Hatcher v. Bullard Co.

• Decision Date: 03 April 1984
• Docket Number: No. 210579,210579
• Citation: 477 A.2d 1035,39 Conn.Supp. 250
• Court: Connecticut Superior Court
• Parties: , 1984-1985 O.S.H.D. (CCH) P 26,947 Rosalie HATCHER, Individually and as Executrix (ESTATE OF Clinton M. HATCHER) v. The BULLARD COMPANY et al.

Page 1035

477 A.2d 1035

39 Conn.Supp. 250, 1984-1985 O.S.H.D. (CCH) P 26,947

Rosalie HATCHER, Individually and as Executrix (ESTATE OF Clinton M. HATCHER) v. The BULLARD COMPANY et al.

No. 210579.

Superior Court of Connecticut,

Judicial District of Fairfield

at Bridgeport.

April 3, 1984.

Day, Berry & Howard, Hartford, for plaintiff.

Pullman, Comley, Bradley & Reeves, Bridgeport, for named defendant.

BERDON, Judge.

Before the court is the named defendant's motion to strike the complaint on the ground that the plaintiff's exclusive remedy is under the Worker's Compensation Act, General Statutes, c. 568, § 31-275 et seq., and that therefore this action is barred.

A function of the motion to strike is to test the legal sufficiency of a complaint. Practice Book § 152. In testing the motion to strike, the court "must take the facts to be those alleged in the plaintiff's complaint ... and must construe the complaint in the manner most favorable to the pleader." Sheets v. Teddy's Frosted Foods, Inc., 179 Conn. 471, 472, 427 A.2d 385 (1980).

Clinton M. Hatcher, the plaintiff's decedent, was employed as a laborer by the defendants from 1967. On December 3, 1982, Hatcher, in the performance of his employment duties, was assisting in the transportation, by crane, of a stack of iron casings known as flasks. The operator of the crane attempted to turn the flasks on the crane by striking them against a flask which was located on top of an adjacent stationary stack of flasks. At the time, Hatcher was standing next to this stationary stack of flasks and, as a result of the striking of the flask by the crane operator, it fell upon him causing serious injuries which resulted in his death.

The complaint is in three counts. In the first count the plaintiff alleges that the striking of the stack of flasks in order to manipulate the load on the crane was a wilful and wanton act, regularly practiced and condoned by the defendants, and that this practice was a violation of the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., and regulations enacted pursuant thereto, and General Statutes § 31-367 et seq. (both hereinafter referred to as OSHA). The allegations of the second count are the same except that it is alleged that the act of striking the flask was intentional. The third count, brought by the plaintiff Rosalie Hatcher individually as the widow of Clinton M. Hatcher, is a derivative cause of action for loss of consortium. ¹

The core issue raised by the motion to strike is whether an intentional, wilful or wanton violation of OSHA safety regulations takes the matter out of the scope of the Workers' Compensation Act in order to enable an injured employee to pursue common law remedies?

It is clear that the exclusive remedy for injuries sustained by an employee "arising out of and in the course of his employment" is under the Workers' Compensation Act. General Statutes § 31-284(a). "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." Id. "It is well established that when an employee's injury is covered by the Workers' Compensation Act, statutory compensation is the sole remedy and the recovery in common-law tort against the employer is prohibited." Sullivan v. State, 189 Conn. 550, 558, 457 A.2d 304 (1983).

It is important to put this case in its proper perspective. This plaintiff seeks to recover on the claim that the employer intentionally, wilfully or wantonly violated OSHA regulations, which resulted in the death of her decedent. She does not allege that the employer intended to injure the decedent, Clinton M. Hatcher.

Surely, when the employer commits or authorizes a tort which is intended to injure an employee, such as an assault by the employer, the injury does not "arise out of the employment." "An injury is said to arise out of the employment when (a) it occurs in the course of the employment and (b) is the result of a risk involved in the employment or incident to it or to the conditions under which it is required to be performed." Dombach v. Olkon Corporation, 163 Conn. 216, 221-22, 302 A.2d 270 (1972). The doing of an act which is intentionally designed to injure the employee is not a risk that is involved in the employment and therefore does not arise out of the employment. "The weight of the case law clearly supports causes of action for such intentional torts and does not recognize exclusivity provisions of worker's compensation statutes to be a bar to the action." Hollman v. Liberty Mutual Ins. Co., 712 F.2d 1259, 1262 (8th Cir.1983).

When there is no intent to injure, however, the injury comes within the jurisdiction of the Workers' Compensation Act and the employee's exclusive remedy is compensation provided by the act. "Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer's standpoint, the common-law liability of the employer cannot, under the almost unanimous rule, be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury .... Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, wilfully failing to furnish a safe place to work, or even wilfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character." 2A Larson, Workmen's Compensation Law (1982) § 68.13, pp. 13-8--13-26. (See the numerous supportive cases cited by Professor Larson in his treatise on workers' compensation.)

Mere knowledge and appreciation of the risk does not supply the necessary intent to injure. "The defendant who acts in the belief or consciousness that he is causing an appreciable risk of harm to another may be negligent, and if the risk is great his conduct may be characterized as reckless or wanton, but it is not classed as an intentional wrong." Prosser, Torts (4th Ed.) § 8, p. 32. "Neither knowingly permitting a hazardous work condition to exist, nor willfully failing to furnish a safe place to work, nor even willfully violating a safety statute, constitutes the requisite intent." (Citations omitted.) Houston v. Bechtel Associates Professional Corporation, 522 F.Supp. 1094, 1096 (D.D.C.1981).

The plaintiff seeks to circumvent the jurisdiction of the Workers' Compensation Act under the authority of Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979). She relies on the dicta of Jett which, in addressing an equal protection claim under the constitution, stated the following: "The plaintiff next claims that if his remedies under the Workmen's Compensation Act are exclusive, then the act violates the federal constitutional guarantee of equal protection under the fifth and fourteenth amendments because, under § 31-284(a), the 'wilful and serious misconduct of the injured employee' deprives him of his right to compensation, but the wilful and serious misconduct of the employer does not subject it to a penalty. This claim is inappropriate. There is no allegation that the plaintiff was denied statutory compensation as a result of wilful and serious misconduct, nor did the employer engage in wilful or serious misconduct by directing or authorizing [the defendant] to strike the plaintiff. Where a fellow employee engages in wilful or serious misconduct resulting in personal injury or death to a plaintiff, which arises out of and in the course of a plaintiff's employment, then a plaintiff's remedy lies within the Workmen's Compensation Act. Willis v. Taylor & Fenn Co., 137 Conn. 626, 79 A.2d 821 (1951). Where 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...