Lavette v. Stanley Black Decker, Inc., AC 44465

• Court: Appellate Court of Connecticut
• Writing for the Court: ALEXANDER, J.
• Citation: 213 Conn.App. 463,278 A.3d 1072
• Parties: Henry LAVETTE III v. STANLEY BLACK DECKER, INC.
• Docket Number: AC 44465
• Decision Date: 28 June 2022

213 Conn.App. 463
278 A.3d 1072

Henry LAVETTE III
v.
STANLEY BLACK DECKER, INC.

AC 44465

Appellate Court of Connecticut.

Argued January 10, 2022
Officially released June 28, 2022

278 A.3d 1075

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.

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 plaintiff's 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

278 A.3d 1076

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 plaintiff's 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 plaintiff's employment on or about January 20, 2017.

The plaintiff commenced this action and, in his operative 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 plaintiff's 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

278 A.3d 1077

that without a sufficiently pleaded alter ego theory, the plaintiff's 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 plaintiff's 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 the removal of the plaintiff's respirator, [and] therefore, is the alter ego of the defendant with respect to this specific transaction, satisfying the instrumentality rule for piercing the corporate veil."

Citing to Jett v. Dunlap , 179 Conn. 215, 219, 425 A.2d 1263 (1979), the court first noted the limited nature of the alter ego intentional tort exception to the exclusivity provision of the act, which provides that, if an assailant employee is of such a rank in the corporation so as to be considered its alter ego, then the corporation may be assigned responsibility for the assailant employee's conduct. Next, the court, citing to Patel v. Flexo Converters U.S.A., Inc. , 309 Conn. 52, 58, 68 A.3d 1162 (2013), observed that this stringent exception does not impose liability on the corporation for the intentional acts of supervisors based on their apparent authority to act on behalf of their employer.

The court then summarized the relevant allegations in the fourth amended complaint. "[T]he plaintiff alleges that Derin had the authority to make and control policy for the defendant regarding safety procedures, and had the ‘complete and final authority’ with respect to the removal of the plaintiff's respirator.... The plaintiff further alleges that when Derin exercised her authority

to remove the [plaintiff's respirator], she ‘bound the defendant to her decision so that, at the time, the defendant had no separate mind, will or existence of its own.’ " (Citations omitted.) With respect to the first allegation concerning Derin, the court concluded that this description established nothing more than the duties of any corporate safety manager. As to the latter allegation, the court determined that it lacked legal significance because a motion to strike does not admit legal conclusions or the accuracy or truth of the opinions stated. "The plaintiff alleges no specific fact[s] to substantiate his proposition that the defendant ... ha[s] no separate mind, will or existence of its own with respect to the removal of the respirator.... Furthermore ... it is not alleged ... that Derin ... has any ownership interest in the defendant or that the defendant does not properly maintain corporate formalities.... Overall, the plaintiff

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alleges neither the level of control required by the instrumentality rule nor the unity of ownership interest required by the identity rule, but merely attempts to impose liability on the employer for the intentional acts of supervisors on the basis of apparent authority to act on the employer's behalf." (Citations omitted; internal quotation marks omitted.) The court subsequently granted the motion to strike this count with prejudice because it had been stricken multiple times and "it is clear that the plaintiff cannot cure the legal insufficiencies in the allegations." Thereafter, the plaintiff filed a motion for judgment, which the court granted on January 8, 2021.⁶ This appeal followed. Additional facts will be set forth as needed.

On appeal, the plaintiff claims that the court improperly granted the defendant's motion to strike count one of the fourth amended complaint with prejudice. Specifically, he argues that the facts pleaded "clearly [allege that] ... Derin had the complete and final authority regarding whether the plaintiff could use a respirator while painting" and that these allegations were sufficient to satisfy the alter ego exception to the exclusivity provision of the act. The plaintiff further contends that the court erred in concluding that the allegations regarding Derin constituted a legal conclusion. We are not persuaded.

We begin our analysis by setting forth our standard of review and the relevant legal principles. "The standard of review in an appeal challenging a trial court's granting of a motion...