Opinion
No. CV08-5009069S
April 23, 2009
MEMORANDUM
This matter is before the court on the defendant, City of Waterbury's motion to strike the one-count complaint filed by the plaintiff on the grounds that the plaintiff has failed to allege that the defendant's intentional, willful or malicious action caused her alleged injuries. Therefore, the plaintiff's claim is precluded under the exclusivity provision of the Workers' Compensation Act.
FACTS
The plaintiff, Donna Humphrey-Norman, commenced this action by service of process on the defendant, City of Waterbury, on May 9, 2008. The plaintiff's one-count revised complaint, filed on July 3, 2008, alleges that on March 21, 2007, the plaintiff slipped and fell "due to an accumulation of ice and snow" when she was exiting her car on a city-owned street adjacent to the front entrance to the Woodrow Wilson School, which is located at 235 Birch Street in Waterbury, Connecticut. (Revised Complaint, ¶ 3.) The plaintiff seeks damages for injuries caused by the defendant's alleged negligence in failing to keep the street reasonably safe for public use.
According to the revised complaint, the plaintiff was acting in the course of her employment with the Waterbury board of education when she suffered her alleged injuries, and she received workers' compensation benefits and other benefits, including medical care, pursuant to the Workers' Compensation Act, General Statutes § 31-275 et seq. The plaintiff further alleges that she furnished written notice of the claim to the defendant's city clerk, pursuant to General Statutes § 13a-149.
The defendant filed a motion to intervene on June 10, 2009, pursuant to General Statutes § 31-293(a), claiming reimbursement for any damages that the plaintiff recovers in the present action.
General Statutes § 31-293(a) provides in relevant part:
When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a person other than an employer who has complied with the requirements of subsection (b) of section 31-284, a legal liability to pay damages for the injury, the injured employee may claim compensation under the provisions of this chapter, but the payment or award of compensation shall not affect the claim or right of action of the injured employee against such person, but the injured employee may proceed at law against such person to recover damages for the injury; and any employer or the custodian of the Second Injury Fund, having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against such person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee . . .
The defendant filed a motion to strike the plaintiff's original complaint with a supporting memorandum of law on June 30, 2008, and the plaintiff filed an objection and a supporting memorandum of law on July 15, 2008. Meanwhile, the plaintiff filed a revised complaint on July 3, 2008, which deleted the phrase "in particular the Department of Public Works" from the complaint's first paragraph.
Following the filing of these pleadings, there was significant confusion about the resolution of the motion to strike. The plaintiff filed a series of motions, including a notice of intent to appeal and a motion for articulation on August 26, 2008, which stated that the Superior Court, Alvord, J., had granted the motion to strike on July 21, 2008. The defendant filed a motion for judgment on September 11, 2008, which also stated that Judge Alvord granted the motion to strike on July 21, 2008. The record shows, however, that the motion to strike was not decided on July 21, 2008, and remains pending.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006).
The defendant argues that the plaintiff's complaint should be stricken in its entirety because the plaintiff was employed by the City of Waterbury, was injured in the course of her employment, and received workers' compensation benefits. The defendant argues that under these facts, the plaintiff is precluded under the exclusivity provision of the Workers' Compensation Act from bringing a negligence suit against her employer, and, therefore, the plaintiff has failed to state a claim upon which relief may be granted.
The plaintiff argues that she has stated a claim for which relief may be granted because the exclusivity provision of the Workers' Compensation Act does not preclude suits against a municipality for negligence if the employee worked for one of the municipality's "independently functioning entities," the board of education, when she received workers' compensation benefits. (Objection to Motion to Strike, p. 1.)
"Connecticut's Workers' Compensation Act (act), General Statutes § 31-275 et seq., is the exclusive remedy for injuries sustained by an employee `arising out of and in the course of his employment . . .' General Statutes § 31-284(a). Under the act's strict liability provisions, workers are compensated without regard to fault. In return for a relatively low burden of proof and expeditious recovery, employees relinquish their right to any common-law tort claim for their injuries . . . Generally, then, all rights and claims between employers and employees, or their representatives or dependents, arising out of personal injury or death sustained in the course of employment are abolished as a result of the act's exclusivity bar." (Citation omitted; internal quotation marks omitted.) Johnson v. Atkinson, 283 Conn. 243, 251, 926 A.2d 656 (2007).
"There is an exception, however, to the exclusivity provision of the workers' compensation statute. That one exception exists when the intentional tort of an employer injures an employee or when the employer has engaged in willful or serious misconduct." Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 449, 830 A.2d 372, cert. denied., 266 Conn. 925, 835 A.2d 473 (2003).
As a preliminary matter, the plaintiff was the defendant's employee. The Supreme Court has held "that local boards of education act on behalf of the municipality they serve as well as in fulfillment of their state mandates and that their professional and nonprofessional employees are employees of the municipality . . ." Cheshire v. McKenney, 182 Conn. 253, 260, 438 A.2d 88 (1980). Therefore, the plaintiff, as an employee of the board of education, was also an employee of the defendant municipality served by the board of education.
The plaintiff argues that even if she was an employee of the municipality, she should not be excluded from bringing a negligence claim against the municipality because it was also responsible, via a separate department that operated independently from the board of education, for maintaining the road where she allegedly was injured. She argues that a contrary ruling "would effectively limit [her] right to recovery not only in this action, but also against all claims arising during her employment from any city department." (Memorandum of Law in Objection to Motion to Strike, p. 3.)
The plaintiff's policy argument is inapposite, however, as the Supreme Court has held that an employee of the board of education was excluded from suing his municipal employer for negligence following a slip and fall on a public sidewalk. Mase v. Meriden, 164 Conn. 65, 66, 316 A.2d 754 (1977). Because the employee was injured in the course of his employment and received workers' compensation, his exclusive remedy was the Workers' Compensation Act. Id.
Furthermore, "[t]he Connecticut Supreme Court has repeatedly refused to carve out a dual capacity exception to the exclusivity provision of the Workers' Compensation Act." Melius v. Federal Express Corp., 76 F.Sup.2d 233, 235 (D.Conn. 1999) (exclusivity provision barred claim where the defendant was both the plaintiff's employer and the manufacturer of a product that allegedly injured the plaintiff). See also Panaro v. Electrolux Corp., 208 Conn. 589, 600, 545 A.2d 1086 (1988) (rejecting dual capacity doctrine for alleged malpractice of a company nurse at a medical facility maintained by the plaintiff's employer).
The Supreme Court has explained "The `dual capacity' doctrine . . . often describes the situation where an employer has two capacities, such as employer and owner . . . or employer and product seller . . . An employer may become a third person, vulnerable to tort suit by an employee if-and only if-he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person." (Citations omitted; internal quotation marks omitted.) Panaro v. Electrolux Corp., 208 Conn. 589, 593-94 n. 5, 545 A.2d 1086 (1988).
Thus, the plaintiff may not bring a negligence action against her employer even though the employer may have been acting through an "independently functioning entity" when it committed its alleged act of negligence. As a result, the plaintiff may not bring a claim against the defendant unless she can overcome the narrow exception to the exclusivity bar for intentional torts or willful or serious misconduct.
The court finds the plaintiff's revised complaint does not allege that the defendant committed an intentional tort or that the defendant engaged in willful or serious misconduct, which is necessary to overcome the exclusivity provision of the Workers' Compensation Act. The plaintiff's complaint sounds in negligence, alleging that her injury "was due to the breach or violation by the defendant, City of Waterbury, of its statutory duty to use a reasonable care to keep its highways and/or streets reasonably safe for public use and travel in one or more of the following ways." (Revised Complaint, ¶ 4.) None of those ways listed supports a finding of intentional, willful or malicious conduct. Therefore, for the aforesaid reason the defendant's motion to strike is granted.