Hassiem v. O & G Indus., Inc.

• Decision Date: 02 June 2020
• Docket Number: AC 41794
• Court: Connecticut Court of Appeals
• Parties: Dila HASSIEM v. O & G INDUSTRIES, INC.

197 Conn.App. 631

232 A.3d 1139

Dila HASSIEM

v.O & G INDUSTRIES, INC.

AC 41794

Appellate Court of Connecticut.

Argued January 9, 2020

Officially released June 2, 2020

John T. Bochanis, Bridgeport, for the appellant (plaintiff).

Michael S. Lynch, with whom was Nicole A. Carnemolla, Shelton, for the appellee (defendant).

Lavine, Bright and Devlin, Js.

LAVINE, J.

Our Workers’ Compensation Act (act); General Statutes § 31-275 et seq. ; provides the exclusive remedy for an employee who sustains an injury that arises out of and in the course of employment, unless the employee can establish "an employer's subjective intent to create a dangerous situation with a substantial certainty of injury to the employee [thereby] avoiding application of General Statutes § 31-284 (a), the exclusive remedy provision of the [act] ...." (Internal quotation marks omitted.) Lucenti v. Laviero , 327 Conn. 764, 766, 176 A.3d 1 (2018). Decisions issued by this court and our Supreme Court repeatedly have stressed the need for this stringent rule to uphold the legislative intent underlying our workers’ compensation scheme.

In the present matter, the plaintiff, Dila Hassiem, appeals from the summary judgment rendered by the trial court in favor of the defendant, O & G Industries, Inc., after concluding that the plaintiff's claim was barred by the exclusivity provision of the act. On appeal, the plaintiff claims that the court improperly determined that there were no genuine issues of material fact that the defendant did not engage in an intentional act knowing that there was a substantial certainty that the plaintiff would be injured. We affirm the judgment of the trial court.

There are no material factual disputes concerning the manner and nature of the injury the plaintiff sustained. The plaintiff was employed by the defendant at its asphalt production facility in Stamford. Once a year, the defendant performed routine maintenance of its equipment, including a horizontal auger in a trough that is used to transfer stone and sand in the making of asphalt. The defendant's employees turn power to the auger on and off in a control room. On December 27, 2011, Robert Buchetto, the defendant's maintenance supervisor, ordered the plaintiff to clean the auger and the trough.¹ The plaintiff was not aware that power to the auger was on when he prepared to clean it with a high pressure hose. He climbed a ladder to a platform above the auger, which had no protective barrier, and was pulling up the hose when he slipped and fell into the trough. The plaintiff's left leg was caught in the auger and severed above his knee

. As a result of his injuries, the plaintiff applied for and received workers’ compensation benefits.

The plaintiff commenced the present litigation in which he alleged that the injuries he sustained were a direct result of the defendant's intentionally having created a dangerous condition, knowing that the dangerous condition made his injuries substantially certain to occur. In response to the plaintiff's revised complaint,² the defendant filed a motion for summary judgment, claiming that there were no genuine issues of material fact as to whether it "had a substantially certain belief that cleaning the auger would cause the plaintiff to sustain injuries." The plaintiff opposed the motion for summary judgment. Following the parties’ submission of exhibits, numerous memoranda of law, and after oral argument, the trial court issued a comprehensive memorandum of decision on June 12, 2018. The court granted the defendant's motion for summary judgment, stating, in part, that the plaintiff had failed to present a genuine issue of fact to show that the defendant had engaged in intentional conduct knowing that there was a substantial certainty that the plaintiff would be injured while cleaning the auger. The court concluded that, "[b]ecause there is no intentional act that was substantially certain to cause serious injury, the exception to the [act] does not apply." The plaintiff, thereafter, appealed to this court. The central issue presented to us is whether the trial court properly determined that there were no issues of material fact as to the defendant's subjective intent to create a dangerous situation with a substantial certainty of injury to the plaintiff. We conclude that it did.

Before addressing the plaintiff's claim, we set forth the applicable standard of review and the principles that guide our analysis of an appeal from the granting of a motion for summary judgment. "Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary. ... 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." (Citation omitted; internal quotation marks omitted.) Gold v. Greenwich Hospital Assn ., 262 Conn. 248, 253, 811 A.2d 1266 (2002).

" 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 seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ...

"A material fact is a fact that will make a difference in the result of the case. ... It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward ... evidentiary facts, or substantial evidence outside the pleadings to show the absence of any material dispute. ... The party opposing summary judgment must present a factual predicate for his argument to raise a genuine issue of fact. ... Once raised, if it is not conclusively refuted by the moving party, a genuine issue of fact exists, and summary judgment is inappropriate. ... [A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. ... Demonstrating a genuine issue requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred." (Citations omitted; internal quotation marks omitted.) Martinez v. Premier Maintenance, Inc ., 185 Conn. App. 425, 434–35, 197 A.3d 919 (2018).

"The fundamental purpose of summary judgment is preventing unnecessary trials. ... If a plaintiff is unable to present sufficient evidence in support of an essential element of his cause of action at trial, he cannot prevail as a matter of law. ... To avert these types of ill-fated cases from advancing to trial, following adequate time for discovery, a plaintiff may properly be called upon at the summary judgment stage to demonstrate that he possesses sufficient counterevidence to raise a genuine issue of material fact as to any, or even all, of the essential elements of his cause of action." (Citations omitted; internal quotation marks omitted.) Stuart v. Freiberg , 316 Conn. 809, 822–23, 116 A.3d 1195 (2015). Summary judgment is mandated "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." (Internal quotation marks omitted.) Celotex Corp . v. Catrett , 477 U.S. 317, 322–23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). "The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Scheirer v. Frenish, Inc ., 56 Conn. App. 228, 232, 742 A.2d 808 (1999), cert. denied, 252 Conn. 938, 747 A.2d 3 (2000).

I

The plaintiff's appeal concerns the exception to the exclusive remedy provision of our workers’ compensation scheme, § 31-284 (a), which 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 ...." Our Supreme Court consistently has "interpreted the exclusivity provision of the act ... as a total bar to [common-law] actions brought by employees against employers for job related injuries with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct." Suarez v. Dickmont Plastics Corp ., 229 Conn. 99, 106, 639 A.2d 507 (1994) ( Suarez I ).

The exclusivity provision "represents a balancing of interest, insofar as the purpose of the act is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer. ... The act is to be broadly construed to effectuate the purpose of providing compensation for an injury arising out of and in the course of the employment regardless of fault. ... Under typical workers’ compensation statutes, employers are barred from presenting certain defenses to the claim for compensation, the employee's...