Opinion
No. CV06-5000734S
October 18, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The defendant, American Plastics Products, Inc. ("APP"), moves for summary judgment against the plaintiff, Margaret M. Loftus, Executrix of the Estate of Timothy Loftus ("Executrix"). APP claims that it is entitled to summary judgment pursuant to the exclusivity provision of the Workers' Compensation Act, Connecticut General Statutes § 31-284(a).
For the reasons stated below, APP's motion for summary judgment is granted.
On March 13, 2006, the plaintiff Executrix filed a revised two-count wrongful death complaint against, respectively, the defendant APP, and also against additional defendants Swift Transportation Co, Inc. and Swift's employee, William M. Barber. The first count against APP is the relevant count for purposes of this motion.
On June 26, 2007, the APP filed a motion for summary judgment, with a supporting memorandum of law. On October 4, 2007, the Executrix filed an objection and a memorandum in opposition to the motion for summary judgment. The defendant APP filed a reply memorandum on October 5, 2007.
In the first count of her complaint, the Executrix alleges the following facts. The APP, a Connecticut corporation, employed Timothy Loftus, the plaintiff's decedent. On February 13, 2004, Mr. Loftus, while acting within the scope of his employment, entered a loading dock area and was caused to slip and fall due to a broken loading dock plate. Mr. Loftus was crushed against the broken dock plate by a tractor trailer operated by defendant Mr. William Barber, an employee of defendant, Swift Transportation Co. Mr. Loftus later died.
The Executrix further alleges that the APP shift supervisor, an APP vice president and other employees of APP: knew or should have known of the hazardous condition of the loading dock plate, failed to prevent employees from entering the loading dock area while tractor trailers were backing up, failed to comply with enumerated state and federal safety regulations, allowed employees to be exposed to crushing injuries while standing and working in the loading dock area while tractor trailers were backing up, failed to maintain and inspect the loading dock plate and area, and other similar allegations of "the intentional and/or willful and/or serious misconduct of the defendant."
DISCUSSION A. Applicable Law: Summary Judgment
"Practice Book § 17-49 provides [in relevant part] 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 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 . . . 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." (Internal quotation marks omitted.) Socha v. Bordeau, 277 Conn. 579, 585-86, 893 A.2d 422 (2006).
"On a motion by [the] defendant for summary judgment the burden is on [the] defendant to negate each claim as framed by the complaint . . . It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Internal quotation marks omitted.) Gianetti v. United Healthcare, 99 Conn.App. 136, 141, 912 A.2d 1093 (2007).
"As the party moving for summary judgment, the [defendant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence." (Internal quotation marks omitted.) Decorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
"It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [T]ypically, [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Citations omitted; internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn.App. 221, 228-29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (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." § 17-46 describes the form of affidavits.
B. Applicable Law: Exclusivity Provision of the Workers' Compensation Act
It is undisputed that the Executrix has sought and received workers' compensation benefits from the deceased's employer, APP. When an employee has received workers' compensation benefits, the employee may not maintain a cause of action against his employer unless the employer intentionally injured the employee or the employer intended an act that resulted in the employee's injury being substantially certain to occur. See, e.g., Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 698 A.2d 838 (1994).
In its memorandum of law in support of the motion for summary judgment, APP argues that there are no genuine issues of fact regarding either: (1) APP's intention to injure the plaintiff; or (2) APP's belief that Mr. Loftus' injury was substantially certain to occur. Therefore, the defendant APP argues the Executrix has failed to meet the workers' compensation exclusivity exception requirements and APP's motion for summary judgment should be granted. The Executrix counters that the motion should be denied because of "a material dispute of fact regarding whether the Defendant [APP] intentionally created a dangerous condition that made the injuries sustained by Timothy Loftus substantially certain to occur."
"[General Statutes §] 31-284(a) is the exclusivity provision of the [Workers' Compensation 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).
General Statutes § 31-284(a) provides in relevant part that: "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 . . . but an employer shall secure compensation for his employees as provided under this chapter . . ."
"Under the [substantial certainty test], 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." (Emphasis added; internal quotation marks omitted.) Id., 258. "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." Sullivan v. Lake Compounce Theme Park, Inc. supra, 277 Conn. 118. "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." (Citation omitted; internal quotation marks omitted.) Id. "[F]ailure to take effective remedial action does not translate to an affirmative intent to create an injury causing situation . . . [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 . . . [and] failure to take affirmative remedial action, even if wrongful, does not demonstrate an affirmative intent to create a situation that creates personal injury . . ." (Citations omitted; internal quotation marks omitted.) Id., 119.
In Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003), our Appellate Court upheld the trial court's granting of the defendant's motion for summary judgment. In Sorban, the plaintiff presented evidence that: (1) he was inadequately trained; (2) the defendant was cited for OSHA violations; (3) the defendant knew the injury-causing machine was defective; and (4) the defendant lied to investigators. Id., 456-57. The court stated: "[A] wrongful failure to act to prevent injury is not the equivalent of an intention to cause injury." (Internal quotation marks omitted.) Id., 457. The court continued: "OSHA violations are not enough to take the resulting injury out of the exclusivity provision of the act." (Internal quotation marks omitted.) Id. Accordingly, the court concluded that "[u]nder the facts and circumstances of this case, the plaintiff failed to establish facts that demonstrate that the defendant intentionally created a dangerous condition that made the injuries he sustained substantially certain to occur." Id., 456.
Even under the facts presented in Morocco v. Rex Lumber Co., 72 Conn.App. 516, 805 A.2d 168 (2002), the Appellate Court upheld the trial court's granting of the defendant's motion for summary judgment. In Morocco, the plaintiff presented evidence that: (1) a safety guard was missing from the machine with which the plaintiff was working; (2) the absent safety guard constituted an OSHA violation; (3) the plaintiff was not made aware of safety procedures; and (4) the plaintiff was not adequately trained. Id., 524-27. The court stated: "The exception [to the Workers' Compensation Act] 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." (Internal quotation marks omitted.) Id., 521. Accordingly, the court concluded: "The plaintiff has failed to establish the factual predicate that the defendant . . . knew with substantial certainty that the plaintiff would be hurt or that there was an affirmative intent to create a situation to harm the plaintiff." Id., 528.
In Ramos v. Branford, 63 Conn.App. 671, 778 A.2d 972 (2001), our Appellate Court again upheld the trial court's granting of the defendant's motion for summary judgment. In Ramos, "[the defendant] attested that he never undertook or omitted any act or engaged in any conduct that was intentionally designed to cause injury . . . or . . . death . . ." (Internal quotation marks omitted.) Id., 681. The plaintiff submitted a counter affidavit by an expert who attested as to the national standards of similar employers, and further attested: "It is my expert opinion that, given . . . [the employer's] knowledge and expertise . . . [the employer's] failure to properly train and certify [the decedent] . . . in addition to [the employer's] failure to conduct statutorily mandated fire inspections . . . were intentional acts necessarily committed with knowledge that the injury to or death of a firefighter . . . was substantially certain to result." (Internal quotation marks omitted.) Id., 681-82. The Appellate Court ultimately concluded: "[T]here is no evidence in this case that the employer required the plaintiff's decedent to conduct himself in a manner that would support an inference that the employer deliberately instructed an employee to injure himself." (Internal quotation marks omitted.) Id., 685.
In opposition to the defendant's motion for summary judgment, the Executrix states "It is under the substantially [sic] certainty standard that the Plaintiff brings her claim." (Pl. Obj to Def. Mot for SJ, 6.) The Plaintiff's Memorandum in Opposition describes the substantial certainty test as having two prongs: "whether the Defendant intentionally created a dangerous condition" and "[t]he second prong of the substantial certainty test is whether the intentionally created dangerous condition was substantially certain to cause injury." (Plf. Objection at 9.) The court agrees with APP's Reply Memorandum that the Executrix's "two-prong" analysis incorrectly states the standard for liability against an employer. That is, under applicable case law, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm. Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 118.
The Executrix here argues that the existence of material issues of fact prevent the entry of summary judgment. In her memorandum and also in oral argument, plaintiff relies on the Connecticut superior court case, Reed v. Hathaway, CV 96-025337S, decided in 2001, as support for a denial of summary judgment. Reed also involved a fatal injury at the decedent's workplace: the plaintiff's decedent was run over by the truck while underneath its chassis to disengage the crane cable at the transmission. That superior court case is not persuasive in dictating this court's decision on this motion. In Reed, the court was faced with contradictory sworn factual testimony as to whether the employer required its employees to crawl under the vehicles and flip switches.
Here, the Executrix agrees with APP: what exactly happened on the day in question at APP's workplace that caused Mr. Loftus to be off the surface of the loading dock and in the well of the loading dock may never be known. But the Executrix attaches portions of depositions and argues that the absence of this central fact is "unnecessary detail." (Plf. Objection at 11.) The court disagrees. This lack of evidence, that the defendant intentionally created a dangerous condition which made the plaintiff's injury substantially certain to occur, mandates the granting of summary judgment.
The Superior Court case of Cappellan v. Fairfield Processing Corp. is instructive. In Cappellan, "[t]he plaintiff allege[d] that, while operating a shredding machine during the course of his employment with the defendant, the polyester fiber which he was processing through the machine became jammed in the rollers of the feed conveyor. As the plaintiff was pulling the fiber out with his gloved hand, the rollers unexpectedly started up, pulling his right hand and arm into the feed rollers and then into the shredder, resulting in the amputation of his right arm." (Footnote omitted.) Id. In granting summary judgment, the court stated, "[t]he plaintiff has made no claim that the control panel operator turned the conveyor back on with the intent to injure the plaintiff. Unlike the situation in Suarez I [Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994)], the plaintiff here was not required by his employer to stick his hand into an operating mechanical device. The worst that can be said of the defendant's conduct is that it negligently and recklessly placed the plaintiff in a position where he could be significantly injured. While deserving of condemnation, such conduct is not sufficient to circumvent the exclusivity of the Workers' Compensation Act." Id.
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.).
Turning back to the instant case, APP argues that there are no genuine issues of material fact regarding: (1) actual intent to injure; and (2) intention to create a dangerous condition that made the employee's injuries substantially certain to occur. In support of its argument, APP has submitted, among other documents: (1) the sworn Affidavit of Steve Annino, Production Supervisor for APP and the decedent's direct supervisor; (2) the Affidavit of Karl Wurst, Safety Director of APP; (3) the Affidavit of Joe Gannon, Vice President Operations for APP; and (4) the Affidavit of Armand Daigle, Safety Supervisor for APP. The materials submitted by the defendant do not tend to demonstrate that material issues of fact exist as to the issues of APP's intention to injure the plaintiff and the APP's belief that injury was substantially certain to occur.
After reviewing APP's evidence, the court finds that APP has met its initial burden. Consequently, the court next considers the evidence supplied by the Executrix, viewed it in a light most favorable to her position, to determine whether she has met her burden to show that a genuine issue of material fact exists.
In opposition to APP's motion for summary judgment, the Executrix has submitted the following evidence: (1) a document titled "Safety Policy"; (2) a portion of APP employee Karl Wurst's deposition transcript; (3) a portion of APP employee Steve Annino's deposition; (4) a non-certified copy of the OSHA one-page "Citation and Notification of Penalty." A common thread in the deposition submissions is the undisputed fact that the hydraulic method of raising the dock plate extension had been broken for some week and a half prior to Mr. Loftus' accident. However, there is no evidence alleged connecting the mechanical manual work around, in the absence of hydraulic pressure, to Mr. Loftus' unfortunate accident.
The "Safety Policy" is not supportive of plaintiff's position in opposition. Wurst's and Annino's depositions demonstrate that they did not know of any evidence in existence tending to show that anyone at APP actually knew or believed that Mr. Loftus would sustain multiple, life threatening injuries due to being pinned between the fixed dock plate and the back end of a fifty-three-foot-long tractor trailer. These depositions do not even imply that Wurst, Annino or any APP employee intended to injure Mr. Loftus or believed that Mr. Loftus was substantially certain to be injured. Finally, as indicated above, "OSHA violations are not enough to take the resulting injury out of the exclusivity provision of the act." Sorban v. Sterling Engineering Corp., supra, 79 Conn.App. 457.
Consequently, the Executrix has failed to present the court with any evidence that APP's conduct was more than a failure to follow safety guidelines and instead constituted an intentional act that the employer believed was substantially certain to result in injury to the plaintiff.
Although the defendant admitted that, because the machine was capable of bending metal, it knew that it could probably harm a person, there is no evidence that the plaintiff was instructed to work with the machine turned on. Here, the evidence submitted indicates that the machine was turned off when the plaintiff inserted his hand into the machine and that the machine was turned on as a result of miscommunication with another employee. Because the plaintiff failed to demonstrate the existence of a genuine issue of material fact, the court properly rendered summary judgment in favor of the defendant.
Accordingly, the Executrix has failed to raise 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 Mr. Loftus. APP's motion for summary judgment is granted as to count one.
CONCLUSION
For the above reasons, the court grants the defendant's motion for summary judgment in its entirety.
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