Lavette v. Stanley Black & Decker, Inc.

• Court: Appellate Court of Connecticut
• Decision Date: 28 June 2022
• Docket Number: AC 44465
• Parties: HENRY LAVETTE III v. STANLEY BLACK & DECKER, INC.

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

No. AC 44465

Court of Appeals of Connecticut

June 28, 2022

Argued January 10, 2022

Syllabus

The plaintiff employee sought to recover damages from the defendant employer for personal injuries he sustained while working for the defendant. In his complaint, the plaintiff, whose employment duties included painting, alleged, inter alia, that, although he was initially provided a respirator by another employee to prevent excessive inhalation of toxic chemicals from the paint he used, after about one month, D, the defendant's safety manager, informed the plaintiff that he was not authorized to use the respirator in the workplace. The plaintiff further alleged that the defendant had deliberately instructed him to continue to paint in known dangerous conditions, the defendant was aware that his injuries were substantially certain to result from its action, and it had engaged in wilful and serious misconduct. The defendant filed a motion to strike with prejudice on the ground that the plaintiffs claim was barred by the exclusivity provision (§ 31-284) of the Workers' Compensation Act (act) (§ 31-275 et seq.), which provides that the act is the exclusive remedy for employees injured in most instances, because the plaintiff failed to allege sufficient facts that D was the defendant's alter ego such that the defendant could be held liable for D's tortious conduct, and, alternatively, D's actions did not constitute intentional misconduct. The trial court granted the defendant's motion to strike, concluding that the plaintiffs complaint did not state a legally sufficient cause of action that fell within the intentional tort exception to the exclusivity provision of the act. In its memorandum of decision, the court concluded that the plaintiff did not allege the level of control required by the instrumentality rule or the unity of ownership interest required by the identity rule to disregard the defendant's corporate structure, but merely attempted to impose liability on the defendant for the alleged intentional acts of D, as a supervisor, on the basis of her apparent authority to act on the defendant's behalf. The court granted the motion to strike with prejudice, reasoning that the claim had been stricken multiple times and it was clear that the plaintiff was unable to cure the legal insufficiencies in the allegations. On the plaintiffs appeal to this court, held that the trial court properly granted the defendant's motion to strike with prejudice, the plaintiff having failed to plead that D was the defendant's alter ego such that D's alleged intentional torts could be attributed to the defendant to pierce the corporate veil and fall within the exception to the exclusivity provision of the act: the plaintiffs allegations simply established D's control was typical of any corporate safety manager and did not rise to the level of alter ego status to disregard the defendant's corporate structure, the plaintiffs allegations having failed to meet the stringent alter ego test, which requires that the corporation have no separate existence from the alter ego who controls and dominates the corporation's business affairs, as the plaintiffs allegation that D created a policy regarding the use of respirators did not establish the requisite level of control over the defendant; moreover, this court declined to review the plaintiffs argument that it should reconsider its jurisprudence regarding the alter ego exception to the act's exclusivity provision with respect to larger corporations, as the plaintiff failed to raise this argument before the trial court and raised it for the first time to this court in his reply brief; furthermore, although our Supreme Court in Patel v. Flexo Converters, U.S.A., Inc. (309 Conn. 52), reasoned that a plaintiff alleging an intentional tort directly committed or authorized by the employer was not required to prove that the actor was the employer's alter ego, this court declined to consider the applicability of that exception to the exclusivity provision of the act, as the plaintiff did not allege or argue that an intentional tort had been directly committed or authorized by the defendant.

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Procedural History

Action to recover damages for personal injuries sustained by the plaintiff as a result of the defendant's alleged wilful misconduct, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Noble, J., granted the defendant's motion to strike with prejudice, and the plaintiff appealed to this court; thereafter, the court, Noble, J., granted the plaintiffs motion for judgment and rendered judgment for the defendant, and the plaintiff filed an amended appeal. Affirmed.

James F. Sullivan, for the appellant (plaintiff).

Nicholas N. Ouellette, with whom, on the brief, was Samuel N. Rosengren, for the appellee (defendant).

Bright, C. J., and Alexander and Lavine, Js.

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OPINION

ALEXANDER, J.

The plaintiff, Henry Lavette III, a former employee of the defendant, Stanley Black & Decker, Inc., appeals from the judgment of the trial court, rendered in favor of the defendant following the court's decision to strike count one of his fourth amended complaint with prejudice. On appeal, the plaintiff claims that the court improperly concluded that he had failed to allege sufficient facts to establish that his claim came within the intentional tort exception to the exclusivity provision of the Workers' Compensation Act (act), General Statutes § 31-275 et seq. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts, as alleged in the plaintiffs fourth amended complaint and construed in the manner most favorable to sustaining its legal sufficiency,^[1] and procedural history are relevant to our discussion. On or about September 2, 2014, the defendant hired the plaintiff as a "store attendant" and his essential employment duties included painting by brush and by spray. Initially, another employee provided the plaintiff with a respirator to prevent excessive inhalation of toxic chemicals from the paint. After approximately one month, however, Kim Derin, the defendant's safety manager, informed the plaintiff that he was not authorized to use the respirator in the workplace. The plaintiff then developed symptoms from his exposure to the paint, such as pain, nausea, diarrhea, and headaches. His symptoms worsened over time.

On or about July 9, 2015, the plaintiff informed Derin that "he was continuously getting headaches, feeling nauseous and experiencing shortness of breath from painting at work . . . ." Derin never responded to the plaintiff regarding his health issues. In January, 2016, the plaintiff reported that he was feeling "violently ill" but was reluctant to file a union grievance concerning the hazardous conditions due to a fear of being "targeted" by other employees and supervisors. The use of a different brand of paint did not relieve or ameliorate the plaintiffs symptoms.

On or about February 28, 2016, the plaintiff "became extremely ill including excessive vomiting and diarrhea." His symptoms did not improve and a few days later he experienced dizziness and cloudy vision. He was hospitalized overnight and returned to work a few days later. The plaintiff worked only one day between February 28, 2016, and March 17, 2016. The plaintiff filed a complaint with the federal Occupational Safety and Health Administration (OSHA),^[2] which led to an investigation of the defendant and fines exceeding $35,000. The defendant terminated the plaintiffs employment on or about January 20, 2017.

The plaintiff commenced this action and, in his operative

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fourth amended complaint, alleged that the defendant "deliberately instructed the plaintiff to continue to paint in what [was known] to be dangerous conditions." He further claimed that the defendant was aware that his injuries were substantially certain to occur and engaged in wilful and serious misconduct. As a result of this misconduct, the plaintiff purportedly suffered "injuries including nausea, long-term headaches, sharp pain and cramps in his legs, excessive shortness of breath, diarrhea, and overall pain and fatigue in his body, [as well as] emotional distress and concerns for his overall well-being."^[3]

On April 20, 2020, the defendant moved to strike count one of the plaintiffs fourth amended complaint with prejudice. In the attached memorandum of law, the defendant argued that the plaintiff had failed to allege sufficient facts that Derin was the "alter ego" of the defendant and, in the alternative, that her actions did not constitute intentional misconduct.^[4] It further argued that without a sufficiently pleaded alter ego theory, the plaintiffs action was legally insufficient due to the exclusivity provision of the act,^[5] and, therefore, the court should grant its motion to strike with prejudice. The plaintiff filed his objection to the defendant's motion to strike on May 26, 2020. The court conducted a remote hearing on September 28, 2020.

On December 8, 2020, the court issued a memorandum of decision granting the defendant's motion to strike count one of the plaintiffs fourth amended complaint with prejudice. At the outset of its analysis, the court summarized the arguments of the parties as follows: "The first issue to be addressed is whether the plaintiff alleges sufficient facts in the [fourth amended] complaint to subject the claim in count one to the intentional tort exception [to the exclusivity provision of the act found in] § 31-284 (a). The defendant argues that the plaintiff fails to allege sufficient facts to establish [Derin's] . . . alter ego status, [and] thus fails to bring the claim in count one within the ambit of the intentional tort exception. The plaintiff disagrees by pointing to the allegation that Derin had complete and final control over...