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APPENDIX
JULIAN POCE ET AL. v. O & G
INDUSTRIES, INC., ET AL.*
Superior Court, Judicial District of Hartford
File No. CV-XX-XXXXXXX-S
Memorandum filed September 30, 2019
Proceedings
Memorandum of decision on motion for summary
judgment. Motion granted in part.
Austin Berescik-Johns and Paul Levin, for the plain-
tiffs.
Michael S. Lynch, for the named defendant.
Michael J. Dugan and Jacqueline A. Maulucci, for
the defendant Southern Middlesex Industries, Inc.
Opinion
NOBLE, J. At issue in this asbestos exposure case is
whether a genuine issue of material fact exists as to
whether the defendants owed these plaintiffs a duty of
care. In separate motions for summary judgment, the
defendants each argue they owed no duty of care to
the plaintiffs. The plaintiffs argue that they were owed
a duty of care, which can arise outside of a contract
and based on circumstances. For the following reasons,
the defendant O & G’s motion for summary judgment
is granted, and the defendant SMI’s motion for summary
judgment is denied.
FACTS
This action arises from a building project that took
place at Wethersfield High School. The plaintiffs, Julian
Poce, Skerdinand Xhelaj, Michael Meredith, Erjon Gox-
haj, and Fatjon Rapo, worked on that project during
which they allege that they were exposed to asbestos.
The plaintiffs commenced this action with a thirty count
complaint against the defendants, Southern Middlesex
Industries, Inc. (SMI), and O & G Industries, Inc. (O &
G), on December 27, 2016, and later filed an amended
complaint on May 19, 2017. Following separately filed
motions to strike by both defendants, the court issued
a memorandum of decision on December 5, 2017, grant-
ing the motions to strike counts sounding in negligence
as to both defendants; premises liability as to O & G;
and recklessness as to O & G. Counts six through ten
and twenty-six through thirty of the plaintiffs’ complaint
remain viable, sounding in negligent infliction of emo-
tional distress as to both defendants.
In their complaint, the plaintiffs allege the following
facts. The plaintiffs were employed as mason laborers
by Connecticut Mason Contractors, Inc. At various
times between 2013 and 2016, the plaintiffs were
assigned to a building project at Wethersfield High
School. While working there, the plaintiffs were repeat-
edly exposed to asbestos by working in areas of the
building designated by the defendant O & G, the project
manager, thereby disturbing the floors, walls, and ceil-
ings, which contained asbestos.
The plaintiffs further allege that O & G had actual or
constructive notice of dangerous site conditions and
defects, including the presence of asbestos and PCBs,
and failed to remediate the hazards. O & G, as construc-
tion manager, supervised all phases of work at the high
school, exercising possession and control of the site.
O & G controlled, or had the ability to control, the
means and methods of work being performed at the
site, and could have prevented the designation of work
and/or suspended work in areas of the building that
contained asbestos. Work areas, however, were not
sampled, remediated, and tested prior to the plaintiffs’
exposure, and the plaintiffs were not provided appro-
priate protective equipment. Asbestos conditions were
present and disturbed in such a manner as to make it
highly probable toxic substances would be breathed.
O & G was aware of the exposure and allowed it to
repeatedly occur, in spite of an agreement signed by
the town of Wethersfield, O & G, and the plaintiffs’
employer that required O & G to observe safety proto-
cols and procedures. The plaintiffs, mason laborers,
were not trained in asbestos protection, and O & G did
not arrange for proper training at the site. The plaintiffs
had not been advised of a need for asbestos protection.
O & G told the plaintiffs’ employer that the plaintiffs
would only be required to work in areas that did not
contain asbestos or where suitable asbestos remedia-
tion had been effected.
Finally, the plaintiffs allege that the defendant SMI
performed demolition work involving asbestos remedi-
ation at the site. SMI did not properly section off regu-
lated work areas to ensure the plaintiffs were not
exposed to hazardous materials being remediated.
SMI’s conduct contributed to the lack of adequate test-
ing and sampling of materials, and to the lack of advance
warning to the plaintiffs.
In their allegations of negligent infliction of emotional
distress, the plaintiffs incorporate the prior allegations
of the complaint and allege that the defendants created
an unreasonable risk of causing emotional distress seri-
ous enough that it may result in illness or bodily harm;
it was foreseeable that such distress could result from
the defendants’ conduct; and that the defendants’ con-
duct was the cause of the plaintiffs’ emotional distress.
The present motions for summary judgment were
filed on September 7, 2018, by the defendant O & G, and
on October 31, 2018, by the defendant SMI. In support
of its motion, O & G submitted as exhibits document
#028216, dated October 15, 2013; AIA Document C132,
the August 15, 2012 standard form of agreement
between the town of Wethersfield and O & G for addi-
tions and renovations to Wethersfield High School; and
AIA Document A232, general conditions of the contract
for construction, with the same parties. SMI submitted
with its motion the sworn affidavit of Michael J. Dugan,
Esq.; deposition transcripts of Jeff Bridges; the sworn
affidavit of Darrell MacLean; AIA Document A132, the
November 22, 2013 standard form of agreement
between the town of Wethersfield and SMI regarding
additions and renovations to Wethersfield High School;
and a change order dated July 27, 2016. The plaintiffs
filed an objection to O & G’s motion for summary judg-
ment on December 4, 2018, and to SMI’s motion on
March 25, 2019. In opposing the two motions separately,
the plaintiffs submitted another AIA Document A132,
standard form of agreement between the town of Weth-
ersfield and Connecticut Mason Contractors, Inc., for
additions and renovations to Wethersfield High School;
notes from a meeting of the Wethersfield Town Council;
a page of SMI’s website; and the affidavits and deposi-
tions of multiple persons speaking to O & G’s general
authority on the project site and SMI’s experience in
asbestos remediation and inadequate performance on
site. O & G filed a reply on January 10, 2019, and SMI
did so on April 16, 2019, with a copy of an asbestos
abatement monitoring report. The plaintiffs filed surre-
plies on April 26, 2019, with the sworn affidavit of Frank-
lin A. Darius, Jr.1 Oral argument was heard on both the
present motions for summary judgment on June 3, 2019.
LEGAL STANDARD
‘‘Summary judgment is a method of resolving litiga-
tion when pleadings, affidavits, and any other proof
submitted show that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.’’ (Internal quotation marks
omitted.) Grenier v. Commissioner of Transportation,
306 Conn. 523, 534, 51 A.3d 367 (2012). ‘‘The party seek-
ing 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 omit-
ted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d
1195 (2015).
‘‘It is axiomatic that in order to successfully oppose
a motion for summary judgment by raising a genuine
issue of material fact, the opposing party cannot rely
solely on allegations that contradict those offered by
the moving party . . . such allegations must be sup-
ported by counteraffidavits or other documentary sub-
missions that controvert the evidence offered in support
of summary judgment.’’ GMAC Mortgage, LLC v. Ford,
144 Conn. App. 165, 178, 73 A.3d 742 (2013). ‘‘Mere
statements of legal conclusions . . . and bald asser-
tions, without more, are insufficient to raise a genuine
issue of material fact capable of defeating summary
judgment.’’ (Internal quotation marks omitted.) Citi-
Mortgage, Inc. v. Coolbeth, 147 Conn. App. 183, 193, 81
A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d
469 (2014). ‘‘In deciding a motion for summary judg-
ment, the trial court must view the evidence in the
light most favorable to the nonmoving party.’’ (Internal
quotation marks omitted.) Bozelko v. Papastavros, 323
Conn. 275, 282, 147 A.3d 1023 (2016).
ANALYSIS
I
O & G’s MOTION FOR SUMMARY JUDGMENT
The defendant O & G argues that summary judgment
should be granted on the ground that it owed no duty
to the plaintiffs because issues relating to hazardous
materials were specifically excluded in its contract from
its scope of work. The plaintiffs counter, arguing that
legal duty is a question of fact; that O & G supervised
safety at the worksite; that it had a duty of care to third
parties because it was in control of the site; and that
it had a duty of care under OSHA regulations. In its
reply, O & G further argues that its contract provides
that it did not have control over construction means
or safety precautions at the site, and that it had no duty
under the common law or OSHA regulations.
‘‘A cause of action in negligence is comprised of four
elements: duty; breach of that duty; causation; and
actual injury . . . . Whether a duty exists is a question
of law for the court, and only if the court finds that
such a duty exists does the trier consider whether that
duty was breached.’’ (Citation omitted.) Ruiz v. Victory
Properties, LLC, 315 Conn. 320, 328, 107 A.3d 381
(2015). ‘‘To prevail on a claim of negligent infliction
of emotional distress, the plaintiff must prove: (1) the
defendant’s conduct created an unreasonable risk of
causing the plaintiff emotional distress; (2) the plain-
tiff’s distress was foreseeable; (3) the emotional distress
was severe enough that it might result in illness or
bodily harm; and (4) the defendant’s conduct was the
cause of the plaintiff’s distress.’’ (Internal quotation
marks omitted.) Grasso v. Connecticut Hospice, Inc.,
138 Conn. App. 759, 771, 54 A.3d 221 (2012); see also
Carrol v. Allstate Ins. Co., 262 Conn. 433, 446–48, 815
A.2d 119 (2003). ‘‘[L]ike all negligence claims, both sub-
sets of negligent infliction of emotional distress claims
require proof of the breach of a legally recognized duty,
causing injury.’’ Marsala v. Yale-New Haven Hospital,
Inc., 166 Conn. App. 432, 444–45, 142 A.3d 316 (2016).
‘‘[W]here there is definitive contract language, the
determination of what the parties intended by their
contractual commitments is a question of law.’’ (Inter-
nal quotation marks omitted.) Levine v. Massey, 232
Conn. 272, 277–78, 654 A.2d 737 (1995). ‘‘It is the general
rule that a contract is to be interpreted according to
the intent expressed in its language and not by an intent
the court may believe existed in the minds of the par-
ties.’’ Id., 278. ‘‘It is axiomatic that a party is entitled
to rely upon its written contract as the final integration
of its rights and duties.’’ Id., 279. ‘‘Negligence cannot
be predicated upon the failure to perform an act which
the actor was under no duty or obligation to perform.’’
Behlman v. Universal Travel Agency, Inc., 4 Conn. App.
688, 691, 496 A.2d 962 (1985).
In the present case, the defendant’s contract provides
in relevant part: ‘‘The Contract Documents form the
Contract for Construction. The Contract represents the
entire and integrated agreement between the parties
hereto and supersedes prior negotiations, representa-
tions or agreements, either written or oral.’’ Def. Ex. 2,
AIA Doc. A232 § 1.1.2. Its contract further provides that
‘‘[u]nless otherwise required in this agreement, the Con-
struction Manager shall have no responsibility for the
discovery, presence, handling, removing or disposal of,
or exposure of persons to, hazardous materials or toxic
substances in any form at the Project site.’’ Def. Ex. 2,
AIA Doc. C132, § 10.6. O & G is named in the agreement
as the construction manager. Def. Ex. 2, AIA Doc. C132,
1. Under the terms of its contract, O & G was not
responsible for discovering or removing any asbestos
on the worksite. Accordingly, it owed no duty to the
plaintiffs regarding any exposure to the substance that
they may have suffered.
The plaintiffs first argue that a proper analysis of
legal duty ordinarily leads to a question of fact. Such
issues, on the contrary, pose questions of law for the
court. See Ruiz v. Victory Properties, LLC, supra, 315
Conn. 328. The plaintiffs contend that O & G was
charged with supervising safety, and had the authority
to control work performed by the plaintiffs, which cre-
ates a genuine issue of material fact as to who was in
control of the project site and whether O & G was
responsible for avoiding exposures. The question of
which party was in control of the site is not at issue in
the present case. Nonetheless, the defendant’s contract
provides that ‘‘[t]he Construction Manager . . . will
not have control over . . . the safety precautions and
programs in connection with the work . . . .’’ Def. Ex.
2, Doc. A232, § 4.2.5. Additionally, as has been estab-
lished in the previous paragraphs, under the terms of its
contract, the defendant was not responsible specifically
for the discovery or removal of asbestos at the worksite.
Thus, O & G was not in control of the relevant worksite
safety procedures.
The plaintiffs contend that O & G owed them a duty
of care as third parties under Connecticut common law.
With regard to third-party liability, ‘‘the undertaking
party not only will assume duties to third parties
expressly set forth in the contract itself, as well as
pass-through duties owed by the hiring party that are
assigned or transferred to the undertaking party, but
also will assume a duty of care to protect third parties
from foreseeable, physical harm within the scope of
the services to be performed.’’ (Emphasis in original.)
Demond v. Project Service, LLC, 331 Conn. 816, 846,
208 A.3d 626 (2019). O & G did not assume a contractual
duty to the plaintiffs, nor was it assigned any such duties
by the town. Consequently, any duties that it assumed
to the plaintiffs were limited to foreseeable physical
harm within the scope of the services to be performed.
As responsibility for discovering and removing asbestos
was specifically excluded from the scope of O & G’s
services, it did not owe the plaintiffs a duty under a
theory of third-party liability.
Lastly, the plaintiffs claim that O & G owed them a
duty of care arising from OSHA regulations. ‘‘Both the
federal and state OSHA statutes provide that such regu-
lations may not be used to create a private cause of
action for injuries arising out of or in the course of
employment.’’ Mingachos v. CBS, Inc., 196 Conn. 91,
112, 491 A.2d 368 (1985). ‘‘OSHA regulations, if applica-
ble, may be used as evidence of the standard of care
in a negligence action against an employer . . . .
Where an OSHA regulation applies in a civil case, it can
provide helpful guidance to the jury in its deliberations.’’
(Citation omitted; internal quotation marks omitted.)
Wagner v. Clark Equipment Co., 243 Conn. 168, 188,
700 A.2d 38 (1997). Nonetheless, ‘‘even if an OSHA viola-
tion is evidence of [a defendant’s] negligence . . . [the
defendant] must owe a duty . . . under a theory of
liability independent of OSHA . . . . OSHA regulations
can never provide a basis for liability . . . . The [Occu-
pational Safety and Health] Act itself explicitly states
that it is not intended to affect the civil standard of
liability.’’ (Citations omitted; internal quotation marks
omitted.) Ellis v. Chase Communications, Inc., 63 F.3d
473, 478 (6th Cir. 1995). In the present case, the plaintiffs
have not provided an OSHA statute that is applicable
to O & G. Nonetheless, it has already been established
that O & G did not owe the plaintiffs a duty of care
with regard to the discovery and removal of asbestos,
and OSHA cannot establish such a duty independently.
Accordingly, there is no genuine issue of material fact
that O & G did not owe the plaintiffs a duty of care
with regard to the discovery and removal of asbestos
and its motion for summary judgment is granted.
II
SMI’s MOTION FOR SUMMARY JUDGMENT
The defendant SMI also moves for summary judgment
on the ground that it owed no duty to the plaintiffs.
SMI argues that it owed no duty of care to the plaintiffs
because it was not hired to identify asbestos; rather, it
was hired to remove hazardous materials that had
already been identified by other contractors. The plain-
tiffs contend that an analysis of legal duty ordinarily
leads to a question of fact; SMI was in the best position
to ensure the safety of the plaintiffs; SMI performed its
work in such a way as to create hazardous situations;
SMI owed a duty of care under Connecticut common
law; and SMI owed the plaintiffs a duty of care arising
from OSHA regulations. SMI argues in its reply that it
had no duty to perform work that was beyond the scope
of its contract.
‘‘Although it has been said that no universal test for
[duty] ever has been formulated . . . our threshold
inquiry has always been whether the specific harm
alleged by the plaintiff was foreseeable to the defendant
. . . . [T]he test for the existence of a legal duty entails
(1) a determination of whether an ordinary person in
the defendant’s position, knowing what the defendant
knew or should have known, would anticipate that harm
of the general nature of that suffered was likely to
result, and (2) a determination, on the basis of a public
policy analysis, of whether the defendant’s responsibil-
ity for its negligent conduct should extend to the partic-
ular, consequences or particular plaintiff in the case.’’
(Internal quotation marks omitted.) Sic v. Nunan, 307
Conn. 399, 407–408, 54 A.3d 553 (2012). When a ‘‘case
is close enough to the margin of reasonable foreseeabil-
ity . . . it would be inappropriate to foreclose the fore-
seeability inquiry as a matter of law.’’ Ruiz v. Victory
Properties, LLC, 135 Conn. App. 119, 127, 43 A.3d 186
(2012), aff’d, 315 Conn. 320, 107 A.3d 381 (2015).
SMI’s contract provides in relevant part that ‘‘[t]he
Contractor shall perform all work required by the Con-
tract Documents for Bid Package 2.01—Abatement &
Demolition.’’ Def. Ex. C, AIA Doc. A132, Art 2. In his
sworn deposition, former Wethersfield town manager
Jeff Bridges stated that ‘‘Southern Middlesex Industries
was retained or hired to perform both clean and hazard-
ous material demolition.’’ Def. Ex. A, Bridges Dep., 12.
Bridges further stated that it was correct that ‘‘between
EnviroMed and Fuss & O’Neill, those entities, as part
of their job, identified hazardous materials within the
Wethersfield High School . . . . And based upon the
work that Fuss & O’Neill and EnviroMed did in identi-
fying the hazardous materials, the town then hired an
abatement contractor to remove the hazardous materi-
als that had previously been identified . . . .’’ Def. Ex.
A, Bridges Dep., 71. SMI’s President, Darrell MacLean,
states in his sworn affidavit that ‘‘SMI submitted a bid
to the [t]own of Wethersfield . . . to perform demoli-
tion and hazardous material removal, including asbes-
tos abatement, for the renovation of the Wethersfield
High School . . . .’’ Def. Ex. B, MacLean Aff., 1.
MacLean further stated that ‘‘Fuss & O’Neill conducted
an environmental assessment of the building for the
purpose of identifying and locating the presence of haz-
ardous materials in the building which would have to
be removed.’’ Def. Ex. B, MacLean Aff., 1.
On the other hand, Carlos Texidor, project manager
for Fuss & O’Neill, when asked in his deposition
whether anyone was keeping an eye out for suspect
materials at times when Fuss & O’Neill were not pres-
ent, stated: ‘‘To my knowledge I don’t know, other than
SMI.’’ Pl. Ex. 4, 37. Darrell MacLean, President of SMI,
stated that his employees on several occasions came
across suspicious material that was found to be asbes-
tos. Pl. Ex. 5, 39–45. The procedure was that ‘‘[i]f [the
employees] have any doubt, they’re supposed to just
stop, identify it, and notify the supervisor.’’ Pl. Ex. 5,
39. SMI additionally is alleged to have created a hazard
by placing material into non-asbestos dumpsters that
was found to contain asbestos. Pl. Ex. 4, 32–33.
It is evident that SMI was not hired for the specific
purpose of identifying and locating hazardous materi-
als. That alone, however, does not establish that it bore
no responsibility whatsoever for the identification and
discovery of asbestos on the worksite while it per-
formed its demolition and remediation duties. Ques-
tions of fact therefore remain regarding SMI’s capacity
to identify any previously undiscovered hazardous
materials to which the plaintiffs allege they were
exposed. The defendant SMI’s motion for summary
judgment is accordingly denied.
CONCLUSION
For the foregoing reasons, the defendant O & G’s
motion for summary judgment is granted and the defen-
dant SMI’s motion for summary judgment is denied.
* Affirmed. Poce v. O & G Industries, Inc., 210 Conn. App. , A.3d
(2022).
1
Practice Book § 11-10 (c) provides: ‘‘Surreply memoranda cannot be filed
without the permission of the judicial authority.’’ The plaintiffs did not
request permission of the court to file a surreply. Our courts, however, have
exercised discretion to consider surreplies filed without permission; see
Viradia v. Quartuccio, Superior Court, judicial district of New Haven,
Docket No. CV-XX-XXXXXXX-S (February 27, 2018) (66 Conn. L. Rptr. 1); and
the court in its discretion will consider it. Secondly, the plaintiffs have
submitted evidence with their surreplies. ‘‘It is within the trial court’s discre-
tion whether to accept or decline supplemental evidence in connection with
a motion for summary judgment.’’ Corneroli v. Kutz, 183 Conn. App. 401,
425 n.10, 193 A.3d 64 (2018). In its discretion, the court will also consider
these submissions.