Opinion
No. HHB CV 06 5000618 S
April 27, 2007
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#112)
The court heard argument at short calendar on April 9, 2007 concerning the defendant's motion for summary judgment. After considering the parties' arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
I BACKGROUND
In her complaint, dated January 13, 2006, the plaintiff, Abigail Rodriquez, alleges that, on February 18, 2004, and at all relevant times, she was employed as a cleaning person by the defendant, Capitol Cleaning Contractors, Inc. She further alleges that, while working at an office facility in Cheshire, Connecticut, she was told by her supervisor to clean an overhead storage cabinet by standing on top of the desk immediately below it. In paragraph 5, she alleges that, as she was attempting to climb down from the desk after cleaning the overhead storage cabinet, she lost her balance and fell backward, landing on her back and tailbone, also striking her head on the floor, causing serious and painful injuries.
For ease of reference, the plaintiff is referred to below as either Rodriquez or the plaintiff. Similarly, the defendant is referred to as either Capitol or the defendant.
In paragraph 6, she alleges that her injuries were caused by willful, intentional and serious misconduct by the defendant, its agents, servants, or employees. She claims that this misconduct included one or more of the following: the defendant required her to attempt to clean the overhead storage cabinets by standing on the desk; the defendant never warned her of the danger of trying to clean the overhead storage cabinets while standing on the desk or the danger of climbing down from the desk, when it was substantially certain that she would suffer injury in so doing; the defendant willfully failed to provide her with a long-handled mop or duster so that she could clean the overhead cabinets from the floor; the defendant willfully failed to provide her with a ladder or other device so she could safely clean the overhead storage cabinets and climb down from the desk; and the defendant willfully failed to instruct employees, including her, in the cleaning of objects beyond their arms' reach, when it was substantially certain that the employees, including the plaintiff, would be injured while cleaning such high places or climbing down from furniture to reach such high places. See complaint, ¶ 6.
The return date for this matter was January 31, 2006. On December 29, 2006, the defendant filed a motion for summary judgment, with a supporting memorandum of law and its manager's affidavit, annexed to which is a copy of the defendant's employee manual. On January 29, 2007, the plaintiff filed an objection (#113) and a memorandum in opposition to the motion for summary judgment, which were accompanied by a copy of the transcript of the plaintiff's deposition and her affidavit.
By order dated March 27, 2007 (#117), the court denied the plaintiff's March 5, 2007 motion for extension of time to reply to the defendant's motion for summary judgment (#115), in response to which the defendant filed a memorandum in opposition (#116). The plaintiff sought a ninety-day extension to conduct discovery, including the deposition of the defendant. In its order, the court noted that the plaintiff's affidavit in opposition to the motion for summary judgment, which had been filed previously, did not state that she was unable to "for reasons stated, present facts essential to justify opposition" to the motion for summary judgment. See Practice Book § 17-47. Also, the court noted that the motion for extension of time did not comply with § 17-47, which requires a party to present such an affidavit. See K W Construction, LLC v. Frank Mercede Sons, Inc., Superior Court, judicial district of Waterbury, Complex Litigation Docket at Waterbury, Docket No. (X02) CV 03 0177908 (January 13, 2005, Schuman, J.).
In addition, the plaintiff did not meet the burden of establishing "what steps [the plaintiff] ha[d] taken to secure facts necessary to defeat the motion." Peerless Insurance Co. v. Gonzalez, 241 Conn. 476, 489, 697 A.2d 680 (1997). Over thirteen months had passed between the return date and the motion for extension of time. The plaintiff provided no explanation "as to why [s]he had been unable to conduct discovery . . ." (Footnote omitted.) Id. Thus, she "already ha[d] had a sufficient opportunity to establish facts in opposition to the summary judgment motion." Id.
II DISCUSSION
"Practice Book § 17-49 provides in relevant part that judgment `shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' . . . The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle[s] him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
Practice Book § 17-45 provides, in pertinent part, "[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
"A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 757, 905 A.2d 623 (2006).
The defendant argues that there is no genuine issue of material fact with regard to the claim, because, under General Statutes § 31-284, the workers' compensation benefits which the plaintiff received for her injury provide her exclusive remedy. In support of its motion, the defendant contends that the plaintiff cannot present evidence showing that the defendant intended that she fall in climbing off a desk. Also, it argues that the plaintiff cannot present evidence proving that the defendant intended that there be such safety lapses as to make it substantially certain that she would fall.
General Statutes § 31-284(a) provides: "An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation."
The defendant presented the affidavit of Victor Goncalves, its manager, who states that the defendant's workers' compensation carrier has paid benefits to the plaintiff. See Goncalves affidavit, ¶ 13. He also states that, "[a]t no time did Capitol or any employee or agent of Capitol intend any harm to Rodriquez." See Goncalves affidavit, ¶ 14.
In her memorandum in support of her objection, pages 7-9, the plaintiff asserts that there are genuine issues of material of fact as to whether the defendant committed an intentional tort and whether the actions of the defendant made the plaintiff's injury substantially certain to follow from the defendant's conduct.
The Supreme Court recently reiterated that "Section 31-284(a) is the exclusivity provision of the act and provides that an employer, although required to compensate an employee as set forth in the act for death or personal injury sustained in the course of employment, is not liable in a civil action for damages arising from that injury . . . An exception to this general rule of exclusivity exists when a plaintiff can establish an intentional tort claim by demonstrating that his employer either: (1) actually intended to injure [the employee] (actual intent standard); or (2) intentionally created a dangerous condition that made [the employee's] injuries substantially certain to occur (substantial certainty standard)." (Citation omitted; emphasis in original; internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006).
"Although it is less demanding than the actual intent standard, the substantial certainty standard is, nonetheless, an intentional tort claim requiring an appropriate showing of intent to injure on the part of the defendant . . . Specifically, the substantial certainty standard requires that the plaintiff establish that the employer intentionally acted in such a way that the resulting injury to the employee was substantially certain to result from the employer's conduct . . . To satisfy the substantial certainty standard, a plaintiff must show more than that [a] defendant exhibited a lackadaisical or even cavalier attitude toward worker safety . . . Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.
The court also reiterated "our well established precedent requiring a showing of knowledge that the employee would be injured before the substantial certainty test can be satisfied." Id., 120. In Sullivan, the Supreme Court affirmed the trial court's granting of the defendants' motion to strike, concluding that the allegations did not satisfy the substantial certainty standard, "because the plaintiff's complaint contained no allegations that the defendants' conduct was motivated by their intention to cause the decedent harm or knowledge that such harm would result . . ." Id.
"Under the [substantial certainty theory], the actor must have intended the act and have known that the injury was substantially certain to occur from the act." Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 280, 698 A.2d 838 (1997). "The substantial certainty test provides for the intent to injure exception 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.) Id., 258.
"[T]he employee must show that the employer's act in producing the injury was deliberate or intentional and that the resulting injury was substantially certain, from the employer's perspective, to occur . . . Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer's standpoint, the common-law liability of the employer cannot . . . be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury . . . What is being tested is not the degree of gravity of the employer's conduct, but, rather, the narrow issue of intentional versus accidental conduct . . . Last, we note that our Supreme Court has stated that `a high risk or probability of harm is not equivalent to the substantial certainty without which an actor cannot be said to intend the harm in which his act results . . .' Mingachos v. CBS, Inc., 196 Conn. 91, 101, 491 A.2d 368 (1985)." (Citations omitted; emphasis in original; internal quotation marks omitted.) Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 452, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003).
As noted, the plaintiff here argues that the existence of material issues of fact prevent the entry of summary judgment. The court agrees with the analysis stated, in similar circumstances, in Cappellan v. Fairfield Processing Corp., Superior Court, judicial district of Waterbury, Complex Litigation Docket at Waterbury, Docket No. X06 CV 03 0184584 (October 20, 2004, Alander, J.): "The plaintiff . . . argues that entry of summary judgment is not appropriate in this case because his claim turns on the defendant's intent which is a question of fact to be decided at trial. Although intent is ordinarily an issue to be resolved by the fact finder, `when the facts alleged permit only one conclusion regarding an actor's state of mind, that issue is appropriately resolved by way of summary judgment.' DaCruz v. State Farm Fire and Casualty Company, 268 Conn. 675, 690 n. 14, 846 A.2d 849 (2004) (citing Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992) ('even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact'). In this case, it would not be reasonable for a fact finder to conclude from the facts presented by the plaintiff in opposition to the motion for summary judgment that the defendant intentionally created a dangerous condition that made injury to the plaintiff substantially certain to occur." Cappellan v. Fairfield Processing Corp., supra.
"Additionally, many other Superior Court cases have granted a defendant's motion for summary judgment where the plaintiffs failed to provide evidence of both the defendant's intent to injure and the defendant's belief that injury was substantially certain to occur." (Footnote omitted.) Markstaller v. Bruce Pauley Tree Care, Inc., Superior Court, judicial district of Danbury, Docket No. CV 04 4000498 (March 23, 2007, Thim, J.) (collecting cases).
Here, the plaintiff's affidavit and her deposition testimony do not create a genuine issue of material fact as to the dispositive issues. In her affidavit, paragraphs 4 and 6, the plaintiff avers that her supervisor (Jose Oyola) told her to clean the tops of the storage cabinets, and to climb up on the top of the desk to do so. She states that "I told Mr. Oyola that I would fall but he again told me to climb up on top of the desk." See plaintiff's affidavit, ¶ 8. In her May 24, 2006 deposition, pages 20-21, she stated that Oyola told her there were no extension brooms available and to get up on the desk to clean. She testified that "I said, well, what if I fall? And he told me I wasn't a little kid, that I'm not going to fall. And I told him about twice." See plaintiff's deposition, p. 21. Subsequently, she reiterated that after she told Oyola that she was "worried about falling," "he said don't worry, you won't fall." See plaintiff's deposition, p. 21. Further, she stated that "he was the kind of person that sometimes you would try to talk to him and it was as if he just didn't understand." See plaintiff's deposition, p. 21.
All that the plaintiff has presented concerning Oyola's alleged statements is that he told her to get up on the desk to clean the tops of the storage cabinets and that he told her not to worry about falling. Even assuming, arguendo, see Martel v. Metropolitan District Commission, 275 Conn. 38, 55 n. 13, 881 A.2d 194 (2005), that Oyola's alleged statements are binding on the defendant, the plaintiff has not presented evidence showing either that the defendant actually intended to injure her or that "[her] employer believed that its conduct was substantially certain to cause the employee harm." (Emphasis in original.) Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 118. The plaintiff has not made a showing of knowledge on the part of the defendant that the plaintiff would be injured. See Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 120. Thus, the plaintiff's evidence is lacking under either the actual intent standard or the substantial certainty standard.
The plaintiff also argues that the defendant's employee manual does not include climbing on desks as a safe procedure. Evidence of safety violations is also insufficient. See Morocco v. Rex Lumber Co., 72 Conn.App. 516, 525, 805 A.2d 168 (2002) (OSHA violations do not take a resulting injury out of the exclusivity provision of the Workers' Compensation Act).
In Sorban v. Sterling Engineering Corp., supra, 79 Conn.App. 446, the plaintiff also alerted his supervisor to his concern. "On March 12, 1997, the plaintiff was employed by the defendant as a machine operator . . . The plaintiff was assigned to work on a vertical turret lathe, which required the operator to place a large circular piece of material on a rotating table. The operator would position the cutting tool (tool head) that was attached to an arm over the rotating table, and then cut the material.
"The plaintiff noticed that the lathe was malfunctioning; specifically, the cutting tool was not stopping in the proper position. Instead, the tool head drifted toward the material located on the rotating table. The plaintiff alerted his supervisor to the problem and, after inspecting the machine, the supervisor told the plaintiff to `be careful.' The plaintiff turned on the rotating table and then attempted to position the arm. After turning the switch that would allow him to position the arm and tool head, the plaintiff heard a click and was unable to complete the task. He attempted unsuccessfully to position the tool head a second time. During his third attempt, the tool head crashed into the material located on the rotating table. As a result, a piece of material was thrown from the machine, broke though a safety shield guard and struck the plaintiff's arm, causing a severe laceration and other injuries." Id.
In affirming the trial court's decision to grant summary judgment, the Appellate Court concluded, "[i]n the record before us, there is no evidence that the defendant's actions were committed with the purpose of causing injury . . . Although the defendant's failure (1) to repair the lathe, (2) to provide adequate butt blocks and shield guards, and (3) to alert employees to a policy regarding the use of the rotating table may constitute negligence, gross negligence or even recklessness, those allegations fail to meet the high threshold of substantial certainty . . . The combination of factors demonstrated a failure to act; however, such a failure is not the equivalent of an intention to cause injury." (Citation omitted.) Id., 79 Conn.App. 457-58. Likewise, here, the plaintiff's supervisor's alleged statements do not amount to evidence which reaches the high threshold.
Under these circumstances, the court need not consider whether Oyola, the plaintiff's supervisor, may be deemed the alter ego of the defendant. See Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 275-77.
CONCLUSION
There is no genuine dispute as to a material fact. The movant has shown that it is entitled to judgment as a matter of law. Accordingly, the defendant's motion for summary judgment is granted. It is so ordered.