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Gedeon v. First Nat. Supermarkets, Inc.

Court of Appeals of Connecticut

March 13, 1990

Michael GEDEON
v.
FIRST NATIONAL SUPERMARKETS, INC.

Argued Dec. 14, 1989.

Certification Denied April 25, 1990.

Page 124

Sydney T. Schulman, Hartford, with whom, on the brief, was Kenneth J. Speyer, for appellant (plaintiff).

Jeffrey J. Mirman, with whom, on the brief, was Peter Schwartz, Farmington, for appellee (defendant).

Before DALY, NORCOTT and FOTI, JJ.

[21 Conn.App. 21] NORCOTT, Judge.

The plaintiff appeals following the trial court's granting of the defendant's motion for a judgment notwithstanding the verdict. The trial court based its ruling on its finding that the principal employer defense barred this action and limited the plaintiff's recovery to that provided by the Workers' Compensation Act. General Statutes § 31-275 et seq. The plaintiff claims that the trial court abused its discretion in granting the defendant's motion for judgment notwithstanding the verdict because the jury could reasonably have found that the principal employer defense did not apply and could, therefore, reasonably have returned a plaintiff's verdict. We find no error.

The jury could reasonably have found the following facts. Leaseway Transportation, Inc. (Leaseway) is in the business of leasing, supervising, maintaining and repairing tractor-trailer trucks. The defendant, First National Supermarkets (Finast), is a regional supermarket chain. Leaseway and the defendant entered into a lease-service agreement in the summer of 1982. Before entering into this contract, the defendant used its own trucks to transport its products to the various stores in its chain. Until the commencement of this contract, the plaintiff was employed by the defendant at the defendant's Windsor Locks plant as a mechanic responsible for refueling, repairing and servicing the [21 Conn.App. 22] trucks. Once the defendant entered into its contract with Leaseway, the plaintiff became an employee of Leaseway, performing the same duties as Before .

On December 6, 1983, during the early morning hours, the plaintiff slipped on ice and fell while walking with his supervisor across the parking lot near the maintenance garage. It had snowed from December 2 through December 4, for a total accumulation of approximately three inches. On December 5, it rained, and overnight the temperature dropped below freezing. The plaintiff had informed his supervisor of the slippery conditions. At the time of the plaintiff's fall, it was misting, and there was a "thin ice" upon which the plaintiff fell.

The defendant moved for a directed verdict claiming that the plaintiff had not proven notice of the specific defect. It also claimed that the action against the defendant was barred by the principal employer defense because the defendant controlled the situs of the fall and because the plaintiff's work is part or process of the defendant's business. The court reserved judgment on that motion and submitted the case to the jury. The jury returned a verdict for the plaintiff for $74,211.33 and answered three special interrogatories. In order to determine whether the principal employer defense applied, the jury was asked: (1) Did the defendant prove, by a preponderance of the evidence, that the relation of principal employer and contractor existed between the defendant and Leaseway in work done wholly or in part for the defendant Finast? (2) Did the defendant prove, by a preponderance of the evidence, that the plaintiff's fall occurred on premises controlled by the defendant Finast? (3) Did the defendant prove, by a preponderance of the evidence, that the work performed by Leaseway was a part or process in the trade or business of the defendant Finast? If the jury answered all three in the affirmative, the action would [21 Conn.App. 23] be barred. The court directed the jury to answer yes to the first question, and the jury answered no to the second and third questions.

The defendant filed a motion to set aside the verdict and for judgment in accordance with the motion for a directed verdict. On December 20, 1988, the trial court granted

Page 125

the defendant's posttrial motions and rendered judgment for the defendant. The plaintiff then filed this appeal.

The plaintiff claims on appeal that the trial court erred in granting a judgment notwithstanding the verdict because the jury could have properly found (1) that the defendant had notice of the defect, (2) that the work performed by the plaintiff was not part or process of the defendant's business, and (3) that the plaintiff did not work on premises controlled by the defendant for purposes of the principal employer defense. The plaintiff also claims that the jury's finding of lack of control for the principal employer defense is not inconsistent with a finding that responsibility existed for civil liability purposes. We find no error.

This court must review the action of the trial court in the light most favorable to the plaintiff. Brown v. K.N.D. Corporation, 205 Conn. 8, 16 n. 5, 529 A.2d 1292 (1987); Bartholomew v. Catania, 161 Conn. 130, 132, 285 A.2d 350 (1971). Motions to remove the verdict from the jury " 'are not favored and should be granted only when the jury could not reasonably and legally reach any other conclusion.' " Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982). " 'If, on the evidence as presented and under the pleadings, the jury could have reasonably found in accordance with the verdict as rendered, then it cannot be set aside as against the evidence.' " Kerrigan v. Detroit Steel Corporation, 146 Conn. 658, 659-60, 154 A.2d 517 (1959); see also Brown v. K.N.D. Corporation, supra.

[21 Conn.App. 24] We first address the plaintiff's claim that the trial court erred in setting aside the plaintiff's verdict on the ground that the jury could reasonably have found only that the action against the defendant was barred by the principal employer defense. "It is, of course, well settled that where there exists the relationship of employer and employee within the Workmen's Compensation Act the employee may recover for injuries sustained in the course of his employment only as provided by the act. The employer has no common-law liability to his employee." Crisanti v. Cremo Brewing Co., 136 Conn. 529, 531, 72 A.2d 655 (1950). "The principal employer defense requires that three elements must be satisfied: (1) The relation of principal employer and contractor must exist in work wholly or in part for the former; [1] (2) the work must be on or about premises controlled by the principal employer; and (3) the work must be a part or process in the trade or business of the principal employer." (Footnote added.) Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn.App. 60, 72, 504 A.2d 1376, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986). Each of these elements ordinarily constitutes a question of fact to be determined by the jury. Bogoratt v. Pratt & Whitney Aircraft Co., 114 Conn. 126, 136, 157 A. 860 (1932); see also Alpha Crane Service, Inc. v. Capitol Crane Co., supra. Only where the evidence permits "no real dispute as to the existence of these conditions," can a verdict be directed. See Alpha Crane Service, Inc. v. Capitol Crane Co., supra.

The jury heard testimony that the plaintiff performed the same work as a Leaseway employee that he had as a Finast employee; he repaired, refueled and maintained[21 Conn.App. 25] the trucks. The Leaseway trucks were leased to and used by Finast to carry its freight from the distribution center to its stores. Some trucks displayed the Finast logo while some displayed the Leaseway logo. This activity all took place at the Finast Windsor Locks plant. The plant consisted of offices for the various business departments, including accounting and legal departments, a distribution warehouse, and a maintenance and repair garage, which was leased to and used by Leaseway to service the ...


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