ARTHUR H. HEALEY, J.

This appeal calls into issue the exclusivity of the Connecticut Workers' Compensation Act, General Statutes 31-275 through 31-355.

On October 30, 1979, Frank Mingachos (the decedent) sustained injuries from an explosion while working on the Danbury premises of his employer, the named defendant, CBS, Inc. (CBS). On November 29, 1979, he died as a result of those injuries. On June 3, 1981, the plaintiff, Marcelino Mingachos, as administrator of the decedent's estate, instituted an action in three counts seeking compensatory and punitive damages against CBS and several individual fellow employees of the decedent, Rocco Pennozza, Charles Joseph and Andrew Dodd.

The first two counts were directed to CBS. They alleged, in substance, that the explosion and the decedent's injuries and death were caused by CBS' "violations" of certain enumerated Connecticut "statutory regulations" and federal Occupational Safety and Health Administration Act (OSHA) regulations, that the violations were "willful" and "reckless," and that "the natural and probable consequence reasonably to be anticipated . . . would be death or serious injury." The third count was directed to Pennozza, Joseph and Dodd. It also alleged in substance that the explosion and the decedent's injuries and death "were caused by and were the direct result" of the individual defendants' violation of the same Connecticut "statutory regulations" and federal OSHA regulations as alleged in the two earlier counts, that the violations were "wilful," and again that "[t]he natural and probable consequence reasonably to be anticipated . . . [therefrom] would be death or serious injury." The defendant CBS' answer to the first and second counts included the special defense of the Workers' Compensation Act (the act) and asserted the exclusivity of the act as a bar. The special defense of the act was also interposed to the third count, with the individual defendants asserting its exclusivity because the case did not fall within the exceptions of 31-293a of the act. Thereafter, the plaintiff filed his motion to strike the special defenses to all three counts "for the reason that said allegations do not constitute special defenses to an action for willful and intentional torts." The court, Sullivan, J., denied the motion as to the first two counts and granted it as to the third count.

Thereafter, a three count amended complaint was filed. The first two counts, as amended, now alleged that the explosion and the decedent's injuries and death were caused by "CBS's violations and actions . . ." of certain enumerated Connecticut statutory regulations and OSHA regulations, that "[s]aid actions and violations" were, as to the first count, "wilful and intentional, and created a hazardous condition" and that they were, as to the second count, "reckless, and created a hazardous condition." As to each of these two counts, it was now alleged that despite "CBS' knowledge that such hazardous violations and conditions existed," it failed to correct them, it failed to warn its employees, and it failed to report them to certain governmental agencies as required by law. It was further alleged that this failure to correct, warn and report was, on the part of CBS, "intentional, malicious, and in willful and wanton disregard of the health of the plaintiff's decedent and caused his injuries and consequent death."

The defendants thereafter filed their motion for summary judgment in which they asserted that the plaintiff's claim was "barred by law." The motion also alleged that "[a]ll three counts . . . are based on the violations of the defendants of certain OSHA rules and regulations and are barred by Connecticut General Statutes Section 31-369 (b)and 29 United States Code Section 653(b)(4)." The court, Maiocco, J., granted the summary judgment motion as to all three counts. This appeal followed.

On appeal, the plaintiff claims that the trial court erred: (1) in overruling his motion to strike the special defenses to the first and second counts of the original complaint and (2) in granting summary judgment for the defendants on all three counts of his amended complaint.

The basic issue in this appeal is whether an employer has immunity from suit under General Statutes 31-284 of the Workers' Compensation Act when the employer is sued in intentional tort. The manner, however, in which the case was presented and argued to two judges in the trial court, one who decided the plaintiff's motion to strike special defenses to the original complaint and one who rendered summary judgment for the defendants on the later filed amended complaint, requires individual treatment. "We review this case on the theory upon which it was tried and upon which the trial court decided [each motion]." (Citations omitted.) Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985). The basic issue does, however, permeate both motions which the parties have briefed separately although both with some overlapping. Accordingly, our discussion of the act will likewise permeate our determination of both motions.

I

We first address the plaintiff's claims against the defendant employer. To do so we must necessarily examine the scope of General Statutes 31-284, the "exclusivity" provision of the Connecticut Workers' Compensation Act.

"The purpose of the workmen's compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer." (Citation omitted.) Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). The act is to be broadly construed to effectuate the purpose of providing compensation "for an injury arising out of and in the course of the employment regardless of fault." Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968); Stapf v. Savin, 125 Conn. 563, 565, 7 A.2d 226 (1939). Under typical workers' compensation statutes, employers are barred from presenting certain defenses to the claim for compensation, the employee's burden of proof is relatively light, and recovery should be expeditious. 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. See Iverson v. Atlas Pacific Engineering Ltd., 143 Cal.App.3d 219, 191 Cal.Rptr. 696 (1983); 81 Am.Jur.2d, Workmen's Compensation 2 (1976); see generally Larson, "The Nature and Origins of Workmen's Compensation," 37 Cornell L.Q. 206 (1952). The purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes. See Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979).

Under General Statutes 31-284 (a) an "employer" within the scope of the act is not liable in "any action for damages on account of personal injury sustained by an employee arising out of and in the course of his [or her] employment or on account of death resulting from personal injury so sustained . . . ." (Emphasis added.) The act mandates that the term "[p]ersonal injury . . . shall be construed to include, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease as herein defined. (Emphasis added.) General Statutes 31-275 (8); see Plainville v. Travelers Indemnity Co., 178 Conn. 664, 669-70, 425 A.2d 131 (1979). "Every word in a legislative enactment is presumed to have meaning. State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974)." State v. Freedom of Information Commission, 184 Conn. 102, 107, 441 A.2d 53 (1981). We have recognized that "courts do not torture words to import ambiguity where the ordinary meaning leaves no room for it . . . ." Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980).

Under the act, "in addition to accidental injury," the definition of "personal injury" or "injury" clearly encompasses any other specified injuries "causally connected" with employment. (Emphasis added.) General Statutes 31-275 (8). The act's coverage is necessarily broad in scope, encompassing more than merely injuries resulting from "accidents," giving that word its plain meaning. See General Statutes 1-1; Rivera v. I. S. Spencer's Sons, Inc., 154 Conn. 162, 164, 223 A.2d 808 (1966); 81 Am.Jur.2d, Workmen's Compensation 29, p. 725 (1976).

We have recently recognized a narrow exception to the exclusivity of the act. In Jett v. Dunlap, supra, we held that an employee's action claiming intentional assault by another employee "identified as the alter ego" of the employer would not be barred by 31-284. Id., 219. This "alter ego" exception may be applicable in instances in which "the assailant is of such rank in the corporation that he may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity." Id. Jett, which involved an assault upon an employee by his work supervisor, does not, however, avail the plaintiff in this case.

The plaintiff would have us construe 31-284 so that this provision would not bar actions at law against employers in cases such as the one now before us. He points to the statement in Jett v. Dunlap, supra, 218, that "[a]n intentional tort committed upon one employee by another, which causes personal injury arising out of and in the course of his employment, is covered by the compensatory provisions of the Workmen's Compensation Act." Going on, he also refers to the dicta in Jett v. Dunlap, supra, 221, where we said: "Where such wilful or serious misconduct is engaged in by an employer, as identified by the standard we set forth today, then a plaintiff may pursue common-law remedies." It is therefore clear, he continues, that by this later language we have created for intentional torts committed by an employer an exception to the exclusivity defense of the act for injuries sustained in the course of a worker's employment and so, when injury results from the commission of an intentional tort by an employer, an employee "is permitted to pursue remedies beyond those contemplated by the Workers' Compensation Act."

In the present appeal the plaintiff is really requesting that we extend judicially the Jett exception to 31-284 to include injuries to employees resulting from "intentional," or "wilful," or "reckless" violations by the employer of safety standards established pursuant to federal and state laws, such as OSHA. In the absence of any such legislative direction, we decline to do so for a number of reasons that we set forth as follows.

First, our decisional law constrains us from giving, such an expansive reading of the terms "intentional," "wilful," or "reckless" because they have been previously defined in the context of common law tort actions. We begin our analysis here by pointing out that it is generally agreed that workers" compensation laws were not intended to shield an employer from common law liability for injuries he intentionally inflicted upon his employee. See Shearer v. Homestake Mining Co., 557 F. Sup. 549, 553 (D.S.D. 1983), aff'd, 727 F.2d 707 (8th Cir. 1984); 2A Larson, Workmen's Compensation Law (1976) 68.10 and 68.13. It will be useful to put such terms as "wilful," "intentional" and "reckless" in context considering the plaintiff's core claim that the Connecticut Workers' Compensation Act is not a defense available to the defendant employer in this tort action.

In his description of intentional tortious conduct, Dean Prosser has said: "'Intent' is the word commonly used to describe the desire to bring about the physical consequences [of an act] . . . . Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does." Prosser, Torts (4th Ed. 1971) 8. Similarly, according to the second Restatement of Torts, "intent" refers "to the consequences of an act rather than to the act itself"; 1 Restatement (Second), Torts 8A, comment (a) (1965); and therefore "[t]he word `intent' . . . 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). Thus, the concept of "intent" in relation to tortious conduct has reference to the consequences of the act rather than to the act itself. One court has thus stated: "But 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." Shearer v. Homestake Mining Co., supra, 559. In terms of intentional tort then, the use of the word "intent" in allegations "is not a talisman that can change the allegations into colorable claims of true intentional torts." Keating v. Shell Chemical Co., 610 F.2d 328, 332 (5th Cir. 1980). Nor is it any more so with the allegations of a "wilful" act, as Justice Cardozo stated in Messersmith v. American Fidelity Co., 232 N.Y. 161, 165-66, 133 N.E. 432 (1921): "Every act, if we exclude, as we must, gestures or movements that are automatic or instinctive, is willful when viewed in isolation and irrespective of its consequences. . . . A driver turns for a moment to the wrong side of the road, in the belief that the path is clear, and deviation safe. The act of deviation is willful, but not the collision supervening."

To bypass the exclusivity of the act, the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted. Such a concept is nothing new to our jurisprudence. Only recently, drawing on our earlier cases, we said: "'A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional.' Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). `A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent. . . . [Its] 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, 507-508, 77 A. 950 (1910). The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act. Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975)." Markey v. Santangelo, 195 Conn. 76, 77-78, 485 A.2d 1305 (1985). It is also well recognized that "[a]lthough the line between a highly foreseeable risk and an intentional tort often grows thin, it has always been deemed to exist: `On the other hand, the mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent. The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton, but it is not classed as an intentional wrong. In such cases the distinction between intent and negligence obviously is a matter of degree. Apparently the line has been drawn by the courts at the point where the known danger ceases to be only a foreseeable risk which a reasonable man would avoid, and becomes a substantial certainty.'" Keating v. Shell Chemical Co., supra, 332, quoting Prosser, supra, 32.

Alleged misconduct deemed to be "reckless," as the plaintiff also claims, differs from intentional misconduct. "While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it." 3 Restatement (Second), Torts 500, comment f (1965). "It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from a substantial certainty without which he cannot be said to intend the harm in which his act results." (Emphasis added.) Id.

A second reason that the 31-284 (a) exclusivity rule bars common law actions for damages against employers for safety violations is the present statutory scheme itself. We have previously recognized that in construing the Workers' Compensation Act, this court "makes every part operative and harmonious with every other part insofar as is possible . . . ." Bahre v. Hogbloom, 162 Conn. 549, 554, 295 A.2d 547 (1972). "The entire enactment must be examined and its parts reconciled and made operative so far as possible." Kulis v. Moll, 172 Conn. 104, 111, 374 A.2d 133 (1976), quoting United Aircraft Corporation v. Fusari, 163 Conn. 401, 411, 311 A.2d 65 (1972).

In 1978, the General Assembly amended the act to include a provision that allows a greater amount of compensation to be paid to an employee "who suffers any injury or illness caused by his employer's violation of any health or safety regulation . . . after such violation has been cited in accordance with [OSHA or Connecticut OSHA] and not abated within the time fixed by the citation . . . ." Public Acts 1978, No. 78-360, 1, codified at General Statutes 31-307. This provision buttresses the defendant employer's position that the legislature did not intend to abrogate the exclusivity principle in a case such as that presented here.

It is axiomatic that compensation in common law tort serves a two-fold purpose: deterrence of socially undesirable conduct and compensation to those persons harmed by such conduct of others. See generally Prosser, Torts (4th Ed. 1971) 1, 3; 1 Harper James, Torts (1956), pp. xxxix-xlii. In pertinent part 31-307 fulfills both of these purposes as the legislature obviously intended. First, the increase in workers' compensation from 66 2/3 to 75 percent of average weekly earnings permitted thereunder was designed to provide an incentive to employers to make the corrections necessary to ensure safe workplaces for their employees. 21 S. Proc., Pt. 6, 1978 Sess., pp. 2342-43; 21 S. Proc., Pt. 7, 1978 Sess., pp. 2726-29; Hearings before the Joint Standing Committee on Labor and Industrial Relations, 1978 Sess., pp. 102, 109, 118-22, 125, 130-31, 149-50. This increase in compensation to employees for work related injuries due to safety violations within the scope of 31-307 was a remedy provided them by the legislature within the confines of the act itself. The "seventy-five per cent" compensation rate allowable in such 31-307 cases thus serves as a recent component of the legislative recognition of the on-going social compact of the existing workers' compensation system in this state for injuries within the scope of its coverage. See 21 S. Proc., Pt. 6, 1978 Sess., pp. 2342-43; 21 S. Proc., Pt. 7, 1978 Sess., pp. 2728-29; Hearings before the Joint Standing Committee on Labor and Industrial Relations, 1978 Sess., pp. 102, 109, 125.

We note that the added remedy under 31-307, which the legislature contemplated would be the remedy available to an employee injured due to the employer's unsafe working conditions, only applies to cases in which a covered employee is injured as a result of the employer's failure to take appropriate corrective measures after it has received a citation under either General Statutes 31-375 or federal OSHA for a violation due to the offending condition. Because the issuing of the citation begins the running of the period of the employer's potential 31-307 workers' compensation liability, the employer must be on notice that the unsafe condition exists for the "seventy-five per cent" provision to apply. A fortiori, even injuries that occur as a result of unsafe conditions of which the employer has actual notice in the form of a citation are within the scope of the act, and thus the statutory scheme of the act serves to bar common law actions in such cases.

The third reason that we decline to construe 31-284 as not barring such actions is that to do so would in this case usurp the legislative function. One court, in a workers' compensation case has said that "[a] damage suit as an alternative or additional source of compensation, becomes permissible only by carving a judicial exception in an uncarved statute. . . . Neither moral aversion to the employer's act nor the shiny prospect of a large damage verdict justifies interference with what is essentially a policy choice of the Legislature." Azevedo v. Abel, 264 Cal.App.2d 451, 459, 70 Cal.Rptr. 710 (1968); see note, "Intentional Employer Torts: A Matter for the California Legislature," 15 U.S.F.L. Rev. 651 (1981); but see note, "Exceptions to the Exclusive Remedy Requirements of Workers' Compensation Statutes," 96 Harv. L. Rev. 1641 (1983).

We also decline to follow Mandolidis v. Elkins Industries, Inc., 246 S.E.2d 907 (W.Va. 1978), in which an action similar to this plaintiff's was held not to be barred by the exclusivity principle under West Virginia law. See also Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572, cert. denied, 459 U.S. 857, 103 S.Ct. 127, 74 L.Ed.2d 110 (1982). Unlike our act, the West Virginia Workers' Compensation Act, which the Mandolidis court was interpreting, expressly allowed tort actions where the employee's injury was the result of a "deliberate intention" of the employer to injure the employee. W. Va. Code 23-4-2 (1978). Although we construe our Workers' Compensation Act so as not to bar tort actions against an employer that deliberately intended to injure its employee, we agree with the conclusion that the reasoning of the Mandolidis court was "strained"; Houston v. Bechtel Assoc. Professional Corporation, 522 F. Sup. 1094, 1097 (D.D.C. 1981); and, like Blankenship, was a "distinctly out-of-line holding." 2A Larson, Workmen's Compensation Law (1976) 68.13, p. 13-8 n. 10.1; see also Hatcher v. Bullard Co., 39 Conn. Sup. 250, 256, 477 A.2d 1035 (1984). We note that in 1983 the West Virginia legislature "sharply curtailed" the rule in Mandolidis. 2A Larson, supra, 68.13, p. 21 n. 10.1 (Sup. 1984). Therefore, "[s]ince 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, under the almost unanimous rule, [the exceptions being Mandolidis v. Elkins Industries, Inc., supra, and Blankenship v. Cincinnati Milacron Chemicals, Inc., supra,] 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 genuine intentional injury." (Footnotes omitted.) 2A Larson, supra, 68.13.

II

In light of our discussion of the scope of 31-284 (a) in barring actions against an employer for job related injuries, we take up first the plaintiff's claim that the trial court erred in overruling his motion to strike the special defenses of the Workers' Compensation Act to the first and second counts of his original complaint. We find no error.

A motion to strike challenges the legal sufficiency of a pleading. Practice Book 152; Blake v. Levy, 191 Conn. 257, 258 n. 1, 464 A.2d 52 (1983); Ivey, Barnum O'Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 530 n. 2, 461 A.2d 1369 (1983). It replaced the demurrer in our practice. Practice Book 151. Like the demurrer, it admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980); McAdam v. Sheldon, 153 Conn. 278, 282, 216 A.2d 193 (1965). The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail. Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra. Where, as in this instance, the motion to strike challenges the legal sufficiency of the special defense of the act to the original complaint, we must consider the complaint in the same posture as did the trial court. See Ivey, Barnum O'Mara v. Indian Harbor Properties, Inc., supra, 530 n. 2.

In overruling the plaintiff's motion to strike and in determining that the act was the exclusive remedy, the trial court noted that the plaintiff had merely alleged "willful" and "reckless" violations of state and federal safety regulations and "significantly" had "not alleged an `intentional' injury." The trial court thus rejected the plaintiff's arguments that 31-284 (a) did not bar a tort action alleging wilful or reckless conduct on the part of the employer and that if 31-284 (a) bars an employee from workers' compensation "when the personal injury has been caused by the wilful and serious misconduct of the injured employee . . ." then the employer should be barred from raising the act's exclusivity as a defense when the employer is likewise charged with wilful, reckless or serious misconduct. The trial court maintained that this same argument had been rejected by this court in Jett v. Dunlap, 179 Conn. 215, 218, 425 A.2d 1263 (1979), and also refused to follow Mandolidis and Blankenship, decisions from other jurisdictions. Because the act provides the exclusive remedy to the employee for conduct alleged in the original complaint, the trial court's denial of the plaintiff's motion to strike the special defense was not clearly erroneous. Practice Book 3060D.

We also note that in those two counts the plaintiff based his action on the defendant's claimed violations of statutory regulations promulgated under both Connecticut and federal "OSHA" statutes. Neither Connecticut nor federal law provides that alleged violations of OSHA can be the basis of a private right of action "with respect to injuries, diseases or death of employees arising out of and in the course of employment." See General Statutes 31-369 (b) and 29 U.S.C. § 653 (b)(4); Jeter v. St. Regis Paper Co., 507 F.2d 973, 976-77 (5th Cir. 1975); annot., 35 A.L.R. Fed. 461 (1977). We have said, however, that regulations promulgated under OSHA are admissible, if applicable, as evidence in personal injury cases of the standard of care. Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 181, 439 A.2d 954 (1981); see Van Steensburg v. Lawrence Memorial Hospitals, 194 Conn. 500, 506, 481 A.2d 750 (1984). It would then appear that both the state and federal OSHA acts do not intend to "supersede or in any manner affect" existing rights, duties or liabilities of affected parties for those referenced matters arising out of or in the course of employment. Accordingly, a complaint which does not allege a legal duty but only alleges violation of federal or state OSHA regulations is vulnerable to a motion to strike.

In sum, in the light of the applicable law, the Workers' Compensation Act was properly pleaded as a special defense to the first two counts of the original complaint. The trial court, therefore, recognizing the exclusivity of the act, correctly denied the motion to strike the special defenses.

III

We turn now to the plaintiff's claim that the trial court erroneously granted the defendants' motion for summary judgment. The party moving 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 him to a judgment as a matter of law.'" D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Because the burden of proof is on the moving party, the facts presented must be viewed in the light most favorable to the party opposing the motion. Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978). The party opposing such a motion must recite facts in accordance with Practice Book 381. Citizens National Bank v. Hubney, 182 Conn. 310, 312, 438 A.2d 430 (1980). 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." Practice Book 381; Citizens National Bank v. Hubney, supra; Evans Products Co. v. Clinton Building Supply, Inc., supra, 514.

After the trial court's action on the motion to strike, the plaintiff filed an amended complaint. The first two counts, which repeated many of the allegations of the original complaint, now alleged the following: That the explosion and the decedent's injuries and death were caused by "CBS's actions and [violations] . . ." of certain enumerated Connecticut statutory regulations and OSHA regulations, that "said actions and violations" were, as to the first count, "willful and intentional, and created a hazardous condition" and that they were, as to the second count, "reckless, and created a hazardous condition." As to each of these two counts, it was now alleged that despite "CBS' knowledge that such hazardous violations and conditions existed," it failed to correct these conditions and violations, it failed to warn its employees, including the plaintiff's decedent, of them, and it failed to report them to certain governmental agencies as required by law. It was then further alleged that this failure to correct, warn and report was, on the part of CBS, "intentional, malicious, and in willful and wanton disregard of the health of the plaintiff's decedent and caused his injuries and consequent death." The defendant employer again interposed the act as a special defense to the first two counts.

Thereafter, all the defendants moved for summary judgment on all three counts. Claiming that the plaintiff's claim is "barred by law," their motion alleged that "[a]ll three counts . . . are based on the violations of the defendants of certain OSHA rules and regulations and are barred by Connecticut General Statutes Section 31-369 (b)and 29 United States Code Section 653(b)(4). . . ." The trial court granted summary judgment, pointing out that, as to the first two counts, the language of the act in 31-284 (a) was broad enough to encompass allegations of intentional misconduct and concluding that the most favorable reading of those counts required the conclusion that the act was a bar. In granting summary judgment on the third count, it recognized the thrust of 31-293 (a), but pointed out that federal and state OSHA violations do not give rise to a private right of action. Moreover, the allegations of the amended complaint sound solely in violation of federal and state OSHA regulations, quite apart from, as the defendants claim, the existence of any legal duty. Both the federal and state OSHA statutes provide that such regulations may not be used to create a private cause of action for injuries arising out of or in the course of employment. 29 U.S.C. § 653 (b)(4) and General Statutes 31-369 (b); see Jeter v. St. Regis Paper Co., 507 F.2d 973 (5th Cir. 1975); Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 439 A.2d 954 (1981). We find no error in the granting of summary judgment.

We reaffirm what we have said earlier in this opinion concerning the purpose, ambit and interpretation of the act in our review of this summary judgment claim. The additional allegations made by the amended complaint do not serve to take any of its counts beyond the exclusivity of the act. We do note that even with the additional allegations each count still only makes out claims of violations of federal and state OSHA regulations quite apart from alleging any legal duty violated by any of the defendants.

The act provides the exclusive remedy to employees sustaining work related injuries or death from such injuries "caused by the negligence or wrong of a fellow employee . . . unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle . . . ." General Statutes 31-293a. "Although the legislative history of 31-293a is not especially revealing"; Dias v. Adams, 189 Conn. 354, 359, 456 A.2d 309 (1983); the legislature apparently intended to distinguish "simple negligence on the job" from wilful or malicious wrong caused by a co-worker. Id.

In this motion for summary judgment, affidavits were filed. Practice Book 381. Each defendant employee gave his affidavit personally, specifically disavowing, inter alia, any "willful intent" to violate any OSHA regulation and each indicating that on the day in question he had spent time in the same area where the accident involved occurred. On the other hand, the only affidavit submitted by the plaintiff was one signed by his attorney, which, after referring to certain attached, unverified, OSHA records, averred that "[t]hese exhibits indicate that the employer was aware of the need for ventilation where the explosion occurred; that the lack of ventilation presented a dangerous condition" and that "[t]he employer did nothing to correct the need for ventilation until after the accident which killed the decedent." The record before us on this motion for summary judgment does not disclose that the plaintiff put into dispute the statements of the employees in their affidavit that each had no intent to injure the decedent. There was no genuine issue of material fact. Rather, with the exclusivity of the act, an issue of law emerged and summary judgment was properly granted on all counts of the amended complaint.