Opinion
UWYCV146022280S
06-12-2018
Dila HASSEIM v. O & G INDUSTRIES, INC.
UNPUBLISHED OPINION
Brazzel-Massaro, J.
INTRODUCTION
The plaintiff filed a Revised Complaint dated June 28, 2016. The defendant O & G Industries (hereinafter O & G) filed this Motion for Summary Judgment dated June 16, 2017 contending that the plaintiff is unable to establish that O & G had a substantially certain belief that cleaning the auger would cause the plaintiff to sustain injuries, as required to satisfy the intentional tort exception to the workers’ compensation exclusivity provision. The defendant also argues that the plaintiff is unable to establish that Robert Buchetto was an alter-ego of the defendant. The plaintiff filed an opposition to the motion for summary judgment dated. The defendant filed a reply dated January 23, 2018, with supplemental case law decided by the Supreme Court of Connecticut on January 18, 2018. The plaintiff filed a reply with a supplemental memorandum on January 25, 2018.
This court ruled upon a motion to strike based on the argument that the plaintiff failed to properly plead facts in support of an intentional act which is outside the workers’ compensation claim. The court granted the motion to strike and the plaintiff filed a Revised Complaint dated June 28, 2016.
II. FACTS
The following facts have been set forth in the affidavits and deposition testimony in this action. The plaintiff was employed as a laborer by the defendant O & G Industries, Inc. The defendant is a corporation existing under the laws of the state of Connecticut, for the purpose of providing construction services and construction material facilities. On or about December 27, 2011, the plaintiff was working for the defendant as a laborer at the defendant’s asphalt plant located in Stamford, Connecticut. At least two to three times per year the defendant conducted routine maintenance. (Affidavit of Damiano, Defendant Exh. A.) On that date, Mr. Buchetto ordered the plaintiff to clean an auger machine that was powered on and did not have any barriers. At the time that the plaintiff was ordered to clean the auger, the defendant and/or the defendant’s agents, employees and/or servants were in the control room which powered the machine. On said date and place, the plaintiff began to prepare to clean the auger by climbing a ladder to a platform above the operating auger. In preparation for the cleaning the plaintiff began to pull a hose up to the platform when he slipped and fell into the auger. The plaintiff was not aware that the machine was on at the time he prepared to clean it with the hose. The plaintiff sustained serious personal injuries from the fall. Specifically, the plaintiff sustained painful and serious injuries to his left leg resulting in transfemoral amputation and permanent injury. The plaintiff contends that the injuries that he received were a direct result of the defendant and or its agents, employees and/or servants, intentionally creating a dangerous condition and that they actually believed the process would make the plaintiff’s injuries substantially certain to occur.
III. DISCUSSION
Practice Book § 17-49 provides that 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. Cefaratti v. Aranow, 321 Conn. 637, 645, 138 A.3d 837 (2016). "... The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "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 the 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]." Ferri v. Powell-Ferri, 317 Conn. 233, 228 A.3d 297 (2015). In its memoranda in support of its motion for summary judgment, the defendant argues that the plaintiff has failed to present any genuine issue of material fact that at the time of the accident the defendant caused the plaintiff to perform a task on the auger machine that was intentionally dangerous or which would create a substantial certainty of injury. In an action which involves an accident during the course of employment in which workers’ compensation statutory provisions apply there is only one exception that permits a plaintiff to sue his or her employer as well as to receive the remedies available pursuant to the Workers’ Compensation Act, C.G.S. § 31-284(a). This exception permits an employee to sue his employer when the defendant acted intentionally to injure the plaintiff that is, intentionally created a dangerous condition that made the plaintiff’s injury substantially certain to occur. Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 257-58, 698 A.2d 838 (1997). This constitutes "a narrow exception to the exclusivity of the act." Mingachos v. CBS, Inc., 196 Conn. 91, 99, 491 A.2d 368 (1985). The employer’s intentional creation of a condition so dangerous that the injury to the employee was substantially certain to occur has been held to constitute deliberate, conscious intent to inflict injury for purposes of this exception. Suarez I, 229 Conn. 99, 639 A.2d 507 (1994). The standard for substantial certainty is a high one for an employee to meet. See Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006). The employee must prove that his employer acted intentionally and with a belief that this conduct was substantially certain to cause injury, immediate or eventual, to the employee. Suarez, 229 Conn. at 104, 108-10, 639 A.2d 507. This can be proven by circumstantial evidence. Id.
In American National Fire Ins. v. Schuss, 221 Conn. 768, 776, 607 A.2d 418 (1992), the court set forth an analogy that in its simplest form aids in a distinction between negligent and intentional acts when it stated the difference is clear, "As Holmes observed, even a dog knows the difference between being tripped over and being kicked." Citing W. Prosser & W. Keeton Torts (5th Ed. 1984) p. 33. In its most common usage "intent" involves "(1) ... a state of mind (2) about consequences of an act (or omission) and not about the act itself, and (3) it extends not only to having in the mind a purpose (or desire) to bring about given consequences but also to having in mind a belief (or knowledge) that given consequences are substantially certain to result from the act." Id. p. 34. Negligent conduct, however, "is a matter of risk." W. Prosser & W. Keeton, supra, p. 169, 889 A.2d 810. It is defined as "conduct ‘which falls below the standard established by law for the protection of others against unreasonable risk of harm." Id., quoting Restatement (Second), Torts § 282. The question which is before the court on the summary judgment is whether the plaintiff has provided evidence that there is a genuine issue of fact that the actions of the employer in giving Mr. Hasseim the task of cleaning the auger intentionally created a dangerous act and there was a substantial certainty that the employee would be injured. The plaintiff in his memorandum relied upon the finding in. Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (Suarez I ) for support of his position that the actions of O & G should be found to be intentional thus permitting the exception. The plaintiff argues that this court should deny the motion for summary judgment consistent with the court’s findings in Suarez I and Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 255, 698 A.2d 838 (Suarez II ). However, Suarez I involved a very different fact scenario where the plaintiff provided evidence and testimony that the plaintiff would lose his job if he failed to perform the task and there had been prior concerns for safety expressed. None of those facts are present in this action. The plaintiff in Suarez testified that he complained about the dangerous aspects of that particular process but was ordered to perform the task. (Emphasis added.) Additionally, there was expert testimony which discussed the certainty of injury using the system in Suarez.
The Suarez cases found that in order to pursue such a cause of action for a work related injury, the plaintiff must demonstrate that the actions of the employer or his supervising employee were intentional acts. In particular, the Suarez court has established an exception to workers’ compensation exclusivity if the employee can prove "either that the employer actually intended to injure the [employee] or that the employer intentionally created a dangerous condition that made the [employee’s] injuries substantially certain to occur ..." Suarez II, supra, 257-58, 698 A.2d 838. In Suarez II, the court restated the substantial certainty test "to emphasize that the employer must be shown actually to believe that the injury would occur ..." Suarez II further defined the legal criteria as to the intentional conduct. It stated, since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant’s 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 sort of a conscious and deliberate intent directed to the purpose of inflicting an injury." Quoting 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). [T]he 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). Stebbins v. Doncasters, Inc., supra, 263 Conn. 234 stated that even showing a "lackadaisical" or "cavalier" attitude toward worker safety, does not establish that the defendant believed that its conduct was substantially certain to cause illness.
Under Connecticut law proof of the employer’s intent with respect to the substantial certainty exception demands a purely subjective inquiry. Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118-20, 889 A.2d 810 (2006), Stebbins v. Doncasters, Inc., supra, 263 Conn. 231, 234, 819 A.2d 287, A.2d (2003). Thus, in order to satisfy the substantial certainty exception the plaintiff must show that the employer’s subjective intent was to engage in an activity that it knows bears a substantial certainty of injury to its employees. The Suarez courts established a heavy burden to demonstrate intentional acts. The Suarez decisions have been recently clarified and applied in the Supreme Court ruling in Dominick Lucenti v. Greg Laviero et al., 327 Conn. 764, 176 A.3d 1 (2018). This court follows the analysis set forth in Lucenti in its findings. This case has established what it termed hallmarks typical of employer misconduct which will permit an employee to pursue a legal action in addition to the workers’ compensation action. Lucenti follows and expanded the prevailing case law as set forth in Suarez I, supra, at 229 Conn. 99, 639 A.2d 507 and Suarez II, supra, 242 Conn. 255, 698 A.2d 838. This standard enunciated in Lucenti looked to specific cases for guidance as to a definition of intentional acts and substantial certainty to injure. Lucenti adopted several New Jersey cases along with the factors that the New Jersey courts follow to determine if the conduct prong is satisfied. In particular, the Lucenti court accepted the multifactor standards set forth in the New Jersey case law as consistent with the Connecticut Appellate case law. These factors include: "(1) prior similar accidents related to the conduct at issue that have resulted in employee injury, death, or a near-miss, 2) "deliberate deceit" on the part of the employer with respect to the existence of the dangerous condition, 3) "intentional and persistent" violations of safety regulations over a lengthy period of time, and 4) affirmative disabling of safety devices." Lucenti, supra, 327 Conn. 782, citing Van Dunk v. Reckson Associated Realty Corp., 210 N.J. 449, 471-72, 45 A.3d 965 (2012).
Additionally, Lucenti utilized the findings in Stebbins v. Doncasters, Inc. supra, and Sorban v. Sterling Engineering Corp., supra, to provide further examples of the type of evidence which needs to be introduced to give rise to an exception of the Workers’ Compensation protections. In Stebbins, the court held that despite evidence by the employees that the employer was aware that they were exposed to contaminated airborne droplets and repeatedly failed to follow certain warnings and recommendations which caused respiratory illness, there was not sufficient evidence of intentional acts. Additionally, the evidence of further violations of other safety rules and regulations and the failure to provide proper safety or protective measures was not sufficient evidence of intentional acts. The court found that the evidence of such "exhibited a lackadaisical or even cavalier attitude toward employer safety, but was bereft of evidence from which one might reasonably and logically infer that the employer’s believed the conduct was substantially certain to cause" the illness. Id. 644-45, 138 A.3d 837.
The facts in Sorban v. Sterling Engineering Corp., supra, 79 Conn.App. 444, 830 A.2d 372, demonstrate a more egregious conduct on the part of the employer which was found insufficient to satisfy the substantial certainty test. In Sorban , there was specific evidence that the employer had been warned by the employee of the dangerous working condition and in response the employer simply told the employee to be careful. The machine which the plaintiff was working was known to improperly operating and the employer would not fix it. The employer failed to provide safety shield guards and thus when a piece of material broke off to hit the employee’s arm and broke it. The court found that the failure to act may constitute gross negligence or even recklessness but they "failed to meet the high threshold of substantial certainty ... The combination of factors demonstrated a failure to act; however, such failure is not the equivalent of an intention to cause injury." Id. 457-58, 830 A.2d 372.
Applying each of these standards to the facts of the instant action does not yield a showing that the Defendant, O & G, intentionally created a dangerous condition and the condition was substantially certain to cause injury to the employee. Specifically, there is no evidence of any prior similar accidents or any accident that occurred during the past years performing this same process to clean. The plaintiff has not provided any evidence that the defendant did anything to deceive or place the employees in a dangerous position. The plaintiff argues that the defendant was to put in a new lock out device to activate and control the equipment but there is no information provided that the failure to have them installed in the six months prior to the accident had been purposeful to either save time or money or that the lack of or initiation of these procedures was intentional or would cause injury. The failure to have the new device in place on this date while possibly a sign of poor management is not tantamount to the intentional conduct which is described by our courts. Interestingly enough, according to the plaintiff’s deposition testimony, the defendant took the time with its employees to discuss various changes it was making for safety and other operational procedures just six months before this accident. The change which was to be made for the starting controls of the auger screw was known to the plaintiff because he had been present in meetings which were obviously scheduled to discuss the operations of the plant and new procedures. Unlike many of the cases discussed herein, the defendant in this case was taking positive action for oversight of the operations. Even prior to the discussion of the lock out device, the defendant had in place a procedure for the person cleaning the auger to determine that it was ready to turn on. There was no testimony that this had changed. The plaintiff offered this testimony and then could not remember specifically what he did or if the process was followed. The process at issue in this action did not unlike other actions involve direct contact with the auger machine. Unlike Suarez where the plaintiff was placing cleaning the machine out with his hands while it was still running or Sorban where the machine was working and a piece broke hitting the plaintiff, the operation here called for the machine to be off until the person cleaning gave the approval to start it. If anything, the evidence presented by both parties as to training or oversight creates the image of negligence in the operation or a "lackadaisical" approach to the placement of the new process to the factory. It should also be noted that up until this accident there was no violation by OSHA, no accidents, no verbal complaint by this employee or any others, no evidence that the defendant chose to not install the lock out for purposes of saving money or time in the operation and therefore there was no deceitful or even improper purpose demonstrated by the plaintiff. Lastly, there is no testimony or evidence that the placement of a checks and balances process would have created a different scenario. The plaintiff testified in his deposition that there was a process that was followed to his knowledge, which is the machine would not go on until he or whomever was performing the cleaning would give a sign to begin it. The plaintiff testified in his deposition that his understanding was if he saw the auger screw on when he was preparing to clean, he would communicate to turn it off. He was not as clear in the affidavit he submitted in support of the objection to the motion for summary judgment. The plaintiff was not clear as to whether the machine was on or off when he first climbed the ladder and although he stated he does not recall, he cannot say that he failed to follow his own training and/or understanding to have it turned off at his signal.
Lastly, there was no evidence or testimony of either a failure to follow safety regulations before this incident, a citing by any agency of particular safety violations, or even any knowledge of the existence of any safety concerns before this incident. As to the final step there was absolutely no testimony that the defendant did anything to disable or change any device including the starting of the auger for any improper reason. These findings which follow Lucenti lead to the conclusion that there was no intentional actions by the employer that was substantially certain to injure.
Further, the plaintiff testified that he was not specifically trained to perform the cleaning task. However, he had performed the task in the year before and he had seen the cleaning performed by various employees at other times before this. He did not ask for directions or assistance because he was unclear as to the task. He did not complain that it was unsafe and has never provided any evidence that before the incident he believed he was performing a task which could even possibly lead to injury. This is unlike the plaintiffs who believed they would be fired if they did not do the job. His testimony about an unrelated job and the innuendo for some actions does not rise to the level of being forced to perform the task. The plaintiff was not specific as to the details involving the prior verbal warning and without more there is no evidence that there is any similarity between the incidents. Interestingly, this belief by the plaintiff was never verbalized until the deposition and even then he indicated that no supervisor gave him such a warning for this task. He also testified that he never complained unlike the plaintiff in Ducharme and never requested to perform the task in a different manner. The plaintiff does not provide any evidence of any prior difficulties or injuries in the years before he performed this task.
The defendant introduced an affidavit from Mr. Damiano in which he stated that there had not been any injuries and the cleaning had been performed two to three times a year for the past twenty years by many and varied employees and even the supervisor Mr. Anthony Crespo without an objection, incident or injuries in the same manner since O & G purchased the Stamford plant over 20 years before this incident. Once again, what the plaintiff does emphasize as the basis for a finding of an intentional act, is the failure to install a lock out system that would require multiple individuals to use a key to start the auger machine and the OSHA finding after the accident. The Lucenti court stated that our Appellate courts consistent with the New Jersey multifactor standard, have found that although "warnings to the employer regarding the safety of work place conditions are relevant evidence, they do not without more, raise a genuine issue of material fact to defeat summary judgment with respect to whether an employer subjectively believes that an employee’s injuries are substantially certain to result from its actions." The Lucenti court analyzed Stebbins v. Doncasters, Inc., supra., 47 Conn.Supp. 640, where the employer failed to follow warnings and recommendations but the court determined this was nothing more than mere failure to provide safety or protective measures." As stated above, the Lucenti court opined that such submission may have exhibited a lackadaisical attitude toward worker safety but that such a finding does not logically infer that the employer believed its conduct was substantially certain to cause injury to the employees. So too, in the instant action the defendant did not install the lock out device but it is not logical with the evidence in this action to find that the failure to do so was intentional conduct to injure the employee with substantial certainty.
The plaintiff argues that this court should deny the motion for summary judgment consistent with the court’s findings in Suarez I and basically ignore the Lucenti decision. However, Lucenti and many of the cases that factually are similar to this action warrant a finding that the plaintiff has failed to present a genuine issue of fact that this defendant engaged in an intentional act knowing that there was a substantial certainty that he would be injured cleaning the auger machine. Because there is no intentional act that was substantially certain to cause serious injury, the exception to the workers’ compensation act does not apply.
As a result of the finding that an exception does not apply, this court will not address the second argument as to the "alter ego."
IV. CONCLUSION
For the foregoing reasons, the motion for summary judgment is granted.