Opinion
KNLCV156024237S
04-08-2016
Dawn Tischer v. Marjorie L. Taylor et al
UNPUBLISHED OPINION
RULING ON MOTION FOR SUMMARY JUDGMENT FILED BY THE DEFENDANT, NOANK COMMUNITY SUPPORT SERVICES, INC. (DOC. NO. 137.00)
Robert F. Vacchelli, J.
This case is an action by the plaintiff, Dawn Tischer, seeking money damages from, among others, her fellow employee and her former employer, alleging that she was bitten by her fellow employee's dog at her place of employment, after her fellow employee was allowed to bring the dog to work with her on May 20, 2013. She alleges causes of action against her employer, the defendant, Noank Community Support Services, Inc. (NCSS), in three counts: Count Three for strict liability under the Connecticut Dog Bite Statute, General Statutes § 22-357; Count Four for common-law premises liability; and Court Five for common-law negligence. NCSS moves for summary judgment in its favor on all of those counts, arguing that the judgment should be rendered in its favor because the Workers' Compensation Act is the exclusive remedy for the plaintiff's injuries. For the following reasons, the court finds that the material facts are in dispute. Therefore, the defendant's motion for summary judgment must be denied.
I
The law governing summary judgment is well-settled. As our Appellate Court has summarized:
Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings. (Citation omitted; internal quotation marks omitted.) Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809, 768 A.2d 950 (2001).
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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. (Citations omitted; internal quotation marks omitted.) Allstate Ins., Co. v. Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).
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." Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999). As noted by the trial court in this case, typically " [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." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). 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.) Id., 244-45.Rockwell v. Quintner, 96 Conn.App. 221, 227-29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
The Practice Book further mandates that " [a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings." Practice Book § 17-45. " Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46.
II
In its motion for summary judgment, the defendant argues that there are no genuine issues of material fact but that the plaintiff was an employee of NCSS within the course of her employment at the time of the incident at issue that forms the basis for her personal injury claims, and that the Workers' Compensation Act, General Statutes § 31-275, et seq., is her exclusive remedy for her claimed injuries. Further, it argues that there are no genuine issues of material fact but that NCSS has met its obligation under the Act, and that the plaintiff's claims are barred by the exclusivity provision of the act, General Statutes § 31-284(a). In sum, NCSS argues that since the plaintiff earlier applied for and received workers' compensation benefits for this incident from her employer, she is barred, by the exclusivity provision of the act, from pursing any personal injury claim against her employer over the same injury.
General Statutes § 31-284(a) provides, in pertinent part, as follows:
In support of its motion, NCSS filed an affidavit with exhibits signed by Regina Moller, Executive Director of NCSS. The defendant is in the business of operating group homes and support services for residents of group homes. While Moller does not suggest that she personally observed the incident, or that she was personally aware of the circumstances, she does admit to the fact that the plaintiff was an employee of NCSS on May 20, 2013, and that the incident that is the subject of the instant case occurred on that date on property leased to NCSS for business purposes located at 36 Main Street in Noank, CT. She confirms that at the time of the incident, the plaintiff was " within a period of her employment with NCSS, on the property leased to NCSS where the plaintiff may have reasonably been for purposes of her employment, and while reasonably fulfilling the duties of her employment." She states that the plaintiff filed a workers' compensation claim for benefits following the incident, and that workers' compensation benefits were paid to the plaintiff as a result thereof under NCSS's workers' compensation and employers' liability insurance policy. The court finds that those material facts are not in dispute.
In opposition, the plaintiff filed an affidavit personally confirming that she was employed by NCSS at the time in question. She does not dispute the fact that she applied for and received workers' compensation benefits from NCSS in this incident. However, she states that, at the time of the incident, she was employed as a resident advisor for NCSS, assisting residents with day to day life skills, including assisting in meal planning and preparation. She stated that on May 20, 2013, a fellow employee, who is also a defendant in this case, brought her dog, Bruiser, to work with her at the work premises located at 36 Main Street in Noank. Bruiser was not trained and/or certified as a service dog, but he was presented as such by NCSS, she states. She further states that no other dogs and/or other animals were ever present at NCSS's premises located at 36 Main Street in Noank. She states that on May 20, 2013, while working on NCSS's premises in Noank, she was assisting in the kitchen when she walked by Bruiser and he bit her on her right leg around her inner thigh. After the attack, NCSS put a policy in effect prohibiting pets from being on the premises.
III
The main issue in the case is as follows: If an employee has filed a workers' compensation claim against her employer, seeking compensation for injuries, and if the employee has been paid such benefits, then is the employee thereafter precluded from seeking damages from the employer in a personal injury lawsuit under the exclusivity provision of the Workers' Compensation Act? For the following reasons, the court concludes that additional material facts necessarily must be established, and that, in the instant case, those facts are in dispute. Therefore the court is prevented from entering summary judgment.
The purpose of the Workers' Compensation Act is to compensate employees for injuries " arising out of and in the course of employment, " without regard to fault, by imposing a form of strict liability on employers. Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984); Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979); Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968). Consequently, to recover for an injury under the act, a claimant must prove that the injury is causally connected to the employment. To prove causal connection a claimant must demonstrate that the injury claimed (1) " arose out of the employment, " and (2) in the course of the employment." Crochiere v. Board of Education of the Town of Enfield, 227 Conn. 333, 349, 630 A.2d 1027 (1993), disavowed in part on other grounds, Discuillo v. Stone & Webster, 242 Conn. 570, 580 n.10, 698 A.2d 873 (1997). " Arising out of and in the course of employment" means " an accidental injury happening to an employee . . . originating while the employee has been engaged in the line of the employee's duty in the business or affairs of the employer upon the employer's premises, or while engaged elsewhere upon the employer's business or affairs by direction, express or implied, of the employer . . ." General Statutes § 31-275(1). Proof that the injury " arose out of the employment" refers to the origin and cause of the accident; proof that the injury occurred " in the course of employment" relates to the time, place and circumstances of the injury. McNamara v. Town of Hamden, 176 Conn. 547, 550, 398 A.2d 1161 (1979). For an injury to arise out of the employment, " [t]he personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery." (Citations omitted.) Fair v. People's Savings Bank, 207 Conn. 535, 545-46, 542 A.2d 1118 (1988). A personal injury shall not be deemed to arise out of the employment unless causally traceable to the employment. Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn.App. 800, 808-09, 609 A.2d 1034 (1992), appeal dismissed, 226 Conn. 404, 627 A.2d 931 (1993). Proof that the injury occurred " in the course of employment, " means that the " injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it." (Citation omitted.) McNamara v. Town of Hamden, supra, 550-51. Thus, if the accident arose out of and in the course of employment, and if the employee filed a claim for workers' compensation and received benefits, then " the benefits of that act constitute the plaintiff's exclusive remedy against the defendant." Horney v. Johnson, 167 Conn. 621, 622, 356 A.2d 879 (1975).
In the instant case, the plaintiff does not challenge the fact that she was an employee who filed a workers' compensation claim against her employer, and that she was paid benefits. Nor does she contest the fact that the injury was sustained " in the course of employment." She disputes that it occurred " out of the employment." The issue is one of causation. She essentially argues that the dog that attacked her was not a therapy dog. Rather, it was simply a fellow employee's dog that NCSS allowed to roam the premises. Since there was no job-related purpose for the dog to be in the kitchen, there was no causal connection between the employment and the injury as the injury was brought about by some other agency and not her employment, she argues. She argues that this case is comparable to the case of Porter v. City of New Haven, 105 Conn. 394, 135 A. 293 (1926). In that case, a fireman was injured after being pushed by another substitute fireman, who was merely visiting the engine house and not on duty at the time. Though the push was in the " spirit of fun, " Mr. Porter fell to the floor striking his head, which rendered him unconscious. The Supreme Court held, " It is clear that the injury was contemporaneous with the employment, but it did not result from the employment or any condition existing in connection with the employment and could not reasonably have been anticipated." Id., 397. Similarly, in the instant case, the plaintiff has raised an issue of material fact as to whether plaintiff's exposure to a co-employee's pet, under the circumstances, resulted from the employment or any condition existing in connection with the employment, or whether it was unrelated. The court finds that the plaintiff has raised a bona fide issue regarding causation. The issue of causation should be submitted to the trier of fact if there is room for reasonable disagreement, and not resolved on motion for summary judgment. See Sharp v. Wyatt, 31 Conn.App. 824, 835, 627 A.2d 1347 (1993), aff'd, 230 Conn. 12, 644 A.2d 871 (1994).
The defendant does not contend that this issue has been resolved by the workers' compensation commissioner. Compare, Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 367, 603 A.2d 1160 (1992), overruled on other grounds, Santopietro v. City of New Haven, 239 Conn. 207, 215, 682 A.2d 106 (1996). Rather, it argues, in effect, that issue is not material: that all an employer needs to show in order to invoke the exclusivity provision of the Workers' Compensation Act is that the employee received compensation under the act. It cites, inter alia, Pagani v. BT II, Ltd. Partnership, 24 Conn.App. 739, 743, 592 A.2d 397, cert. denied, 220 Conn. 902, 593 A.2d 968 (1991), in support of that argument. The court is not persuaded. Taken out of context, Pagani does contain language supporting the defendant's argument. However, the holding in that case does not support the defendant. In Pagani, an employee sued her employer after she sustained salmonella poisoning on the premises. She received workers' compensation benefits and the employer claimed that the exclusivity provision barred suit. The Appellate Court held that her receipt of those benefits did not permit summary judgment in the employer's favor precluding suit because there were material facts in dispute in the case as to whether the injury complained of arose out of and in the course of employment and, thus, an issue as to whether the act applied. Id. 745. The same circumstance is presented in the instant case, and the same result should follow.
Similarly, in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994) (Suarez I), our Supreme Court, overturned a summary judgment entered in favor of an employer where there were material facts in dispute as to whether the employer actually intended to injure the plaintiff or that the employer intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur, and, thus, whether an exception to the exclusivity rule applied. Id., 107.
Defendant argues that allowing the plaintiff to obtain workers' compensation benefits and then pursue a personal injury lawsuit against her employer would " utterly eviscerate the entire workers' compensation scheme." However, the Supreme Court in Suarez I did not agree. It found that " [t]he effect of the defendant's argument would be to force an injured employee to elect, at the outset, whether to pursue his or her remedies under the act, or to take his or her chances later at trial. The defendant's argument finds no support in the act itself or in our case law, and, if successful, would undermine the policies of the act." Id., 114. It further noted that employers could avoid the specter of double redress by way of setoff. Id., 117.
IV
For all of the foregoing reasons, the court finds that the material facts are in dispute. Therefore, the defendant's motion for summary judgment must be denied.
An employer who complies with the requirements of subsection (b) of this section [prove ability to provide for workers' compensation benefits] 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 who complies with the requirements of subsection (b) of this section and employees . . . arising out of personal injury sustained in the course of employment are abolished . . .