Opinion
FSTCV156027128
11-28-2016
Justin Flick v. Eric Bean et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE [#118]
Irene P. Jacobs, J.
FACTS
This action arises out of personal injuries allegedly sustained by the plaintiff Justin Flick, an employee of the defendant Standard Petroleum and Mart, LLC (" Standard Petroleum"). In his Amended Complaint, dated April 18, 2016, the plaintiff alleges that on or about February 8, 2015, he was working for the defendant at the defendant's 765 East Main Street, Stamford, CT Global Mart. The plaintiff alleges that, on that date, he observed the defendant Eric Bean urinating and, when he confronted him, the defendant Eric Bean assaulted him. In the Seventh Count of his complaint, the plaintiff alleges that the injuries he sustained were a direct result of the defendant Standard Petroleum's intentional creation of a dangerous condition and that the defendant is liable for injuries he received from the assault. He alleges, in pertinent part, that the defendant Standard Petroleum " knowingly and intentionally directed the Plaintiff to work the late night shift at the said gas station knowing that in doing so he was exposed to a risk of being physically assaulted or the subject of another violent crime; . . . and knowingly and intentionally failed to take any actions, implement any safety measures, or otherwise install safety or security devices in response to previous incidents as aforesaid that occurred prior to plaintiff's injuries, which Stamford Petroleum knew or should have known was substantially certain to cause injury to plaintiff or other employees." The plaintiff also alleges that the defendant knew or should have known that its actions created a dangerous condition at the plaintiff's workplace at 765 East Main Street, Stamford, CT, for the plaintiff and in doing so made the plaintiff's injuries substantially certain to occur.
The plaintiff alleges that the defendant Standard Petroleum knew that there had been " several other incidents at the said gas station during the night hours involving violence and/or threats to the safety of its employees at said gas station. Furthermore the Defendant knew that the Plaintiff was a victim of an armed robbery at said gas station while working the late shift on October 11, 2014."
On June 27, 2016 the defendant filed the instant motion to strike the Seventh Count of the complaint and supporting memorandum of law, arguing that the plaintiff has failed to plead sufficient facts to support the claim that its actions falls within the exception of the Connecticut Workers' Compensation Act exclusivity provision as set forth in our Supreme Court in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994) ( Suarez I), Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 698 A.2d 838 (1997). The defendant asserts that the plaintiff has failed to allege sufficient facts to demonstrate that the defendant engaged in any affirmative conduct, to demonstrate intent by the defendant to cause injury to the plaintiff, or to demonstrate that the defendant intentionally created a dangerous condition that the defendant believed would make the plaintiff's injuries substantially certain to occur. The matter appeared on the September 19, 2016 short calendar and is taken on the papers.
DISCUSSION
" 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.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " [T]he moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp. et al., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994). " It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). " A motion to strike is the proper vehicle . . . to test whether Connecticut is ready to recognize some newly emerging ground of liability." (Internal quotation marks omitted.) Ortiz v. Waterbury Hospital, judicial district of Waterbury, Docket No. CV 99 154112 (March 9, 2000, Pellegrino, J.) (26 Conn.L.Rptr. 547, ) " If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 498. The court should " construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). Our Supreme Court " will not uphold the granting of [a] motion to strike on a ground not alleged in the motion." Blancato v. Feldspar Corp., 203 Conn. 34, 44, 522 A.2d 1235 (1987).
Pursuant to the Connecticut Workers' Compensation Act, an employee may not bring an action against his or her employer for injuries sustained while on the job. " Section 31-284(a) is the exclusivity provision of the [Connecticut Workers' Compensation Act] and provides that an employer, although required to compensate an employee as set forth in the act for death and personal injury sustained in the course of employment, is not liable in a civil action for damages arising from that injury." Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006) An exception, however, has been carved out by our Supreme Court in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994) ( Suarez I), Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 698 A.2d 838 (1997), permitting an employee to sue his or her employer for personal injuries " when a plaintiff can establish an intentional tort claim demonstrating that his employer either: (1) actually intended to injure [the employee] (actual intent standard); or (2) intentionally created a dangerous condition that made [the employee's] injuries substantially certain to occur (substantial certainty standard)." (Citation omitted; emphasis in original; internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006). " To satisfy the substantial certainty standard, a plaintiff must show more than that [his employer] exhibited a lackadaisical or even cavalier attitude towards worker safety . . . Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm." (Emphasis in original, internal quotation marks omitted.) Motzer v. Haberli, 300 Conn. 733, 744, 15 A.3d 1084 (2011). " A high risk or probability of harm is not equivalent to the substantial certainty without which an actor cannot be said to intend the harm in which his act results." Mingachos v. CBS, Inc., 196 Conn. 91, 101, 491 A.2d 368 (1983). A defendant's conduct may be negligent and reckless insofar as it places the plaintiff in a position where he could be significantly injured without said conduct being sufficient to circumvent the exclusivity of the Workers' Compensation Act. Groman v. Infra-metals Co., Superior Court, judicial district of New Britain, Docket No CV-05-4005639S, (February 22, 2007, Shapiro, J.). The substantial certainty test requires an allegation that " the defendant's conduct was motivated by their intention to cause the . . . [plaintiff] harm or knowledge that such harm would result." Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 113 (2006).
In the present case, the plaintiff is seeking relief pursuant to the second exception to -the Connecticut Workers' Compensation Act exclusivity rule, i.e., that the employer " intentionally created a dangerous condition that made the employee's injury substantially certain to occur." The sole action alleged by the plaintiff is that the defendant directed him to work a particular shift. As such, the plaintiff has not alleged facts that show that the employer was aware of the danger posed by its employees confronting individuals engaging in undesirable conduct upon the premises of the Global Mart. There are no facts in the complaint that allege that the employer held a substantially certain belief that working at the Global Mart would cause someone to be assaulted by an individual on the premises. The plaintiff also has not alleged facts to support the conclusion that the defendant knew or believed that working at the Mart on the late shift would result in injury to the plaintiff. The plaintiff's allegations are legally insufficient because they merely restate the standard necessary to fall within the exception to the exclusivity rule.
In the instant action, the defendant properly argues that the plaintiff has failed to set forth the material facts necessary to establish that the defendant intentionally created a dangerous condition or knew of a condition that was substantially certain to the plaintiff's injuries.
CONCLUSION
For the above reasons, the court grants the defendant's motion to strike the Seventh Count of the Complaint.