Nolan v. Borkowski

• Decision Date: 15 March 1988
• Docket Number: No. 1323,1323
• Citation: 538 A.2d 1031,206 Conn. 495
• Court: Connecticut Supreme Court
• Parties: Wendy NOLAN, et al. v. Alan BORKOWSKI, et al.

Page 1031

538 A.2d 1031

206 Conn. 495

Wendy NOLAN, et al. v. Alan BORKOWSKI, et al.

No. 1323.

Supreme Court of Connecticut.

Argued Jan. 13, 1988.

Decided March 15, 1988.

Herbert Watstein, Bristol, with whom, on the brief, was John F. Warton, Jr., New Fairfield, for appellants (plaintiffs).

Constance L. Epstein, Hartford, for appellees (defendants).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and HULL, JJ.

HULL, Associate Justice.

The dispositive issue in this case is whether the named plaintiff, Wendy Nolan, submitted proof of the individual defendants' intent to injure her sufficient to resist the defendants' motion for summary judgment on the ground of the exclusivity of the workers' compensation benefits available to her for those injuries. We agree with the trial court that she failed to raise an issue of material fact as to such intent and therefore we find no error in the court's granting of the motion for summary judgment.

Wendy Nolan ¹ brought this action against Alan Borkowski, Larry Przybylski, Raymond M. Pons and Pons Bakery, Inc., for injuries received while she was employed at Pons Bakery, Inc. The first count of the complaint alleged that the individual defendants had wilfully and maliciously disobeyed her doctor's work restrictions which were known to them, thereby causing her injuries. The second count of the complaint claimed liability on the part of Pons Bakery, Inc., on the ground that the named individuals had been acting as its agents.

The defendants filed special defenses alleging that the plaintiff's claims were barred by the exclusive remedy rule contained in General Statutes §§ 31-284 ² and 31-293a ³ of the Workers' Compensation Act. The defendants moved for summary judgment with accompanying affidavits. The plaintiff filed an opposition to this motion with affidavits and a supplemental opposition containing excerpts from a deposition of the plaintiff. The court granted the defendants' motion for summary judgment on the first count on the ground that the plaintiff had failed to raise an issue of fact as to the defendants' intent to injure her. As to the second count, the court granted summary judgment on the same basis and also because the plaintiff had failed to show that any of the defendants was the alter ego of the employer corporation. On appeal the plaintiff claims in effect that the court erred in failing to construe the affidavits and the deposition in the light most favorable to her and in finding that the plaintiff had not put the issue of the defendants' intent to injure her sufficiently in dispute to defeat the defendants' motion for summary judgment.

The plaintiff's affidavit contained the following claimed material facts. She began work at Pons Bakery, Inc., in September, 1980, as a general laborer and was advancing well. During the spring of 1981 she began having pain in her back and her leg which resulted in disc removal surgery in January, 1982. She was allowed to return to work on February 28, 1982, with the following written instructions: no bending, no lifting over twenty pounds and no working over forty hours a week. These written restrictions were given to Borkowski and also communicated to Przybylski and Pons. Pons was vice-president and general manager of the bakery and Borkowski and Przybylski were co-supervisors or production managers. The individual defendants violated the doctor's orders by requiring the plaintiff to do work that included bending, pulling one hundred pound racks, lifting one hundred pound sacks of flour, lifting loads of dough weighing up to fifty pounds, loading and unloading trucks and working over forty hours a week.

In June, 1982, after the plaintiff had made numerous requests for relief, she was given a supervisory job which was supposed to relieve her of most heavy physical duties. Borkowski and Przybylski never told her to refrain from doing certain tasks on the job and repeatedly required her to engage in heavy lifting and bending and to work more than forty hours per week.

Excerpts from the plaintiff's deposition before the court contained the following additional factual claims. In the deposition, the plaintiff stated that it was her opinion that Borkowski feared that the plaintiff's performance on the job would place his job in jeopardy. It was also her opinion that Borkowski ordered her to do certain work despite his knowledge of her work restrictions so that she would not be able to continue working. Further, she stated that she "guessed" that by getting rid of her, Borkowski and his friend Keith Briggs got their raises. By August, 1982, the plaintiff had to stop working because of pain and she underwent another operation for a ruptured disc.

The affidavit of the plaintiff's husband, Gary Nolan, declared that he had complained several times to Borkowski, Przybylski and Pons about how they were continuing to make the plaintiff do heavy lifting when they knew she should not. He also stated that when he complained to Borkowski because Borkowski had the plaintiff loading one hundred pound bags of flour into the mix, Borkowski said: "If your wife can't do her job we have no place for her here."

Borkowski's affidavit (1) admitted that he was a manager of the bakery while the plaintiff was employed there, (2) denied that he had wilfully and/or maliciously disobeyed any doctor's instructions regarding the plaintiff or wilfully and/or maliciously ordered or caused the plaintiff to do any heavy lifting, bending or to work over forty hours a week, (3) denied that there was any intent on his part to cause harm to the plaintiff, (4) stated that because of his awareness of the doctor's instructions as to the plaintiff she was placed in a supervisory position in order to facilitate those instructions, and (5) stated that he had personally advised the plaintiff against doing any actions on the job that would be contrary to her doctor's instructions. Przybylski's affidavit was identical to Borkowski's. Pons' affidavit was also identical to the other two and contained an additional paragraph claiming that he had spoken with Gary Nolan asking him to attempt to ensure that the plaintiff not partake of any activities on the job contrary to her doctor's instructions.

Summary judgment shall be rendered if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Practice Book § 384. The party moving for summary judgment bears the burden of proving the absence of a dispute as to any material fact. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The court must view the evidence in the light most favorable to the nonmovant. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982).

In Connecticut the exclusive remedy for an employee injured in the course of employment is provided by the Workers' Compensation Act and, with limited exceptions, suits against fellow employees are barred by General Statutes § 31-293a. Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 532, 494 A.2d 555 (1985); Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985); Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 471, 429 A.2d 943 (1980); Jacobs v. Crown, Inc., 7 Conn.App. 296, 298, 508 A.2d 812 (1986); Greene v. Metals Selling Corporation, 3 Conn.App. 40, 45, 484 A.2d 478 (1984). The plaintiff could withstand the defendants' motion for summary judgment only if the opposing documentation filed by her raised a genuine issue as to the material fact whether any of the individual defendants wilfully or maliciously wronged her.

The issue in this case is whether the plaintiff's affidavit and accompanying documentation meet the test of Mingachos v. CBS, Inc., supra, 196 Conn. at 102, 491 A.2d 368, in which this court held that the statutory exception of "wilful or malicious" conduct requires a showing of an actual intent to injure the plaintiff. "To bypass the exclusivity of the act, the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted. Such a concept is nothing new to our jurisprudence. Once recently, drawing on our earlier cases, we said: ' "A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional." Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). "A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent.... [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances." Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910). The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act. Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975).' Markey v. Santangelo, 195 Conn. 76, 77-78, 485 A.2d 1305 (1985)." Id., 196 Conn. at 102-103, 491 A.2d 368.

Mingachos, however, is not on all fours with the present case. In that case the plaintiffs alleged wilful and malicious acts by the defendant employees. This court stated: "In this motion for summary judgment, affidavits were filed. Practice Book § 381. Each defendant employee gave his affidavit personally, specifically disavowing, inter alia, any 'wilful intent' to violate...