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CONRAD BOUCHARD v. TOWN OF DEEP RIVER

(AC 35972)

Alvord, Sheldon and Pellegrino, Js.

Argued September 16, 2014—officially released February 24, 2015

(Appeal from Superior Court, judicial district of

Middlesex, Aurigemma, J.)

James M. Harrington, for the appellant (plaintiff).

Thomas R. Gerarde, with whom, on the brief, were

Kristan M. Maccini and Rachel M. Bradford, for the

appellee (defendant).
Opinion

PELLEGRINO, J. In this negligence action, the plaintiff, Conrad Bouchard, appeals from the summary judgment rendered in favor of the defendant, the town of

Deep River. The plaintiff claims that the trial court

improperly determined that his claims were barred by

the doctrine of governmental immunity. We affirm the

judgment of the trial court.

The following facts are relevant to the plaintiff’s

appeal. The defendant operates a residential waste disposal and transfer station. The defendant permits members of the public to use the premises, and on June 29,

2011, the plaintiff, an invitee, was on such premises.

On the premises, there is an elevated and open-sided

concrete platform approximately six to eight feet above

ground level. On one edge of the platform wall, there

is a roll-off dumpsterinto which invitees were permitted

to deposit waste and unwanted goods. The dumpster

is designed for persons with trucks to be able to deposit

material into it, but often is used by individuals who

walk up on the raised platform and deposit waste material into the dumpster by hand.

On the date in question, after he made several trips

to the dumpster carrying scrap lumber, the plaintiff

looked into the dumpster to see if there was anything

he could pull out and salvage. While walking on the

raised platform near one edge of the dumpster, the

plaintiff tripped and fell into it. The plaintiff fell approximately six to eight feet from the platform’s surface to

the dumpster’s bottom. According to the plaintiff, the

area from which he fell had been cleared of all debris.

Consequently, the plaintiff was unaware of what caused

him to trip and fall. None of the defendant’s employees

or any other person witnessed the plaintiff fall or knew

that the plaintiff was at the dumpster that day. As a

result of the fall, the plaintiff allegedly suffered injuries

to his back. The plaintiff alleged that these injuries

were caused by the negligence and carelessness of the

defendant in violation of General Statutes § 52-557n.1

The plaintiff alleged in his amended complaint that

he was injured while using a dumpster at a transfer

station owned by the defendant. He further alleged that

the defendant was negligent, in violation of § 52-557n,

by failing to: (1) warn individuals of the dangerous

condition, (2) inspect the premises, (3) provide caution

signage or other visible warnings, and (4) install a protective measure to prevent persons from walking along

the edge of the platform adjacent to the dumpster in

compliance with the federal Occupational Safety and

Health Administration (OSHA)2regulation codified in

29 C.F.R. § 1910.23 (c) (1).3

In its motion for summary

judgment, the defendant argued that the plaintiff’s

claims were barred by the doctrine of governmental

immunity because the acts of maintenance, inspection
and issuance of warnings are discretionary acts entitled

to such immunity, and the OSHA regulations impose

duties on employers only to their employees, not to

nonemployees such as the plaintiff. The plaintiff, in

opposition to the motion for summary judgment, argued

that whether the duty conferred upon the defendant

under OSHA is ministerial or discretionary is a question

of fact for the jury, and that OSHA regulations may be

relied upon even by nonemployees as evidence of negligence.

The defendant filed a reply to the plaintiff’s objection

to the motion for summary judgment, highlighting the

argument that: ‘‘[T]he plaintiff failed to satisfy the pleading requirements for sufficiently alleging a breach of

ministerial duty. . . . The plaintiff . . . fails to recognize that simply alleging the violation of an arguably

applicable OSHA Regulation § 1910.23 (c) (1) does not

automatically create a ministerial duty.’’ The plaintiff,

in his sur-reply brief, argued that this OSHA regulation

provides for no discretion, is clearly applicable to the

facts of the present case, and was clearly violated by

the defendant.

The court issued a memorandum of decision on July

16, 2013, granting the defendant’s motion for summary

judgment. In ruling in favor of the defendant, the court

found that all the duties allegedly breached by the defendant were discretionary in nature, and thus the plaintiff’s claims of negligence premised upon them were

barred by governmental immunity, to which no exception applied. Further, the court stated that there was

no evidence that the OSHA regulation applied to the

platform adjacent to the dumpster at issue in this litigation; and, even if there was such evidence, the existence

of such a regulation does not transform a discretionary

legal duty to inspect and/or maintain a public premises

in a reasonably safe condition into a ministerial duty

to act in a prescribed manner. The court did not reach

the other question discussed by the parties, namely,

whether the plaintiff, as a nonemployee, could bring a

claim of negligence premised on an alleged breach of

an OSHA regulation. The plaintiff filed a motion for

reconsideration, which was denied. This appeal

followed.

On appeal, the plaintiff makes two claims of error

concerning the court’s rejection of its claim based upon

the violation of its duties under the OSHA regulation.4

First, the plaintiff claims that the court erred ‘‘in ruling

as a matter of law that the defendant’s compliance with

the OSHA regulation . . . was discretionary.’’ Second,

the plaintiff claims that the court erred ‘‘in ruling on

an alternative basis that even if compliance with the

subject OSHA regulation was deemed to be a ministerial

duty, there existed no question of fact as to whether

the defendant failed to comply with that ministerial

duty.’’ We affirm the judgment of the trial court on the
alternative ground that OSHA imposes no duty of any

kind upon the defendant for the benefit of the plaintiff

because the plaintiff was never the defendant’s

employee.5

We begin with our standard of review. ‘‘Summary

judgment shall be rendered forthwith if the pleadings,

affidavits and other proof submitted show that there is

no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.

. . . The scope of our appellate review depends upon

the proper characterization of the rulings made by the

trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must

decide whether its conclusions are legally and logically

correct and find support in the facts that appear in the

record.’’ (Internal quotation marks omitted.) Vendrella

v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313,

87 A.3d 546 (2014).

‘‘In deciding a motion for summary judgment, the

trial court must view the evidence in the light most

favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the

absence of any genuine issue [of] material facts which,

under applicable principles of substantive law, entitle

him to a judgment as a matter of law . . . and the party

opposing such a motion must provide an evidentiary

foundation to demonstrate the existence of a genuine

issue of material fact.’’ (Internal quotation marks omitted.) Id., 313–14.

We begin with the threshold issue of whether OSHA

even applies to the circumstances of this case, which

was briefed by both parties, here and before the trial

court, and we believe is dispositive of this appeal. Our

Supreme Court in Grady v. Somers, 294 Conn. 324,

349–50 n.28, 984 A.2d 684 (2009), acknowledged that

circumstances exist where although the trial court did

not reach a dispositive issue and the defendant did not

raise that issue in a preliminary statement of issues

as an alternative ground for affirmance pursuant to

Practice Book § 63 (a) (1),6 a court can still affirm the

judgment of a trial court so long as the plaintiff is not

prejudiced or unfairly surprised by the consideration

of the issue. In Grady, our Supreme Court stated the

following explanation as to when an appellate court can

affirm on alternative grounds: ‘‘Ordinarily, we would not

reach this issue because the trial court did not rule on

it; see Vine v. Zoning Board of Appeals, 281 Conn. 553,

568, 916 A.2d 5 (2007); and the defendant did not raise

it in its preliminary statement of the issues filed pursuant to Practice Book § 63-4 (a) (1). See Achillion Pharmaceuticals, Inc. v. Law, 291 Conn. 525, 528 n.5, 970

A.2d 57 (2009). We will, however, resolve this issue

as an alternate ground for affirmance because it is a

question of law, the essential facts of which are undisputed, over which our review is plenary; see, e.g., Pur-
zycki v. Fairfield, 244 Conn. 101, 107–108 and n.4, 708

A.2d 937 (1998) (court resolved issue of qualified immunity where question of law presented and material facts

undisputed); and the plaintiff will not be prejudiced or

unfairly surprised by our consideration of this issue

because it was he who had raised this issue initially

both in his preliminary statement of the issues and in

his appellate brief, as well as in his memorandum of

law submitted to the trial court in opposition to the

defendant’s summary judgment motion. See Connecticut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779,

784 n.4, 900 A.2d 18 (2006); see also Windels v. Environmental Protection Commission, 284 Conn. 268, 303,

933 A.2d 256 (2007)(declining to reach alternate ground

for affirmance when issue was not reached by trial

court, and appellee did not file preliminary statement

of issues indicating intent to raise alternate grounds,

resulting in lack of notice to appellant, who did not

have opportunity to address issue in opening brief).’’

Grady v. Somers, supra, 349–50 n.28; see also Harris

v. Bradley Memorial Hospital & Health Center, Inc.,

306 Conn. 304, 322, 50 A.3d 841 (2012), cert. denied,

U.S. , 133 S. Ct. 1809, 185 L. Ed. 2d 812 (2013); Gerardi

v. Bridgeport, 294 Conn. 461, 466, 985 A.2d 328 (2010).

In the present case, the issue of the defendant’s

alleged duties to the plaintiff under OSHA were adequately raised before the trial court and briefed and

argued before this court to warrant considering that

issue as an alternative basis for affirming the trial

court’s granting of summary judgment. Specifically, the

issue of whether the OSHA regulation applied to the

plaintiff, as a nonemployee, was brought before the

court in the defendant’s motion for summary judgment

and was addressed in the plaintiff’s memorandum in

opposition to the defendant’s motion for summary

judgment.

OSHA is designed to impose duties upon employers

to ensure worksite safety for the benefit of their own

employees as well as any other employees working on

or at any worksite that is under the employer’s control.

See Wendland v. Ridgefield Construction Services,

Inc., 184 Conn. 173, 176–77, 439 A.2d 954 (1981). The

regulations promulgated under OSHA outline the purpose and scope in relevant part as follows: ‘‘[T]he Secretary shall, as soon as practicable . . . by rule

promulgate as an occupational safety or health standard

any national consensus standard, and any established

Federal standard, unless he determines that the promulgation of such a standard would not result in improved

safety or health for specifically designated employees.

. . .’’ (Emphasis added.) 29 C.F.R. § 1910.1 (a). The

OSHA regulations further provide that the standards

enumerated are applicable, with certain exceptions not

relevant here, ‘‘with respect to employments performed

in a workplace in a State’’; (emphasis added) 29 C.F.R.

§ 1910.5 (a); and specifies that ‘‘[i]n the event a standard
protects on its face a class of persons larger than

employees, the standard shall be applicable under this

part only to employees and their employment and

places of employment.’’ 29 C.F.R. § 1910.5 (d). When

§§ 1910.1 and 1910.5 are read in conjunction, it is clear

that OSHA applies specifically to designated employees

of workplaces in a given state.

On the date of the incident in question, June 29, 2011,

there is no dispute thatthe plaintiff was not an employee

of the defendant, nor has the plaintiff ever been an

employee of the defendant. Therefore, the OSHA regulation cited by the plaintiff creates no duty at all, discretionary or ministerial, to him because of his status as

a nonemployee. We therefore do not reach the substance of the plaintiff’s claims because OSHA regulations are intended to benefit specifically designated

employees and therefore do not apply to this plaintiff,

who is a nonemployee. The court properly rendered

summary judgment for the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

1 General Statutes § 52-557n (a) provides: ‘‘(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages

to person or property caused by: (A) The negligent acts or omissions of

such political subdivision or any employee, officer or agent thereof acting

within the scope of his employment or official duties; (B) negligence in the

performance of functions from which the political subdivision derives a

special corporate profit or pecuniary benefit; and (C) acts of the political

subdivision which constitute the creation or participation in the creation

of a nuisance; provided, no cause of action shall be maintained for damages

resulting from injury to any person or property by means of a defective

road or bridge except pursuant to section 13a-149. (2) Except as otherwise

provided by law, a political subdivision of the state shall not be liable for

damages to person or property caused by: (A) Acts or omissions of any

employee, officer or agent which constitute criminal conduct, fraud, actual

malice or wilful misconduct; or(B) negligent acts or omissions which require

the exercise of judgment or discretion as an official function of the authority

expressly or impliedly granted by law.’’

2 29 U.S.C. § 651 et seq.

3 29 C.F.R. § 1910.23 (c) (1) provides in relevant part: ‘‘Every open-sided

floor or platform 4 feet or more above adjacent floor or ground level shall

be guarded by a standard railing . . . on all open sides except where there

is entrance to a ramp, stairway, or fixed ladder. . . .’’

4

In his appeal, the plaintiff does not challenge the court’s decision on

the plaintiff’s other allegations regarding § 52-557n.

5

‘‘An appellate court is authorized to rely upon alternative grounds supported by the record to sustain a judgment. . . . Where the trial court

reaches a correct decision but on mistaken grounds, this court has repeatedly

sustained the trial court’s action if proper grounds exist to support it.’’

(Citation omitted; internal quotation marks omitted.) Mortgage Electrical

Registration Systems, Inc. v. Goduto, 110 Conn. App. 367, 372–73, 955 A.2d

544, cert. denied, 289 Conn. 956, 961 A.2d 420 (2008).

6 Practice Book § 63-4 (a) provides in relevant part: ‘‘At the time the

appellant sends a copy of the endorsed appeal form and the docket sheet

to the appellate clerk, the appellant shall also send . . . the following: (1)

A preliminary statement of the issues intended for presentation on appeal.

If any appellee wishes to: (A) present for review alternative grounds upon

which the judgment may be affirmed . . . that appellee shall file a preliminary statement of issues . . . .’’