Opinion
No. CV09-6000368-S
January 7, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #128
FACTS
On December 17, 2008, the plaintiff, Rajanikant Patel, commenced the present action by service of process on the defendant, Flexo Converters U.S.A., Inc. In his one-count amended complaint, the plaintiff alleges that, on or about June 8, 2007, he was injured at the manufacturing facility of the defendant, his employer, while attempting to dislodge a bag from a machine he was operating. The plaintiff alleges that he was injured as a result of the defendant's intentional actions, which included altering the machine so that it would continue to operate when a safety door was open. Moreover, the plaintiff alleges that the defendant's managerial employees threatened the plaintiff's job, if he shut down the machine or if he failed to produce ninety bags per minute, and required him to reach into the machine to attempt to dislodge jammed bags while it was still operating. As a result, the plaintiff alleges that the defendant "believed that there was substantial certainty that [the plaintiff] or a person similarly situated would suffer injuries."
In the present case, there is no issue of fact that the plaintiff received workers' compensation benefits from the defendant, his employer. In response to the defendant's interrogatories, the plaintiff admitted that his medical bills have been processed and paid for by a workers' compensation insurance company. In his deposition transcript, the plaintiff testified that he collected workers' compensation benefits for his injuries from the defendant through the Workers' Compensation Act. Therefore, the defendant is immune from liability under § 31-284. As will be discussed, however, the plaintiff is seeking to avoid the exclusivity provision of the act under the substantial certainty standard. In particular, the plaintiff alleges that the defendant intentionally altered the machine and that its managerial employees threatened the plaintiff's job, if he shut down the machine or if he failed to produce ninety bags per minute, and required him to reach into the machine to attempt to dislodge jammed bags while it was still operating.
On February 6, 2009, the defendant filed an answer and three special defenses. In its answer, the defendant denied the material allegations of the plaintiff's complaint, most notably, that it believed that there was a substantial certainty that the plaintiff would suffer injuries. On February 10, 2009, the plaintiff filed a reply to the defendant's special defenses, in which he denied each and every allegation contained therein. On August 13, 2010, the defendant filed a motion for summary judgment on the ground that the plaintiff's claims are barred by the exclusivity provision of the Workers' Compensation Act, General Statutes § 31-275 et seq. On September 24, 2010, the plaintiff filed an objection to the defendant's motion. The matter was heard at short calendar on October 12, 2010.
The defendant's special defenses allege that the plaintiff's claims are barred by: (1) the doctrines of waiver, estoppel and/or laches; (2) the exclusivity provisions of the Workers' Compensation Act; and (3) the careless, negligent, reckless, wanton, wilful and/or intentional acts and omissions of the plaintiff himself.
"Practice Book § 17-44 . . . provides that a party must obtain the judicial authority's permission to file a motion for summary judgment after the case has been assigned for trial." Tarzia v. Great Atlantic Pacific Tea Co., 52 Conn.App. 136, 140 n. 3, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000). On July 28, 2010, this case was assigned for trial and scheduled to start jury selection on June 1, 2011. The defendant did not file a motion for permission to file a motion for summary judgment. Nevertheless, the plaintiff failed to object and, furthermore, addressed the defendant's motion on its merits, and therefore, this court will consider the defendant's motion for summary judgment. See Wallace v. Connecticut Union Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV 96 0131386 (October 24, 2001, Pittman, J.) ( 30 Conn. L. Rptr. 613, 614).
DISCUSSION
"Practice Book § 17-49 provides that summary 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." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact . . . 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 . . . for the opposing party merely to assert the existence of such a disputed issue." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "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." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). Moreover, the "court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, supra, 284 Conn. 791.
In its memorandum of law in support of its motion for summary judgment, the defendant argues that the plaintiff's claims are barred by the exclusivity provision of the Workers' Compensation Act because his claims do not fall within the act's limited intentional tort exception. In particular, the defendant contends that there is no evidence to support an inference that the defendant either specifically intended to cause the plaintiff's injury or actually believed with substantial certainty that the plaintiff's injury would result, other than the plaintiff's self serving allegations. The defendant further argues that even if the plaintiff's allegations are taken as true, such alleged actions are not binding on the defendant when performed by an employee of the defendant. With its memorandum, the defendant submitted the following relevant evidence: (1) plaintiff's response to defendant's interrogatories; (2) excepts from the deposition transcript of the plaintiff; (3) excerpts from the deposition transcript of Charles Milsaps, an employee of the defendant; (4) excerpts from the deposition transcript of Don Smith, plant manager of the defendant; (5) the affidavit of Kirti Patel, officer and vice president of the defendant; and (6) excerpts from the deposition transcript of Ramila Patel, wife of the plaintiff and an employee of the defendant.
In his memorandum of law in support of his objection, the plaintiff counters that there is an issue of material fact as to whether the defendant altered the machine so that it would operate when the safety door was open and as to whether the plaintiff was instructed by the defendant to reach into the machine while it was still operating. Therefore, the plaintiff argues that there exists a question of material fact as to whether the plaintiff can establish that the defendant intentionally acted in such a way that the resulting injury to the plaintiff was substantially certain to result from the defendant's conduct. With his memorandum, the plaintiff submitted the following relevant evidence: (1) excerpts from the deposition transcript of Milsaps; (2) the affidavit of the plaintiff; (3) excerpts from the deposition transcript of the plaintiff; and (4) excerpts from the deposition transcript of Smith.
The defendant replies that whether the defendant altered the machine so that it would operate when the safety door was open or whether the plaintiff was instructed by an employee of the defendant to reach into the machine while it was still operating are irrelevant because the plaintiff has submitted no evidence whatsoever that creates a genuine issue of material fact as to whether the defendant intended for the plaintiff to sustain an injury or whether the defendant believed an injury was substantially certain to occur in the situation alleged. In his surrebuttal, the plaintiff counters that the plaintiff has set forth admissible evidence establishing that the defendant intentionally bypassed a safety devise on the machine and then ordered the plaintiff to keep the machine operating and reach his hand into the operating machine to clear jams, which may be sufficient to meet the substantial certainty standard.
General Statutes § 31-284(a) provides in relevant part: "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 . . . but an employer shall secure compensation for his employees as provided under this chapter . . . All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees . . . arising out of personal injury . . . sustained in the course of employment are abolished . . ."
"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)."(Emphasis in original; internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006). "Under either . . . theory of employer liability . . . the characteristic element . . . is the design to injure either actually entertained or to be implied from the conduct and circumstances." (Internal quotation marks omitted.) DaGraca v. Kowalsky Bros., Inc., 100 Conn.App. 781, 790, 919 A.2d 525, cert. denied, 283 Conn. 904, 927 A.2d 917 (2007). "Because direct proof of an employer's actually intended misconduct will rarely be available, the employer's intention may be established by proof of the intentional misconduct of an employee who properly can be identified as the alter ego of the defendant employer." (Emphasis added.) Melanson v. West Hartford, 61 Conn.App. 683, 688, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001).
"[A]n employer generally is not liable in common-law tort [however] for the intentional misconduct of a supervisory employee . . . The alter ego theory of corporate responsibility permits access to tort remedies only if the person committing the intentional tort can be characterized as the alter ego of the corporation. If 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, then attribution of corporate responsibility for the actor's conduct is appropriate. It is inappropriate where the actor is merely a foreman or supervisor." (Citation omitted; internal quotation marks omitted.) Id., 690-91; see also Jett v. Dunlap, 179 Conn. 215, 219, 425 A.2d 1263 (1979).
"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." (Citation omitted; emphasis omitted; internal quotation marks omitted.) Sorban v. Sterling Engineering Corp., CT Page 2484 79 Conn.App. 444, 452, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003).
"Intent is clearly a question of fact that is ordinarily inferred from one's conduct or acts under the circumstances of the particular case . . . Thus, whether the actor knows that the consequences of his or her conduct are certain or substantially certain to result from his or her act and still proceeds with the conduct, so that he or she should be treated by the law as though he or she in fact desired to produce the result, is a question of fact for the jury." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994). In such cases, summary judgment procedure is often inappropriate. Id.
In the present case, the plaintiff is seeking to avoid the exclusivity provision of the act under the substantial certainty standard. The Appellate Court has stated that while the actual intent standard "requires that both the act producing the injury and the specific injury to the employee must be intentional . . . the substantial certainty standard requires a showing that the act producing the injury was intentional or deliberate and the resulting injury, from the standpoint of the employer, was substantially certain to result from the employer's acts or conduct." (Internal quotation marks omitted.) Martinez v. Southington Metal Fabricating Co., 101 Conn.App. 796, 803, 924 A.2d 150, cert. denied, 284 Conn. 930, 934 A.2d 246 (2007). "The substantial certainty [standard] provides for the [actual intent standard] to be strictly construed and still allows for a plaintiff to maintain a cause of action against an employer where the evidence is sufficient to support an inference that the employer deliberately instructed an employee to injure himself." (Internal quotation marks omitted.) DaGraca v. Kowalsky Bros., Inc., supra, 100 Conn.App. 789.
"[S]ubstantial certainty centers on whether the employer believed the injury was substantially certain to follow the employer's acts or conduct . . ." (Emphasis in original; internal quotation marks omitted.) Martinez v. Southington Metal Fabricating Co., supra, 101; Conn.App. 802. In particular, "[s]ubstantial certainty means more than substantial probability, but does not mean actual or virtual certainty, or inevitability." Sorban v. Sterling Engineering Corp., supra, 79 Conn.App. 455. As a result, the Appellate Court has stated that "[t]o satisfy the substantial certainty standard, a plaintiff must show more than that [a] defendant exhibited a lackadaisical or even cavalier attitude toward worker safety . . ." (Internal quotation marks omitted.) Martinez v. Southington Metal Fabricating Co., supra, 804.
There is an issue of fact as to whether the defendant altered the machine to operate with the safety door open. In his deposition transcript, Smith testified that he had no knowledge that the machine was set up by anybody in management or supervisors to run with the safety door open while in production mode. The plaintiff testified, however, that the safety door was open at all times in the days leading up to his injury even while the machine was operating. In his affidavit, the plaintiff further attested that he personally "never tinkered with or adjusted [the machine] so that it would operate with the [s]afety [door] open." Moreover, Smith testified that a key allows the machine to operate in production mode with the safety door open.
As to the issue of intent, which is also a question of fact, the plaintiff has failed to provide any evidence of the defendant's subjective state of mind to support the inference that, even assuming the defendant intentionally altered the machine, it did so with the belief that it made it substantially certain that the plaintiff's injuries would occur. See Martinez v. Southington Metal Fabricating Co., supra, 101 Conn.App. 806 ("The critical flaw in the plaintiff's argument, however, is that it ignores the requirement of a showing of the employer's subjective belief that the injury was substantially certain to occur"). The most that this evidence can demonstrate is that the plaintiff's injuries resulted from an accident caused by the defendant's lackadaisical or cavalier attitude toward worker safety, which is insufficient to support a claim under the substantial certainty standard. See id., 804. "[T]he 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." (Emphasis omitted; internal quotation marks omitted.) Sorban v. Sterling Engineering Corp., supra, 79 Conn.App. 452.
There is evidence to the contrary. Kirti Patel, officer and vice president of the defendant, attested in his affidavit that the defendant "endeavored to maintain a safe working environment for employees." Furthermore, Ramila Patel, wife of the plaintiff and employee of the defendant, testified in her deposition transcript that the defendant's "intention is that everybody will be working safely and [that] safety is the prime concern," but that it is the type of work in which "people get injured."
The plaintiff further testified, however, that two days before he was injured, Milsaps, an employee of the defendant, told him he had "to run the machine at the speed of [ninety bags per minute]." The plaintiff attested further in his affidavit that Milsaps instructed the plaintiff to reach into the machine "while it was operating to remove jammed bags." Milsaps testified in his deposition transcript, however, that in the manufacturing process he is generally producing between seventy-five and ninety bags per minute and that he never instructed the plaintiff to produce ninety bags per minute nor was he himself instructed to ensure that a certain number of bags be produced per minute. Smith testified that he had no knowledge of anyone ever trying to clear out a machine running at production level or having to discipline a worker who tried to make the machine run with the safety door open such that he or she could grab bags. Therefore, there is an issue of fact as to whether Milsaps told the plaintiff he had to run the machine at ninety bags per minute and as to whether he instructed the plaintiff to reach into the machine while it was still operating. These actions may constitute substantial certainty under the exception. See Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 99 (declining to grant summary judgment to defendant where there was issue of fact as to whether defendant required plaintiff to clean machine manually while it was still operating).
Nevertheless, even if these actions did constitute substantial certainty under the exception, there is no issue of material fact that Milsaps was not the alter ego of the defendant for purposes of the exception. "Because direct proof of an employer's actually intended misconduct will rarely be available, the employer's intention may be established by proof of the intentional misconduct of an employee who properly can be identified as the alter ego of the defendant employer." Melanson v. West Hartford, supra, 61 Conn.App. 688. Kirti Patel attested that Milsaps "was an employee" of the defendant. Milsaps testified that he is the "nighttime supervisor" of the defendant. Attribution of corporate responsibility for the actor's conduct is "inappropriate where the actor is merely a foreman or supervisor." (Emphasis added; internal quotation marks omitted.) Id., 691. The plaintiff has offered no evidence to refute the assertion that Milsaps was just a supervisor. The plaintiff presented Milsaps' deposition transcript in which he testified that he is the "top guy" during the night shift, however, the plaintiff presents no evidence that the "top guy" during the night shift is anything more than a supervisor.
Again, there is evidence to the contrary, Kirti Patel attested that Milsaps "was not authorized to make policy for [the defendant] regarding machine operation and employees' interaction therewith" and that the defendant did not have an official or unofficial policy "requiring employees to produce a certain number of bags per minute" or "requiring machine operators to clear jams from machines by reaching into the machines while at manufacturing speed."
Furthermore, the plaintiff testified that no other employee besides Milsaps ever showed or told the plaintiff to clear jammed bags while the machine was running.
Therefore, there is no material fact or issue regarding whether Milsaps was not an "alter ego" of the defendant. Accordingly, the defendant's motion for summary judgment is granted.