Opinion
No. CV04-4000498 S
March 23, 2007
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
The defendant, Bruce Pauley Tree Care, Inc. (Tree Care), moves for summary judgment against the plaintiffs, Erick and Patti Ann Markstaller. Tree Care claims that it is entitled to judgment pursuant to the exclusivity provision of the Workers' Compensation Act, General Statutes § 31-284(a). For the reasons stated below, the defendant's motion for summary judgment is granted.
On January 11, 2005, the plaintiffs filed a revised two-count complaint against the defendant. The first count is a personal injury cause of action filed by Erick Markstaller. The second count is a loss of consortium cause of action filed by Patti Ann Markstaller, Erick Markstaller's wife. In their complaint, the plaintiffs allege the following facts. The defendant, a Connecticut tree maintenance corporation, employed Markstaller as a tree surgeon/horticulturist. On February 3, 2003, while pruning trees for a job in New Canaan, Markstaller's tree climbing saddle failed, and he fell approximately 65 feet to the ground, sustaining serious injuries. Markstaller has received compensation for his injuries through a workers' compensation claim.
Erick and Patti Ann Markstaller are both plaintiffs. For convenience, however, at times the court will refer to Erick Markstaller as the plaintiff in this opinion.
The plaintiffs further allege that the defendant required Markstaller to use the defective tree saddle; the defendant knew about the tree saddle's defective and dangerous condition; and the defendant intentionally created the dangerous condition, making Markstaller's injuries substantially certain to occur.
DISCUSSION
"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 counteraffidavits 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). "[U]nadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Internal quotation marks omitted.) Gianetti v. United Healthcare, supra, 99 Conn.App. 141.
It is undisputed that Markstaller received workers' compensation benefits as a result of his injury. When an employee has received workers' compensation benefits, the employee may not maintain a cause of action against his or her 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, the defendant argues that there are no genuine issues of fact regarding either: (1) the defendant's intention to injure the plaintiff; or (2) the defendant's belief that Markstaller's injury was substantially certain to occur. Therefore, the defendant argues, the plaintiffs have failed to meet the workers' compensation exclusivity exception requirements and the defendant's motion for summary judgment should be granted. The plaintiffs counter that the motion should be denied because genuine issues of material fact exist as to both of the defendant's arguments.
"[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.
Similarly, 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 counteraffidavit 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 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 plaintiff cites two cases: Mastropetre v. H. Bixon Sons, Inc., Superior Court, judicial district of New Haven, Docket No. CV 98 0411636 (August 7, 2003, Skolnick, J.), and Sypher v. Getty Granite Co. LLC, Superior Court, judicial district of New London, Docket No. 560350 (October 22, 2002, Hurley, J.T.R.) (33 Conn. L. Rptr. 305).
In Mastropetre, the plaintiff testified that the defendant intentionally required employees, including the plaintiff, to break batteries and mercury thermometers, clean mercury spills, store mercury and become exposed to freon. In addition, the plaintiff stated that his doctors found mercury in his system. In support of his testimony, the plaintiff "[submitted] reports from the DEP and OSHA showing, inter alia, high mercury readings in the defendant's main office that required emergency cleaning." Mastropetre v. H. Bixon Sons, Inc., supra, Superior Court, Docket No. CV 98 0411636. The court held that a "jury could reasonably find that the defendant's conduct was more than a failure to follow established safety guidelines, but a wilful and deliberate placing of its employees in harm's way." Id. The court concluded that "[a] genuine issue of material fact therefore remains as to whether the defendant was aware that its intentional conduct was substantially certain to result in the plaintiff's injury." Id. Therefore, as to the plaintiff's intentional conduct claim, the court denied the defendant's motion for summary judgment. Id.
In Sypher, the only other case cited by the plaintiff, the court was presented with a motion to strike, not a motion for summary judgment. CT Page 9386 Sypher v. Getty Granite Co., LLC., supra, 33 Conn. L. Rptr. 305. A plaintiff opposing a motion to strike must demonstrate only that the pleadings are legally sufficient. See, e.g., Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). Consequently, Sypher is inapposite from the instant action.
Turning to the instant case, the defendant 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, the defendant has submitted: (1) the sworn affidavit of Bruce Pauley, president of Tree Care; (2) portions of plaintiff Erick Markstaller's deposition; and (3) the plaintiffs' responses to requests for admissions. The materials submitted by the defendant tend to demonstrate that no material issues of fact exist as to the issues of the defendant's intention to injure the plaintiff and the defendant's belief that injury was substantially certain to occur. For example, in his affidavit, which is phrased similarly to the affidavit in the Ramos case, Pauley affirms that "[t]o the extent any employee used the saddle which is the subject of the . . . action, I had no knowledge of any defective condition in the saddle and I did not believe anyone, including the plaintiff . . . would be injured using it." He further affirms: "At no point did I ever have any intention to injure the plaintiff . . . [and] [n]o facts known to me led me to believe the plaintiff's fall and injuries were substantially certain to occur."
After reviewing the defendant's evidence, the court finds that the defendant has met its initial burden. Consequently, the court next considers the evidence supplied by the plaintiffs, viewed it in a light most favorable to their position, to determine whether they have met their burden to show that a genuine issue of material fact exists.
In opposition to the defendant's motion for summary judgment, the plaintiff's have submitted the following evidence: (1) a certified copy of plaintiff Erick Markstaller's deposition transcript; (2) the sworn affidavit of plaintiff Erick Markstaller; and (3) a certified copy of the OSHA investigative report.
Markstaller's deposition demonstrates that he did not, at the time of the deposition, know of any evidence in existence tending to show that anyone at Tree Care actually knew or believed that the plaintiff would be injured if he used the tree saddle. In Markstaller's affidavit, he affirms that Pauley required him to use the defective tree climbing saddle, but does not explicitly affirm — or even imply — that Pauley or any Tree Care employee intended to injure the plaintiff or believed that the plaintiff 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 plaintiffs have failed to present the court with any evidence that the defendant'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. See Mastropetre v. H. Bixon Sons, Inc., supra, Superior Court, Docket No. CV 98 0411636. Even evaluating the present factual predicate in a light most favorable to the plaintiff, the facts are much more akin to those in Sorbon v. Sterling Engineering Corp., supra, 79 Conn.App. 444, and Morocco v. Rex Lumber Co., 72 Conn.App. 516, where summary judgment was granted, than in Mastropetre v. H. Bixon Sons, Inc., supra, Superior Court, Docket No. CV 98 0411636, where it was denied. For example, unlike Mastropetre, where there was a question of fact whether the employer was aware of the dangers its employees were exposed to, Pauley, in his affidavit, clearly affirms that he did not know that the saddle imposed a substantial certainty of danger. The plaintiff has not submitted any evidence that contradicts Pauley's sworn statement.
The plaintiffs further argue, however, that summary judgment is an inappropriate remedy because their claims turn on questions of intent and motive. In Recalde v. Emhart Industries, Inc., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 96 0053222 (February 4, 1999, Corradino, J.) (24 Conn. L. Rptr. 126), however, the court held that the substantial certainty exception to workers' compensation exclusivity can be decided as a matter of law and granted the employer's motion for summary judgment. 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.
See, e.g., Martinez v. Southington Metal Fabrication Co., Superior Court, judicial district of Hartford, Docket No. CV 03 0825432 (October 5, 2005, Miller, J.) (40 Conn. L. Rptr. 101); DaGraca v. Kowalsky Bros., Inc., Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 00 0509931 (September 28, 2005, Peck, J.); White v. Morgan Contracting, Inc., Superior Court, judicial district of Hartford, Docket No. CV 03 0826377 (July 14, 2005, Booth, J.); Donaruma v. New Haven, Superior Court, judicial district of New Haven, Docket No. CV 01 0458531 (September 20, 2004, Licari, J.); Pinto v. Handy Harman, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 97 0167236 (March 24, 2004, Schuman, J.) (36 Conn. L. Rptr. 770); Safford v. GMRI Inc., Superior Court, judicial district of Fairfield, Docket No. CV 98 0351591 (July 16, 2001, Gormley, J.); Gaudet v. Ray O'Connell Painting Co., Superior Court, judicial district of New London at Norwich, Docket No. CV 99 0117992 (March 20, 2001, McLachan, J.).
Accordingly, the plaintiffs have failed to raise a genuine issue of material fact and the defendant's motion for summary judgment is granted as to count one.
Finally, because the motion for summary judgment has been granted as to count one, the plaintiffs' second count alleging loss of consortium must also fail. "As a derivative cause of action, loss of consortium is dependent on the legal existence of the predicate action . . . That is to say, if an adverse judgment bars the injured spouse's cause of action, any claim for loss of consortium necessarily fails as well." (Internal quotation marks omitted.) Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 62 n. 5, 882 A.2d 1254, cert. denied, 276 Conn. 926, 888 A.2d 93 (2005). Therefore, the defendant's motion for summary judgment is granted as to count two.
CONCLUSION
For the above reasons, the court grants the defendant's motion for summary judgment in its entirety.