Melanson v. West Hartford, (AC 20399)

• Decision Date: 13 February 2001
• Docket Number: (AC 20399)
• Citation: 767 A.2d 764,61 Conn. App. 683
• Court: Connecticut Court of Appeals
• Parties: PAUL MELANSON v. TOWN OF WEST HARTFORD ET AL.

61 Conn. App. 683

767 A.2d 764

PAUL MELANSON v. TOWN OF WEST HARTFORD ET AL.

(AC 20399)

Appellate Court of Connecticut.

Argued November 28, 2000.

Officially released February 13, 2001.

Lavery, C. J., and Dranginis and Peters, Js. Walter R. Hampton, Jr., with whom was Laura A. Klein, for the appellant (plaintiff).

Kevin J. O'Connor, corporation counsel, with whom was Patrick G. Alair, assistant corporation counsel, for the appellee (named defendant).

Scott M. Karsten, with whom, on the brief, was Nicole D. Dorman, for the appellees (defendant James Strillacci et al.).

Opinion

PETERS, J.

A central feature of our statutory law of workers' compensation; General Statutes § 31-275 et seq.; is the principle of the exclusivity of workers' compensation benefits. Pursuant to General Statutes (Rev. to 1995) § 31-284,¹ an employee who is covered by workers' compensation is barred from bringing a personal injury action against his or her employer. Further, pursuant to General Statutes § 31-293a,² a covered employee may not bring such an action against a fellow employee unless that employee's wrongful conduct was "wilful or malicious."³ The dispositive issue in this case is whether those statutes preclude recovery in a personal injury action brought by a police officer who, in the course of duty, was shot and injured because of the accidental discharge of a weapon fired by a fellow police officer. We agree with the trial court that the complaint in this case has not alleged facts that, if proven, would be sufficient to establish that the accidental shooting resulted from the intentional misconduct of either the town that employed the plaintiff or the police officers who directed the plaintiffs work. We therefore affirm the decision of the court granting the defendants' motions to strike the relevant counts of the complaint and the consequent rendering of judgment in the defendants' favor.

The plaintiff, Paul Melanson, a West Hartford police officer, filed an amended five count complaint to recover damages for the serious injuries that he sustained when he was shot by fellow officer Anthony Miele. As amended, the complaint does not allege that Miele intentionally discharged his weapon and does not name Miele as a defendant.

The complaint arises out of the following factual circumstances. On October 25, 1995, the plaintiff and Miele were members of a tactical response team that was executing a search warrant at Cidra Auto Sales in West Hartford. In the course of entering the premises and securing its occupants, Miele accidentally discharged his weapon and fired a bullet that struck the plaintiff, injuring him severely.⁴

The first count of the complaint charges the defendant town of West Hartford (town) with having responsibility for the accidental shooting because of the town's intentional misconduct or its intentional creation of a dangerous condition that caused injury to the plaintiff. Principally, the plaintiff claims that the tactical response team was so poorly managed, informed, trained, equipped and staffed that the town can be charged with having intentionally created a situation that it knew, with substantial certainty, would cause the injuries sustained by the plaintiff to occur. Further, he claims that, because each of the defendant police officers⁵ should be characterized as alter egos of the town, the town itself can be charged with intentional misconduct by attribution. The four remaining counts charge each of the named police officials with similar misconduct. The plaintiff claims that, knowing the inadequacy of the support available to the tactical response team, each of the defendants engaged in intentional misconduct by directing the search warrant execution to go forward.

The court granted the defendants' motions to strike on the ground that the factual allegations in the complaint, if proven, were insufficient to show that any of the defendants had acted intentionally rather than negligently. The plaintiff has appealed.

Our standard of review is undisputed. "Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling on [a motion to strike] is plenary.... In an appeal from the granting of a motion to strike, we must read the allegations of the complaint generously to sustain its viability, if possible .... We must, therefore, take the facts to be those alleged in the complaint that has been stricken and ... construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522-23, 753 A.2d 927 (2000). We conclude that the court properly granted the defendants' motions to strike.

I LIABILITY OF THE TOWN

By statutory design, our law makes it difficult for an employee to avoid the exclusivity of workers' compensation benefits. See Driscoll v. General Nutrition Corp., 252 Conn. 215, 220-21, 752 A.2d 1069 (2000).

The plaintiff in this case seeks to escape from the preclusory impact of §§ 31-284 (a) and 31-293a on the ground that the town engaged in intentional misconduct that led to his injury. He does not dispute the proposition that, to support this argument, he must allege facts that, if proven, would establish that the town, directly or indirectly, engaged in misconduct that was "wilful or malicious."

Under the test articulated in Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 257-58, 698 A.2d 838 (1997), the plaintiff must allege facts to establish "either that the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur (substantial certainty standard)." Under either theory of employer liability, however, the "characteristic element [of wilful misconduct] is the design to injure either actually entertained or to be implied from the conduct and circumstances.... Not only the action producing the injury but the resulting injury also must be intentional." (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988). Because direct proof of an employer's actually intended misconduct will rarely be available, the employer's intention may be established by proof of the intentional misconduct of an employee who properly can be identified as the alter ego of the defendant employer. Suarez v. Dickmont Plastics Corp., supra, 275.

In this appeal, the plaintiff claims that the complaint alleges a sufficient factual basis for his recovery under the substantial certainty standard and, therefore, the court improperly granted the town's motion to strike. We disagree.

A

The plaintiffs principal argument for town liability invokes the substantial certainty standard for conduct of the town itself. He argues that a trier of fact reasonably could infer intentional misconduct on the part of the town because the tactical response team to which the plaintiff belonged was inadequately staffed, trained, managed and supervised, despite warnings to the town that the team might be at risk. According to the plaintiff, by failing to take affirmative remedial action, the town could be found to have "intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur...." Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 258.

The plaintiffs argument is unavailing for two reasons. First, as the trial court aptly observed, the alleged town failings on which the plaintiff rests his case are allegations of misconduct that address negligence rather than intentional misconduct. Failure to take affirmative remedial action, even if wrongful,⁶ does not demonstrate an affirmative intent to create a situation that causes personal injury.⁷ Second, even if the allegations somehow could be stretched to encompass a claim for intentional misconduct generally, the complaint provides no factual basis for a finding that the town was substantially certain that the specific injury that the plaintiff suffered would occur. In Suarez, one of the employer's supervisors intentionally directed a particular employee, on several occasions, to use his bare hands to clean an industrial machine while it was still operating. Id., 260. Nonetheless, the court held that, even though the employer might be found to have created a substantial risk of injury to the employee, the employee could not prevail in the absence of a further showing that "the employer believed the injury was substantially certain to follow the employer's acts or conduct...." (Emphasis in original) Id., 280. The factual allegations in the plaintiffs complaint in this case cannot pass the Suarez test.

B

Alternatively, the plaintiff maintains that the complaint contains sufficient factual allegations that, if proven, would permit a finding that the town bore responsibility for the conduct of the individual defendants, who should each be considered to have acted as an alter ego of the town. He claims that the town's actions were therefore sufficient to show that it knew that the plaintiffs injuries were substantially certain to occur.⁸ We disagree.

First, the plaintiffs argument assumes that he has sufficiently alleged facts to enable him to pursue a remedy against the individual defendants. Later in this opinion, we conclude that the plaintiffs assumption is mistaken.

Second, even if we had concluded otherwise, the plaintiff cannot prevail under the test of alter ego liability articulated in Jett v. Dunlap, 179 Conn. 215, 219, 425 A.2d 1263 (1979). In that case, our Supreme Court held that, under the law of workers' compensation, an employer generally is not liable in common-law...