Opinion
No. CV04-0833086S
April 25, 2006
MEMORANDUM OF DECISION ON MOTION TO STRIKE
On March 30, 2004, the plaintiffs, Joseph Arsenanlt and Lori Arsenault, filed a four-count complaint against the defendants, Anthony Patrizzo, Robert Langenaur, David Donovan, Jeffrey Rea and the Metropolitan District Commission (MDC). The complaint arises out of a motor vehicle accident in which Joseph Arsenault sustained serious injuries, while acting in the course of his employment with the MDC. The complaint alleges negligence and carelessness as to Patrizzo in count one and reckless indifference and/or wilful or serious misconduct as against all the defendants in count three. The remaining counts of the complaint contain Lori Arsenault's loss of consortium claims.
The complaint identifies the defendants as follows. The Metropolitan District Commission (MDC) is Joseph Arsenault's employer; Anthony Patrizzo was Joseph Arsenault's co-worker at the time of the incident; Robert Langenaur was a gate maintenance supervisor for MDC; David Donovan was the manager of operations for the MDC; and Jeffrey Rea was the systems maintenance superintendent for the MDC.
The complaint alleges the following relevant facts. On May 23, 2002, Joseph Arsenault was assigned to a water gate maintenance crew under the supervision of Patrizzo, who was also the driver of the truck that transported the work crew. Patrizzo parked the truck along the shoulder of the eastbound lane of state Route 185 in West Hartford, partially obstructing the travel portion of the lane. As Joseph Arsenault was standing on the rear bumper of the parked truck picking up cones from a work site in preparation of moving onto a new work area, a vehicle traveling in the eastbound lane struck the rear of the truck, causing severe injuries to Joseph Arsenanlt, including partial amputation of both his legs.
Count one of the complaint alleges in part that Patrizzo was operating the work truck within the meaning of Conn. Gen. Stat. § 14-1 and was negligent in that he parked the truck so that he obstructed traffic, the truck was not reasonably visible to other motorists, and he failed to use a signaling device or establish an adequate traffic control plan. Count two alleges loss of consortium and other claims on behalf of Lori Arsenault, Joseph Arsenault's wife. Count three of the complaint alleges in relevant part that, prior to the date of the incident, all of the defendants were aware that employees worked on roads where there was a substantial risk of injury, and that they "manifested a total disregard for the safety of the [p]laintiff . . . by instructing [him] to work under conditions which were substantially certain to result in serious injury or death . . ." The complaint further alleges that Joseph Arsenault's injuries were "substantially certain to result from the reckless indifference, and/or wilful or serious misconduct of the [defendants] . . ." The specific facts alleged in the complaint include the defendants' failure to train personnel in accordance with national safety standards, and wilful disregard of the national safety standards applicable to the project on which Joseph Arsenault was working at the time of the incident. Count Four also alleges a loss of consortium by Mrs. Arsenault.
The defendants have moved to strike the entire complaint on the ground that it is barred by the exclusivity provision of the Workers' Compensation Act, Conn. Gen. Stat. § 31-275 et seq. Specifically, the defendants argue that the complaint does not fall under either the motor vehicle exception contained in Conn. Gen. Stat. § 31-293a or the common-law exception for reckless or wilful conduct. For the reasons discussed below, the motion is denied as to Counts One and Two and granted as to Counts Three and Four.
I. Counts One and Two:
In most situations, an employee who has a right to benefits under the Workers' Compensation Act, may not sue his employer for damages for personal injuries. Conn. Gen. Stat. § 31-284(a); CNA Ins. Co. v. Colman, 222 Conn. 769, 773 (1992). Most suits against fellow employees are prohibited by Conn. Gen. Stat. § 31-293a. An injured employee has a common-law right of action against a fellow employee if the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in General Statutes § 14-1. Perodeau v. Hartford, 259 Conn. 729, 745 n. 18 (2002).
General Statutes § 31-293a states in relevant part: "If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle as defined in section 14-1 . . ."
The defendants argue that counts one and two must be stricken because the motor vehicle exception to the workers' compensation exclusivity rule is inapplicable. Specifically, they argue that, because plaintiff alleges that the truck was parked at the time of the incident, defendant Patrizzo was not "operating" the truck within the meaning of the statute. Neither § 31-293a nor § 14-1 provides a definition of "operation," although the meaning of the term has been construed by the courts. "In order to find such negligent operation allowing supplementary tort recovery against the employee operator within the exclusion of § 31-293a, the fellow employee's injury must have been caused by the negligent movement or circumstance resulting from the movement of the employer's truck." Cirillo v. Sardo, 41 Conn.App. 664, 668 (1996). "If a co-employee is not engaged at the time of the fellow employee's injury in any activity related to driving or moving a vehicle or related to a circumstance resulting from the movement of a vehicle, the lawsuit does not fall within the exception . . ." Id., 670. In Cirillo the decedent was standing to the right rear of his work truck, which had been parked by the defendant. Id., 665-66. While the decedent stood in this position waiting for a co-worker to finish placing sandbags, a vehicle swerved into the closed lane where the truck was located and struck the decedent, killing him. Id., 666. At the time of the collision, the decedent was neither in nor on the truck. Id. In affirming summary judgment for the defendant, the court noted in relevant part that "at the time of the accident, the decedent was not on the truck but was on the roadway . . . [and] the other vehicle struck the decedent while he was on the road and not on the truck . . ." Id., 669.
In Kiriaka v. Alterwitz, 7 Conn.App. 575, cert denied, 201 Conn. 804 (1986), the plaintiff got off his work truck, which had been parked on the side of the road by his fellow employee, and proceeded to cross the road when he was struck by a passing motor vehicle Id., 576-77. In affirming the trial court's decision granting summary judgment for the defendant, the court noted that the plaintiff, after alighting from the truck, "proceeded, on his own, unrelated to the operation of the truck, to cross the highway where he was struck by a passing vehicle." Id., 579.
In each of these cases, the court based its decision on the fact that the vehicle allegedly operated by a fellow employee was parked, and also on the fact that the plaintiff was well removed from the vehicle and within the roadway when the accident occurred. Cirillo v. Sardo, supra, 41 Conn.App. 669; Kiriaka v. Alterwitz, supra, 7 Conn.App. 579. In this case, the complaint alleges that Joseph Arsenault was not removed from the vehicle, but was standing on the bumper of the work truck when he was struck. In Allison v. Manetta, 84 Conn.App. 535, cert. denied, 271 Conn. 931 (2004), the court considered the meaning of the term "operating a motor vehicle" in Conn. Gen. Stat. § 52-556. In that case, the defendant had parked his dump truck for a short time as an incident of his required travel and work for his employer. Id., 536-37. "The general rule . . . is that operation of a motor vehicle occurs when there is a setting in motion of the operative machinery of the vehicle, or there is a circumstance resulting from that movement or an activity incident to the movement of the vehicle from one place to another." (Internal quotation marks omitted; emphasis in original.) Id., 540-41. In this case, plaintiffs have sufficiently alleged that the work truck was parked as an incident of its required travel and work for the MDC, that its position on the roadway was a circumstance resulting from its movement, and that it was being operated within the meaning of Conn. Gen. Stat. § 31-293a.
Conn. Gen. Stat § 52-556 states: "Any person injured in person or property through the negligence of any state official or employee when operating a motor vehicle owned and insured by the state against personal injuries or property damage shall have a right of action against the state to recover damages for such injury."
The defendants further argue that the accident in which Mr. Arsenault was injured had a distinct relationship to the special hazards of his employment and thus did not fall within the motor vehicle accident exception in § 31-293a. "Unlike the special hazards of the work place, the risk of a motor vehicle accident is a common danger to which the general public is exposed. Particular occupations may subject some employees to a greater degree of exposure to that risk. The nature of the risk remains unchanged, however, and in many employments it is no greater than for the general public. The legislature has chosen, therefore, not to extend the immunity given to fellow employees by § 31-293a to accidents having a less distinct relationship to the hazards of the employment." Fields v. Giron, 65 Conn.App. 771, 775 (2001), citing Dias v. Adams, 189 Conn. 354, 359-60 (1983). In Fields, the plaintiff was injured when a co-worker attached a fallen tree to the company truck using a rope, then operated the truck in a way that created tension on the rope and caused it to break. The court held that plaintiff "subjected himself to the special hazards of the workplace, and the risk of injury he faced was not that risk of a motor vehicle accident faced by the general public as a common danger . . . This accident involved a special hazard of the workplace and does not fall within the purview of the motor vehicle exception to the Workers' Compensation Act." (Internal quotation marks omitted.) Id., 776-77. In this case, the complaint alleges that Joseph Arsenault was on the rear right bumper of the work truck collecting cones from a work site in preparation of moving on to a new work site when the incident occurred. The particular activity that Mr. Arsenault was engaged in is sufficiently similar to other activities shared by the public, such as retrieving items from a car trunk or changing a flat tire, so that plaintiff was not injured while subject to a hazard specific to his occupation. The motion to strike counts one and two is therefore denied.
II. Counts Three and Four:
The defendants argue that the third and fourth counts fail to allege sufficiently the intent required for the so-called " Suarez exception" to the Workers' Compensation Act. Connecticut courts "consistently have interpreted the exclusivity provision of the [workers' compensation] 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." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106 (1994), on appeal after remand, 242 Conn. 255 (1997). "[I]ntent 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 . . . 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." (Citation omitted; internal quotation marks omitted.) Id., 108. "[T]he substantial certainty standard 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." Ramos v. Bradford, 63 Conn.App. 671, 680 (2001). "[T]he 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." (Emphasis added.) Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 279 ( "Suarez I").
The court has, for purposes of this motion to strike, reviewed the allegations of the third count in the light most favorable to the plaintiff. Plaintiff has not set forth facts which, if proven, would permit a jury to find that the defendants created working conditions which made plaintiff's injuries "substantially certain to occur." Id., 242 Conn. 255, 258 ( "Suarez II"). All of the Suarez allegations in the third and fourth counts are claims that defendants failed to do things which would, if done, would have lessened the likelihood that plaintiff would be injured. A failure to act to prevent injury is not the equivalent of an intent to injure. Melanson v. West Hartford, 61 Conn.App. 683, 689, cert. denied, 265 Conn. 904 (2001). The Melanson court observed that "[a] trier of fact cannot appraise the intentionality of a defendant's conduct without factual allegations that describe the nature of the conduct of which the plaintiff complains. (Citation omitted.) Insofar as the plaintiff's complaint contains factual allegations . . . those allegations would not, if proven, demonstrate the requisite intent or design to injure the plaintiff. Similarly, the factual allegations in the complaint do not suffice to establish that any of the individual defendants intentionally created or crafted a plan that made injury to the plaintiff inevitable." Id., at 692-93.
The motion to strike Counts Three and Four is therefore granted.