Lucenti v. Laviero , 165 Conn. App. 429 ( 2016 )

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DOMINICK LUCENTI v. GREG LAVIERO ET AL.
(AC 37734)
DiPentima, C. J., and Prescott and Mullins, Js.
Argued February 4—officially released May 10, 2016
(Appeal from Superior Court, judicial district of New
Britain, Hon. Joseph M. Shortall, judge trial referee.)
Edward W. Gasser, with whom, on the brief, was
Sara E. Greene, for the appellant (plaintiff).
Kathleen F. Adams, with whom was Peter J. Ponzi-
ani, for the appellees (defendants).
Opinion
DiPENTIMA, C. J. In this appeal, the plaintiff, Domi-
nick Lucenti, challenges the trial court’s determination
that his complaint for damages resulting from work-
related injuries was barred by General Statutes § 31-
284 (a),1 the exclusivity provision of the Workers’ Com-
pensation Act (act), General Statutes § 31-275 et seq.
The plaintiff appeals from the summary judgment ren-
dered in favor of the defendants, Greg Laviero and Mar-
tin Laviero Contractors, LLC (Laviero Contractors).2 We
affirm the judgment of the trial court.
The record reveals the following facts and procedural
history. The plaintiff claimed that he suffered various
injuries on October 28, 2011, while working for Laviero
Contractors. On the day of the incident, the plaintiff
was replacing a catch basin. To accomplish this task,
he was operating an excavator in an attempt to pull the
catch basin out of the ground. During this operation,
the excavator, while ‘‘running at full throttle . . .
slipp[ed] off the catch basin and [swung] back and then
[swung] forward,’’ injuring the plaintiff.
On October 23, 2013, the plaintiff commenced this
action alleging in a two count complaint that, because of
the defendants’ ‘‘reckless conduct,’’ he suffered injuries.
The defendants’ alleged reckless conduct was, inter
alia, ‘‘directing that the excavator not be properly
repaired prior to the incident even though [they] knew
that there was a likelihood that individuals operating the
equipment, including the plaintiff, would likely sustain
serious bodily injuries . . . .’’ The plaintiff alleged that
a temporary repair made prior to the incident made
‘‘the excavator run at full throttle thereby making a
jerking action.’’ After the parties conducted discovery,
on October 14, 2014, the defendants filed a motion for
summary judgment.
The defendants argued that they were entitled to
summary judgment because, pursuant to the exclusivity
provision of the act, § 31-284 (a), the defendants were
exempt from liability for civil damages. The defendants
further argued that, because there was ‘‘no wilful, mali-
cious or intentional conduct intended to injure the
[p]laintiff in this case, there was no exception to the
exclusivity provision in this case.’’ In support of their
argument, the defendants submitted excerpts of tran-
scripts from two depositions given by the plaintiff, as
well as an excerpt of Laviero’s deposition and his affida-
vit. Pertinent to this appeal, Laviero stated at his deposi-
tion that he had operated the excavator a ‘‘week or so’’
prior to the incident and again after the incident. Laviero
also asserted that the excavator operated at ‘‘full throt-
tle’’ because it was the excavator’s hydraulic system
that controlled the speed of the machine and not the
throttle. In his affidavit, Laviero averred that he neither
intended to injure the plaintiff, nor intended to ‘‘create
a situation that would result in the [p]laintiff being
injured,’’ and he had not ordered the excavator repaired
‘‘between October 28, 2011, and the time of [his] subse-
quent operation.’’
The plaintiff filed an objection to the motion for sum-
mary judgment. In his memorandum of law, the plaintiff
claimed that the defendants had ‘‘rigged’’ the excavator
to operate only at ‘‘full throttle’’; thus, the defendants
‘‘intentionally created a dangerous condition that made
[the] plaintiff’s injuries substantially certain to occur,
thereby overcoming the exclusivity rule of the [act].’’
In support of his argument, the plaintiff submitted an
affidavit from Daniel Quick, a former Laviero Contrac-
tors employee, as well as his own affidavit and an
excerpt from his deposition.
Quick averred that he worked for Laviero Contractors
for ‘‘two seasons’’ as a machine operator. Quick also
averred that in September, 2011, he was using the exca-
vator at issue when it malfunctioned and would only
operate on idle. According to Quick, Laviero instructed
a mechanic to ‘‘rig the machine so that it could only
be operated at full [throttle].’’ Quick also averred that
he told Laviero that the excavator was ‘‘too dangerous
to operate’’ and, ‘‘as rigged,’’ somebody would be
injured.
The plaintiff’s affidavit provided additional details to
support his argument. Specifically, the plaintiff averred
that he had notified Laviero that the excavator ran only
in full throttle and that this was dangerous, to which,
according to the plaintiff, Laviero concurred. The plain-
tiff further averred that Laviero stated that he was
unwilling to ‘‘put any money into [the excavator]’’
because he was going to sell it. Also, the plaintiff averred
that after he was injured, he spoke to a mechanic,
Michael Lauder. The plaintiff attached to his affidavit a
statement purportedly written by Lauder. This unsworn,
but signed statement dated October 8, 2013, claimed,
inter alia, that although Lauder and some other
unnamed persons notified Laviero Contractors that the
excavator needed to be repaired, he and the unnamed
persons were ‘‘instructed to rig the machine so the
throttle would run at full speed at all times.’’ According
to this statement, Laviero Contractors did not ‘‘want to
put money into repairs,’’ because it was considering
selling the excavator. Finally, Lauder’s purported state-
ment provided that after the plaintiff was injured,
Laviero Contractors ‘‘instructed [Lauder] to fix [the
excavator] properly,’’ and the excavator subsequently
was sold.
After a hearing on the motion, the court, Hon. Joseph
M. Shortall, judge trial referee, issued a memorandum
of decision on February 23, 2015, in which it granted
the defendants’ motion for summary judgment on the
ground that the exclusivity provision of the act barred
the plaintiff’s action against the defendants. The court
concluded that the plaintiff could not satisfy an excep-
tion to the exclusivity provision pursuant to the substan-
tial certainty test set forth in Suarez v. Dickmont
Plastics Corp., 242 Conn. 255, 698 A.2d 838 (1997),
because he could not ‘‘prove an intent on the part of
the defendant to create a working condition that was
‘substantially certain’ to injure [the] plaintiff or other
employees.’’ Specifically, the court found it significant
that Laviero regularly operated the excavator at issue,
including ‘‘a week before the plaintiff’s claimed injury
and shortly after his injury . . . .’’ Thus, the court
determined that ‘‘there can be no genuine dispute as
to whether the defendants created a condition that they
believed was substantially certain to cause injury.’’ The
court reasoned, ‘‘[h]ow could a jury conclude that . . .
Laviero, the owner and principal of the corporate defen-
dant, intentionally created a dangerous condition that
was substantially certain to cause injury to someone
operating the excavator when he, himself, operated the
machine on a regular basis? While it is seldom appro-
priate for summary judgment to enter where the mate-
rial fact is the intent of the defendant, this is one of
those rare cases in which it is appropriate.’’ This
appeal followed.
‘‘The standard of review of motions for summary
judgment is well settled. Practice Book § 17-49 provides
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. . . . The
party moving for summary judgment has the burden of
showing the absence of any genuine issue of material
fact and that the party is, therefore, entitled to judgment
as a matter of law.’’ (Internal quotation marks omitted.)
Abendroth v. Moffo, 156 Conn. App. 727, 730–31, 114
A.3d 1224, cert. denied, 317 Conn. 911, 116 A.3d 309
(2015).
‘‘On a motion by [the] defendant for summary judg-
ment 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.’’
(Citation omitted; internal quotation marks omitted.)
Rockwell v. Quintner, 96 Conn. App. 221, 229, 899 A.2d
738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
Moreover, ‘‘a party opposing a summary judgment
motion must provide an evidentiary foundation to dem-
onstrate the existence of a genuine issue of material
fact. . . . [T]ypically, [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. . . . 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.’’ (Internal quota-
tion marks omitted.) Martinez v. Southington Metal
Fabricating Co., 101 Conn. App. 796, 799–800, 924 A.2d
150, cert. denied, 284 Conn. 930, 934 A.2d 246 (2007).
‘‘On appeal, we must determine whether the legal
conclusions reached by the trial court are legally and
logically correct and whether they find support in the
facts set out in the memorandum of decision of the
trial court. . . . Our review of the trial court’s decision
to grant [a moving party’s] motion for summary judg-
ment is plenary.’’ (Internal quotation marks omitted.)
Abendroth v. Moffo, supra, 156 Conn. App. 731.
In actions seeking to avoid the exclusivity provision
of the act, our Supreme Court has explained that
‘‘[e]mployees who are injured during the course of
employment have a right to compensation exclusively
through the workers’ compensation system . . . and
are generally barred from bringing common-law actions
against employers for their injuries. . . . We have rec-
ognized a narrow exception to this general rule when
a plaintiff can establish an intentional tort claim by
demonstrating that his employer either: (1) actually
intended to injure [the employee] . . . or (2) intention-
ally created a dangerous condition that made [the
employee’s] injuries substantially certain to occur
. . . .’’ (Citations omitted; footnote omitted; internal
quotation marks omitted.) Motzer v. Haberli, 300 Conn.
733, 743–44, 15 A.3d 1084 (2011); see also Suarez v.
Dickmont Plastics Corp., supra, 242 Conn. 279–80.
Thus, the plaintiff ‘‘must allege facts to establish
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).3 Under either theory
of employer liability, however, the characteristic ele-
ment [of wilful misconduct] is the design to injure either
actually entertained or to be implied from the conduct
and circumstances. . . . Not only the action producing
the injury, but [also] the resulting injury also must be
intentional. . . .
‘‘Although it is less demanding than the actual intent
standard, the substantial certainty standard is, nonethe-
less, an intentional tort claim requiring an appropriate
showing of intent to injure on the part of the defendant.
. . . This court has stated [that i]t is important to note
that the substantial certainty standard is a subset of
the intentional tort exception. . . . Whereas the inten-
tional tort test requires that both the act producing the
injury and the specific injury to the employee must be
intentional . . . the substantial certainty standard
requires a showing that the act producing the injury
was intentional or deliberate and the resulting injury,
from the standpoint of the employer, was substantially
certain to result from the employer’s acts or conduct
. . . . In sum, the substantial certainty standard
requires that the plaintiff establish that the employer
intentionally acted in such a way that the resulting
injury to the employee was substantially certain to
result from the employer’s conduct. . . . 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.’’ (Citations omitted; empha-
sis added; footnote added; internal quotation marks
omitted.) Martinez v. Southington Metal Fabricating
Co., supra, 101 Conn. App. 803–804.
Moreover, we bear in mind that ‘‘[t]he exception [to
the exclusivity provision] gives an employee a cause of
action in addition to the remedies provided by the act.
. . . [T]he employer must have engaged in intentional
misconduct, as that has been defined through our case
law . . . directed against its employee. . . . Anything
short of genuine intentional injury sustained by the
employee and caused by the employer is compensable
under the [a]ct. . . . The exception 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.’’
(Emphasis omitted; internal quotation marks omitted.)
Sorban v. Sterling Engineering Corp., 79 Conn. App.
444, 450, 830 A.2d 372, cert. denied, 266 Conn. 925, 835
A.2d 473 (2003).
On appeal, the plaintiff argues that the court erred in
granting the defendants’ motion for summary judgment
because he presented evidence demonstrating that
there was a genuine issue of material fact, namely, that
the defendants ‘‘rigged’’ the excavator, and this created
a dangerous condition that made the plaintiff’s injuries
substantially certain to occur. Moreover, the plaintiff
contends that the court misapplied the substantial cer-
tainty test. Specifically, he argues that the court’s rhe-
torical question in its memorandum of decision was the
standard it applied to his claim. Therefore, the plaintiff
takes issue with the court assessing Laviero’s willing-
ness to use the excavator because it was not relevant
to the substantial certainty test. We disagree with the
plaintiff’s argument.
To facilitate our analysis, we find this court’s decision
in Martinez v. Southington Metal Fabricating Co.,
supra, 101 Conn. App. 796, insightful. The plaintiff in
that case suffered a severe crush injury that led to his
left arm being amputated below the elbow. Id., 798. The
injury was sustained because of a miscommunication
between the plaintiff and another employee when the
plaintiff had his arm inside a metal bending machine.
Id. The plaintiff argued that ‘‘the combined effect of
the large number of safety violations and the lack of
training created a situation that would allow a trier of
fact to find that the defendant intentionally created a
dangerous situation in which it had been substantially
certain that his injury would occur.’’ Id., 805. To support
his argument, the plaintiff provided expert testimony
that his injuries were substantially certain to occur. Id.,
806. We concluded that ‘‘an opinion by an expert that
an injury was substantially certain to occur does not
support the requirement that the defendant believed
that its conduct was substantially certain to cause the
employee harm.’’ (Emphasis omitted.) Id.
In the present case, the plaintiff does not raise a
genuine issue of material fact as to the ‘‘requirement
of a showing of the employer’s subjective belief that the
[plaintiff’s] injury was substantially certain to occur.’’
(Emphasis in the original.) Id. The plaintiff avers that,
in his opinion, the excavator was not meant to operate
at full throttle and that the excavator was dangerous.
The plaintiff also provides Quick’s affidavit to buttress
his argument that the defendants created a dangerous
condition that made his injuries substantially certain
because the excavator, as modified, would only operate
at full throttle.4 Even assuming, arguendo, that the plain-
tiff is correct, he does not show that the defendants
had the subjective belief that the plaintiff’s injuries were
substantially certain to occur when using an excavator
that only operates on full throttle. The defendants’ ratio-
nale in having the excavator operate in such fashion
may be reckless and may demonstrate a ‘‘cavalier atti-
tude toward worker safety . . . .’’ (Internal quotation
marks omitted.) Id., 804. Similar to Martinez, the evi-
dence presented by the plaintiff in this case falls short
of demonstrating that the defendants ‘‘believed that
[their] conduct was substantially certain to cause the
[plaintiff] harm.’’ Id.
The plaintiff also misconstrues the court’s application
of the substantial certainty test. He claims that the
court’s rhetorical question5 in its memorandum of deci-
sion is the wrong legal standard by which to evaluate
his claim. The plaintiff misunderstands the court’s rhe-
torical question. The court’s memorandum of decision
correctly provides the relevant law, and the plaintiff at
oral argument before this court acknowledged that. The
plaintiff, however, reads the court’s question in such a
way as to conclude that the question was the standard
that the court applied to his claim. A careful reading
of the court’s memorandum of decision, however, dem-
onstrates that the court was not modifying the substan-
tial certainty standard; rather, it was merely suggesting
that it would be logical to conclude that because Laviero
was willing to use the excavator before and after the
incident thereby potentially exposing himself to harm,
the plaintiff cannot show that the defendants had the
requisite intent required to overcome the exclusivity
provision of the act. We further note that the court’s
decision to grant the defendants’ motion for summary
judgment must survive our plenary review of the plead-
ings, affidavits, and any other proof before the court.
As previously discussed, the exception to the exclu-
sivity provision of the act, as a matter of law, does
not encompass injuries to employees resulting from
an employer’s intentional, wilful, or reckless conduct
without a conscious and deliberate intent directed to
the purpose of inflicting an injury. See Sorban v. Ster-
ling Engineering Corp., supra, 79 Conn. App. 450.
Moreover, under the substantial certainty standard, an
employer’s intent to injure can be implied from the
conduct and circumstances, and, ‘‘[n]ot only the action
producing the injury, but [also] the resulting injury . . .
must be intentional.’’ (Internal quotation marks omit-
ted.) Martinez v. Southington Metal Fabricating Co.,
supra, 101 Conn. App. 803. Here, in opposing the motion
for summary judgment, the plaintiff did not meet his
burden to show that there was a genuine issue of mate-
rial fact that the defendants ‘‘believed that [their] con-
duct was substantially certain to cause the [plaintiff]
harm.’’ Id., 804. Thus, the court properly rendered sum-
mary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
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
. . . . 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 abol-
ished 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 injury
or from enforcing any agreement for additional compensation.’’
2
Laviero is the owner and principal of Laviero Contractors.
3
Here, the plaintiff relies on the substantial certainty standard, not the
actual intent standard.
4
The relevant portion of Quick’s affidavit is as follows:
‘‘13. I told . . . Laviero that:
‘‘(a) you need to get the excavator fixed properly;
‘‘(b) it was too dangerous to operate in this way;
‘‘(c) as rigged, either I am going to get hurt or I am going to hurt someone.’’
5
The rhetorical question was ‘‘[h]ow could a jury conclude that . . .
Laviero, the owner and principal of the corporate defendant, intentionally
created a dangerous condition that was substantially certain to cause injury
to someone operating the excavator when he, himself, operated the machine
on a regular basis?’’