Opinion
No. X06-CV 03-0184584 S
October 20, 2004
MEMORANDUM OF DECISION
The issue before the court on the defendant's motion for summary judgment in this personal injury action by the plaintiff employee against his defendant employer is whether the plaintiff has alleged sufficient facts to establish intentional misconduct by the defendant, thereby avoiding the exclusive remedy provision of the Workers' Compensation Act, General Statutes § 31-284(a).
General Statutes § 31-284 provides in pertinent part: "(a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death 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 employer and employees, or any representatives or dependents of such 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, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation . . ."
The plaintiff alleges that, while operating a shredding machine during the course of his employment with the defendant, the polyester fiber which he was processing through the machine became jammed in the rollers of the feed conveyor. As the plaintiff was pulling the fiber out with his gloved hand, the rollers unexpectedly started up, pulling his right hand and arm into the feed rollers and then into the shredder, resulting in the amputation of his right arm. The plaintiff seeks compensation for his injuries from the defendant on the grounds that the defendant intentionally created a dangerous condition which made the plaintiff's injuries substantially certain to occur. The defendant employer has moved for summary judgment contending that the plaintiff's claim is barred by the exclusivity provision of the Workers' Compensation Act.
Librada Capellan, the wife of the plaintiff Danillo Capellan, has also brought a loss of consortium claim. Since her claim is derivative of the claim of her husband, I will refer to Danillo Capellan as the plaintiff.
The law governing summary judgment is well established. "Summary judgment is a method of resolving litigation 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 judgment as a matter of law . . . Scrapchansky v. Plainfield, 226 Conn. 446, 450 (1993). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather, to determine whether any such issues exist. Cortes v. Cotton, 31 Conn.App. 569, 575 (1993). [I]n deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . Johnson v. Meehan, 225 Conn. 528, 535 (1993). Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578 (1990)." (Internal quotation marks omitted.) Warner v. Lancia, 46 Conn.App. 150, 158 (1997). See also Practice Book § 17-49.
"It is not enough for the opposing party merely to assert the existence of such a disputed issue. The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks and citations omitted.) Mozeleski v. Thomas, 76 Conn.App. 287, 290 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-06 (1994).
The defendant contends that the plaintiff's claim for damages for personal injuries for which he has received workers' compensation benefits is foreclosed by § 31-284(a). As our Supreme Court stated in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106 (1994) (Suarez J.): "We consistently have interpreted the exclusivity provision of the act, General Statutes 31-284(a), as a total bar to common law actions brought by employees against employers for job related injuries with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct. Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). This case presents the question of whether the complaint, deposition and affidavits submitted in opposition to the defendant's motion for summary judgment together sufficiently raise the genuine issue of material fact of whether the defendant employer engaged in an intentional tort or in wilful or serious misconduct, necessary to allow an employee to bring a common law tort action against his employer and thereby avoid the exclusivity of the act." An employee can escape the exclusivity provision of the act only "by proving either that the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur (substantial certainty standard)." Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 257-58 (1997) ( Suarez II). See also Sorban v. Sterling Eng. Corp., 79 Conn.App. 444, 450 (2003). Here, the plaintiff relies on the substantial certainty standard and asserts that the defendant intentionally created a dangerous condition that made his injuries substantially certain to occur.
The plaintiff's complaint does not contain any allegations that the defendant actually intended to harm the plaintiff.
Before considering the merits of the motion for summary judgment, I must address a preliminary issue concerning the appropriateness of the plaintiff's factual submissions. In support of his claim, the plaintiff submitted (1) his own affidavit; (2) a document entitled "Citation and Notification of Penalty" issued by the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor; and (3) the minutes of two meetings held in 1999 of the defendant's safety committee. The defendant has objected to the submission of the OSHA document on the grounds that it not sworn or signed. The plaintiff maintains that the document is appropriate for the court's consideration because it is admissible evidence as a public record.
Practice Book Sec. 17-45 provides that: "A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Section 17-46 further states that: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Our Supreme Court has held that "Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Ins. Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03 (1995).
It is not appropriate for the court to consider the OSHA document appended to the plaintiff's opposition to the defendant's motion for summary judgment because, as submitted, it would not constitute admissible evidence at trial. Although records and reports of public offices or agencies constitute an exception to the hearsay rule, Connecticut Code of Evidence § 8-3(7), a condition precedent to their admissibility is that they be authenticated. Connecticut Code of Evidence § 9-1. There is no indication here that the document submitted by the plaintiff is what the plaintiff purports it to be, that is, an official record or report of OSHA. The plaintiff has provided no extrinsic evidence of authentication, such as through an affidavit of the author or a custodian of the record; nor is the record self-authenticating, such as through a certification, in accordance with Connecticut Code of Evidence § 9-1(b). Finally, the plaintiff has failed to provide any evidence of authentication pursuant to Connecticut Code of Evidence § 9-3 which provides that public records can be authenticated through evidence that the public record is from the public office where such items are maintained.
Section 9-3 of the Connecticut Code of Evidence also authorizes authentication of public records through evidence that "the record, report, statement or data compilation authorized by law to be recorded or filed in a public office has been recorded or filed in that public office." Such evidence has not been submitted by the plaintiff with respect to the challenged document.
The need to authenticate the document submitted by the plaintiff is not a mere formality. The document appears to be an amalgam of two or more documents. The pages at the beginning and the end of the document have a different date and are on a different OSHA form than the pages in the middle of the document. The page numbering on some of the document's pages also indicates that the document consists of ten total pages yet the document submitted is thirty-one pages long. In light of these discrepancies, authentication of the document is essential.
As noted, the defendant has also objected to the submission of the document on the grounds that it is not signed. Although the last page of the document contains a signature, it is unclear whether the submitted document includes more than one record.
Notwithstanding the inadmissibility of the OSHA document, it appears that the principal facts upon which the plaintiff relies are not disputed for purposes of the motion for summary judgment. The plaintiff asserts that, on April 9, 2001, he was feeding polyester material into the feed conveyor attached to a shredding machine when the material jammed in the rollers of the feed conveyor. The control panel operator turned off the feed conveyor and the plaintiff proceeded to remove the jammed material with his hands. The shredder remained on as the plaintiff attempted to unjam the rollers. As the plaintiff was removing the polyester material from the rollers, the feed conveyor was turned on by the control panel operator, who could not see the plaintiff, and the plaintiff's right arm was pulled into the shredder, resulting in its amputation.
In his affidavit, the plaintiff further asserts that the feed conveyor would jam on the average of 3-4 times a day; he was instructed by his supervisor, prior to April 9, 2001, to manually remove the polyester fiber by hand; and the shredder remained on during times when the feed conveyor jammed. The plaintiff further asserts that the feed conveyor had no barrier guards to prevent his arm from being ensnared by the shredder; the machine had no warnings, labels or instructions; he had no access to the power switch to the machine and had no way to turn the machine off, and he did not receive any information on safety procedures concerning the machine. The plaintiff contends that these facts establish that the defendant intentionally created a dangerous condition that made his injuries substantially certain to occur.
The defendant maintains the factual allegations made by the plaintiff are insufficient to show that the defendant engaged in intentional or deliberate conduct designed to cause injury to the plaintiff. The defendant asserts that the plaintiff's allegations of wrongdoing amount to claims of negligent or accidental misconduct which are barred by the exclusivity provision of the Workers' Compensation Act. I agree with the defendant.
"We begin with the proposition that permitting an employee to sue an employer for injuries intentionally caused to him constitutes a narrow exception to the exclusivity of the act. Mingachos v. CBS, Inc., 196 Conn. 91, 99, 491 A.2d 368 (1985). Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer's standpoint, the common-law liability of the employer cannot . . . be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury. 6 A. Larson L. Larson, Workmen's Compensation (1997) § 68.13, pp. 13-12 through 13-13. What is being tested is not the degree of gravity of the employer's conduct, but, rather, the narrow issue of intentional versus accidental conduct."
"In defining intent, we have stated that intent refers to the consequences of an act . . . [and] denote[s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to follow from it. 1 Restatement (Second), Torts § 8A (1965) . . . A result is intended if the act is done for the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue. 1 F. Harper F. James, Torts (1956) § 3.3, p. 216. An intended or wilful injury does not necessarily involve the ill will or malevolence shown in express malice, but it is insufficient to constitute such an [intended] injury that the act . . . was the voluntary action of the person involved. Mingachos v. CBS, Inc., supra, [196 Conn.] 102. Both the action producing the injury and the resulting injury must be intentional. Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). [The] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Sharkey v. Skilton, 83 Conn. 503, 507-08, 77 A. 950 (1910)." (Emphasis added; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 108-09. Therefore, to escape the exclusivity of the act, the victim of an intentional injury must rely on the intended tort theory or the substantial certainty theory. Under the former, the actor must have intended both the act itself and the injurious consequences of the act. Under the latter, the actor must have intended the act and have known that the injury was substantially certain to occur from the act." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corporation, 242 Conn. 255, 278-80 (1997).
The plaintiff first argues that entry of summary judgment is not appropriate in this case because his claim turns on the defendant's intent which is a question of fact to be decided at trial. Although intent is ordinarily an issue to be resolved by the fact finder, "when the facts alleged permit only one conclusion regarding an actor's state of mind, that issue is appropriately resolved by way of summary judgment." DaCruz v. State Farm Fire and Casualty Company, 268 Conn. 675, 690 n. 14 (2004) (citing Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992) "even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact"). In this case, it would not be reasonable for a fact finder to conclude from the facts presented by the plaintiff in opposition to the motion for summary judgment that the defendant intentionally created a dangerous condition that made injury to the plaintiff substantially certain to occur.
The plaintiff asserts that he has established the necessary factual predicate through the submission of the following facts: (1) the defendant's policy and practice were to leave the shredder on when an employee was removing jammed material from the feed conveyor and the shredder remained on when the plaintiff was attempting to unjam the conveyor; (2) the plaintiff was instructed to remove jammed material from the conveyor with his hands; (3) the feed conveyor jammed on average 3-4 times a day; and (4) the machine had no barrier guards, no warnings, labels or instructions, and no accessible power switch. The plaintiff argues that these facts are similar to those which our Supreme Court found sufficient to raise a genuine issue of material fact in Suarez I. I do not agree.
In Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106 (1994) ( Suarez I), the plaintiff alleged that he was required by his employer, under a threat of being fired, to use his hands to clean a plastic molding machine while the molding machine was in operation, which resulted in the amputation of two of his fingers. Here, it is undisputed that, although the shedder remained on, the specific apparatus which the plaintiff was working on, the feed conveyor, was initially turned off while the plaintiff was attempting to unjam it. The defendant also presented uncontradicted evidence, through an affidavit from Charles Waimon, the defendant's chief operating officer, that it was the defendant's policy that employees were not to clean a machine while it was running. It is also undisputed that the plaintiff was injured when the control panel operator inadvertently turned the conveyor back on while the plaintiff was removing material from the conveyor. The plaintiff has made no claim that the control panel operator turned the conveyor back on with the intent to injure the plaintiff. Unlike the situation in Suarez I, the plaintiff here was not required by his employer to stick his hand into an operating mechanical device. The worst that can be said of the defendant's conduct is that it negligently and recklessly placed the plaintiff in a position where he could be significantly injured. While deserving of condemnation, such conduct is not sufficient to circumvent the exclusivity of the Workers' Compensation Act. See Sorban v. Sterling Eng. Corp., 79 Conn.App. 444, 456-58 (2003) (The court held that the failure to repair a lathe, to provide adequate butt blocks and shield guards, and to alert employees to a policy regarding the use of a rotating table, while arguably constituting negligence, gross negligence or recklessness, did not meet the high threshold of substantial certainty required to avoid the exclusivity provision of the Workers' Compensation Act). See also Morocco v. Rex Lumber Co., 72 Conn App. 516 (2002) in which the court held that, in the absence of an instruction by the employer to wax a machine while it was turned on, the employer's failure to replace a safety guard, to adequately train the plaintiff and to instruct him on safety procedures did not satisfy the intentional misconduct exception to the exclusivity of the Workers' Compensation Act.
Accordingly, the defendant's motion for summary judgment is hereby granted.
BY THE COURT
Jon M. Alander Judge of the Superior Court