Opinion
HHDCV126035595S
01-04-2017
William Marchetti et al. v. Northern
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (#231)
ROBERT B. SHAPIRO, JUDGE
The court heard argument at short calendar on November 28, 2016 concerning the defendant Ability Beyond Disability, Inc.'s (Ability Beyond Disability) motion for summary judgment as to the plaintiffs' seventh and eighth counts. The plaintiffs denominate the seventh count as a " Suarez Action" against Ability Beyond Disability by plaintiff William Marchetti (Marchetti); the eighth count is a loss of consortium claim by Marchetti's wife, which incorporates the allegations from the seventh count.
After considering the parties' arguments, the court issues this memorandum of decision. For the reasons set forth below, the motion is granted.
I
Background
In the seventh count of their amended complaint (#149) (complaint) the plaintiffs allege that, on August 30, 2010, defendant Northern Lights Landscaping, LLC (Northern Lights) was cutting the lawn and providing landscaping services at 12 Saw Mill Road, New Fairfield, Connecticut (the premises). They also allege that, on that day, at approximately 2:00 p.m., Marchetti, who was employed by Ability Beyond Disability, was working as a facilities technician and providing maintenance services at the premises, when he was hit in the forehead by a rock, and sustained severe and serious injuries, including a traumatic brain injury and cerebral concussion. See complaint, seventh count, ¶ ¶ 7-8, 13.
The plaintiffs filed an amended complaint, dated February 9, 2014. In their accompanying motion, they stated that the only change from the previous amended complaint (#132), was the removal of a subparagraph from the fifth and sixth counts. At oral argument, the plaintiffs acknowledged that the seventh and eighth counts were not changed. Since there was no change to the counts which are the subject of the motion, the court has considered it.
In paragraph 10, the plaintiffs allege that, prior to that date, Ability Beyond Disability, its agents, servants and/or employees, knew that there had been several other incidents at the premises and at other properties which they maintained, of rocks being shot out of the lawnmowers of Northern Lights and damaging property, and, on at least one occasion, a rock was shot through a window almost hitting another employee. In addition, they allege that Ability Beyond Disability was informed that the cause of these incidents was that Northern Lights was not using safety guards and/or deflectors on its lawnmowers.
The plaintiffs allege that Marchetti's injuries were caused by the willful and serious misconduct of Ability Beyond Disability, its agents, servants and/or employees, in that they knowingly and intentionally dispatched Marchetti to work at the premises knowing that in doing so he would be in danger of being hit by a rock; they knowingly violated General Statutes § 31-49 by failing to provide Marchetti with a reasonably safe place in which to work; and they knowingly and intentionally failed to take any actions, implement any safety measures, or otherwise install any safety devices in response to similar incidents that occurred prior to the plaintiff's injuries, which failure they knew or should have known was substantially certain to cause injury to Marchetti or other employees. See complaint, seventh count, ¶ 11. They also allege that Ability Beyond Disability, its agents, servants and/or employees knew or should have known that their actions created a dangerous condition at the premises for Marchetti and, in doing so, made his injuries substantially certain to occur. See complaint, seventh count, ¶ 12.
Section 31-49 provides, " It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his colaborers and to exercise reasonable care in the appointment or designation of a vice-principal and to appoint as such vice-principal a fit and competent person. The default of a vice-principal in the performance of any duty imposed by law on the master shall be the default of the master."
In his affidavit, plaintiffs' Exhibit B, paragraph 10, Marchetti avers that between 2008 and the date of his injury on August 30, 2010, he complained numerous times to supervisors in his department, and to David Slater, one of Ability Beyond Disability's directors, about Northern Lights' lawnmowers not having safety guards and/or the safety guards being bungee corded up and the damages and danger which this posed to properties, residents, and employees. He also avers that, in a meeting on a Monday morning prior to August 30, 2010, Slater said, " The walls have ears, the economy is bad, and if you can't handle the job there are 100 guys behind you that can and don't let the door hit you in the ass?" See Marchetti affidavit, ¶ 24.
According to Slater's affidavit (defendant's Exhibit B), at the time of the alleged incident, Slater held the title of Administrator-Property Management, and he did not serve on the Board of Directors.
On the date of the alleged incident, Marchetti was assigned to perform preventive maintenance at the premises and, after he did so, he loaded his tools in the company van, and sat in the front seat to complete paperwork. While sitting there, he stated that he heard rocks bouncing off the driveway as a result of a lawnmower in the area, and he was struck above the right eye. See defendant's Exhibit A (Marchetti deposition), pp. 42-43, 51.
Additional references to the factual background are set forth below.
II
Standard of Review
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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 him to a judgment as a matter of law. 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 . . ." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).
" A material fact . . . [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 312-13.
III
Discussion
Ability Beyond Disability argues that there is no genuine issue of material fact with regard to the plaintiffs' claims, because, under General Statutes § 31-284, workers' compensation provides the exclusive remedy. In support of its motion, Ability Beyond Disability contends that the plaintiff cannot demonstrate that any action it took shows intent to injure and that there is no factual support to show that it instructed Marchetti to pursue an action from which an inference may be drawn that an injury was substantially certain to occur. In addition, it asserts that a failure to provide a safe working environment does not qualify as an intention to cause injury.
General Statutes § 31-284(a) provides: " 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 or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation."
In their objection (#247) the plaintiffs assert that there are genuine issues of material of fact as to whether Ability Beyond Disability intentionally created a dangerous condition that made Marchetti's injuries substantially certain to occur. In particular, they contend that Ability Beyond Disability's knowledge that it created an unsafe condition by allowing defendant Northern Lights to continue to mow lawns with safety guards bungee corded up and/or without safety guards, thereby circumventing known safety protocols, is such that injury was substantially certain to occur, especially where a dangerous situation was willfully left uncorrected. Also, they argue that Slater had ordered that trap rock be put down at the premises, and by his own admission knew that it was dangerous, since it could be picked up by lawn mowers and shot out. See plaintiffs' objection (#247), p. 32.
The Supreme Court has reiterated that " Section 31-284(a) is the exclusivity provision of the 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).
" 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 . . . Specifically, the substantial certainty standard requires that the plaintiff establish that the employer intentionally acted in such a way that the resulting injury to the employee was substantially certain to result from the employer's conduct . . . 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." (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.
In Sullivan, similar to Marchetti's allegations here, the plaintiff's complaint contained numerous allegations of state and federal safety violations. See id., 119. While the plaintiff there asserted that the defendants " intentionally" failed to correct several dangerous conditions on the premises, " this assertion, standing alone, is insufficient to satisfy the substantial certainty test because, . . . failure to take effective remedial action does not translate to an affirmative intent to create an injury causing situation." (Internal quotation marks omitted.) Id., 119. See Morocco v. Rex Lumber Co., 72 Conn.App. 516, 525, 805 A.2d 168 (2002) (OSHA violations do not take a resulting injury out of the exclusivity provision of the Workers' Compensation Act).
The Supreme Court also reiterated " our well established precedent requiring a showing of knowledge that the employee would be injured before the substantial certainty test can be satisfied." Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 120.
" Under the [substantial certainty theory], 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." (Internal quotation marks omitted.) Id., 258.
" [T]he employee must show that the employer's act in producing the injury was deliberate or intentional and that the resulting injury was substantially certain, from the employer's perspective, to occur . . . Since the legal justification for the common-law action is the nonaccidental 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, wilful, 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 . . . 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 . . . Last, we note that our Supreme Court has stated that '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 . . .' Mingachos v. CBS, Inc., 196 Conn. 91, 101, 491 A.2d 368 (1985)." (Citations omitted; emphasis in original; internal quotation marks omitted.) Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 452, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003).
As noted, the plaintiffs here argue that the existence of material issues of fact prevent the entry of summary judgment. The court agrees with the analysis stated, in similar circumstances, in 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.): " The plaintiff . . . argues that entry of summary judgment is not appropriate in this case because his claim turns on the defendant's intent which is a question of fact to be decided at trial. Although intent is ordinarily an issue to be resolved by the fact finder, 'when the facts alleged permit only one conclusion regarding an actor's state of mind, that issue is appropriately resolved by way of summary judgment.' DaCruz v. State Farm Fire and Casualty Company, 268 Conn. 675, 690 n.14, 846 A.2d 849 (2004) (citing Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992) ('even with respect to questions of motive, intent and good faith, the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact'). In this case, it would not be reasonable for a fact finder to conclude from the facts presented by the plaintiff in opposition to the motion for summary judgment that the defendant intentionally created a dangerous condition that made injury to the plaintiff substantially certain to occur." Cappellan v. Fairfield Processing Corp., supra, Superior Court, judicial district of Waterbury, Complex Litigation Docket at Waterbury, Docket No. X06 CV 03 0184584.
" Additionally, many other Superior Court cases have granted a defendant's motion for summary judgment where the plaintiffs failed to provide evidence of both the defendant's intent to injure and the defendant's belief that injury was substantially certain to occur." (Footnote omitted.) Markstaller v. Bruce Pauley Tree Care, Inc., Superior Court, judicial district of Danbury, Docket No. CV 04 4000498, (March 23, 2007, Thim, J.) (collecting cases).
Here, the plaintiffs' presentation does not create a genuine issue of material fact as to the dispositive issues. Marchetti stated, in his deposition testimony, that, on the day of the alleged incident, he was injured while sitting in a company van doing paperwork. He did not observe whether the lawn mower being used had a guard on it or not. See Defendant's Exhibit A (Marchetti deposition), p. 164. He stated that he was not paying attention to the lawn mowing on the day of the incident. See Marchetti deposition, p. 166. Also, he acknowledged that neither Slater, nor Marchetti's supervisor, Adam Smith, were aware of the lawn mowing schedule. See Marchetti deposition, p. 167. In particular, Marchetti stated, " Adam should have been aware of that, but the time the crew comes in and out varies dependent on how long it takes them to do one job as opposed to another. There really is no rhyme or reason to the timing." Marchetti deposition, p. 167.
Even assuming, arguendo, see Martel v. Metropolitan District Commission, 275 Conn. 38, 55 n.13, 881 A.2d 194 (2005), that Slater's alleged statements are binding on Ability Beyond Disability, the plaintiffs have not presented evidence showing either that Ability Beyond Disability actually intended to injure Marchetti or that " [his] employer believed that its conduct was substantially certain to cause the employee harm." (Emphasis in original.) Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 118. The plaintiffs have not made a showing of knowledge on the part of Ability Beyond Disability that Marchetti would be injured. See Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 120. Thus, the plaintiffs' evidence is lacking under either the actual intent standard or the substantial certainty standard.
In Sorban v. Sterling Engineering Corp., supra, 79 Conn.App. 446, the plaintiff also alerted his supervisor to his concern. " On March 12, 1997, the plaintiff was employed by the defendant as a machine operator . . . The plaintiff was assigned to work on a vertical turret lathe, which required the operator to place a large circular piece of material on a rotating table. The operator would position the cutting tool (tool head) that was attached to an arm over the rotating table, and then cut the material.
" The plaintiff noticed that the lathe was malfunctioning; specifically, the cutting tool was not stopping in the proper position. Instead, the tool head drifted toward the material located on the rotating table. The plaintiff alerted his supervisor to the problem and, after inspecting the machine, the supervisor told the plaintiff to 'be careful.' The plaintiff turned on the rotating table and then attempted to position the arm. After turning the switch that would allow him to position the arm and tool head, the plaintiff heard a click and was unable to complete the task. He attempted unsuccessfully to position the tool head a second time. During his third attempt, the tool head crashed into the material located on the rotating table. As a result, a piece of material was thrown from the machine, broke though a safety shield guard and struck the plaintiff's arm, causing a severe laceration and other injuries." Id.
In affirming the trial court's decision to grant summary judgment, the Appellate Court concluded, " [i]n the record before us, there is no evidence that the defendant's actions were committed with the purpose of causing injury . . . Although the defendant's failure (1) to repair the lathe, (2) to provide adequate butt blocks and shield guards, and (3) to alert employees to a policy regarding the use of the rotating table may constitute negligence, gross negligence or even recklessness, those allegations fail to meet the high threshold of substantial certainty . . . The combination of factors demonstrated a failure to act; however, such a failure is not the equivalent of an intention to cause injury." (Citation omitted.) Id., 79 Conn.App. 457-58.
Likewise, here, Marchetti's evidence is not sufficient to support an inference of an intention to cause injury. See Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 258. It is insufficient to reach the high threshold of the substantial certainty test.
Under these circumstances, the court need not consider whether Slater may be deemed the alter ego of Ability Beyond Disability. See Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 275-77.
The plaintiff Carol Marchetti's loss of consortium claim is derivative of her husband's claim and dependent on the legal existence of the predicate action. Since her husband's claim is barred, any claim for loss of consortium is also barred. See Voris v. Molinaro, 302 Conn. 791, 799-800, 31 A.3d 363 (2011).
CONCLUSION
There is no genuine dispute as to a material fact. The movant has shown that it is entitled to judgment as a matter of law as to the seventh and eighth counts of the complaint. Accordingly, the defendant Ability Beyond Disability's motion for summary judgment is granted. It is so ordered.