Opinion
No. CV 01-0812730 S
September 12, 2003
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE
Plaintiff, Mark Weiss, seeks to recover damages from his former employer, Michael Costas, d/b/a PMC Landscaping, as a result of injuries he suffered when he fell while mowing a steep lawn. In his Amended Three-Count Complaint dated May 30, 2003, he alleges in his first count, willful and intentional misconduct on the part of the defendant, in his second count, wrongful termination and in his third count, intentional infliction of emotional distress.
Defendant, on June 16, 2003, moved to strike the first and third counts on the basis of the exclusivity provisions of the Workmens' Compensation Act claiming further that the claims under the third count are otherwise insufficient.
Counts in an earlier complaint sounding in similar claims were stricken by Judge Booth on June 2, 2003.
The amended first count alleges that plaintiff was ordered to mow, with a commercial mower, an extremely steep grass area strewn with boulders and large rocks, which previously had been mowed only with weed trimming devices, despite plaintiff's protest that the area was too wet and steep to be safely mowed with a commercial mower and that he would fall, to which the defendant replied "mow it anyway because it needs to be done."
Plaintiff claims this alleged conduct on the part of the defendant falls within the exception to the exclusivity provisions because the resulting injury was substantially certain to result from the employer's conduct, citing Ramus v. Branford, 63 Conn. App. 671, 680 (2001).
In Morocco v. Rex Lumber Co., 72 Conn. App. 516, 521 (2002), the Appellate Court stated "To bypass the exclusivity of the act, the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted."
The circumstances of the accident in this case do not indicate an intention of the defendant to harm the plaintiff. The area involved, described as steep, wet and strewn with rocks does not appear to be impossible to mow. The defendant in ordering the plaintiff to proceed with the mowing in order to get the job done quicker was not intended to injure the plaintiff nor can the accident be seen to "substantially certain to occur" from the employer's viewpoint. If the employer acted callously with respect to the safety of the plaintiff (or the damaging of his commercial mower for that matter); this factual scenario still falls short of an intention to cause the injury suffered by the plaintiff.
As to the third count, which alleges intentional infliction of emotional distress, in addition to the preemption of the Workmen's Compensation Act the count remains insufficient because the allegations that the actions of the defendant in ordering the plaintiff to proceed with the mowing do not amount to "extreme and outrageous" behavior as required by this cause of action. DeLaurentis v. New Haven, 220 Conn. 225, 266 (1991).
Motion to Strike First and Third Counts GRANTED.
Wagner, JTR