Opinion
No. (X02) CV 97-0167236-S
March 24, 2004
RULING ON MOTION FOR SUMMARY JUDGMENT
Plaintiff Cipriano Pinto has sued defendant Handy Harman, a manufacturing company in Fairfield, alleging that he contracted berylliosis, a lung disease, from his employment with the defendant from 1973 to 1999. The defendant moves for summary judgment on the ground that workers' compensation is the plaintiff's exclusive remedy.
The defendant's summary judgment motion also sought judgment on the ground of the statute of limitations. The court denied this part of the defendant's motion on May 5, 2003, and postponed ruling on the current issue pending further discovery by the plaintiff, which he has now completed.
I
The party moving for summary judgment has the initial burden to bring forward evidentiary facts showing the absence of any material factual dispute. See Doty v. Shawmut Bank, 58 Conn. App. 427, 430, 755 A.2d 219 (2000). Correspondingly, "the party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue." (Internal quotation marks omitted.) Id. "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment] . . ." (Internal quotation marks omitted.) United Services Automobile Association v. Marburg, 46 Conn. App. 99, 110, 698 A.2d 914 (1997). "To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts in accordance with Practice Book (1998 Rev.) §§ 17-45 and 17-46 . . . which contradict those stated in the movant's affidavits and documents and show that there is a genuine issue for trial. If he does not so respond, summary judgment shall be entered against him." (Internal quotation marks omitted.) Doty v. Shawmut Bank, supra, 58 Conn. App. 430. Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment. See United Services Automobile Association v. Marburg, supra, 46 Conn. App. 110.
Practice Book § 17-45 provides in 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."
Practice Book § 17-46 provides:
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. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto.
In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. See Doty v. Shawmut Bank, supra, 58 Conn. App. 431. The test is "whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Id. "[T]he standards of summary judgment are strictly and forcefully applied." (Internal quotation marks omitted.) Id.
A review of the affidavits, depositions, and medical reports attached to the memoranda reveals the following undisputed facts. During the time period in question, the defendant's Fairfield facility conducted two distinct operations: precious metal fabrication and secondary precious metal refining. Fabrication operations manufactured special metal articles, primarily made of silver and silver alloys. The plaintiff worked in the fabrication area from 1973 to 1974 and then again from 1989 to 1999. None of the defendant's fabricated products ever contained beryllium, which is the agent that causes berylliosis, and no aspect of the fabrication process in which the plaintiff worked involved beryllium.
The refining business involved the extraction of precious metals from scrap materials. Some of the scrap metals melted down contained beryllium. The plaintiff worked in the refining operations from 1974 to 1987. Refining operations shut down in 1988.
In April 1995, a medical doctor rendered his opinion that, in addition to a possible diagnosis of sarcoidosis, "[b]ased on his occupational exposure history . . . it is also possible that [the plaintiff's] disease represents beryllium lung disease." In July 1995, the doctor confirmed the diagnosis of beryllium lung disease.
The defendant does not dispute that the medical reports from which the information in this paragraph derives might be admissible pursuant to General Statutes § 52-174(b).
II
This state's workers' compensation act, General Statutes § 31-284(a), provides in relevant part:
An employer . . . 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 . . .
In Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106, 639 A.2d 507 (1994) ( Suarez I), the Supreme Court observed that it had "consistently interpreted [this] exclusivity provision of the act . . . as a total bar to common-law actions brought by employees against employers for job-related injuries with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct." The court later defined this "narrow exception" to exist when a plaintiff proves "either that the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur (substantially certain standard)." Suarez v. Dickmont Plastics Corporation, 242 Conn. 255, 257-58, 698 A.2d 838 (1997) ( Suarez II). Further, "only when the assailant is of such rank in the corporation under the standards governing disregard of the corporate entity [is] attribution of corporate responsibility for the actor's conduct . . . appropriate. It is inappropriate where the actor is merely a foreman or supervisor." (Internal quotation marks omitted.) Id., 275.
The court stated that it "[did] not believe that [its] holding . . . will encourage significant additional litigation, for only in those rare instances when an employer's conduct allegedly falls within the very narrow exception to the act will such litigation result." Suarez I, supra, 229 Conn. 117-18. Accordingly, the Suarez exception should be strictly construed. See Sorban v. Sterling Engineering Corp., 79 Conn. App. 444, 455, 830 A.2d 372 (2003).
In this case, the plaintiff claims that it can satisfy the substantial certainty test. The substantial certainty test is still a subset of the intentional tort exception to the act, and intent is still a vital element that the plaintiff must prove. See Morocco v. Rex Lumber Co., 72 Conn. App. 516, 523, 805 A.2d 168 (2002). "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." Suarez II, supra, 242 Conn. 279.
The plaintiff does not brief an argument that the defendant "actually intended to injure the plaintiff . . ." Suarez II, supra, 242 Conn. 257-58, and, therefore, the court considers the issue abandoned. See Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (1999). Further, the plaintiff does not present any facts, such as evidence tending to show that the defendant harbored some ill will against the plaintiff, that would give rise to an inference that the defendant intended to injure one of its own employees. Finally, an intent to injure would logically have to be premised on knowledge or a belief that the action in question was substantially certain to cause the injury intended. Thus, the court's ultimate conclusion that there is no evidence that the defendant subjectively believed that the plaintiff was substantially certain to contract berylliosis from his work assignment supports the conclusion that there is no evidence that the defendant intended to injure him. Therefore, the court does not further consider the intent to injure component of the Suarez test.
The plaintiff's brief relies on the Appellate Court's recent statement that, in order to satisfy the substantial certainty test, the employee must show "that a reasonable person in the position of the employer would have known that the injury or death suffered by the employee was substantially certain to follow from the employer's actions." Sorban v. Sterling Engineering Corp., supra, 79 Conn. App. 455. The court, however, did not cite any authority for the proposition that the substantial certainty of injury must be governed by the objective "reasonable person" standard. In the past, it has suggested a subjective test. See Morocco v. Rex Lumber Co., supra, 72 Conn. App. 527-28 ("The employer must believe the injury was substantially certain to occur") (emphasis added); Ramos v. Branford, 63 Conn. 671, 680, 778 A.2d 972 (2001) ("the substantial certainty test 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.") (Emphasis added.) In Suarez II, the Supreme Court prefaced its discussion of the substantial certainty test by observing 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." (Internal quotation marks omitted; emphasis in original.) Suarez II, supra, 242 Conn. 279. The court also stated that "[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.) Id., 280. The Supreme Court has recently affirmed a trial court decision that observed, based on this language from Suarez II, that: "[i]t is not the gravity of the employer's conduct which comes under scrutiny but, rather, the employer's subjective belief." Stebbins v. Doncasters, Inc., 47 Conn. Sup. 638, 644, 820 A.2d 1137 (2002), aff'd, 263 Conn. 231, 819 A.2d 287 (2003). The Supreme Court approved of what it recited as the trial court's conclusion that: "the evidence did not establish that the defendant believed that its conduct was substantially certain to cause illness." (Emphasis added.) Stebbins v. Doncasters, Inc., supra, 263 Conn. 234.
An objective test of whether the employer should have known about the substantial likelihood of injury logically tends to reduce the Suarez exception to one of negligence. The subjective test of what the employer actually believed instead focuses the inquiry on the employer's intent or wilful misconduct which, as stated, was the true basis of the Suarez exception to the common-law rule of exclusivity. For all these reasons, the court interprets the substantial certainty test in accordance with the Supreme Court and the earlier Appellate Court precedent establishing that the inquiry centers on whether the employer subjectively believed that injury was substantially certain to follow the employer's acts.
III
The defendant has submitted the affidavit of Stephen Cronk, who was the defendant's manager of safety and security from 1983 to 2002. Allegedly, Cronk was thoroughly familiar with all safety issues and procedures affecting employees at the Fairfield facility. According to his affidavit, at no time during his employment with the defendant, which overlapped the time that the plaintiff worked in the refinery, did he become aware that any employees were likely to be injured as a result of exposure to beryllium dust. The defendant allegedly used state-of-the-art safety equipment, including respirators, to minimize the exposure of workers to any potentially injurious substances. The defendant conducted periodic tests to determine the levels of airborne beryllium. According to Cronk, until approximately 1987, there was no understanding in the industry that exposure to beryllium below the permissible exposure limit could cause berylliosis. The defendant's policy was to grant any request by a worker to be relieved of a particular work assignment if that worker felt the work was harmful. The plaintiff did not make any such request.
The defendant admits that Cronk is not the alter ego of the company "under the standards governing disregard of the corporate entity . . ." (Internal quotation marks omitted.) Suarez II, supra, 242 Conn. 275. Indeed, Cronk's affidavit does not identify who, if anyone, is the alter ego of the company. Cronk also does not and, for lack of personal knowledge, could not permissibly relate the state of knowledge or belief that any alter ego of the company had concerning the likelihood of developing berylliosis. Based on these facts, the plaintiff contends that the defendant has therefore failed to meet its initial burden of showing that the defendant did not believe that the plaintiff's injury was substantially certain to follow from its acts or conduct. Suarez II, supra, 242 Conn. 279; Doty v. Shawmut Bank, supra, 58 Conn. App. 430.
The defendant, however, has also attached the deposition of the plaintiff in which the plaintiff admitted that he did not know of anyone with the defendant who told him to do any work knowing that it would expose him to beryllium, who told him that the work he did involved exposure to berylliosis, or who intended that he contract berylliosis. On this general subject, the plaintiff ultimately testified that "[y]ears ago, nobody knew about those things, I guess." The court finds that, even assuming that the Cronk affidavit is inadequate, the evidence from the plaintiff's deposition is sufficient to discharge the defendant's burden of making an initial showing that no one approaching the status of alter ego of the company believed that the plaintiff was substantially certain to develop berylliosis from workplace conditions. See Stebbins v. Doncasters, Inc., supra, 47 Conn. Sup. 643-44, aff'd, 263 Conn. 231, 819 A.2d 287 (2003) (finding that the employer had met its initial burden with documentary evidence indicating that it harbored no belief that its actions or conduct were substantially certain to cause respiratory illness in the plaintiffs along with an affidavit from its manager of safety that the employer was ignorant of the true cause of the plaintiffs' illness and did not intend to harm its workers or believe its practices would result in injury).
If this decision is reviewed on appeal, the appellate courts should consider whether to revisit the rule that courts should only consider the acts or conduct of someone who is an alter ego "under the standards governing disregard of the corporate entity . . ." (Internal quotation marks omitted.) Suarez II, supra, 242 Conn. 275. See id., 294-96 (Peters, J., concurring). The alter ego test may have made sense in Suarez II because the defendant there was a family owned and operated corporation. Id., 259. In the case of a large corporation, however, it may be difficult if not impossible to pierce the corporate veil and identify any alter ego. See De Leonardis v. Subway Sandwich Shops, Inc., 35 Conn. App. 353, 358-59 n. 3, 646 A.2d 230, cert. denied, 231 Conn. 925; 648 A.2d 162 (1994) ("A court may pierce the corporate veil only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose, and used primarily as an intermediary to perpetrate fraud or promote injustice") (internal quotation marks omitted). The effect of the alter ego rule in the case of a large corporation, as illustrated in this case, may be to disable the employer from presenting an affidavit that it had no relevant intent, knowledge, or belief or to prevent altogether a plaintiff from proving a case under Suarez. A better rule might allow the court to consider the actions and conduct of executives or other high ranking employees who, under traditional rules of evidence, are authorized to speak for the company. See Munson v. United Technologies Corp., 28 Conn. App. 184, 188-89, 609 A.2d 1066 (1992). In this case, the defendant contends, and the court agrees, that Cronk's affidavit would qualify as permissible evidence under this less stringent standard. With regard to the plaintiff's case, however, application of this standard would not change the ultimate conclusion, for the plaintiff, as the discussion that follows will reveal, has failed to present evidence that any high ranking employee of the defendant had a subjective belief in the substantial certainty of the plaintiff developing berylliosis from his work assignment.
The question then becomes whether the plaintiff has "[recited] specific facts in accordance with Practice Book (1998 Rev.) §§ 17-45 and 17-46 . . . which contradict those stated in the movants affidavits and documents and show that there is a genuine issue for trial." Doty v. Shawmut Bank, supra, 58 Conn. App. 430. The plaintiff presents the affidavit of Paul L. Errico, a safety and environmental consultant and engineer. Errico's affidavit is not "made on personal knowledge . . ." Practice Book § 17-46, but rather contains expert opinions based on a safety report and the depositions of other persons. While an expert may be entitled to rely on such evidence to form an opinion, see Conn. Code of Evidence § 7-4(b), it is the expert's opinion, rather than these supporting materials, that, if anything, constitutes admissible evidence. Therefore, in reviewing Errico's affidavit, the court must focus on the opinions it contains. See Practice Book § 17-46.
Errico's ultimate opinions are that "[t]he defendant purposely exposed Mr. Pinto to the dangerous beryllium dust without providing him adequate protective devices or safer engineering practices that the defendant knew were required to protect him . . . " and that "[t]he failure of the defendant to provide proper protection to the plaintiff, with the knowledge that beryllium dust was in the air, made it substantially certain that the plaintiff would breathe in beryllium vapors and particulates and be exposed to the likelihood of berylliosis." (Errico affidavit, ¶¶ 7, 8.) These opinions do not constitute relevant or admissible evidence. First, Errico, as an engineer, is hardly an expert on the defendant's purpose, knowledge, or other state of mind. See C. Tait, Handbook of Connecticut Evidence (3d ed.) § 7.12.1(k). Thus, Errico cannot permissibly testify that the defendant "purposely exposed" the plaintiff to a dangerous condition or that the "defendant knew that certain protective devices were essential for worker safety." Errico's additional opinion that the failure of the defendant to provide proper protection to the plaintiff made berylliosis substantially certain does not even address the defendant's state of mind but instead focuses on objective criteria that, as established above, are not part of the Suarez test.
In any event, to the degree that Errico's opinions concern the defendant's state of mind, they do not focus on the correct state of mind. The inquiry is not, for example, whether the defendant purposely exposed the plaintiff to its workplace conditions, for there is little doubt that it did. Rather, the question is whether the defendant subjectively believed that the plaintiff was substantially certain to contract berylliosis from these workplace conditions. See Suarez II, supra, 242 Conn. 280 ("[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). Errico does not and, because he lacks personal knowledge, cannot offer an opinion on the defendant's state of mind concerning the likelihood of this disease.
IV
Evidence creating a fact issue on this topic might come in the form of admissions from the defendant, depositions of the defendant's executives, or circumstantial evidence tending to show that the defendant's conduct, in ameliorating workplace conditions, for example, was consistent with knowledge or a belief that berylliosis was substantially certain to arise from those conditions. The plaintiff has not supplied any such evidence.
Even upon consideration of the admissibility and weight of the depositions and report attached to Errico's affidavit, the court concludes that the plaintiff has not made the requisite showing. The report in question is one by the National Institute for Occupational Health and Safety (NIOSH), in November 1986 that purports to address federal safety violations and health concerns of employees at the defendant's precious metals refinery in Fairfield related to beryllium and other metal exposures. Offered for the truth of the matter, the report is hearsay and thus not cognizable on summary judgment. See United Services Automobile Association v. Marburg, supra, 46 Conn. App. 110.
Nor does the plaintiff attempt to show that he could offer the report for a nonhearsay purpose, such as proof of the defendant's knowledge. The plaintiff has not attached any admissible evidence — which might have been easily obtained — that the defendant's executives received the report. The most that the plaintiff can offer is Errico's inadmissible speculation, not based on personal knowledge, that "[t]he NIOSH report would have been given to high level executives of Handy and Harmon and put them on notice of the hazards associated with the ingestion and inhalation of beryllium dust." (Errico affidavit, ¶ 6.)
Finally, as the Appellate Court has held, "[a]n employers' intentional, wilful or reckless violation of safety standards established pursuant to federal and state laws . . . is not enough to, extend the intentional tort exception for the exclusivity of the [workers' compensation] act . . . The employer must believe the injury was substantially certain to occur." (Internal quotation marks and citations omitted.) Morocco v. Rex Lumber Co., supra, 72 Conn. App. 527-28. See also Melanson v. West Hartford, 61 Conn. App. 683, 689, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001) ("Failure to take affirmative remedial action, even if wrongful, does not demonstrate an affirmative intent to create a situation that causes personal injury") (footnote omitted). The NIOSH report simply does not address the defendant's subjective belief in the substantial certainty of berylliosis, particularly with regard to the specific time and place of plaintiff's employment.
V
With regard to the depositions, the plaintiff's memorandum, borrowing language from Errico's affidavit, asserts several broad factual propositions and cites to entire deposition transcripts or, in one case, a large portion of a deposition transcript as authority. For example, the plaintiff's memorandum and Errico's affidavit state that "[t]he defendant decided that although the scrap metal contained beryllium, it was not a `significant' enough health problem to convey the risk to the employees such as the plaintiff who worked in the refinery. See Deposition of George Buehler as Exhibit D; Deposition of Walter Monk as Exhibit E." (Plaintiff's memorandum of law, p. 2; Errico affidavit, ¶ 4.) These two depositions total 688 pages. In total, the plaintiff cites to some 1,060 pages of deposition testimony with only one specific page reference.
The plaintiff cites to page 85 of the deposition of Walter Monk for the proposition that, as foreman in the refining department during the 1970s, "[h]e was given the job of communicating health concerns to the employees in the refinery yet he did not know that beryllium was toxic, despite the fact that the scrap materials being melted down were marked as containing beryllium." (Plaintiff's memorandum, p. 2.) Although this citation is specific, it does not help the plaintiff substantively. First, as discussed, it is only appropriate to hold a corporation liable for the actions of an employee if the employee is of "such rank in the corporation that he may be deemed the alter ego of the corporation . . . It is inappropriate where the actor is merely a foreman or supervisor." (Internal quotation marks omitted.) Suarez II, supra, 242 Conn. 275. Second, the plaintiff's proposition tends to show that the defendant had no knowledge or belief in the dangers of beryllium, which is the exact opposite of what the plaintiff needs to prove. The same is true of the plaintiff's statement, quoted above, that "[t]he defendant decided that although the scrap metal contained beryllium, it was not a `significant' enough health problem to convey the risk to the employees such as the plaintiff who worked in the refinery."
The plaintiff's approach is a disservice to the court. Because counsel has prior familiarity with the evidence, it is initially the obligation of counsel, not the court, to sift through the evidence and cite to the relevant portions. It is improper for the plaintiff to deposit 1,000 pages of deposition testimony with the court and ask the court to find a needle in the haystack. The court holds that, based on the plaintiff's inadequate briefing, the plaintiff has abandoned that portion of his claim that depends on the deposition transcripts. See Merchant v. State Ethics Commission, 53 Conn. App. 808, 818, 733 A.2d 287 (1999) ("Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned") (internal quotation marks omitted).
VI
As an alternative basis of this ruling, the court considers the merits of the plaintiff's evidence that supposedly derives from the depositions. The plaintiff cites to "Admissions of Handy and Harmon Executives in Deposition of Ernest Thiele as Exhibit C, p. 63-110" for the following proposition: "In the 1970s, the defendant's executives, and managers were well aware of the health risks associated with beryllium. Beryllium has been known to cause berylliosis as of the 1950s. Shipments of beryllium containing scrap metal were sent to Handy and Harmon with labels indicating its presence." (Plaintiff's memorandum, p. 2.) While Errico may be able to express an opinion that beryllium has been known to cause berylliosis as early as the 1950s, the question whether the defendant's executives were aware of the health risks of beryllium in the 1970s, as stated in the plaintiff's first sentence, is not a matter of opinion, but an assertion of fact. After a review of pages 63-110 of Exhibit C, the court is unable to find any admissions of executives of the defendant or any other evidentiary support for the plaintiff's first sentence. The plaintiff's third sentence does find support in the deposition transcript, but only establishes the unremarkable point that the defendant was aware that it received shipments containing beryllium. Indeed, the defendant itself goes beyond this point and admits that beryllium was a "potentially injurious [substance]." (Cronk affidavit, ¶ 7.) Nothing asserted by the plaintiff in the quoted passage, however, provides evidence concerning the critical point of whether the defendant had a belief in the substantial certainty that the plaintiff would develop berylliosis based on the time, place, and nature of his work.
The only other citation to the deposition transcripts is for the proposition that "several workers fell ill in the mid 70s and reported their illness (berylliosis) to the company and still nothing was done to remedy the problem." (Plaintiff's memorandum, p. 2.) The court has reviewed the 325 pages of deposition transcript cited for this proposition. These transcripts reveal that one refinery worker told the defendant's medical department sometime after 1976 that he had received a diagnosis of beryllium poisoning in his lungs from the dust and fumes at the refinery, and that a second refinery worker received a diagnosis of berylliosis in 1981 and, at some point in time, filed a workers' compensation claim of some sort against the defendant. Even assuming that reporting to the medical department and filing a workers' compensation claim qualifies as alerting the defendant corporation, the plaintiff supplies no additional evidence of whether these workers had health and work histories similar to that of the plaintiff. For example, the first worker started with the defendant in the "melt room" in 1964, well before the plaintiff began refinery work, and then moved to various other positions in the refinery process. The second worker started work in the refinery in 1971, also before the plaintiff began, and had an eighteen-year history of smoking cigarettes.
The court has already discussed additional citations to the transcript in footnote 6.
Comparison with the plaintiff's case is made difficult by the fact that the plaintiff has failed to supply an affidavit detailing his work and health history or identifying the size of the workforce. It is of little probative value that two workers, out of an unknown quantity of workers, developed berylliosis doing work of uncertain similarity in time and nature to the plaintiff's work, with medical histories also of uncertain similarity to that of the plaintiff. This evidence is simply too imprecise and too isolated to create a factual issue concerning whether the defendant, even as an objective matter, should have known that the plaintiff was substantially certain to develop berylliosis. The evidence has little or nothing to do with whether the defendant, as a subjective matter, believed in the substantial certainty of the plaintiff's development of this disease.
VII
After reviewing the defendant's evidence to determine whether it met its initial burden, the court has relied only on the evidence supplied by the plaintiff, and viewed it in a light most favorable to his position, to determine whether he has met his burden. The plaintiff has not. The court must bear in mind, furthermore, that the Suarez exception is a narrow one that should be strictly construed. See Suarez I, supra, 229 Conn. 117-18; Sorban v. Sterling Engineering Corp., supra, 79 Conn. App. 455. Since Suarez II, our appellate courts have not found even one occasion to recognize a case that falls within this narrow exception. The present type of case does not involve physical injuries that obviously result from employer actions, such as an assault, but rather involves an occupational disease that the employer might not have believed was pervasive at its workplace or was a danger to the plaintiff. The plaintiff has failed to produce admissible evidence that the defendant harbored such a belief.
The court grants the motion for summary judgment. The plaintiff's exclusive remedy is workers' compensation.
It is so ordered.
Carl J. Schuman Judge, Superior Court