Opinion
CV116011094.
12-12-2012
Jacqueline MILLER v. Delia RIVERA et al.
UNPUBLISHED OPINION
MARTIN, J.
FACTS
On May 18, 2012, the plaintiff, Jacqueline Miller, filed her two-count, third amended complaint against the defendants, Delia Rivera and Student Transportation of America, LLC (Student Transportation), alleging negligence and intentional acts substantially certain to cause serious injury, respectively. In count two of the amended complaint, which is at issue in the present motion, the plaintiff alleges the following facts against the defendant Student Transportation (the defendant). On or about June 15, 2010, the plaintiff, an employee of the defendant, was working as a student monitor on a school bus driven by Rivera, in New London, Connecticut when the driver suddenly slammed on the brakes causing the plaintiff to be thrown backwards onto the floor of the bus.
The plaintiff, Jacqueline Miller, filed suit on October 27, 2011, against defendant, Delia Rivera, in a single count sounding in negligence. On December 21, 2011, the plaintiff filed a motion to cite in the defendant's employer, Student Transportation of America, LLC as an additional party. This motion was granted on January 3, 2012. The plaintiff filed an amended two-count complaint on March 16, 2012, against Rivera and Student Transportation of America, LLC for negligence. On March 21, 2012, Student Transportation of America, LLC filed a motion to strike, after which the plaintiff filed a request for leave to amend her complaint. This motion was granted by the court on January 3, 2012, after which the plaintiff filed a two-count, third amended complaint.
As this motion to strike is directed solely at count two of the amended complaint against Student Transportation of America, LLC all further mention of " the defendant" refers to Student Transportation of America, LLC.
The plaintiff further alleges that the defendant intentionally acted in such a manner that serious injury to the plaintiff was substantially certain to occur as a result of the circumstances under which it required her to work, that it periodically required the plaintiff, as part of her work, to stand in the aisle of the bus without a safety harness, that it had no fall arrest/restraint system in place, that it knew to require the plaintiff to stand periodically created a substantial certainty of serious injury to the plaintiff if the defendant's other employee, Rivera who was driving the bus, were to suddenly accelerate or brake and that the defendant was responsible to ensure a safe working environment for its employees. Additionally, the defendant created a dangerous condition that made the plaintiff's injuries substantially certain to occur, that it believed at all times that its conduct was substantially certain to cause harm to the plaintiff and that a reasonable person would have known that serious injury was substantially certain as a result of the defendant's actions. The defendant's actions caused the plaintiff to suffer physical injury, incur medical expense and suffer lost wages.
On July 6, 2012, the defendant filed a motion to strike count two on the ground that General Statutes § 31-293a does not allow for a cause of action against an employer, therefore, the plaintiff's claim is barred by the exclusivity provisions of the Workers' Compensation Act. The motion was accompanied by a memorandum of law. The plaintiff filed a memorandum of law in opposition on August 8, 2012. The matter was heard at short calendar on August 27, 2012.
DISCUSSION
" The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). " The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 303 Conn. 205, 213, 32 A.3d 296 (2011).
The defendant argues that its motion to strike should be granted pursuant to the exclusivity provision of the Workers' Compensation Act because the plaintiff has failed to allege sufficient facts as to any intent on the part of the defendant to cause the plaintiff personal injury. The plaintiff counters that she has pleaded sufficient facts to allow recovery under the doctrine of intentional conduct and her claim falls within the exception to the exclusivity provision.
The exclusivity provision of the Workers' Compensation Act, General Statutes § 31-284, provides in relevant part: " (a) An employer ... 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 ... All rights and claims between an employer ... and employees ... arising out of personal injury ... sustained in the course of employment are abolished other than rights and claims given by this chapter ..."
In order for the plaintiff to prevail, her claim of an exception to the exclusivity provision must meet the requirements of the test established by our Supreme Court: " [B]y 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)." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 257-58, 698 A.2d 838 (1997); Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 450, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003). " [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 ... [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances." (Citations omitted; emphasis added; internal quotation marks omitted.) Ramos v. Branford, 63 Conn.App. 671, 680, 778 A.2d 972 (2001). " We note that our Supreme Court has stated 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." (Citation omitted; internal quotation marks omitted.) Sorban v. Sterling Engineering Corp., supra, 79 Conn.App. 452. " Substantial certainty centers on whether the employer believed the injury was substantially certain to follow the employer's acts or conduct." (Emphasis in original.) Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 280.
In the present case, the defendant argues that the plaintiff has failed to allege facts sufficient to provide exception to the exclusivity provision of the Workers' Compensation Act. The plaintiff counters that her allegations are legally sufficient. In her complaint, the plaintiff alleges, inter alia, that the defendant acted intentionally, that her injuries were substantially certain to occur and that the defendant believed they would occur with substantial certainty when the defendant periodically required her, as part of her work, to stand in the aisle of the bus without a safety harness. In order to satisfy the exception to the exclusivity provision, the plaintiff must allege facts sufficient to support the claim or assertion that the defendant acted with the intent to create a dangerous condition making the plaintiff's injuries substantially certain to occur and that the defendant believed the plaintiff's injuries were substantially certain to occur as a result of its conduct.
Our courts have consistently set a high threshold for employer conduct to rise to the level of substantial certainty. The Appellate Court affirmed the granting of the defendants' motion to strike even though the plaintiff alleged intentional misconduct based on inadequate staffing, training, management and supervision. Melanson v. West Hartford, 61 Conn.App. 683, 689, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001). In addition, the court stated that " [f]ailure to take affirmative remedial action, even if wrongful, does not demonstrate an affirmative intent to create a situation that causes personal injury ... [E]ven if the allegations somehow could be stretched to encompass a claim for intentional misconduct generally, the complaint provides no factual basis for a finding that the town was substantially certain that the specific injury that the plaintiff suffered would occur." Id., 689-90.
In Suarez, an employee's claim was not sufficient absent a showing that the employer believed the injury was certain to follow the employer's conduct, even when a supervisor intentionally directed the employee to clean an industrial machine with his bare hands while the machine was still operating. Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 280. Furthermore in Ramos, the court held that " [w]ithout a showing that the employer's violations of safety regulations were committed with a conscious and deliberate intent directed to the purpose of inflicting an injury ... [a] wrongful failure to act to prevent injury is not the equivalent of an intention to cause injury." (Citations omitted; internal quotation marks omitted.) Ramos v. Branford, supra, 63 Conn.App. 685. In Sullivan, our Supreme Court upheld the granting of the defendants' motion to strike " because the plaintiff's complaint contained no allegations that the defendants' conduct was motivated by their intention to cause the decedent harm or knowledge that such harm would result, we conclude that it did not satisfy the substantial certainty standard as set forth in Suarez I and Suarez II. " Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 119, 889 A.2d 810, (2006).
As previously discussed, a high threshold exists for permitting an exception to the exclusivity provision of the Workers' Compensation Act. In order to satisfy the requirements of the substantial certainty standard the plaintiff must allege that the defendant's conduct was motivated by an intention to cause harm or knowledge that such harm would result; Id.; and the conduct centered on the belief that the injury was substantially certain to occur. Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 280. In the present case, the plaintiff alleges, inter alia, that the defendant " intentionally acted, " that " the defendant believed its conduct ... was substantially certain to cause harm ..." that " it intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur." The plaintiff does not, however, allege facts to support these conclusions beyond restating the requirements of the substantial certainty standard as set out in Suarez, Id., 257-58. The complaint provides no allegations for a finding that the defendant was substantially certain that the injury suffered by the plaintiff would occur. The complaint also fails to allege sufficient facts with regard to a motivation by the defendant to intentionally cause injury. Other than alleging that the defendant believed a substantial certainty of injury existed, there are no facts alleged to support this conclusion.
The defendant's conduct in the present case does not approach the serious nature of the conduct alleged in Melanson v. West Hartford, supra, 61 Conn.App. 689-90, Suarez v. Dickmont Plastics Corp., supra, 249 Conn. 280, Ramos v. Branford, supra, 63 Conn.App. 685 or Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 119, where the appellate court(s) declined to find an exception to the exclusivity provision of the Workers' Compensation Act. The aforementioned cases similarly included allegations of inadequate staffing, training, management and supervision as well as a lack of remedial measures. One of these cases even included express direction by a supervisor for an employee to perform acts that were unsafe. Suarez v. Dickmont Plastics Corp., supra, 249 Conn. 280. In all of these cases, the court concluded the established threshold had not been met. The allegations in the present case are insufficient to elevate the plaintiff's claim grounded in negligence to one meeting the requirements of the substantial certainty standard as set out by our Supreme Court. As a result, the defendant's motion must be granted.
CONCLUSION
For the foregoing reasons, the defendant's motion to strike as to count two is granted.