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In a case of great interest to the construction industry and the plaintiff’s personal injury bar, the Connecticut Supreme Court, after protracted litigation spanning nearly 13 years, reversed a trial court judgment and damage award—in excess of 41 million dollars—against a general contractor for the negligence of a subcontractor. In Pelletier v. Sordoni/Skanska Construction Co., the state’s high court considered whether Sordoni, as general contractor for the construction of a building for Pitney Bowes, Inc., owed the plaintiff, Norman Pelletier, a non-delegable duty of due care to ensure the integrity of the welding of the structure’s steel frame.1 Pelletier was an employee of Berlin Steel Construction Company, a subcontractor engaged to fabricate and erect the building’s steel frame.

Among Berlin’s contractual obligations was the duty to inspect welds to ensure their integrity and the capacity of structural columns to bear the weight of crossbeams and other components of the frame. Although Sordoni reserved a right to inspect the steel and welds “solely for its own benefit,” its contract with Berlin emphasized that this reservation would not operate to relieve Berlin of its primary responsibilities as subcontractor.

In June of 1994, Pelletier suffered catastrophic injuries when struck by a steel crossbeam that fell on him only minutes after its installation between two columns by co-workers. It appeared undisputed that the cause of the collapse was insufficient “tack” welding of a steel flange on one of the columns that served as the seat connection for the two-ton beam. Pelletier was entitled to, and commenced receiving, workers compensation benefits from Berlin Steel.

He brought an action against Sordoni for negligence and breach of contract. He also asserted a claim of negligence against Professional Services Industries, Inc., a firm hired by Sordoni to inspect Berlin Steel’s work on the project. Both defendants moved for summary judgment under state appellate authority holding that a general contractor may not be held liable for the negligent acts of its subcontractors.2

The trial court granted both motions. In Pelletier’s first appeal, the Connecticut Supreme Court, in July of 2003, reversed the judgment for Sordoni on the negligence count and remanded the action for further proceedings. Rejecting an absolute bar, the court held that in certain defined circumstances, an injured employee of a negligent independent subcontractor might establish a “legal and factual basis” for imposition of liability on the general contractor.3

Upon remand, protracted proceedings ensued with Sordoni’s second attempt to gain summary judgment on the ground that the plaintiff could not establish a basis for any of the identified exceptions permitting general contractor liability. Once again, the trial court granted Sordoni’s motion. Upon Pelletier’s motion for reconsideration, however, the trial court vacated its decision, agreeing with Pelletier that it should have considered whether certain aspects of Sordoni’s contract with Berlin Steel and/or Sordoni’s obligations, under state statutes and building code regulations, gave rise to a separate and distinct duty to inspect all welds and otherwise exercise due care to prevent the injury.

The trial court concluded that Sordoni owed a non-delegable duty of due care to Pelletier based on section 1307 of the Building Officials and Code Administrators International, Inc., (BOCA) National Building Code, which requires special inspection of all welds.4 Further, the court held that a violation of the code’s provisions and standards respecting weld safety and inspection constitutes negligence per se. On the latter point, the trial court’s conclusion that this principle applied to Sordoni hinged on Sordoni’s status as the project’s permit applicant.

The case proceeded to trial on Pelletier’s claim against Sordoni based on a theory of statutory negligence. The trial court rejected Pelletier’s argument that the jury should also consider whether Sordoni was liable under principles of common law negligence, and/or one or two of the established exceptions permitting general contractor liability, to wit, whether there was an alleged peculiar or unreasonable risk of injury at the site, which required Sordoni to employ special precautions, in addition to the question of whether Sordoni retained, under its contract with Berlin Steel, control over Berlin’s work.

On November 29, 2005, the jury returned a verdict in favor of Pelletier, awarding him $5,645,834.74 in economic damages, $22,710,000 in non-economic damages, and an additional $3,800,000 in damages for loss of consortium, a claim shared by Pelletier’s spouse as a co-plaintiff.5 With attorneys’ fees and accrued postjudgment interest permitted by state statute, the initial award of $32,155,834.74 ballooned to a judgment worth $41,417,065.15.

On appeal for the second time, the case drew amicus curiae briefs from the Connecticut Building Congress, the Southern New England Chapter of the Construction Management Association of America, the Connecticut Council on Occupational Safety and Health, and the Connecticut Trial Lawyers Association.

On April 22, 2008, the Connecticut Supreme Court reversed the judgment and remanded the case to the trial court with a direction to render judgment for Sordoni. Justice Peter T. Zarella, writing for a unanimous court, agreed with Sordoni “that neither the building code itself, nor any provisions incorporated therein” created a non-delegable duty on its part to inspect all welds on the site and, accordingly, Sordoni’s failure to do so did not constitute negligence per se.

The justices found fault in the trial court’s interpretation of the building code, in particular its construction of the provision requiring permit applicants to “provide” special inspections to mean a duty on the part of Sardoni, as the permit holder, to conduct such inspections itself. Taking particular note of the code’s record-keeping and reporting requirements, which include the duty to “provide a list of the individuals, agencies and/or firms intended to be retained for conducting such inspections,” the justices reasoned such provisions belie any notion that the code imposes on general contractors a non-delegable duty and concluded the safety and inspection requirements properly fell on Sordoni’s chosen subcontractor.

Finally, the court rejected Pelletier’s alternative claim against Sordoni for common law negligence, finding no basis for imposition of general contractor liability. There was no evidence to support a finding that Sordoni knew or had reason to know of the defective weld. Nor, the court observed, did Sordoni assume control over Berlin’s work. Finally, the court disagreed that the nature of Berlin’s work was, as a matter of law, “inherently dangerous” or posed a “peculiar unreasonable risk of physical harm” such that special precautions were required to be taken by Sordoni.

* Karen Torre is an executive committee member of the Connecticut Federalist Society Lawyers’ Chapter and is of counsel to Norman A. Pattis, LLC. A constitutional litigator in the state and federal courts in Connecticut, Torre also authors a column in the Connecticut Law Tribune.

 

Endnotes

1 286 Conn. 563, 945 A.2d 388 (2008).

2 See Ray v. Schneider, 16 Conn. App. 660, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988).

3 See Pelletier v. Sordoni/Skanska Construction Co., 264 Conn. 509, 825 A.2d 72 (2003). Among the exceptions to the general rule precluding such liability are work contracted for which is “intrinsically dangerous” or by its nature “calculated to cause injury to others”, the negligent hiring of an “incompetent or untrustworthy contractor,” the reservation by the general contractor of “general control over the contractor or his servants”, in-progress assumption of “control” or “interfere[nce]” with the contractor’s work”, or the existence of a identifiable legal duty to “see that the work is properly performed.” Id. at 518.

4 This model construction code, and its constituent provisions incorporating the standards of the Structural Welding Code – Steel of the American Welding Society, Inc. were adopted by the State of Connecticut as part of its own building code. See Conn. Gen. Stat. § 29-252. Section 307.1 of that national code requires permit applicants to “provide” special inspections of steel fabrications; other sections articulate standards for weld fabrication and inspection and impose safety inspection record-keeping and reporting requirements. As is noted hereafter, the Connecticut Supreme Court’s rejection of the trial court’s analysis turned in large part on its interpretation of the term “provide.”

5 Mrs. Pelletier’s claim did not receive independent treatment by the high court as it was entirely derivative of her husband’s claims.

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