Blancato v. Feldspar Corp.

• Decision Date: 31 March 1987
• Docket Number: No. 12973,12973
• Citation: 203 Conn. 34,522 A.2d 1235
• Parties: , 77 A.L.R.4th 833 Sebastian V. BLANCATO, Sr., Administrator (Estate of Sebastian V. Blancato, Jr.), et al. v. The FELDSPAR CORPORATION et al.
• Court: Connecticut Supreme Court

Page 1235

522 A.2d 1235

203 Conn. 34, 77 A.L.R.4th 833

Sebastian V. BLANCATO, Sr., Administrator (Estate of Sebastian V. Blancato, Jr.), et al. v. The FELDSPAR CORPORATION et al.

No. 12973.

Supreme Court of Connecticut.

Argued Jan. 14, 1987.

Decided March 31, 1987.

John M. Creane, Milford, for appellants (plaintiffs).

James J. Carroll, New Haven, for appellees (defendants).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, SANTANIELLO and CALLAHAN, JJ.

SHEA, Associate Justice.

The plaintiffs have appealed from a judgment for the defendants that was rendered by the court after a motion to strike the complaint had been granted. Sebastian V. Blancato, Sr., and Barbara J. Blancato, the parents of the minor decedent, Sebastian V. Blancato, Jr., in their individual capacities, and Blancato, Sr., in his representative capacity as administrator of the decedent's estate, brought this action in six counts against the defendant Feldspar Corporation and certain of its employees. The plaintiffs alleged negligence, various intentional torts, breach of contract and the infliction of emotional distress arising from the decedent's death while engaged in hazardous work at the named defendant's mining facility in Middletown. The trial court determined that our Workers' Compensation Act; General Statutes §§ 31-275 to 31-355a; provides the exclusive remedy for the fatal injuries suffered by the plaintiffs' decedent. We find error.

The first count of the complaint alleges: that on December 8, 1980, the named defendant hired the decedent, a seventeen year old minor, to work as a sand operator trainee in violation of General Statutes § 31-23(b) ¹; that on December 9, 1980, nearly twelve hours after reporting to work that day, ² the decedent, working alone and unsupervised, entered a bin containing wet sand and was buried alive; and that the decedent consequently died of asphyxiation.

Because this appeal is before us pursuant to a motion to strike, we note preliminarily that we must take the facts to be those alleged in the complaint, as amended, and must construe the complaint in the manner most favorable to the pleader. ³ Morris v. Hartford Courant Co., 200 Conn. 676, 678, 513 A.2d 66 (1986); Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986). While recognizing that a motion to strike does not admit legal conclusions; see Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 557, 227 A.2d 418 (1967); we shall assume for the purposes of this appeal, because of the allegation that the decedent was hired in violation of § 31-23(b), that he had been illegally employed. Cf. Lamb v. Burns, 202 Conn. 158, 172, 520 A.2d 190 (1987); Trichilo v. Trichilo, 190 Conn. 774, 779, 462 A.2d 1048 (1983). We therefore address the limited issue of whether the exclusive remedy provision of our Workers' Compensation Act bars the estate of a minor killed while illegally employed from bringing a suit for wrongful death pursuant to General Statutes § 52-555. ⁴

General Statutes § 31-284(a) of our Workers' Compensation Act provides in part that "[a]n employer shall not be liable to 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...." The term "employee" is defined by General Statutes § 31-275(5) in relevant part as "any person who has entered into or works under any contract of service or apprenticeship with an employer...." Because only employees are entitled to compensation under the act, it is clear that coverage must arise from a contract of employment, either express or implied. Sibley v. State, 89 Conn. 682, 686-87, 96 A. 161 (1915). The attendant ability on the part of an employer to invoke § 31-284(a) to bar an employee's common law damage suit or an action for wrongful death on behalf of his estate similarly arises only when a valid employment contract exists between the parties.

Our Workers' Compensation Act does not specifically address the question of the remedies available to illegally employed minors injured in the course of their employment. It has been several decades since this court encountered such an issue. The question in Kenez v. Novelty Compact Leather Co., 111 Conn. 229, 149 A. 679 (1930), was whether a child employed in violation of a predecessor of General Statutes § 31-23 was entitled to compensation under the terms of the act. The employer relied on the general principle that agreements in violation of public policy are unenforceable, and thus the child could not be deemed an "employee" as defined by § 31-275(5). Holding that the child was an employee within the act despite the illegal employment contract, this court stated that "as regards the child the legislature very evidently did not regard him as in any sense a real wrongdoer if he entered into such a contract without there being a compliance with the statutes. It might be that the employer could get no advantage from such a contract in a court of law because he would not be permitted to set up the fact that he had acted in contravention of its mandate, but that would not necessarily prevent the child from claiming any benefit which might arise out of its terms." Kenez v. Novelty Compact Leather Co., supra, 111 Conn. at 234, 149 A. 679. The court in Kenez seemed to recognize that the child and the employer were not in pari delicto in entering into the illegal contract and that such a contract might be unilaterally enforceable by the child.

When the issue we face today subsequently arose in Greenberg v. Guiliano, 131 Conn. 157, 38 A.2d 436 (1944), however, the court refused to allow the illegally employed minor to avoid the employment contract in order to bring an action for injuries received during his employment. The Greenberg court relied upon the ruling in Kenez that an illegally employed minor is an employee within the terms of the act, and upon the case of Wells v. Radville, 112 Conn. 459, 463, 153 A. 154 (1931), which had held that the administrator of the estate of a minor who had been legally employed cannot sue the employer in a wrongful death action for negligently having caused the minor's death. The court in Greenberg extrapolated from those cases the rule that an illegally employed minor, too, cannot recover from his employer in a common law damage suit. This rule, of course, affords the employer an advantage from the illegal employment contract and thus appears to be inconsistent with dicta in Kenez quoted above. In the present case the plaintiffs request that we overrule our decision in Greenberg. We are persuaded that the rule of Greenberg is no longer viable.

We agree with the view set forth by the Supreme Court of Alaska in Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 253 (Alaska 1976), that "[t]he child labor laws ... are premised in part on the notion that a child is not competent to assess the risks of personal injury and exploitation attendant in the performance of hazardous activities. Where one party to an agreement possesses a legal disability of this type, we will not permit the other, who occupies a superior bargaining position, to raise the agreement as a shield against the child's common law suit." See also Widdoes v. Laub, 33 Del. 4, 129 A. 344 (1925); Secklich v. Harris-Emery Co., 184 Iowa 1025, 169 N.W. 325 (1918); Hadley v. Security Elevator Co., 175 Kan. 395, 264 P.2d 1076 (1953); Rock Island Coal Mining Co. v. Gilliam, 89 Okla. 49, 213 P. 833 (1923); Wlock v. Fort Dummer Mills, 98 Vt. 449, 129 A. 311 (1925); but see Winn-Lovett Tampa, Inc. v. Murphree, 73 So.2d 287 (Fla.1954); Mott v. River Parish Maintenance, Inc., 417 So.2d 384 (La.App.1982); Bingham v. Lagoon Corporation, 707 P.2d 678 (Utah 1985); see generally 1C A. Larson, Workmen's Compensation (1986) § 47.52(a). Consequently, we conclude that the trial court erred in determining that our Workers' Compensation Act provides the exclusive remedy for the death of the plaintiffs' decedent.

We hold that the plaintiff administrator's wrongful death action pleaded in the first count of the complaint is not barred by § 31-284(a). We recognize that agreements made in violation of public policy have been deemed unenforceable and "void." See Casanova Club v. Bisharat, 189 Conn. 591, 458 A.2d 1 (1983); Griffin v. Nationwide Moving & Storage Co., 187 Conn. 405, 446 A.2d 799 (1982); McCarthy v. Santangelo, 137 Conn. 410, 78 A.2d 240 (1951). Courts will ordinarily condemn entire agreements as unenforceable by both parties, however, only if both are in pari delicto. See Vaszauskas v. Vaszauskas, 115 Conn. 418, 423, 161 A. 856 (1932); E. Farnsworth, Contracts (1982) § 5.1, p. 327. We agree that "[i]t would be just as inequitable to allow the employer to avoid liability for compensation benefits on the basis of the illegality of the employment contract, as it would be to permit it to deny common law liability on the basis of the wrongful contract.... [T]his form of illegality produces a voidable, rather than void, contract. Thus ... the minor should have the option of avoiding or ratifying the contract of hire, similar to the prerogative minors possess with regard to other contractual arrangements." Whitney-Fidalgo Seafoods, Inc. v. Beukers, supra, 253-54; see also American Surety Co. v. Clarksville, 204 Tenn. 67, 75, 315 S.W.2d 509 (1958). Our decision, therefore, must not be interpreted to bar a meritorious workers' compensation claim by a minor who was illegally employed when injured but who chooses not to bring a common law suit. We have not declared that such a minor is not an employee within the terms of our Workers' Compensation Act, and thus do not disturb this court's ruling in Kenez v. Novelty Compact Leather Co., supra.

As the quotation from Whitney-Fidalgo Seafoods, Inc., suggests, our disposition of the present case...