Opinion
No. HHB CV 05 4005639 S
February 22, 2007.
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#111)
The court heard argument at short calendar on January 8, 2007 concerning the defendant's motion for summary judgment. After considering the parties' arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
I BACKGROUND
In his complaint, dated April 18, 2005, the plaintiff, William F. Groman, alleges that he was employed as crane operator/processor by the defendant, Infra-Metals Company, on April 23, 2003, when he suffered serious personal injuries as a result of an incident which occurred while he was working for his employer, at its place of business located in Wallingford, Connecticut. He alleges that, on that date, he was engaged in moving a steel beam from the processing area to the loading dock, using a remote powered overhead crane and a hoist. He alleges that, after he had manually attached both ends of the steel beam to chains on the hoist and had raised the beam overhead using the remote, the crane suddenly and without warning shut down and/or lost power. He claims that the beam swung back toward him, causing the beam to disengage from the chains, and it fell onto him, as a result of which he suffered a crush injury to his left leg, which became severely and chronically infected and had to be amputated. In addition, he claims to have suffered other injuries as a result of the incident. The plaintiff alleges that his injuries were caused by the defendant's conduct and that it knew that his injury was substantially certain to result.
On September 13, 2006, the defendant filed a motion for summary judgment, with a supporting memorandum of law.
On November 28, 2006, the plaintiff filed an objection and a memorandum in opposition to the motion for summary judgment. The defendant filed a reply on December 8, 2006.
II DISCUSSION
"Practice Book § 17-49 provides in relevant part that judgment `shall be rendered forthwith if the 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.' . . . The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
Practice Book § 17-45 provides, in pertinent part, "[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."
"A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 757, 905 A.2d 623 (2006).
The defendant argues that there is no genuine issue of material fact with regard to the claim, because, under General Statutes § 31-284, the workers' compensation benefits which the plaintiff receives for his injury provide his exclusive remedy. In support of its motion, the defendant presented evidence, including testimony by the plaintiff at his deposition, showing that the incident was accidental in nature. For example, the plaintiff had no interaction with his supervisor before he started work on the day of the incident (see deposition of plaintiff, p. 68, Exhibit 2 to defendant's submission in support of its motion); and, at the time of the incident, the plaintiff was standing in an area where he was not supposed to be (see deposition of plaintiff, p. 50, Exhibit 2 to defendant's submission in support of its motion).
General Statutes § 31-284(a) provides: "An employer who complies with the requirements of subsection (b) of this section 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 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 an employer who complies with the requirements of subsection (b) of this section 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."
In his memorandum in support of his objection, page 1, the plaintiff asserts that there is a genuine issue of material fact as to whether the employer's conduct in "training" the plaintiff not to walk on steel beams, because it was probable to result in injury to him, yet maintaining a system where he could only do his job by walking on and between beams, "in a fashion directly inapposite to its own safety standards, amounts to conduct substantially certain to have caused injury to plaintiff such that it falls within the narrow exception to exclusivity."
Our Supreme Court recently has reiterated that "Section 31-284(a) is the exclusivity provision of the act and provides that an employer, although required to compensate an employee as set forth in the act for death or personal injury sustained in the course of employment, is not liable in a civil action for damages arising from that injury . . . An exception to this general rule of exclusivity exists when a plaintiff can establish an intentional tort claim by 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).
As in Sullivan, the plaintiff here seeks to recover under the substantial certainty standard. "Although it is less demanding than the actual intent standard, the substantial certainty standard is, nonetheless, an intentional tort claim requiring an appropriate showing of intent to injure on the part of the defendant . . . Specifically, the substantial certainty standard requires that the plaintiff establish that the employer intentionally acted in such a way that the resulting injury to the employee was substantially certain to result from the employer's conduct . . . To satisfy the substantial certainty standard, a plaintiff must show more than that [a] defendant exhibited a lackadaisical or even cavalier attitude toward worker safety . . . Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.
The court reiterated "our well established precedent requiring a showing of knowledge that the employee would be injured before the substantial certainty test can be satisfied." Id., 120. In Sullivan, the Supreme Court affirmed the trial court's granting of the defendants' motion to strike, concluding that the allegations did not satisfy the substantial certainty standard, "because the plaintiff's complaint contained no allegations that the defendants' conduct was motivated by their intention to cause the decedent harm or knowledge that such harm would result . . ." Id.
"[T]he employee must show that the employer's act in producing the injury was deliberate or intentional and that the resulting injury was substantially certain, from the employer's perspective, to occur . . . 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 . . . 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 . . . Last, we note that our Supreme Court has stated that `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 (1985)." (Citations omitted; emphasis in original; internal quotation marks omitted.) Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 452, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003).
As noted, the plaintiff here argues that the existence of material issues of fact prevent the entry of summary judgment. The court agrees with the analysis stated, in similar circumstances, in Cappellan v. Fairfield Processing Corp., Superior Court, judicial district of Waterbury, Complex Litigation Docket at Waterbury, Docket No. X06 CV 03 0184584 (October 20, 2004, Alander, J.): "The plaintiff . . . 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 [, 846 A.2d 849] (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."
Here, the plaintiff argues that, although the defendant had, though its safety program, trained the plaintiff not to walk onto and between the stacks of steel beams, in fact he was required to walk onto and between the beams to do his job, which was a practice prohibited by the United States Department of Labor, Occupational Safety and Health Administration (OSHA). He argues that, due to equipment problems with the crane, which had a history of shutting down, and which caused instability in the load; and due to the lack of adequate lighting in the bay where he worked, and on the crane; he sustained the serious injuries discussed above. He also cites previous injuries to other employees, fifteen months and one month prior to the incident at issue.
Although the plaintiff argues that it is undisputed that the defendant knew that the lights in the bay where he was working were broken and were out, in his deposition, at pp. 47-48, he stated that the lights were off on the crane, but that the lights which were "mounted on the building" were on.
The court concludes that the record here is similar to that in Cappellan v. Fairfield Processing Corp., supra, in its lack of evidence that the defendant intentionally created a dangerous condition which made the plaintiff's injury substantially certain to occur. The plaintiff has not presented any expert opinion as to causation concerning the April 23, 2003 incident. The plaintiff has not made a showing of knowledge on the part of the defendant that the plaintiff would be injured. See Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 120.
In Cappellan v. Fairfield Processing Corp., supra, "[t]he plaintiff allege[d] 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." (Footnote omitted.) Id. In granting summary judgment, the court stated, "[t]he 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 [Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994)], 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." Id.
Likewise, here, the plaintiff's affidavit and exhibits, including his deposition testimony, do not create a genuine issue of material fact as to the dispositive issue. The plaintiff has not presented evidence showing that "his employer believed that its conduct was substantially certain to cause the employee harm." (Emphasis in original) Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 118. In contrast, when asked at his deposition whether he had any reason to believe that anyone at Infra-Metals intended for him to get hurt on April 23, 2003, his response was, "No." See Groman Deposition, p. 73, Exhibit 2 to defendant's submission in support of its motion.
Our Supreme Court has held that "[o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." Home Insurance Co. v. Aetna Life Casualty Co., 235 Conn. 185, 202-03, 663 A.2d 1001 (1995). Various of the plaintiff's exhibits may not be considered by the court. For example, Exhibit A consists of two documents, which apparently concern an incident which occurred in November 2001, in which an employee was injured, and which resulted in an OSHA citation. These documents contain hearsay statements.
Similarly, Exhibit C consists of OSHA reports for the November 2001 incident and another incident, which occurred in March 2003, in which another employee was injured. The OSHA citations and notifications of penalties for these incidents, which are contained therein, are the equivalent of complaints or charges. They contain hearsay, consisting of allegations about other incidents. Also, the exhibits labeled "William Groman Incident OSHA Report Exhibits," which apparently concern the March 2003 incident, may not be considered for the same reason.
The plaintiff also has presented, as Exhibit B, an investigator's report, dated November 18, 2006, concerning surveillance conducted in November 2006, more than three years and six months after the incident at issue in this matter. It consists of hearsay observations about employee activity which occurred long after the incident. It is inadmissible and has no probative value.
The record before the court also is analogous to that in Martinez v. Southington Metal Fabrication Co., Superior Court, judicial district of Hartford at Hartford, Docket No. CV03 0825432 (October 5, 2005, Miller, J.) ( 40 Conn. L. Rptr. 101), in which the plaintiff/employee claimed that the amputation of his left arm resulted from the defendant's wrongful conduct, including twenty separate safety manual violations. "Plaintiff has failed to present the court with any evidence which indicates the existence of an issue of fact as to whether intentional acts by the defendant created a substantial certainty that an injury of this type would occur. None of the conduct alleged by plaintiff will, without additional evidence which plaintiff has not demonstrated he can produce, would allow him to get past a motion for directed verdict." Id. See Moroccco v. Rex Lumber Co., 72 Conn.App. 516, 525, 805 A.2d 168 (2002) (OSHA violations do not take a resulting injury out of the exclusivity provisions of the Workers' Compensation Act).
CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment is granted.
It is so ordered.