Greene v. Metals Selling Corp., 2472

• Decision Date: 11 December 1984
• Docket Number: No. 2472,2472
• Citation: 3 Conn.App. 40,484 A.2d 478
• Court: Connecticut Court of Appeals
• Parties: Clara GREENE, Administratrix (ESTATE OF Everett GREENE, Jr.) v. The METALS SELLING CORPORATION et al.

Page 478

484 A.2d 478

3 Conn.App. 40

Clara GREENE, Administratrix (ESTATE OF Everett GREENE, Jr.) v. The METALS SELLING CORPORATION et al.

No. 2472.

Appellate Court of Connecticut.

Argued Oct. 9, 1984.

Decided Dec. 11, 1984.

Edmund T. Grady, Jr., Hartford, with whom was Marcia Winn, Hartford, for appellant (plaintiff).

James L. Pomeranz, Hartford, with whom, on the brief, was Douglas L. Drayton, Hartford, for appellees (defendants).

Before HULL, BORDEN and DALY, JJ.

DALY, Judge.

The plaintiff, as administratrix of the estate of her late husband, instituted an action in four counts for the wrongful death of her husband. The first two counts were directed against the defendant corporation, The Metals Selling Corporation (corporation), which had employed the plaintiff's decedent. The first count alleges wilful and wanton violations of the federal Occupational Safety and Health Act (OSHA), and its Connecticut counterparts. The second count alleges intentional acts and omissions of the corporation in violation of the same federal and state statutes. The third count alleges negligence against individual officers of the corporation, Raymond Rosenfield and Norman Rosenfield. The fourth count claims a loss of consortium by the plaintiff individually.

The facts alleged are that the corporation was in the business of processing metal and that the plaintiff's decedent, while in the corporation's employ, was engaged in processing or transferring magnesium material which ignited, thus causing his death. The defendants filed a motion to strike, claiming that the provisions of the Workers' Compensation Act precluded any recovery by the plaintiff. The trial court granted the motion to strike, ruling that the action was barred by the Workers' Compensation Act and that there was no basis for the loss of consortium claim. The plaintiff did not plead over. She appealed ¹ from the judgment rendered striking the complaint.

We first must examine the applicable standard of review on a motion to strike. The motion to strike; Practice Book § 151, replaced the demurrer in our practice. Its function, like that which the demurrer served, is to test the legal sufficiency of a pleading. Practice Book § 152. The motion to strike, like the demurrer, admits all facts well pleaded. The allegations are entitled to the same favorable construction as a trier would be required to give in admitting evidence under them; if facts provable under the allegations would support a defense or a cause of action, the motion to strike must fail. Alarm Application Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980). A motion to strike admits facts only. It does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. McAdam v. Sheldon, 153 Conn. 278, 282, 216 A.2d 193 (1965). We must examine the complaint, assuming the truth of all well-pleaded facts, to determine whether the plaintiff, under each count, has stated a legally sufficient cause of action.

The issues raised by this appeal are (1) whether the plaintiff may pursue a common law action for the wrongful death of her husband through the alleged wilful and wanton misconduct of the defendant corporation; ² (2) whether the plaintiff has a cause of action against the defendant corporate executives individually; and (3) whether the plaintiff's action for loss of consortium can be sustained.

The complaint alleges that the incident in question arose out of and in the course of the decedent's employment with the corporation. General Statutes § 31-284(a) specifically provides: "An 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 as follows, 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 employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter ...."

It is, of course, well settled that where there exists the relationship of employer and employee within the terms of the Workers' Compensation Act, the employer has no common law liability to his employee. Crisanti v. Cremo Brewing Co., 136 Conn. 529, 531, 72 A.2d 655 (1950). If the corporation was the employer of the plaintiff's decedent, the plaintiff is relegated to the remedies afforded by the Workers' Compensation Act. Velardi v. Ryder Truck Rental, Inc., 178 Conn. 371, 376, 423 A.2d 77 (1979). As long as the employer and the alleged tortfeasor are one, the plaintiff is limited to the benefits provided by workers' compensation. Id., 377, 423 A.2d 77.

The plaintiff alleges certain violations of the federal Occupational Safety and Health Act; 29 U.S.C. § 651 et seq.; and the Connecticut Occupational Safety and Health Act; General Statutes § 31-367 et seq.; as the basis for her complaint. The language in General Statutes § 31-369(b), "[n]othing in this chapter shall be construed to supersede or in any manner affect any workers' compensation law or to enlarge, diminish or affect in any manner common law or statutory rights, duties or liabilities of employers or employees, under any law with respect to injuries, diseases or death of employees arising out of and in the course of employment," is almost identical to the language in 29 U.S.C. § 653(b)(4). ³

"It seems clear that Congress did not intend OSHA to create a new private cause of action, but, on the contrary, intended private rights to be unaffected thereby." Jeter v. St. Regis Paper Co., 507 F.2d 973, 977 (5th Cir.1975); see Russell v. Bartley, 494 F.2d 334 (6th Cir.1974). The fourth circuit has refused to imply a private action against the employer where state workers' compensation was the exclusive remedy of the injured employee. Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir.1974).

The plaintiff has alleged in her first count wilful and wanton violations of both the state and federal OSHA legislation by the corporation. The plaintiff relies heavily on the language in Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979), wherein our Supreme Court stated that "[w]here such wilful or serious misconduct is engaged in by an employer, as identified by the standard we set forth today, then a plaintiff may pursue common-law remedies." (Emphasis added.) Id., 221, 425 A.2d 1263. That "standard," however, does not help the plaintiff here. "An intentional tort committed upon one employee by another, which causes personal injury arising out of and in the course of his employment, is covered by the compensatory provisions of the Workmen's Compensation Act. Willis v. Taylor & Fenn Co., 137 Conn. 626, 627-28, 79 A.2d 821 (1951); 82 Am.Jur.2d, Workmen's Compensation § 330. Unless the defendant employer intentionally directed or authorized [the fellow employee] to strike the plaintiff, the employer has a right to view the incident as an injury arising out of and in the course of employment, another 'industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system.' 2A Larson, Workmen's Compensation (1976) § 68.21, p. 13-11." Id., 218, 425 A.2d 1263. There is no allegation in this complaint comparable to the limited exception recognized in Jett v. Dunlap, supra.

Wilful misconduct must be either intentional misconduct, such as is done purposely with knowledge, or misconduct of such a character as to evince a reckless disregard of consequences to him who is guilty of it. Caraher v. Sears, Roebuck & Co., 124 Conn. 409, 415, 200 A. 324 (1938). Wilful and serious misconduct means something more than ordinary negligence. Ordinary negligence could never be even serious misconduct, must less wilful misconduct, and, although gross negligence might present an instance of serious misconduct, it could never present a case of wilful misconduct, as our definition of wilful misconduct clearly indicates and as the authorities so hold. No misconduct which is thoughtless, needless, inadvertent or of the moment, and none which arises from an error of judgment can be wilful and serious misconduct. Gonier v. Chase Companies, Inc., 97 Conn. 46, 56, 115 A. 677 (1921).

Our Supreme Court has consistently held that where a worker's personal injury is covered by workers' compensation, statutory compensation is the sole remedy...