Opinion
No. CV 00-0273888-S
December 3, 2007
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #135
The plaintiff, Salvatore Palmieri, has filed a two-count revised complaint against the defendant, Palmieri Foods Inc. The first count alleges that the defendant engaged in willful and serious misconduct, intending to injure the plaintiff and the second count is for intentional infliction of emotional distress, derivative from the first count.
The revised complaint alleges that on December 3, 1999, the plaintiff while in the employment of the defendant was feeding horseradish roots into a grinding machine "in accordance with the defendant's established procedures," when the glove on his right hand became caught in the grinding machine. This lead to his right hand and arm being pulled into the machine which resulted in the amputation of his master arm up to the elbow. The plaintiff also alleges that the defendant "had knowledge of and was aware of previous accidents that had occurred on its premises where its employees were exposed to the dangers associated with [the grinding machine], including hand injuries and lacerations." The plaintiff further alleges that before his injury, the defendant made modifications to the grinding machine, namely: (1) removing safety grid bars; (2) removing "the microswitch which prevented the machine from operating if the cover was lifted" and; (3) replacing the motor with a more powerful model to "increase speed and economic profit."
The defendant has filed a motion for summary judgment on the ground that both counts are barred by General Statutes § 31-284(a) commonly known as the Workers' Compensation Act ("the Act"). Alternatively, the defendant moves for summary judgment on count two because the undisputed material facts demonstrate that the claim fails as a matter of law. In support of its motion, the defendant submitted a memorandum of law; an affidavit by Patrick Palmieri, the president of the defendant; a copy of a workers' compensation insurance policy; a copy of assorted pages of Patrick Palmieri's deposition and corrections to that deposition and; a copy of various pages of the plaintiff's deposition. The defendant has filed a supplement to its motion; attached to which is an affidavit of a representative of the defendant's workers' compensation insurer.
The plaintiff has filed a memorandum in opposition. Attached to it is an affidavit of the plaintiff; pages from Patrick Palmieri's deposition; a copy of a "Citation and Notification of Penalty" issued to the defendant by the United States Department of Labor (the Labor Dept.) for violations of the Occupational Safety and Health Act of 1970 (OSHA); a copy of an "Invoice/Debt Collection Notice" to the defendant from the Labor Dept.; unlabeled copies of what appear to be ledger entries; copies of an "investigation report[s]" of the accident; copies of a letter from the grinding machine's manufacturer; an affidavit of Igor L. Paul; an affidavit by Thomas Kendrick and; a copy of a memorandum of decision for Donenfeld v. Illinois Tool Works, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 03 0090944 (January 22, 2007, Pickard, J.) [42 Conn. L. Rptr. 670]. On March 22, 2007, the plaintiff filed a supplement to his memorandum in opposition, which came with certified copies of two OSHA reports. On August 2, 2007, the defendant filed a reply with another affidavit of Patrick Palmieri. On October 4, 2007, the plaintiff filed a sur-reply. On October 9, 2007, the court heard oral argument.
DISCUSSION The standard for summary judgment is well settled. "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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Brown v. Soh, 280 Conn. 494, 500-01, 909 A.2d 43 (2006). "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.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). "[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "[S]ummary judgment is ordinarily inappropriate where an individual's intent and state of mind are implicated . . . The summary judgment rule would be rendered sterile, however, if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." (Internal quotation mark omitted.) Chadha v. Charlotte Hungerford Hospital, 97 Conn.App. 527, 539, 906 A.2d 14 (2006). I As a threshold issue, the evidence submitted by the parties needs to be examined to determine which evidence may properly be considered in connection with a motion for summary judgment. "[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 . . . That section does not mandate that those documents be attached in all cases, but . . . that [o]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . In fact [the Appellate Court has] held that Practice Book § [17-45], although containing the phrase `including but not limited to,' contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment. "[B]efore a document may be considered by the court in support of a motion for summary judgment, `there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . .' Conn. Code Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." (Citations omitted; internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678-79, 974 A.2d 849 (2005). Further, "[a] party opposing a motion for summary judgment must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . In interpreting the rules liberally . . . [evidence may be] admitted at trial without objection to create an evidentiary foundation for the determination that a genuine issue of material fact exists, particularly where . . . both parties submitted uncertified [evidence]. Therefore, a court properly could consider such a submission without objection." (Citations omitted.) Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006).A
Attached to the defendant's motion is an affidavit by Patrick Palmieri, the president of the defendant. "[Practice Book § 17-46] sets forth three requirements necessary to permit the consideration of material contained in affidavits submitted in a summary judgment proceeding. The material must: (1) be based on `personal knowledge'; (2) constitute facts that would be admissible at trial; and (3) affirmatively show that the affiant is competent to testify to the matters stated in the affidavit." Barrett v. Danbury Hospital, 232 Conn. 242, 251, 654 A.2d 748 (1995). The court may consider not only the facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonably and logically drawn from them . . ." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 596 (1969). This affidavit contains a photocopy, and not an original, of the last page of the affidavit, where the certification should appear. While this page lacks the raised impression from a notary public's seal, there is an otherwise apparently valid notary public signature and commission expiration date on the page. The plaintiff has not objected to the affidavit. The court finds the defendant's affidavit to be admissible. Further, attached to this affidavit are four photographs. In his affidavit, Patrick Palmieri states that he is the individual pictured in each photograph and describes what he is doing in each photograph, such as standing in the customary position to operate the grinding machine. The affidavit sufficiently authenticates each photograph and the court finds that each is admissible for purposes of the motion for summary judgment. Also appended to the defendant's motion is a workers' compensation insurance policy issued to the defendant together with an affidavit from a representative of the insurance carrier. The court finds that both the insurance policy and affidavit are admissible. The defendant has attached deposition testimony from Patrick Palmieri, corrections to this deposition testimony, and deposition testimony from the plaintiff. The first item is accompanied by a photocopy of a certification page, signed by a notary public. The same goes for the deposition of the plaintiff. The corrected deposition testimony bears a photocopy signed by a notary public and, in addition, has that notary public's commission expiration date. All of these deposition materials are validly notarized, and are admissible for summary judgment purposes. In addition, no objections have been made by the plaintiff to any of these documents.
Lastly, the defendant filed a duly certified, second affidavit by Patrick Palmieri, along with three more photographs and an engineering diagram of the grinding machine. This affidavit describes the grinding machine photographs as the one on which the plaintiff was injured, and the engineering diagram as being from the owner's manual and operating instructions for the same machine. The court finds all the foregoing to be admissible.
B
Attached to the plaintiff's memorandum in opposition are three affidavits. The first is from the plaintiff and details the day of the accident. The second affidavit is sworn to by Thomas Kendrick, an employee of the FitzPatrick Company ("FitzPatrick"), the manufacturer of the grinding machine. In it, Kendrick details his employment history with FitzPatrick and the company's policies regarding the safety devices on the grinding machine. Both of these affidavits are based on the affiant's personal knowledge, are properly acknowledged and admissible.
The last affidavit is sworn to by Igor Paul, an engineer. In it, he states that he has examined the complaint, the OSHA reports, the depositions, and the owner's manual of the grinding machine. He then "render[s] a professional opinion in regard to the actions of [the defendant]" concerning the removal of the grinding machine's safety features and the creation of a hazardous situation. Specifically he avers that in his "professional opinion, the removal of the critical safety guard (throat bars and microswitch) and the failure to replace the guard before allowing any powered operation of the [grinding machine], represented willful and intentional disregard by [the defendants] for worker safety," that "[t]he actions by [the defendant] created a completely exposed, totally unguarded severe cutting hazard in a location, which made contact and severe injuries substantially certain to occur, as a result of the intentional acts of the defendant under normal and reasonably foreseeable conditions of use of the machine," that the defendant's "failure . . . to replace the throat bars was inexcusable because it represented a clear violation of the machine guarding standards promulgated by 29 CFR 1910 and 212(a)(1) safety in the workplace" and finally that "[t]he actions by [the defendant] also directly violated the operating, maintenance, and safety instructions for the [grinding machine] in question, which specifically require replacement of all guards after performance of any service maintenance or adjustment on the machine. In [Paul's] professional opinion, the proper replacement and use of the guard and microswitch by [the defendant] would have prevented [the plaintiff's] injuries." These statements are legal conclusions, not statements of fact based on personal knowledge. As such, this affidavit is not admissible for purposes of the pending summary judgment motion.
Next, the plaintiffs submitted portions of uncertified OSHA reports. In his supplemental memorandum in opposition, he has attached two certified OSHA reports. The uncertified OSHA report portions constitute inadmissible hearsay evidence. The other OSHA reports are duly certified by a custodian of the records and contain a signed and sealed statement from a Labor Dept. "Authentication Officer." The court finds OSHA reports are self-authenticating; see Conn. Code of Evid. § 9-1(b); and, therefore, both are properly admissible as are records and reports of public offices or agencies; see Conn. Code of Evid. § 8-3(7).
Conn. Code of Evid. § 9-1(b) provides: "Extrinsic evidence of authenticity as a condition precedent to admissibility is not required if the offered evidence is self-authenticating in accordance with applicable law."
Conn. Code of Evid. § 8-3 provides in relevant part: "The following are not excluded by the hearsay rule, even thought the declarant is available as a witness . . . (7) [r]ecords, reports, statements or data compilations, in any form, of public offices or agencies, provided (A) the record, report, statement or data compilations was made by a public official under a duty to make it, (B) the record, report, statement or data compilation was made in the course of his or her official duties, and (C) the official or someone with a duty to transmit information to the official had personal knowledge of the matters contained in the record, report, statement or data compilation."
Lastly, the plaintiff submitted uncertified portions of deposition testimony given by the defendant president, Patrick Palmieri. While, the court is not bound to accept such unauthenticated testimony for summary judgment; see New Haven v. Pantani, supra, 89 Conn.App. 678-79; the defendant has not objected to its introduction; see Barlow v. Palmer, supra, 96 Conn.App. 92. Also, the defendant has submitted some of the same portions of it with their motion. The court finds these documents admissible.
II
The defendant argues that the plaintiff's claim in count one is barred by the exclusivity provision of the Act. The plaintiff argues that his claim is within the "substantial certainty" exception to the exclusivity provision of the Act, and, therefore, is not barred.A
"[T]he clear trend in the development of [workers'] compensation law in the United States has been to limit common-law tort actions for injuries arising out of and in the course of employment and to satisfy as many claims as possible under the [workers'] compensation act . . . The decisions of [the Connecticut Supreme Court] are consistent with this trend . . ." (Citations omitted.) Jett v. Dunlap, 179 Conn. 215, 222, 425 A.2d 1263 (1979). In most cases, the Act is a complete bar to independent actions filed by an employee against an employer for an injury that occurs at the workplace. See General Statutes § 31-284. "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 wilful or serious misconduct . . . The exception gives an employee a cause of action in addition to the remedies provided by the act . . . [T]he employer must have engaged in intentional misconduct, as that has been defined through our case law . . . directed against its employee . . . Anything short of genuine intentional injury sustained by the employee and caused by the employer is compensable under the Act . . . The exception does not include accidental injuries caused by gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.
"An employee can prevail only by proving 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 (substantial certainty standard) . . .
In the present case, the parties agree that the issue is whether the substantial certainty standard applies; the actual intent standard is not implicated.
"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 . . ." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Morocco v. Rex Lumber Co., 72 Conn.App. 516, 520-22, 805 A.2d 168 (2002).
"The substantial certainty standard still is a subset of the intentional tort exception to the act, and intent is a vital element that the plaintiff must prove . . . 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." (Citations omitted; internal quotation marks omitted.) Id., 523. "In defining the operative terms . . . 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 . . . A result is intended if the act is done for the purpose of accomplishing such a result or with knowledge that to a substantial certainty such a result will ensue . . . An intended or wilful injury does not necessarily involve the ill will or malevolence shown in express malice, but it is insufficient to constitute such an [intended] injury that the act . . . was the voluntary action of the person involved . . . Both the action producing the injury and the resulting injury must be intentional . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act . . . The known danger involved must go from being a foreseeable risk which a reasonable man would avoid and become a substantial certainty . . ." (Citations omitted; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 108-09, 639 A.2d 507 (1994).
"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." (Citation omitted.) Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 111.
"A wrongful failure to act to prevent injury is not the equivalent of an intention to cause injury . . . An 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 act . . . The employer must believe the injury was substantially certain to occur . . ." (Citations omitted; internal quotation marks omitted.) Morocco v. Rex Lumber Co., supra, 72 Conn.App. 527-28. Indeed, "[s]ubstantial certainty centers on whether the employer believed the injury was substantially certain to follow the employer's [intentional] act or conduct . . ." (Emphasis in original.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 280, 698 A.2d 838 (1997).
"Moreover, because the defendant's allegations require the plaintiff to undertake the difficult challenge of providing evidence, in advance of trial, of the mental state of the defendant . . . [the court is] willing to take into account whatever relevant information the plaintiff [is] able to provide." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 110 n. 5. "[The] question of credibility between the parties, however, raises an issue of fact which the trial court cannot resolve on a motion for summary judgment." Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 107. Indeed, "[i]n 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).
B
In considering a motion for summary judgment, the court must determine whether the movant has sustained its burden of demonstrating the absence of any genuine issues of material fact. Exhibit one to Palmieri's affidavit is a photograph of himself holding the plexiglass cover, which is attached to the grinding machine's feed throat. Patrick Palmieri testified at his deposition that the microswitch was removed after the purchase of the grinding machine. He states, however, this microswitch was positioned so that it was triggered to stop the grinding machine from operating only if one were to "split the machine in half" or disassemble it. In addition, he states that an employee of FitzPatrick instructed him that the safety bars on the machine were required for shipping purposes, but that he could remove them after arrival. He also states that the plexiglass cover on the throat of the grinding machine did not come installed by FitzPatrick, but was installed by an employee at his direction and that it did not have a microswitch attached to it. Palmieri also testified in his deposition that the motor of the grinding machine was replaced "three or four times." Each motor was successively replaced with a higher horsepower motor because the higher horsepower motors would "work harder" and as a result, would have to be replaced less frequently. He also adds that, even though the horsepower increased with each motor, the production speed and rpms did not change.
Finally, Palmieri asserts that no other employees of the defendant were ever injured on the grinding machine, or on an earlier model machine used by the defendant.
C
In his affidavit, the plaintiff avers that on the day of the accident, he did not know that the safety bars on the throat of the grinding machine had been removed or that the microswitch on it had been disengaged. He also claims that he was required by his employer to "unclog [the grinding machine] by hand with other horseradish roots" and that this requirement was instituted by Patrick Palmieri. He further states in his affidavit that he complained to the defendant that the rubber gloves, which he used in handling the roots, did not fit him and extended beyond an inch past the tips of his fingers. Finally, the plaintiff claims that he was trained by the previous management of the defendant to push horseradish roots into the grinding machine with a wooden or metal mallet, but that Patrick Palmieri required him to push the roots with his hands.
While it is not explicitly stated in the plaintiff's affidavit, the grinding machine necessarily must have been powered on in order to become clogged while chopping up horseradish roots.
The plaintiff repeats this in his deposition testimony.
Kendrick states in his affidavit that as a thirty-three-year employee of Fitzpatrick, he had never known of an instance where he or any other employee recommended, nor was it permissible under company policy, to remove the safety bars on the grinding machine or to instruct a purchaser to do so. He also avers that Fitzpatrick never had a practice of telling customers that it is common practice to remove such safety devices once the product was delivered to the customer; but that, product safety was always a company priority and all employees were trained and updated on the importance of it.
The certified OSHA reports state that during the closing conference of the OSHA investigation prompted by the plaintiff's injuries, Patrick Palmieri "was adamant that the main issue surrounding the entire accident situation was his unwillingness to alter the method in which the company chops up the roots. [He felt] that any other method would simply be too much work." The OSHA report further states that the injury occurred "from an inadequately guarded point of operation. The cover used to protect workers from the point of operation was inadequate in that the cover was not interlocked or otherwise secured to prevent the worker from reaching too far into the throat of the machine. Inspection of the company paperwork received from the manufacturer indicates that the machine was in fact shipped with a microswitch installed on the cover. This was confirmed with the manufacture via telephone and subsequently by a letter."
The certified OSHA reports also detail injuries sustained by employees of the defendant on the same grinding machine that injured the plaintiff. The report specifically states that "[w]orkers placing their hands underneath [the grinding machine] to clear jams, and to replace barrels for the processed food were exposed to injury from the unguarded rotating blades." In addition, the report references log entries detailing four instances that resulted in lacerations received by employees, the fourth entry being the plaintiff's injury. The remaining three log entries do not specify whether the other injuries were received from the same grinding machine that the plaintiff received his injuries from, the earlier model grinding machine, or other sources. Patrick Palmieri also states in his deposition that once the grinding machine became clogged with horseradish roots, if someone continued to force more horseradish roots down into the feed throat, that person could get their hand near the point of operation and that this would grind their hand off. Patrick Palmieri also states that the safety bars, if left installed on the feed throat of the grinding machine, would prevent someone from inserting their hand down into it.
D The plaintiff has presented evidence that genuine issues of material fact exist regarding whether the defendant created a dangerous condition that it believed was substantially certain to cause the plaintiff harm. The first issue is whether the grinding machine came from the manufacturer initially equipped with safety bars, which were subsequently removed. The statements in Kendrick's affidavit directly conflict with Patrick Palmieri's statement that removal of the safety bars was suggested by an employee of Fitzpatrick at the time that the grinding machine was purchased. Secondly, the presence, location and function of the microswitch is disputed. The OSHA reports state the grinding machine came from FitzPatrick with a microswitch on the throat cover. Patrick Palmieri, however, states no manufacturer installed cover, equipped with a microswitch, was on the grinding machine. He states as noted, that he instructed another employee to install the cover, and that the only microswitch on the grinding machine was not on the cover, but would only function to shut the grinding machine down if one were to disassemble it. The third issue is whether Patrick Palmieri's insisted that clogs in the grinding machine be dislodged by hand using other horseradish roots and that using wooden mallets or other tools was no longer permitted. This method required the plaintiff to be in close proximity to the grinding machine while it was operating. Patrick Palmieri, in his deposition, stated he knew employee's hands could come into contact with the blades while they were attempting to unclog the machine in such a manner. Apparently this unclogging method was insisted upon because when plastic rods or mallets were used, the chopped up horseradish became contaminated with bits of the rods or mallet. Fourth, disputes exist regarding whether injuries to other employees were caused by the same grinding machine. In his deposition, Patrick Palmieri states that no employee injuries, with the exception of the plaintiff's, occurred on the grinding machine. The OSHA reports, however, detail four instances of workplace injuries, the last one being the plaintiff's injuries. The OSHA reports also contain injuries sustained by employees who were attempting to unclog the grinding machine from underneath it and also while replacing the barrels that the chopped horseradish fell into after being processed by the machine. If the defendant knew that other employees were injured in the past while operating the grinding machine, the defendant could not rationally deny that future injuries would likewise continue to occur to a substantial certainty if the physically dangerous situation was willfully left uncorrected.None of these acts are mere failures on the part of the defendant, e.g., to provide proper safety equipment, proper training or follow state and federal safety regulations. Rather, all are affirmative actions. The defendant intentionally removed the safety bars on the grinding machine and insisted on a method of unclogging it that could lead an employee to come into contact with the machine while it was operating. Older and safer methods of unclogging the machine were changed in order to avoid clean up time that slowed down production. Disputes exist regarding the removal and location of a microswitch and past employee injuries caused by the grinding machine. From all of these actions, a jury could reasonably infer that the intentional acts of the defendant created a dangerous situation and that the defendant knew would be substantially certain to injure the plaintiff.
The defendant argues that the present case is the same as Martinez v. Southington Metal Fabricating Co., 101 Conn.App. 796, 924 A.2d 150 (2007). In Martinez, the plaintiff, an employee, sued the defendant, his employer, under the substantial certainty exception to the exclusivity provision of the Workers' Compensation Act for work-related injuries. The Appellate Court affirmed the granting of the defendant's motion for summary judgment and rejected the plaintiff's claim that "the defendant failed to provide appropriate training . . . and failed to take any safety precautions to prevent his injury." Martinez v. Southington Metal Fabricating Co., supra, 101 Conn.App. 805.
The Court further explained that the employee in Martinez was not instructed to work with the metal bending machine turned on, but that, rather, a miscommunication with a fellow employee resulted in the machine being powered on and that this led to the plaintiff's injury. The Appellate Court held that the plaintiff's evidence "failed to demonstrate the existence of a genuine issue of material fact as to the defendant's intent to create a dangerous situation that it knew was substantially certain to injure [the plaintiff] . . ." Id., 807. Unlike the plaintiff in Martinez, the plaintiff has provided evidence that shows the defendant did more than merely fail to provide safety equipment or training. In the present case, disputes exist regarding past injuries on the grinding machine, the removal of safety equipment and the safety equipment's function and location. A fact-finder could reasonably infer from this evidence that the defendant knowingly created a dangerous condition that would be substantially certain to injure the plaintiff. Additionally in the present case, the plaintiff claims that he was required to unclog the grinding machine while turned on following a method prescribed by the defendant, in contrast to Martinez, where the metal bending machine was unexpectedly turned on due to a miscommunication with another employee. The fact the grinding machine was powered on while the plaintiff was attempting to unclog is particularly notable. See, e.g., Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 280: "[T]he most that can be stated about [the plaintiff's supervisor's] intent is that when he required the plaintiff to clean the machines while they were still in a production cycle and threatened the plaintiff with termination if he disregarded the directive, [is that supervisor] intended for the defendant to save money and that the plaintiff's injury was substantially certain to follow from [that supervisor's] conduct. [The plaintiff's supervisor's] actions may indeed have been taken with the knowledge that to a substantial certainty the plaintiff's injury would ensue . . ." (Emphasis added.) The court concluded that this evidence adduced by the plaintiff was sufficient under the substantial certainty standard. In the present case, as in Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 111, "a jury could reasonably infer, from all the circumstances viewed in the light most favorable to the plaintiff, that the defendant's conduct constituted more than a mere failure to provide appropriate safety or protective measures, and that the plaintiff's injury was the inevitable and known result of the actions required of him by the defendant. A specific intent to produce injury is not the only permissible inference to be drawn from [the] defendant's . . . [conduct], but is it one that a jury should be permitted to consider. It is for the finder of fact, not the court on summary judgment, to determine what inferences to draw . . . [S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions." (Citation omitted; internal quotation marks omitted.)
The evidence, when viewed in the light most favorable to the plaintiff, shows that genuine issues of material fact exist and, therefore, the motion for summary judgment, as directed to count one, is denied.
III
Count two is for intentional infliction of emotional distress and incorporates by reference the first count. The defendant argues that it is entitled to summary judgment on the second count because it is barred by the exclusivity provision, that it did not intend to injure the plaintiff that its conduct was not extreme and outrageous and that the plaintiff did not suffer severe emotional distress. The plaintiff argues that the exclusivity provision does not apply here since the underlying conduct, which gave rise to the first count, was intentional, not negligent, infliction of emotional distress; therefore, just as the Suarez exception applies to exempt count one, it likewise applies to exempt count two from the exclusivity provision. The plaintiff also argues that all the elements for intentional infliction of emotional distress have been set forth.
"In order for the plaintiff to prevail in a case for liability under . . . [intentional infliction of emotional distress], four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe . . . Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . ." (Citations omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 210, 757 A.2d 1059 (2000).
Since the court has found the existence of a genuine issue of material fact with respect to the defendant's intentional conduct in count one, and because count two is derivative of count one, the motion for summary judgment as to count two is denied. See, e.g., Dakers v. Danaher Tool Group, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 01 0079186 (October 16, 2002, Sferrazza, J.) (33 Conn. L. Rptr. 310). ("A trier-of-fact could rationally conclude that deliberately compelling an employee to expose himself to a work environment where serious injury is substantially certain to occur, and where such exposure is not inherently part of the job . . . was extreme and outrageous and that the employer knew or should have known emotional distress would ensue.")
This case, however, dealt with a motion to strike, not a motion for summary judgment.