Lasso v. Valley Tree & Landscaping, LLC

209 Conn.App. 584

269 A.3d 202

Kleber Gonzalo Loja LASSO, Administrator (Estate of Luis Albaro Ortega Ortega), et al.

v.VALLEY TREE AND LANDSCAPING, LLC, et al.

AC 43813

Appellate Court of Connecticut.

Argued October 4, 2021

Officially released January 4, 2022

Jeffrey I. Carton, for the appellants (plaintiffs).

Michael S. Lynch, with whom, on the brief, was Nicole A. Carnemolla, Shelton, for the appellee (defendant O & G Industries, Inc.).

Bright, C. J., and Alvord and Harper, Js.

HARPER, J.

The plaintiffs, Kleber Gonzalo Loja Lasso, as administrator of the estate of the decedent, Luis Albaro Ortega Ortega (Ortega), and Marcia Del Lourdes Gualan Coronel (Coronel), appeal from the judgment of the trial court granting the motion of the defendant O & G Industries, Inc. (O & G), for summary judgment as to counts four and five of the revised complaint, which alleged claims against O & G for the wrongful death of Ortega pursuant to General Statutes § 52-555 and for loss of consortium on behalf of Coronel, who was married to Ortega at the time of his death.¹ On appeal, the plaintiffs claim that the court improperly granted the motion for summary judgment filed by O & G because (1) issues of material fact existed concerning O & G's responsibility for ensuring safe workplace practices with respect to certain tree removal work performed by the defendant Valley Tree and Landscaping, LLC (Valley Tree), and (2) the court erred in failing to find, pursuant to a construction contract between O & G and the borough of Naugatuck (borough), that O & G owed a duty of care to Valley Tree and, hence, to Ortega. The plaintiffs also claim that the court improperly rendered summary judgment as to Coronel's loss of consortium claim against O & G, which was derivative of the negligence claim against O & G. We disagree and affirm the judgment of the trial court.

The record before the court, viewed in the light most favorable to the plaintiffs, reveals the following relevant facts and procedural history. In 2011, O & G was awarded a contract with the borough to act as construction manager for a project to renovate Naugatuck High School in 2012 (renovation project). In 2015, the building committee for the borough determined that additional borough funds could be used to remove trees near an upper parking lot for aesthetic purposes and to improve the viewing of fields for sporting events. The parking lot and trees to be removed were adjacent to, but not a part of, Naugatuck High School grounds where the renovation project was taking place. Two members of the building committee viewed the site to determine which trees to remove, and those trees were flagged by the building committee members. At the request of the building committee, Joseph Vetro, O & G's project director, solicited bids from two companies and went to the site with representatives from those companies in order to point out the trees that were flagged for removal by the building committee. After the bids were submitted, the building committee voted to award the tree removal work to Valley Tree, issued a purchase order to Valley Tree for the tree removal work and sent an e-mail to the owner of Valley Tree accepting its bid. On December 16, 2015, Ortega was working for Valley Tree operating a mini excavator to remove trees from the upper parking lot area. The mini excavator had no door and there was no glass in the front and right-hand side windows. While performing that work, Ortega stood up to remove some branches near the right side window when the boom arm of the mini excavator suddenly came down, crushing him. He died as a result of the significant internal injuries he sustained in the accident.

In their revised complaint, the plaintiffs alleged in count four that "[t]he mini excavator operated by Ortega was in a dangerous and defective condition in that it was missing several protective window enclosures that were designed not to open, thereby preventing its operator, including Ortega, from accessing any area where the operator may come into contact with the boom arms of the mini excavator." The revised complaint further alleged that the protective window enclosures had been missing from the mini excavator for approximately one month prior to Ortega's accident and that, as a result, it was operated by Valley Tree in a hazardous condition. The revised complaint also alleged that O & G, in its role as construction manager, "oversaw the entire renovation project," and that, "[b]ecause of its role as construction manager, O & G had numerous duties, which include[d], but [were] not ... limited to, the following: managing the construction; coordinating the construction; conducting daily or other periodic inspections of the renovation site to monitor conditions at the site; ensuring that the construction at the site was performed in a safe and proper manner; ensuring that contractors at the site performed their work in compliance with federal and/or Connecticut workplace safety standards and regulations; obtaining satisfactory performance from contractors at the site; notifying the owner of the property of any hazardous or dangerous conditions; assisting the owner of the property in arranging for contractors to actually perform the construction work; ensuring that contractors at the site are coordinated; monitoring the field activities of each contractor at the site; and recommending courses of action to the owner of the property with respect to failures in the performance of the contractors at the site."

According to the allegations of count four of the revised complaint, O & G was negligent, inter alia, in failing (1) "to prevent Ortega from operating the mini excavator that was in a hazardous condition," (2) "to observe and detect that Valley Tree was performing its work in an unsafe and hazardous manner" and to stop Valley Tree from doing so, (3) to monitor the construction site and to secure a safe workplace, and (4) to exercise reasonable care in fulfilling its duties as the construction manager for the project. In count five of the revised complaint, Coronel, based on the same allegations in count four, alleged a claim against O & G for loss of consortium.

On October 2, 2018, following the completion of discovery, O & G filed a motion for summary judgment as to counts four and five of the revised complaint, claiming that "[a] wrongful death claim based on negligence against O & G ... [could not] be maintained as a matter of law since ... O & G owed no duty to the plaintiffs," and that no genuine issues of material fact existed. Specifically, in its memorandum of law in support of its motion for summary judgment, O & G claimed that "[t]he scope of [its] duties and obligations as construction manager for the work performed on the [renovation] project [was] limited to those [duties and obligations] set forth in its contract with the borough," and that it had no independent duty or obligation to perform tasks or services for the project apart from the duties and obligations set forth in the contract, which was devoid of any reference to the tree removal work performed by Valley Tree in the upper parking lot adjacent to the high school grounds. Moreover, O & G asserted that "there [was] no change order or other amendment [to its contract with the borough] that ever brought such work within [its] contractual scope of work."

In further support of its claim that it owed no legal duty to Ortega, O & G argued that (1) "[i]t [was] undisputed that the borough directly hired Valley Tree to perform tree removal work in an area outside the contract limit line established in O & G's contract," (2) "O & G never exercised any dominion, rights or control over that area, nor did it ever contractually agree to oversee, direct, manage or supervise any of Valley Tree's work," and (3) "Valley Tree worked independently, utilizing its own equipment, machinery, manpower, and means and methods to perform the work contracted by the borough, completely outside O & G's scope of work." Finally, given its claim that the negligence count was insufficient as a matter of law, O & G argued that the loss of consortium claim, which was a derivative claim and not a separate cause of action, necessarily failed as well.

On December 17, 2018, the court, Brazzel-Massaro , J ., heard arguments on the motion for summary judgment. On January 9, 2020, the court issued a comprehensive memorandum of decision granting O & G's motion for summary judgment. In its decision, the court explained that "[t]he sole issue raised in opposition to the [motion for] summary judgment is whether the argument that the deposition testimony of various [borough] officials, the construction manager and the owner of Valley Tree, as well as the contract documents support a duty owed by O & G." In granting the motion for summary judgment, the court analyzed the contractual provisions, the actions of O & G in working on the renovation project, the deposition "testimony of the various officials of the [borough], the construction manager and the owner of Valley Tree ... as to the implementation of the contractual provisions and the operation of the project by O & G," and "the circumstances surrounding the hiring of Valley Tree for removal of the trees, including the bidding, the award of the bid, and the actions thereafter in accordance with the contract."

The court ultimately concluded that "the plaintiffs have [presented] no evidence or testimony that would create a duty as to O & G or any of its employees because the facts demonstrate that there is no genuine issue of fact that (1) the area of the work by Valley Tree was not a part of the construction limit line defined for the contractual obligations of O & G; (2) the contract clearly defines and establishes the duties and responsibilities of O & G as the construction management group for the [renovation project]; (3) the tree removal work was not work included in the contract [to renovate] ......