Lavette v. Stanley Black & Decker, Inc.,

• Decision Date: 17 September 2019
• Docket Number: HHDCV176076691S
• Court: Connecticut Superior Court
• Parties: Henry LAVETTE, III v. STANLEY BLACK & DECKER, INC.

Henry LAVETTE, III v. STANLEY BLACK & DECKER, INC.

No. HHDCV176076691S

Superior Court of Connecticut, Judicial District of Hartford, Hartford

September 17, 2019

UNPUBLISHED OPINION

OPINION

CESAR A. NOBLE, J.

Before the court is the motion of the defendant, Stanley Black &amp Decker, Inc. (SBD) to dismiss the first count of the revised complaint of the plaintiff, Henry Layette, III, which asserts liability against his former employer for injury caused by its intentional conduct. In the view of SBD, the first count does not set forth facts sufficient to establish entitlement to the intentional tort exception to the bar of personal injury suits by employees against their employers present in the Connecticut Workers’ Compensation Act (act), General Statutes § 31-275 et seq. Because the court agrees with SBD the motion to strike is granted.

The revised complaint dated February 7, 2019 is the operative complaint. The factual allegations common to all counts of the complaint begin with the plaintiff’s hire by SBD on September 2, 2014 with multiple duties included painting. The plaintiff accumulated an average of 66 hours per week of painting with both brush and spray without proper ventilation. While the plaintiff was originally provided a respirator after commencing his work duties it was taken away from him after one month of work by the Safety Manager, Kim Derin, who was acting on behalf of SBD and as its alter ego told the plaintiff he was not authorized to use the respirator. In November of 2014, the plaintiff complained to HR Director, Kristen Sabatino, about the strength of smell from the paint vapors. Sabatino, who the plaintiff alleges was "acting on behalf of SBD and as its alter ego at all times alleged [in the complaint]," agreed with his assessment of the paint vapors. Later in that same month the plaintiff expressed his concern about the lack of ventilation and the opinion that the work conditions would not be approved by the U.S. Department of Labor Occupational Safety and Health Administration. He also expressed concerns about symptoms he was developing from the paint exposure including pain, nausea, diarrhea and headaches. The plaintiff’s symptoms worsened over time causing him to complain to Sabatino on multiple occasions about the safety of the paint he was applying. Sabatino, despite knowing it was substantially certain that his exposure to the paint would greatly injure the plaintiff, ignored his complaints.

In July of 2015, other employees working in the same area as the plaintiff began to complain of feeling lightheaded, nauseous and throat irritation. Another employee brought it to the attention of the Safety Manager, Derin, who "was aware her actions and inactions would cause plaintiff severe harm." While Derin immediately instructed the plaintiff to stop painting, a few days later he was told to continue painting. The plaintiff developed symptoms from the inhalation of the paint including nausea, severe headaches, a sore throat, back pain and cramping in his legs. He again complained to Sabatino and Derin about his negative reaction to the painting conditions. No actions were taken to remedy the work conditions and he continued to suffer negative health effects. On March 2, 2016, the plaintiff was hospitalized as a direct result of his excessive exposure to the toxic paint chemicals at work. The plaintiff made a complaint to OSHA about the work conditions and his illness. After investigation, OSHA concluded that SBD was guilty of multiple serious violations of the Occupational Safety and Health Act of 1970.

In the first count, the plaintiff alleges that SBD made a conscious decision to allow the plaintiff to work with hazardous paints without proper ventilation and instructed him to paint in what they knew to be dangerous conditions. It was aware that the plaintiff’s injuries were substantially certain to flow from their actions and the defendant engaged in willful and serious misconduct with the substantial certainty of injury flowing from the defendant’s conduct.

SBD asserts in its motion to strike that the allegations of the first count fail to state a claim on which relief may be granted because it does not set forth facts sufficient to remove the plaintiff’s claim from the operation of General Statutes § 31-284, ^[1] the exclusive remedy provision of the act. Specifically, SBD claims that the allegations of the first count do not set forth facts sufficient to identify any employee as the alter ego of SBD- as required to impute the actions of the employee to SBD for purposes of the intentional tort exception- because they do not allege facts sufficient to pierce the corporate veil as required by case law. See Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 58, 68 A.3d 1162 (2013).^[2] The plaintiff disagrees reminds the court that a supervisor may be deemed the alter ego of a corporation and asserts that he has set forth "the necessary elements required to properly plead that Ms. Derin and Ms. Sabatino were alter egos of Stanley." The court agrees with SBD.^[3]

"The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." Doe v. Cochran, 332 Conn. 325, 333, 210 A.3d 469 (2019).

"In Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979), our Supreme Court recognized an exception to the exclusivity provision for intentional torts of an employer ... Subsequently, in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994) (Suarez I), and Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 698 A.2d 838 (1997) (Suarez II), the court expanded the intentional tort exception to the exclusivity provision to include circumstances in which either ... the employer actually intended to injure the plaintiff (actual intent standard) or ... the employer intentionally created a dangerous condition that made the plaintiff’s injuries substantially certain to occur (substantial certainty standard)." (Citation omitted.) Binkowski v. Board of Education of City of New Haven, 180 Conn.App. 580, 586, 184 A.3d 279 (2018).

The exception enunciated in Jet v. Dunlap is limited to "torts committed by an employer or a fellow employee identified as the alter ego of the corporation." Jett v. Dunlap, supra, 179 Conn. at 219. The court articulated a distinction between a supervisory employee and one who is properly considered the alter ego of a corporation and made clear the latter designation is determined only upon the application of the "standards governing disregard of the corporate entity ... It is inappropriate where the actor is merely a foreman or supervisor." Id. While, as argued by the plaintiff, a foreman or supervisor may be considered the alter ego of a corporation, the supervisory designation alone is insufficient to establish alter ego status. Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 59, 68 A.3d 1162 (2013).

The Connecticut Supreme Court "has not applied traditional veil piercing lightly but, rather, has pierced the veil only under exceptional circumstances, for example, where the corporation is a mere shell, serving no legitimate purpose and used primarily as an intermediary to perpetuate fraud or promote injustice." McKay v. Longman, 332 Conn. 394, 433, 211 A.3d 20 (2019). Two tests are recognized "for disregarding a defendant’s corporate structure; the instrumentality rule and the identity rule. The instrumentality rule requires, in any case but an express...