Opinion
No. CV-03-0181376 S
February 26, 2004
MEMORANDUM OF DECISION
This is a decision on a motion to strike, dated December 8, 2003, filed by the defendant, Ansonia Copper Brass, Inc. The plaintiff has filed an objection dated December 19, 2003.
The plaintiff, Walter Bilsky has filed a six-count complaint, four of which concern the defendant, Ansonia Copper Brass, Inc (hereinafter ACB). The complaint is in regard to an incident which occurred on December 18, 2001, at the defendant's place of business. The plaintiff alleges that he and a co-defendant, Robert Sanford were both employed at the defendant's business, and on the day in question, were both in the course of their employment. The plaintiff alleges an altercation ensued and he was struck in the face by the defendant, Sanford.
Specifically, in count three, the plaintiff alleges that he was violently assaulted and battered by Sanford, who was an agent, employee, or servant of ACB, acting within the scope of his employment and the authority to do so. The assault allegedly caused an injury to his face, pain, suffering, headaches and mental anguish.
In count four, the plaintiff alleges that he was negligently and carelessly struck by Sanford, who was an agent, employee, or servant of ACB, acting within the scope of his employment and the authority to do so. The incident allegedly caused an injury to his face, pain, suffering, headaches and mental anguish.
In count five, the plaintiff claims that he was carelessly and negligently struck by Sanford, and as such, ACB is liable to him for its failure to provide a safe workplace in violation of C.G.S. § 31-49.
The plaintiff specifically alleges that he "incorporates paragraphs one through five of Count One as paragraphs one through five of this Count Five as if fully set forth herein." However, count one only has one paragraph. The court assumes that the plaintiff incorporated count one into count five.
In count six, the plaintiff repeats the allegations of count five, and adds that Sanford was an agent, servant and employee of the defendant, acting within the scope of his employment as the plaintiff's supervisor. He further alleges that Sanford acted recklessly, wantonly and with wilful disregard for the safety of the plaintiff and other workers at ACB.
The defendant, ACB, has moved to strike all four counts claiming that the plaintiff's exclusive remedy for his alleged injuries is the workers' compensation act.
C.G.S. § 31-284 states as follows: "[a]n employer . . . shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer and employees, . . . arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter . . ."
I
The defendant's motion to strike claims that the third, fourth, fifth and sixth counts are legally insufficient. "The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [complaint] . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged." (Citation omitted; internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000).
A.
The defendant, ACB, has claimed that the workers' compensation exclusivity rule bars recovery on all four of the plaintiff's counts. Recently, in Sorban v. Sterling Eng. Corp., 79 Conn. App. 444, 449 (2003), the appellate court discussed the exclusivity rule.
Connecticut first adopted a statutory scheme of workers' compensation in 1913. The purpose of the [act] . . . is to provide compensation for injuries arising out of and in the course of employment, regardless of fault . . . Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer's liability to the statutory amount . . . In return, the employee is compensated for his or her losses without having to prove liability . . . In a word, these statutes compromise an employee's right to a common law tort action for work related injuries in return for relatively quick and certain compensation . . . The intention of the framers of the act was to establish a speedy, effective and inexpensive method for determining claims for compensation.
(Citations omitted; internal quotation marks omitted.) Id.
In most cases, the Connecticut act is a bar to independent actions filed by an employee against an employer for an injury that occurs at the workplace. See General Statutes § 31-284. There is an exception, however, to the exclusivity provision of the workers' compensation statute. That one exception exists when the intentional tort of an employer injures an employee or when the employer has engaged in wilful or serious misconduct: . . . The exception gives an employee a cause of action in addition to the remedies provided by the act . . . [T]he employer must have engaged in intentional misconduct, as that has been defined through our case law . . . directed against its employee . . . Anything short of genuine intentional injury sustained by the employee and caused by the employer is compensable under the [a]ct . . . The exception does not include accidental injuries caused by gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury . . ."
(Citations omitted.) Id. at 449-50.
B.
The plaintiff, in his brief, raises a fact not in his complaint that the workers' compensation commissioner found that the plaintiff did not sustain a compensable injury. He also claims that the allegations of emotional upset and mental anguish are not covered by the act. As cited above, the court is limited to the facts as alleged in the complaint, which include allegations of pain, suffering, discomfort, an injury to his face, headaches, dizziness and debility; all of which are injuries covered by the act.
In count three, the plaintiff alleges that he was assaulted and battered by Sanford, ACB's employee, acting within the scope of his employment and authority to do so. By so alleging, the plaintiff is seeking to have the defendant corporation liable for the act of its servant. "(T)he theory of respondeat superior attaches liability to a principal merely because the agent committed a tort while acting within the scope of his employment. `It refers to those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.' W. Prosser W. Keeton, Torts (5th Ed. 1984) § 70, p. 502. A principal may be directly liable, however, for the acts of its agents that it authorizes or ratifies. Id., pp. 501-02; 1 Restatement (Second), supra, § 212 (principal liable for authorized conduct) and § 218 (principal liable for ratified conduct). `In order to find that a corporation has committed an intentional act, a court or jury must find that the corporation committed, directed or ratified the intentional act.'" (Citations omitted.) Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 505 (1995). Unless a defendant employer intentionally directs or authorizes an employee to strike another employee, the employer has a right to view the incident as an injury arising out of and in the course of employment, Jett v. Dunlap, 179 Conn. 215, 218 (1979).
The plaintiff has not alleged that the defendant, ACB, authorized or ratified the assault. Moreover, the plaintiff does not allege that the employer intentionally injured him, or engaged in wilful or serious misconduct, such as directing Sanford to engage in the alleged conduct. Since the plaintiff alleges misconduct of the employer short of genuine intentional injury, the allegations of the complaint do not fall under the exclusivity exception. Therefore, the defendant's motion to strike the third count is granted.
C. CT Page 2214
The plaintiff alleges in count four that he was carelessly and negligently struck by Sanford, who was acting within the scope of his employment and authority to do so. Again the allegations of negligence fall short of the requisite exception to the exclusivity of the act. The exceptions do not include accidental injuries caused by gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, see Sorban, supra. Since the plaintiff alleged a claim sounding in negligent assault by a fellow employee, the motion to strike the fourth count likewise is granted.
D.
In the fifth count, the plaintiff alleges that he was carelessly and negligently struck by Sanford, and as such, ACB is liable to him for his failure to provide a safe workplace in violation of C.G.S. § 31-49. In Perille v. Raybestos-Europe, Inc., 196 Conn. 529 (1985), the plaintiff sought to recover under C.G.S. § 31-49 in a situation which the worker's injuries arose out of and in the course of his employment. There, the court held "(t)he Workers' Compensation Act and 31-49 thus coexist in our statutory law, each to apply where appropriate. Since the case before us is clearly within the scope of the Workers' Compensation Act, 31-49 provides no basis for the action asserted by the plaintiff." Id. at 543. Since the plaintiff has alleged an injury arising out of and occurring during the course of his employment, the workers' compensation act is a bar to an action brought under C.G.S. § 31-49. Therefore, the defendant's motion to strike the plaintiff's fifth count is granted.
"It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his colaborers and to exercise reasonable care in the appointment or designation of a vice-principal and to appoint as such vice-principal a fit and competent person. The default of a vice-principal in the performance of any duty imposed by law on the master shall be the default of the master." C.G.S. § 31-49.
E.
In count six, the plaintiff repeats the allegations of count five, which alleges a violation of C.G.S. § 31-49, and adds that Sanford was an agent, servant and employee of the defendant, acting within the scope of his employment as the plaintiff's supervisor. He further alleges that Sanford acted recklessly, wantonly and with wilful disregard for the safety of the plaintiff and other workers at ACB. The complaint does not allege any intentional act by the employer to qualify as an exception under the exclusivity rule. Since the exception does not include accidental injuries caused by wanton, wilful, reckless, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury, see Sorban supra., the plaintiff has failed to state a claim upon which relief can be granted. Therefore, the defendant's motion to strike the sixth count is granted.
II.
In conclusion, the third, fourth, fifth and sixth counts of the plaintiff's complaint allege an injury arising out of and occurring during the course of his employment. None of the counts contain allegations that the employer engaged in intentional misconduct, as it has been defined through our case law, directed against the plaintiff. As such, the allegations against the employer do not fall within the exception to the workers' compensation exclusivity bar, and the motion to strike the third, fourth, fifth and sixth counts is granted.
Matasavage, J.