Patel v. Flexo Converters U.S.A., Inc., 18817.

• Court: Supreme Court of Connecticut
• Citation: 309 Conn. 52,68 A.3d 1162
• Decision Date: 25 June 2013
• Docket Number: No. 18817.,18817.
• Parties: Rajanikant PATEL v. FLEXO CONVERTERS U.S.A., INC.

309 Conn. 52
68 A.3d 1162

Rajanikant PATEL
v.
FLEXO CONVERTERS U.S.A., INC.

No. 18817.

Supreme Court of Connecticut.

Argued Jan. 8, 2013.
Decided June 25, 2013.

[68 A.3d 1164]

James P. Brennan, for the appellant (plaintiff).

Andrew T. Boivin, with whom, on the brief, was Gary C. Kaisen, New Haven, for the appellee (defendant).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH and VERTEFEUILLE, Js.

ROGERS, C.J.

[309 Conn. 53]The plaintiff, Rajanikant Patel, appeals from the summary judgment rendered by the trial court in favor of his employer, the defendant, Flexo Converters U.S.A., Inc., in the plaintiff's action to recover damages for personal injuries he sustained as a result of [309 Conn. 54]the alleged intentional misconduct by a fellow employee. The plaintiff claims that the trial court improperly granted the defendant's motion for summary judgment on the basis of General Statutes § 31–284,¹ the exclusive remedy provision of the Workers' Compensation Act (act).

[68 A.3d 1165]

General Statutes § 31–275 et seq. Specifically, the plaintiff contends that there was a disputed issue of material fact as to whether the defendant's night supervisor, Charles Milsaps, was the defendant's alter ego for the purposes of the intentional tort exception to the act's exclusivity provisions. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this case. The plaintiff was injured at the defendant's paper bag manufacturing facility while attempting to dislodge a bag that was jammed in a machine he was operating during the night shift.² The plaintiff alleges that his injuries resulted from the defendant's modification of the machine by disabling a safety feature. Additionally, the plaintiff alleges that Milsaps, a managerial employee, instructed the plaintiff to reach into the machine to dislodge jammed [309 Conn. 55]bags while the machine was operating, and threatened the plaintiff's job if he shut down the machine or failed to produce ninety bags per minute. According to the plaintiff, the defendant and Milsaps were substantially certain that this practice would lead to serious injury. The plaintiff also contends that Milsaps' position as night supervisor makes him the defendant's alter ego, such that his intentional torts can be attributed to the defendant.

In response, the defendant denied the allegations in the complaint and raised several special defenses.³ Thereafter, the defendant moved for summary judgment on the basis of the act's exclusivity provisions. Specifically, the defendant claimed that, because there was no evidence to support an inference that the defendant believed with substantial certainty that its actions or those of its supervisor would injure the plaintiff, the plaintiff's claims do not fall within the intentional tort exception. The defendant also contended that, even if the plaintiff's allegations were accepted as true, Milsaps was not the defendant's alter ego, and his actions cannot be attributed to the defendant. In response, the plaintiff claimed that there is an issue of material fact as to whether the defendant altered the machine to operate with the safety door open so that the plaintiff's injuries were substantially certain to occur. The plaintiff also claimed that there is an issue of material fact as to whether Milsaps instructed the defendant to operate the machine in an unsafe manner. Finally, the plaintiff contended that there is an issue of material fact as to whether Milsaps is the defendant's alter ego.

The trial court rendered summary judgment in favor of the defendant, concluding that, “even if [Milsaps'] [309 Conn. 56]actions did constitute substantial certainty under the exception, there is no issue of material fact that Milsaps was not the alter ego of the defendant for purposes of the exception.” ⁴

[68 A.3d 1166]

(Emphasis in original.) Subsequently, the court denied the plaintiff's motion to set aside the summary judgment, and the plaintiff appealed therefrom to the Appellate Court. Thereafter, we transferred the appeal to this court pursuant to General Statutes § 51–199(c) and Practice Book § 65–1.

On appeal, the plaintiff contends that there is a genuine issue of material fact as to whether Milsaps was the defendant's alter ego. Additionally, the plaintiff asks us to modify the intentional tort exception first enunciated in Jett v. Dunlap, 179 Conn. 215, 219, 425 A.2d 1263 (1979). For its part, the defendant contends that the trial court correctly concluded that there is no disputed issue of material fact that Milsaps was not the defendant's alter ego. The defendant also claims that we may affirm the trial court's judgment on the alternate ground that the plaintiff's allegations are insufficient to sustain a claim under the substantial certainty exception.

We begin by setting forth the applicable standard of review. “Practice Book [§ 17–49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.... [309 Conn. 57]In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.... A material fact ... [is] a fact which will make a difference in the result of the case.... Finally, the scope of our review of the trial court's decision to grant the plaintiff's motion for summary judgment is plenary.” (Internal quotation marks omitted.) DiPietro v. Farmington Sports Arena, LLC, 306 Conn. 107, 116, 49 A.3d 951 (2012).

Because we agree with the trial court that there is no genuine issue of material fact in the present case as to whether Milsaps was the defendant's alter ego, we affirm the summary judgment rendered in favor of the defendant. Accordingly, we do not address the question of whether the plaintiff alleged sufficient facts to meet the substantial certainty test for purposes of summary judgment.⁵

In Jett v. Dunlap, supra, 179 Conn. at 219, 425 A.2d 1263, this court announced a narrow exception to the exclusivity of the act for intentional torts committed by an employer or a fellow employee “identified as the alter ego of the corporation....” The court expressly declined, however, to extend the exception to a supervisory employee's intentional torts. The court reasoned that “[t]he correct distinction to be drawn ... is between a [309 Conn. 58]supervisory employee and a person who can be characterized as the alter ego of the corporation. If the assailant is of such rank in the corporation that he may be deemed the alter ego of the corporation under the standards

[68 A.3d 1167]

governing disregard of the corporate entity, then attribution of corporate responsibility for the actor's conduct is appropriate. It is inappropriate where the actor is merely a foreman or supervisor.” Id., citing 2 A. Larson, Workmen's Compensation (1976) §§ 68.21 and 68.22.⁶

The alter ego test is stringent. The supervisory employee alleged to have intentionally injured the plaintiff must be the employer's alter ego under the “standards governing disregard of the corporate entity”; Jett v....