation. Id. § 618(a). As explained more fully below, we hold that the trial court correctly granted summary judgment to Connor Contracting on this question.

         ¶ 8. Three cases are relevant to our discussion here: Kittell v. Vermont Weatherboard, Inc., 138 Vt. 439, 417 A.2d 926 (1980) (per curiam); Mead v. Western Slate, Inc., 2004 VT 11, 176 Vt. 274, 848 A.2d 257; and Stamp Tech, Inc. v. Lydall/Thermal Acoustical, Inc., 2009 VT 91, 186 Vt. 369, 987 A.2d 292. In Kittell, the earliest of these three cases, the plaintiff alleged that he was injured after his employer had him operate a saw, without any training or experience, from which the employer had removed all safety equipment, and that this constituted "wanton and wilful acts and omissions" that should permit recovery beyond workers' compensation. 138 Vt. at 440, 417 A.2d at 926. This Court framed the issue as "whether [the plaintiff's] complaint pleads a cause of action outside the scope of" workers' compensation-put more precisely, the Court had to determine "whether plaintiff's allegation of wilful and wanton conduct leading to a sudden but foreseeable injury constitutes personal injury by accident." Id. (quotation omitted). We explained:

The overwhelming weight of authority in other jurisdictions is that "the 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 genuine intentional injury."

Id. at 441, 417 A.2d at 927 (quoting 2A A. Larson, Workmen's Compensation Law § 78.13, at 13-5 (1976)). We accordingly held that "[n]othing short of a specific intent to injure falls outside the scope of the [Workers' Compensation] Act," and that, because the plaintiff alleged wilful and wanton action, not action taken with specific intent to injure, he could not pursue an alternate, common-law remedy in place of workers' compensation. Id.

         ¶ 9. Mead presented essentially the same issue as Kittell. There, a quarry employee injured in a rock fall at his worksite collected workers' compensation but also filed a personal injury action against his employer, alleging that evidence of a recent rock fall at the same location should have prompted the employer to stop operations at that location. We described the employee's claim as "alleging that [the employer] had committed an intentional tort by failing to order [the employee] to cease operations and leave the area after the initial rock fall, resulting in a substantial certainty of injury." 2004 VT 11, ¶ 4. The trial court denied the employer's motion to dismiss, which argued that the Workers' Compensation Act barred the employee from seeking an alternate remedy, and the action proceeded to a jury trial. The court instructed the jury that in order to find for the employee, the jury must conclude that he had presented sufficient evidence to prove that his employer "had the 'specific intent to injure him,' but that such intent could be established in one of two ways: that [the] defendants either 'had the purpose or desire to cause him injury or that although the [d]efendants lacked such purpose or desire they knew to a substantial certainty that their actions would bring about his injury.'" Id. ¶ 6; see also Restatement (Second) of Torts § 8A (1965) ("The word 'intent' is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it."); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985) (stating workers' compensation does not bar alternate remedy where employee is injured intentionally, specific intent to injure is "fundamental difference" between negligent and intentional injuries, and adopting two-prong Restatement (Second) of Torts § 8A definition of intent as definition of specific intent to injure). Thus, while the broader issue in Mead was like that in Kittell, the narrow question before the Court was whether the trial court's instructions to the jury were correct-that intent to injure could be proved where an employer had knowledge of the substantial certainty of injury.

         ¶ 10. We did not answer this narrow question in Mead. Instead, we explained that the evidence presented in support of the employee's claim was insufficient to satisfy either intent to injure or substantial certainty. Mead, 2004 VT 11. ¶ 18. We further explained that, "[e]ven assuming that we were receptive to modifying Kittell consistent with the trial court's approach . . . we do not believe that the record here 'fairly and reasonably' supports a rational inference that [the employer] knew to a substantial certainty their actions would result in injury to [the employee]." Id. ¶ 17. Though the facts of Mead meant that we did not need to engage directly with the trial court's interpretation of Kittell, this statement means that Kittell's scope is narrow- and that we would need to modify the holding in Kittell to permit an injured employee to seek a remedy other than workers' compensation where the employer, although having no intent to injure, knew that injury to the employee was substantially certain to occur. Put another way, Mead supports reading Kittell to hold that an injury is intentional only when an employer "desires to cause [the] consequences of his act," but not when the employer "believes that the consequences are substantially certain to result from" an act. Restatement (Second) of Torts § 8A.

         ¶ 11. Stamp Tech, like Kittell and Mead, arose from an employee's claim that his workplace injuries were not "an accident" and consequently that workers' compensation did not bar a common law remedy, in this case for injuries sustained when a 200-ton press machine that may not have had safety guards crushed the employee's arm. 2009 VT 91, ¶¶ 25-26. As in Mead, both the substantial certainty and intent to injure standards came into play in the trial court; here, in the trial court's decision granting summary judgment in favor of the employer on the exclusive-remedy question, wherein the court addressed the employee's claim under both standards. Id. ΒΆ 28. In reviewing that decision, and ultimately reversing it, we expressly avoided considering whether to adopt the substantial-certainty-of-injury standard-"[w]ithout expressing an opinion as to whether we would entertain [the employee's] invitation to adopt ...


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