Perille v. Raybestos-Manhattan-Europe, Inc.

• Decision Date: 25 June 1985
• Docket Number: INC,No. 12163,RAYBESTOS-MANHATTAN-EUROP,12163
• Citation: 494 A.2d 555,196 Conn. 529
• Court: Connecticut Supreme Court
• Parties: Samuel R. PERILLE v., et al.

Page 555

494 A.2d 555

196 Conn. 529

Samuel R. PERILLE v. RAYBESTOS-MANHATTAN-EUROPE, INC., et al.

No. 12163.

Supreme Court of Connecticut.

Argued March 13, 1985.

Decided June 25, 1985.

Daiga G. Osis, Bridgeport, for appellant (plaintiff).

Morgan P. Ames, Stamford, with whom, on the brief, were Denis M. King and Jo E. Friday, Stamford, for appellee (named defendant).

PETERS, C.J., and ARTHUR H. HEALEY, SHEA, DANNEHY and FRANCIS X. HENNESSY, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal arises from an action brought by the plaintiff, Samuel R. Perille, against both his former employer, Raybestos-Manhattan-Europe, Inc. (Raybestos), and a former coworker, Joseph Tighe. Specifically, the plaintiff appeals from the trial court's determination on Raybestos' motion for summary judgment that the Connecticut Workers' Compensation Act bars this action against his former employer. See General Statutes § 31-284(a).

The plaintiff had been employed with Raybestos at its Stratford facility for a number of years prior to his voluntary resignation in September, 1980. In 1978, Tighe, also a Raybestos employee, was transferred into the same department in which the plaintiff worked. For whatever reasons, the plaintiff and Tighe did not peaceably coexist. According to the plaintiff, Tighe "over a long period of time did ridicule, molest, harass, torment, tease, threaten and ultimately assault [him]." Several on-the-job episodes occurred in which Tighe allegedly assaulted the plaintiff and had to be physically restrained by other Raybestos employees. These incidents were brought to the attention of their immediate supervisor. The plaintiff maintains that Raybestos took no corrective action with respect to either the plaintiff or Tighe, and the plaintiff finally resigned from Raybestos in 1980.

The plaintiff, in February, 1981, applied for workers' compensation for injuries allegedly received by him during his employment at Raybestos. An informal hearing was held in May, 1981, on the plaintiff's claim for compensation. ¹ In August, 1981, he instituted this legal action in a four count complaint against the defendants Raybestos and Tighe. Sounding in tort, the three counts directed against Raybestos claimed that the plaintiff sustained "severe mental and physical harm" as a result of Raybestos' alleged breach of an implied condition of its employment contract, violation of General Statutes § 31-49, and "negligence and carelessness." The fourth count, directed against his former coworker Tighe, alleged assault and battery. ²

Raybestos, by way of special defense, pleaded that the "alleged injuries arose out of and in the course of [the plaintiff's] employment," and that, in accordance with § 31-284(a), workers' compensation provided his exclusive remedy. Raybestos' motion for summary judgment based on this special defense of exclusivity was granted on all three counts against it.

On appeal, the plaintiff claims that the trial court, in granting summary judgment for the defendant Raybestos, erred in that: (1) the Workers' Compensation Act does not constitute an employee's sole remedy "if the employer engages in serious and willful misconduct"; (2) "a knowing violation of an employer's duty to provide his employees with a safe place to work permits a direct action against the employer" under General Statutes § 31-49; and (3) summary judgment was improper in this case because of the existence of "unresolved questions of fact."

Under our Workers' Compensation Act, "[a]n employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment...." General Statutes § 31-284(a); Mingachos v. CBS, Inc., 196 Conn. 91, 98, 491 A.2d 368 (1985); Jett v. Dunlap, 179 Conn. 215, 216, 425 A.2d 1263 (1979). "In previous decisions under the Workmen's Compensation Act we have consistently held that where a worker's personal injury is covered by the act, statutory compensation is the sole remedy and recovery in common-law tort against the employer is barred." (Citations omitted.) Jett v. Dunlap, supra, 217, 425 A.2d 1263. An employee's injury is compensable under the act "if it is an injury 'arising out of and in the course of employment.' " Morin v. Lemieux, 179 Conn. 501, 504, 427 A.2d 397 (1980); see also General Statutes §§ 31-275(8), (12), 31-294; Bakelaar v. West Haven, 193 Conn. 59, 67, 475 A.2d 283 (1984); Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968); Dennison v. Connecticut Good Humor, Inc., 130 Conn. 8, 10, 31 A.2d 332 (1943). As we have stated, "[a]n intentional tort committed upon one employee by another, which causes personal injury arising out of and in the course of his employment, is covered by the compensatory provisions of the [Workers'] Compensation Act. Willis v. Taylor & Fenn Co., 137 Conn. 626, 627-28, 79 A.2d 821 (1951); 82 Am.Jur.2d, Workmen's Compensation § 330." Jett v. Dunlap, supra, 179 Conn. at 218, 425 A.2d 1263.

We recognized in Jett that "[u]nless the defendant employer intentionally directed or authorized [the coworker] to strike the plaintiff, the employer has a right to view the incident as an injury arising out of and in the course of employment, another 'industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system.' 2A Larson, Workmen's Compensation (1976) § 68.21, [196 Conn. 533] p. 13-11." Id., 179 Conn. at 218, 425 A.2d 1263. We concluded, accordingly, that "[i]f the assailant can be identified as the alter ego of the corporation, or the corporation has directed or authorized the assault, then the corporation may be liable in common-law tort; if the assailant is only another employee who cannot be so identified, then the strict liability remedies provided by the [Workers'] Compensation Act are exclusive and cannot be supplemented with common-law damages." Id.; 219, 425 A.2d 1263.

In the present case, the assaults and other conduct alleged to form the basis for this action clearly were perpetrated by one coworker against another and occurred during work hours on the employer's premises. The plaintiff has made no allegation either that Tighe acted "as the alter ego" of Raybestos or that Raybestos had "directed or authorized" the assaults in question. Id. The plaintiff does allege that Raybestos "willfully and maliciously failed to provide the plaintiff with a reasonably safe place to work ..." despite his claim that "on numerous occasions [he] notified the defendant ... its agents, servants and/or employees, of the continuous conduct of ... Tighe." The plaintiff seems to argue that such nonfeasance on the employer's part distinguishes the present case from Jett v. Dunlap; by "knowingly tolerating" Tighe's alleged behavior towards him, Raybestos in effect "not only condoned it but actually encouraged it," thereby itself engaging in wilful and serious misconduct and thus taking the case outside the Workers' Compensation Act. We do not agree.

In Mingachos v. CBS, Inc., supra, we recently explicated the "wilful or serious misconduct" exception we had enunciated in Jett v. Dunlap, supra, to the exclusive remedy principle expressed in General Statutes § 31-284(a). We explained that to be outside of the purview of § 31-284(a), the employer must have engaged in intentional misconduct, as that has been defined through our case law; see, e.g., Markey v. Santangelo, 195 Conn. 76, 77-78, 485 A.2d 1305 (1985); Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935); directed against its employee. Mingachos v. CBS, Inc., supra, 196 Conn. at 102-103, 491 A.2d 368. Anything short of "genuine intentional injury" sustained by the employee and caused by the employer is compensable under the act. Id., 108, 491 A.2d 368. While the defendant employer in the present case may have been "negligent," as this plaintiff alleged, in its failure to take corrective measures that would have served to eliminate the likelihood of the claimed encounters between the plaintiff and his coworker, none of the plaintiff's allegations, fairly read, indicated that Raybestos genuinely "intended" the occurrence of any of the plaintiff's resulting injuries. ³ Id., 101-102 107-108, 491 A.2d 368. "Unless the employer has commanded or expressly authorized the assault, it cannot be said to be intentional from his standpoint any more than from the standpoint of any third person." 2A Larson, Workmen's Compensation Law § 68.21 (1976); see Jett v. Dunlap, supra, 179 Conn. 219, 425 A.2d 1263.

Additionally, in arguing against the exclusivity of the Workers' Compensation Act, the plaintiff claims that under General Statutes § 31-49 he may maintain a direct action against Raybestos for "a knowing violation of an employer's duty to provide his employees with a safe place to work." ⁴ Section 31-49 provides: "It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his colaborers and to exercise reasonable care in the appointment or designation of a vice-principal and to appoint as such vice-principal a fit and competent person. The default of a vice-principal in the performance of any duty imposed by law on the master shall be the default of the master." The plaintiff contends that this provision "has not been changed by" the Workers' Compensation Act and thus permits a direct action against the employer for a breach of its statutory duty even though the injury alleged may be compensable under the act. We do not agree.

Again, as we stated in Mingachos v. CBS, Inc., supra, although "our Workers' Compensation Act [does not] bar tort actions against an employer that deliberately intended to injure its employee ... 'the common-law liability of the employer cannot, under the almost unanimous rule ... be stretched to...