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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 plain-
tiff, Conrad Bouchard, appeals from the summary judg-
ment 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 dis-
posal and transfer station. The defendant permits mem-
bers 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 dumpster into 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 mate-
rial 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 approxi-
mately 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 pro-
tective 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)2 regulation 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 neg-
ligence.
   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 plead-
ing requirements for sufficiently alleging a breach of
ministerial duty. . . . The plaintiff . . . fails to recog-
nize 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 defen-
dant were discretionary in nature, and thus the plain-
tiff’s claims of negligence premised upon them were
barred by governmental immunity, to which no excep-
tion 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 litiga-
tion; 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 con-
clusions 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 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.) 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 pursu-
ant to Practice Book § 63-4 (a) (1). See Achillion Phar-
maceuticals, 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 undis-
puted, 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 immu-
nity 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 Connecti-
cut Ins. Guaranty Assn. v. Fontaine, 278 Conn. 779,
784 n.4, 900 A.2d 18 (2006); see also Windels v. Environ-
mental 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 ade-
quately 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 pur-
pose and scope in relevant part as follows: ‘‘[T]he Secre-
tary 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 promul-
gation 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 that the plaintiff was not an employee
of the defendant, nor has the plaintiff ever been an
employee of the defendant. Therefore, the OSHA regula-
tion cited by the plaintiff creates no duty at all, discre-
tionary or ministerial, to him because of his status as
a nonemployee. We therefore do not reach the sub-
stance of the plaintiff’s claims because OSHA regula-
tions 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 pro-
vided 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 sup-
ported 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 prelimi-
nary statement of issues . . . .’’
