Lead Opinion
Opinion
The plaintiff Eduardo Martinez
The plaintiff claims that he was injured on February 13, 2002 while working for the defendant, the South-ington Metal Fabricating Company. He alleges that, on that date, he was assisting a coworker, Cristobal Nieves, in the operation of a metal bending machine. Nieves operated the control switch of the machine with his back partially turned away from the plaintiff, who stood in front of the machine and lifted a large sheet of steel plate that was apprоximately eight feet by two feet into the machine. Nieves thought that he heard the plaintiff say “okay,” causing him to activate the machine. At the time, the plaintiff was still positioning the steel plate and his left arm was still under the clamp of the machine. Once the machine was activated, Nieves was unable to stop it, resulting in a severe crush injury to the plaintiffs left arm, ultimately requiring surgical treatment and amputation of his left arm below the elbow.
The plaintiff filed this action alleging that the defendant intentionally created а dangerous condition that made his injuries substantially certain to occur. The defendant moved for summary judgment on the basis that the plaintiffs complaint was barred by the exclusivity provision of the act. The court granted the defendant’s motion for summary judgment, finding that the plaintiff failed to present any evidence indicating the existence of an issue of material fact as to whether intentional acts by the defendant created a substantial certainty that the plaintiffs injury would occur. This appeal followed.
“Summary judgment is aрpropriate when 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. . . . Thus, because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary . . . .” (Citations omitted; internal quotation marks omitted.) Heussner v. Day, Berry & Howard, LLP,
“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 рarty 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. . . .
“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. . . . [T]ypically, [demonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material
General Statutes § 31-284 (a) exempts employers from liability for civil damages “on account of personal injury sustained by an employee arising out of and in the course of his employment . . . .” “ ‘Arising out of and in the course of his employment’ ” is defined as an accidental injury or occupational disease originating while the employee is engaged “in the line of [his] duty in the business or affairs of the employer upon the employer’s premises . . . .” General Statutes § 31-275 (1). “ ‘Personal injury’ ” includes accidental injury and “injury to an employee which is causally connected with [his] employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease.” General Statutes § 31-275 (16) (A).
“Our Workers’ Compensation Act indisputably is a remedial statute that should be construed generously to accomplish its purpose. . . . Section 31-284 (a), the exclusivity provision in the act, manifests a legislative policy decision that a limitation on remedies under tort law is an appropriate trade-off for the benefits provided by workers’ compensation. That trade-off is part and parcel of the remedial purpose of the act in its entirety. Accordingly, our case law on workers’ compensation exclusivity reflects the proposition that these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” (Citations omitted; internal quotation marks omitted.) Driscoll v. General Nutrition Corp.,
Our Supreme Court first recognized a narrow exception to the exclusivity provision in Jett v. Dunlap,
In Mingachos v. CBS, Inc.,
Definitive explication of thе intentional injury exception to workers’ compensation exclusivity came in Suarez v. Dickmont Plastics Corp.,
In Suarez v. Dickmont Plastics Corp.,
Since Suarez, the exception to exclusivity has been further elucidated. The substantial certainty test permits 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.) McCoy v. New Haven,
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. Suarez I, supra,
With the foregoing principles in mind, we now analyze the plaintiffs claim that the court improperly granted the defendant’s motion for summary judgment. In opposition to the motion for summary judgment, the plaintiff claimed thаt the defendant violated twenty of its own safety regulations, in addition to many regulations of the Occupational Safety and Health Administration (OSHA).
“A wrongful failure to act to prevent injury is not the equivalent of an intent to cause injury.” Melanson v. West Hartford, supra,
The plaintiff also provided expert testimony that his injuries were substantially certain to occur. The critical flaw in the plaintiffs argument, however, is that it ignores the requirement of a showing of the employer’s subjective belief that the injury was substantially certain to occur. It is not the gravity of the employer’s conduct that comes under scrutiny but, rather, the employer’s subjective belief.
Although the defendant admitted that, because the machine was capable of bending metal, it knew that it could probably harm a person, there is no evidence that the plaintiff was instructed to work with the machine turned on. Here, the evidence submitted indicates that the machine was turned off when the plaintiff inserted his hand intо the machine and that the machine was turned on as a result of miscommunication with another employee. Because the plaintiff failed to demonstrate the existence of a genuine issue of material fact as to the defendant’s intent to create a dangerous situation that it knew was substantially certain to injure him, the court properly rendered summary judgment in favor of the defendant.
The judgment is affirmed.
In this opinion ROGERS, J., concurred.
Notes
The plaintiffs wife, Maria Borrero, also is a plaintiff. Southington Metal Fabricating Company also intervened as a plaintiff, seeking reimbursement for certain workers’ compensation payments it has paid or may become obligated to pay to Martinez. For purposes of this appeal, we refer in this opinion to Martinez as the plaintiff and to Southington Metal Fabricating Company as the defendant.
General Statutes § 31-284 (a) provides in relevant part: “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 iiqury or from enforcing any agreement for additional compensation.”
Here, the plaintiff relies on the substantiаl certainty standard, not the actual intent standard.
In his complaint, the plaintiff alleged that the defendant intentionally created a dangerous condition in which his injuries were substantially certain to occur in that it:
“[a] failed to have the clamp start-button function only under constant positive pressure by the operator;
“[b] failed to install a light curtain across the face of the aforesaid leaf break machine;
“[c] failed to install a trip wire along the face of the machine;
“[d] failed to limit the opеration of the machine to one employee;
“[e] failed to provide and require the use of hand tools to position sheet stock into the point of operation of the aforesaid leaf break machine;
“[f] failed to reduce the opening height of the clamp by pre-determining and pre-setting the height of the clamp opening of the bender prior to production;
“[g] failed to out source the operation even though the operation of bending and/or crimping sheets of plate steel is infrequently performed;
“[h] failed to install guards at all points of operation of the aforesaid leaf break machine to prevent employees from having any part of their body in the danger zones during the operating cycles of the aforesaid machine in violation of 29 C.F.R. 1910.212 (a) (3) (ii);
“[i] removed guards that were located at all points of operation of the aforesaid leaf break machine causing, or allowing and permitting, employ ees to have parts of their bodies in the danger zones during the operating cycles of the aforesaid machine in violation of 29 C.F.R. 1910.212 (a) (3) (ii);
“[j] refrained from training and instructing employees in safe methods of work before starting work on a mechanical power press in violation of 29 C.F.R. 1910.217 (f) (2) when they knew, or should have know[n], that such reasonable measures were available to make—and would malee—the machine the plaintiff was working on considerably safer;
“[k] failed to provide the plaintiff with adequate warnings, instructions, safety precautions or other information concerning the use of the subject leaf bréale machine;
“[1] failed to provide adequate, permanent instruction labeling or permanent warning labels even though the [defendant was or should have been aware that the leaf break machine was substantially certain to cause the type of harm suffered by the plaintiff;
“[m] failed to provide the plaintiff with adequate warnings, instruction or safety precaution information even though it was foreseeable the plaintiff would not be aware of the danger in using the leaf break machine; and
“[n] failed to provide pressure sensitive mats for the front of the aforesaid machine which would prohibit operation of the machine while person(s) were standing thereon.”
General Statutes § 31-307 (b) provides: “Notwithstanding the provisions of subsection (a) of this section, any employee who suffers any injury or illness caused by the employer’s violation of any health or safety regulation adopted pursuant to chapter 571 or adopted by the federal Occupational Safety аnd Health Administration and listed in 29 CFR, Chapter XVn, after the violation has been cited in accordance with the provisions of section 31-375 or the provisions of the Occupational Safety and Health Act of 1970, 84 Stat. 1601 (1970), 29 USC 658 and not abated within the time fixed by the citation, provided the citation has not been set aside by appeal to the appropriate agency or court having jurisdiction, shall receive a weekly compensation equal to one hundred per cent of the employee’s average weekly earnings at the time of the injury or illness.”
In his reply brief and at oral argument, the plaintiff referred to Sorban v. Sterling Engineering Corp.,
Dissenting Opinion
dissenting. I respectfully disagree that the plaintiff Eduardo Martinez has not presentеd evidentiary facts or substantial evidence to defeat a motion for summary judgment.
In this case, the plaintiff submitted evidence that his injury was caused at the point of operation of a metal forming machine when its clamp severed his forearm. He was loading and positioning metal into the machine when a coworker, without verbal clearance from the plaintiff, put the machine into operation. The plaintiffs work assignment to assist in the loading and positioning of metal into the machine, which bent or formed metal under pressure, was improper. The operation of the machine required the plaintiffs coworker to have his back to the plaintiff while the plaintiff loaded and positioned metal at the machine’s point of operation. At the time, the Occupational Safety and Health Administration (OSHA) found that the machine had no guards or sensing devices to prevent its operation while an employee was loading and positioning metal into the point of operation.
The plaintiff also submitted a cоpy of the safety plan of the defendant employer, the Southington Metal Fabricating Company. That plan stated that its purpose was to avoid injury at the workplace. With reference to a forming machine, the plan specifically stated that the point of operation must be guarded where it can cause injury and that an interlocking device must be considered. A pressure sensing device, as required for point of operation devices, must protect the machine operator by interlоcking into the control circuit to prevent or stop its slide motion if the operator’s hand or other part of his body is within the sensing field of the device during the operation of the press slide. The plan also required guards to protect all areas of point of entry to the point of operation not protected by the pressure sensing device. The plan also required that all employees be given regular and continuing safety training. The plaintiff submitted evidence that neither he nor his coworker operating the machine had received any safety training.
In Suarez v. Dickmont Plastics Corp.,
In this case, the plaintiff produced evidence of specific violations of the employer’s own safety manual and OSHA requirements for safety devices within and outside the forming machine and evidence that the operators were not trained in the safe operation of the machine. The plaintiff also produced expert evidence that this cоnduct made the plaintiffs injury a predictable and substantially certain event.
As to the requirement that the defendant could be found to have believed to a substantial certainty that the conduct would result in employee injury, it must be considered that the employer adopted its own specific safety plan to avoid such an injury with a metal forming machine and then knowingly did not implement the plan in any way. The defendant’s multiple failures to obey OSHA requirements, which it promised to abide by in the safety plan,
I would conclude that the plaintiffs submissions raise an issue of material fact regarding the defendant’s conduct toward the plaintiff and the defendant’s knowledge that his injury was substantially certain to occur. See Suarez I, supra,
Accordingly, I respectfully dissent.
The plan states: “It is the intent, of [the defendant] to comply with all laws concerning the operation of the business and the health and safety of our employees and the public.”
Our Supreme Court, in a per curiam opinion, adopted a trial court’s decision that defined substantially certain as equivalent to inevitability. See Stebbins v. Doncasters, Inc.,