Jett v. Dunlap

Citation179 Conn. 215,425 A.2d 1263
CourtSupreme Court of Connecticut
Decision Date13 November 1979
PartiesJames JETT v. Lester F. DUNLAP et al.

John J. Buckley, New Haven, for appellant (plaintiff).

Edward J. Holahan, Jr., Bridgeport, with whom, on brief, was Bruce M. Killion, Bridgeport, for appellee (defendant Farrel Corp.).


LOISELLE, Associate Justice.

The plaintiff instituted this action against his work supervisor, Lester F. Dunlap and their employer, Farrel Corporation, to recover damages in common-law tort for an alleged battery which occurred at the workplace.

The plaintiff alleged that Dunlap accused him in a profane and insulting manner of being away from his machine. When he responded to Dunlap in a similar manner, Dunlap struck him, pushing him backwards and knocking off his hat. The plaintiff sued Dunlap and the Farrel Corporation, under a theory of respondeat superior, for the ensuing depression, disruption of his home life and humiliation among his fellow employees who harassed him for his failure to strike back.

The defendant Farrel Corporation demurred on the ground that General Statutes § 31-284(a), a provision of the Workmen's Compensation Act, abolished the common-law cause of action asserted by the plaintiff. The Superior Court sustained the demurrer and rendered judgment for the defendant Farrel Corporation only. The plaintiff appealed.

The plaintiff assigns as error the trial court's determination that the plaintiff's remedies against the defendant corporation are limited to those provided by the Workmen's Compensation Act. The applicable portions of § 31-284(a) provide: "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 ... but an employer shall secure compensation for his employees as follows .... All rights and claims between employer and employees ... arising out of personal injury ... sustained in the course of employment as aforesaid are abolished ...." 1 The purpose of the workmen's compensation statute 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. Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968).

In previous decisions under the Workmen's Compensation Act we have consistently held that where a worker's personal injury is covered by the act, statutory compensation is the sole remedy and recovery in common-law tort against the employer is barred. Mancini v. Bureau of Public Works, 167 Conn. 189, 193, 355 A.2d 32 (1974); Crisanti v. Cremo Brewing Co., 136 Conn. 529, 531, 72 A.2d 655 (1950); Hoard v. Sears Roebuck & Co., 122 Conn. 185, 188, 188 A. 269 (1936); see also Grogan v. New Britain, 175 Conn. 174, 181, 397 A.2d 97 (1978). This well-established principle is not eroded when the plaintiff alleges an intentional tort by his supervisor.

The plaintiff contends that since the defendant Dunlap was trying to further the business of his master, Farrel Corporation, at the time he committed the battery, the defendant corporation is subject to common-law tort liability for Dunlap's acts. 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 Dunlap 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.

There is a distinction between an assault directly committed or authorized by the employer and an assault committed by a supervisory employee. Moreover there are strong arguments against entertaining a common-law tort action against an employer for a supervisory employee's intentional assault. The first is that to allow such suits would mean that "in all assault cases by one co-employee on another, of which there are hundreds, (the) claimant would have only to show that the assailant was one notch higher on the totem-pole than the victim, and the compensation act would go out the window. So, in a large factory, with layer upon layer of foremen, supervisors, managers, executives and officers, the exclusiveness of compensation would no longer depend on whether the assault was merely another work-connected quarrel, but would turn on the relative rank of the participants a consideration which has no bearing on work-connection at all." 2A Larson, op. cit. § 68.21, p. 13-13. Furthermore, the righteous indignation one feels when one employee deliberately injures another is inadequate justification for awarding a common-law tort remedy against an innocent employer.

The correct distinction to be drawn in this case is between a supervisory employee and a person who can be characterized as the alter ego of the corporation. If the assailant is of such rank in the corporation that he may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity, then attribution of corporate responsibility for the actor's conduct is appropriate. It is inappropriate where the actor is merely a foreman or supervisor. 2A Larson, op. cit. §§ 68.21-68.22. Courts in other jurisdictions have adopted this distinction. Heskett v. Fisher Laundry & Cleaners Co., Inc., 217 Ark. 350, 355-56, 230 S.W.2d 28 (1950); Boek v. Wong Hing, 180 Minn. 470, 471-72, 231 N.W. 233 (1930); Thompson v. Jones Construction Co., 199 S.C. 304, 310, 19 S.E.2d 226 (1942); Garcia v. Gusmack Restaurant Corporation, 150 N.Y.S.2d 232, 234 (City Ct.N.Y., 1954). The distinction is based on identification, not agency. If the assailant can be identified as the alter ego of the corporation, or the corporation has directed or authorized the assault, then the corporation may be liable in common-law tort; if the assailant is only another employee who cannot be so identified, then the strict liability remedies provided by the Workmen's Compensation Act are exclusive and cannot be supplemented with common-law damages.

The pleadings do not indicate that the employer directed or authorized the assault or that the assailant was of such a status in the defendant's organization as to be characterized as the alter ego of the corporation. The plaintiff, however, did plead that the acts of the supervisor were subsequently "condoned" by the employer. Although we assume this pleading to be true, such condoning is not an intentional tort on the part of the employer and does not relate back to make it such. In Bakker v. Baza'r, Inc., 275 Or. 245, 253-54, 551 P.2d 1269 (1976), it was held that Oregon's statutory exception to the Workmen's Compensation Act, which permits a worker to sue the employer in common-law tort for an intentional injury, did not encompass an...

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