Lopez v. CCRC dba Nutmeg Recycling, LLC, No. CV05-4006614 (CT 1/27/2006)

• Decision Date: 27 January 2006
• Docket Number: No. CV05-4006614,CV05-4006614
• Parties: Gabriel Lopez v. CCRC dba Nutmeg Recycling, LLC Opinion No.: 91996
• Court: Connecticut Supreme Court

Page 1

Unpublished Opinion

Gabriel Lopez v. CCRC dba Nutmeg Recycling, LLC Opinion No.: 91996

No. CV05-4006614

Superior Court of Connecticut

Judicial District of Hartford at Hartford

January 27, 2006

MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION TO STRIKE DEFENDANT'S THIRD SPECIAL DEFENSE

CHRISTINE E. KELLER, JUDGE.

The plaintiff in this action, Gabriel Lopez, has sued for personal injuries sustained when his hand was caught in machinery while in the course of employment with the defendant, CCRC d/b/a Nutmeg Recycling, LLC. As required to circumvent the exclusive remedy rule normally applicable to claims by an injured employee against his employer, the plaintiff alleges in a one-count complaint that the defendant, through its supervising personnel, made a conscious decision to engage in intentional conduct that it knew was substantially certain to result in injury to its employees, including the plaintiff. Plaintiff claims the defendant, through its supervising personnel, directed the plaintiff to perform maintenance work on various machines at the plant while the machines continued to operate, knowing that the machines were not equipped with adequate safety of protection guards. Plaintiff further alleges that regardless of this knowledge, the defendant made a conscious decision based upon its economic interests to require employees to work under conditions which the defendant knew were substantially certain to result in injury to employees.¹

The defendant filed an answer and special defenses to plaintiff's claims. In its third special defense, the defendant claims that, "The plaintiff assumed the risk of any injuries he sustained when he chose to engage in the activities that resulted in his injuries with knowledge of the risks associated with those activities."

The plaintiff has filed a motion to strike the third special defense because he alleges intentional conduct as the cause of the plaintiff's injuries, and assumption of the risk is not available as a defense to an intentional tort in Connecticut.

I

A motion to strike challenges the legal sufficiency of a pleading to support the relief sought. Practice Book Section 10-39. "A motion to strike is the proper manner in which to raise the issue of the legal sufficiency of a special defense to a cause of action." Passini v. Decker, 39 Conn.Sup. 20, 21, 467 A.2d 442 (1983). "In ruling on a motion to strike, the trial court [is obligated] to take the facts to be those alleged in the special defenses and to construe the defenses in a manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).

II

The defendant relies in part on the discussion of the doctrine of assumption of risk in Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 849 A.2d 813 (2004), which describes one category of assumption of risk, labeled secondary assumption of risk, as precluding a plaintiff from recovery, despite a defendant's breach of an owed duty of care to that plaintiff, because the plaintiff knowingly encountered the risk of injury caused by the defendant's negligence. Id., 687.

Defendant claims that Jagger describes a concept of assumption of risk that implies the consent of the plaintiff. The problem with the defendant's analysis is that Jagger involved a negligence action and the interpretation of General Statutes §29-212, which the defendant ski operator argued barred skiers, in certain instances, from suing for injuries incurred on the slopes because it provides that skiers "assume the risk of and legal responsibility for any injury to his person or property arising out of the hazards inherent in the sport of skiing." The interpretation of a statute specifically providing for the application of the doctrine of assumption of risk has little bearing on the issue of whether it is still available under the common law.²

No Connecticut appellate court has addressed the issue of whether assumption of risk is an available defense to an intentional tort, but its use in such cases has been rejected by several trial courts. Ferrigno v. Park, Superior Court, judicial district of Tolland at Rockville, Docket No. CV 02 78359S (September 4, 2002, Scholl, J.) (32 Conn. L. Rptr. 731);. Agnes v. Grem, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 99 0587276 S (June 26, 2001, Rubinow, J.); Donahue v. S.J. Fish & Sons, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 539920 (September 18, 1995, Blue, J.) (15 Conn. L. Rptr. 569); Vieira v. Ingersoll, Superior Court, judicial district of Litchfield, Docket No. CV 93 0062735 (December 13, 1994, Pickett, J.) (13 Conn. L. Rptr. 188).

"The doctrine of assumption of risk has been overwhelmingly rejected as a defense to intentional torts. Janelsins v. Button, 648 A.2d 1039, 1045 (Md. App. 1994) (Citing authorities.) (Internal quotation marks omitted.)" Donahue v. S.J. Fish and Sons, Inc., supra.³ See also Blankinship v. Duarte, 669 P.2d 994 (Ariz.App. 1983) (assumption of the risk is not a defense to battery); Knight v. Jewett, 3 Cal.App. 4th 1022 (1990), aff'd, 3 Cal. 4th 296 (1992) (assumption of the risk does not apply to intentional torts); Navarre v. Ostediek, 518 P.2d 1362 (Colo.Ct.App. 1973) (assumption of the risk does not apply to assault and battery); Harvey Freeman & Sons, Inc. v. Stanley, 378 S.E.2d 857 (Ga. 1989) (assumption of the risk does not apply to intentional torts); Marek v. Stepkowski, 608 N.E.2d 285 (Ill.App.Ct. 1993) (while assumption of the risk may reduce recovery in a battery action, it does not bar it); Johnson v. Hardnett, 405 N.E.2d 324 (Ohio Ct.App. 1978) (assumption of the risk does not apply to assault); Korzun v. Shahan, 151 S.E.2d 287 (W. Va. 1966) (assumption of risk is not a defense available when defendant's conduct is intentional, willful and wanton).

Defendant cites no authority in Connecticut that recognizes the defense of assumption of risk to an intentional tort, and whether it is applicable as a defense to causes of...