Summary
granting summary judgment against a roofer who fell while working on a renovation project because “[t]here [ was] no indication that the employer ever instructed him to work without a harness or prohibited him from working with a harness”
Summary of this case from Bye v. Cianbro Corp.Opinion
No. CV 03-0826377
July 14, 2005
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
FACTUAL BACKGROUND
The plaintiff was injured on the job when he fell from a roof during a renovation project at the volunteer fire house in Avon, Connecticut on April 18, 2002. According to the revised complaint dated February 3, 2004, "at said time and place, Kevin White, lost his balance and fell from said roof . . ." (Revised Complaint February 3, 2004, para. 7.)
DISCUSSION
The defendant claims that the action by the plaintiff is barred by the exclusivity provision of the Workers' Compensation Act. Conn. Gen. Stat. § 31-284. The plaintiff claims that his action comes within the narrow exception to the workers' compensation exclusivity first set out by the Supreme Court in Suarez v. Dickmont Plastics Corp., ( Suarez I) 229 Conn. 99 (1994). After a retrial of Suarez I, the case returned to the Connecticut Court as Suarez v. Dickmont Plastics Corp., 242 Conn. 255 (1997). ( Suarez II).
The exception represented by Suarez is summed up in the following language from Suarez II where the court wrote:
We begin with the proposition that permitting an employee to sue an employer for injuries intentionally caused by him constitutes a narrow exception to the exclusivity of the act." [citations omitted] "Since the legal justification for the common-law action is the non accidental 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, willful, 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." [citations omitted] "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 . . . Therefore, to escape the exclusivity of the act, the victim of an intentional injury must rely on the intended tort theory or the substantial certainty theory. Under the former, the actor must have intended both the act itself and the injurious consequences of the act. Under the latter, 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., supra at 278-80.
In Morocco v. Rex Lumber Company, 72 Conn.App. 516 (2002) the court concluded:
[A] wrongful failure to act to prevent injury is not the equivalent of an intention to cause injury . . . the employer must believe the injury was substantially certain to occur . . . In addition the court ruled that the substantial certainty test provides for the intent to injure exception to be strictly construed and still allow 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. Morocco, supra at 525 and Morocco citing Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 109-10.
Suarez was intended to create a very narrow exception for deliberate injury. The addition of the substantial certainty test to the deliberate injury test has produced numerous attempts to expand negligence actions into actions in which the employee claims to be within the exception. In the instant case, the employee fell off a roof while he was not wearing a harness which might have prevented the fall and which may or may not have been present on the job site. There is no indication that the employer ever instructed him to work without a harness or prohibited him from working with a harness. It appears to the court that the instant case provides an instance of an employee injured by negligence. However, the remedy for negligence under the public policy of this state is limited to workers' compensation. The court does not see how the facts of this case rise to any indication that the employer intended injury to Mr. White or took any action substantially certain to produce such injury.
For the foregoing reasons, summary judgment for the defendant is granted.
BY THE COURT
Kevin E. Booth, J.