Sorban v. Sterling Engineering Corp.

• Decision Date: 16 September 2003
• Docket Number: (AC 23146).
• Court: Connecticut Court of Appeals
• Parties: EMIL SORBAN v. STERLING ENGINEERING CORPORATION.

79 Conn. App. 444

830 A.2d 372

EMIL SORBAN v. STERLING ENGINEERING CORPORATION.

(AC 23146).

Appellate Court of Connecticut.

Argued June 9, 2003.

Officially released September 16, 2003.

Lavery, C.J., and Foti and McLachlan, Js. Eric H. Rothauser, with whom were Thomas Cunnane, legal intern, and, on the brief, John L. Bonee III, for the appellant (plaintiff).

Anne Kelly Zovas, with whom, on the brief, was Courtney C. Stabnick, for the appellee (defendant).

Opinion

LAVERY, C.J.

The plaintiff employee, Emil Sorban, appeals from the summary judgment rendered by the trial court in favor of the defendant employer, Sterling Engineering Corporation. The plaintiff claims that the court improperly concluded that (1) the substantial certainty exception to the exclusivity provisions of the Workers' Compensation Act (act), General Statutes § 31-275 et seq., is equivalent to inevitability and (2) there was no genuine issue of material fact as to whether the defendant's alleged intentional actions created a situation in which the plaintiff's injuries were substantially certain to occur. We agree with the plaintiff that the court improperly concluded that the substantial certainty standard is equivalent to inevitability, but determine nevertheless that there was no genuine issue of material fact and that the defendant was entitled to judgment as a matter of law. Accordingly, we affirm the judgment of the trial court.¹

The following facts, gathered from deposition testimony, affidavits and the procedural history, are necessary for our resolution of the plaintiff's appeal. On March 12, 1997, the plaintiff was employed by the defendant as a machine operator. He had worked for the defendant for nine years. The plaintiff was assigned to work on a vertical turret lathe, which required the operator to place a large circular piece of material on a rotating table. The operator would position the cutting tool (tool head) that was attached to an arm over the rotating table, and then cut the material.

The plaintiff noticed that the lathe was malfunctioning; specifically, the cutting tool was not stopping in the proper position. Instead, the tool head drifted toward the material located on the rotating table. The plaintiff alerted his supervisor to the problem and, after inspecting the machine, the supervisor told the plaintiff to "be careful." The plaintiff turned on the rotating table and then attempted to position the arm. After turning the switch that would allow him to position the arm and tool head, the plaintiff heard a click and was unable to complete the task. He attempted unsuccessfully to position the tool head a second time. During his third attempt, the tool head crashed into the material located on the rotating table. As a result, a piece of material was thrown from the machine, broke though a safety shield guard and struck the plaintiff's arm, causing a severe laceration and other injuries.

The plaintiff's complaint, dated March 23, 1999, alleged, inter alia, that the defendant knew that its employees operated the lathe without proper shield guards, that there were insufficient butt blocks to secure the material to the rotating table, and that the tool head traveled too far and would strike materials on the rotating table. The plaintiff alleges that those conditions caused the materials to be thrown at the operator. Thus, the plaintiff contends that the defendant "intentionally required, caused, allowed, and permitted its employees ... to do work in which it was substantially certain that employees including [the plaintiff] would get struck by thrown rotating parts and be severely injured."

The defendant, pursuant to Practice Book § 17-44 et seq., filed a motion for summary judgment on the basis of its special defense that the plaintiff's cause of action was barred by the exclusive remedy provision of the act, General Statutes § 31-284 (a).² The court granted the defendant's motion, and this appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly concluded that the substantial certainty standard is equivalent to inevitability. Specifically, he argues that inevitability is defined as actual or virtual certainty, rather than substantial certainty. Furthermore, he urges us to adopt an objective test, that is, whether a reasonable person would understand that the conduct of the employer was substantially certain to result in injury or death to the employee. We agree with the plaintiff.

At the outset, we set forth our well established standard of review. "[T]he scope of our review of the granting of a motion for summary judgment is plenary.... In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.... Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.... In ruling on a motion for summary judgment, it is customary for the court to review documentary proof submitted by the parties to demonstrate the existence or nonexistence of issues of material fact. Practice Book § 17-45.

"Practice Book § 17-49 provides in relevant part: [J]udgment ... 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. 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.... The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; internal quotation marks omitted.) Drew v. William W. Backus Hospital, 77 Conn. App. 645, 650-51, 825 A.2d 810 (2003).

"On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court." (Internal quotation marks omitted.) Taricani v. Nationwide Mutual Ins. Co., 77 Conn. App. 139, 144, 822 A.2d 341 (2003). A brief review of the purpose of the act will facilitate our resolution of the plaintiff's appeal. "Connecticut first adopted a statutory scheme of workers' compensation in 1913. The purpose of the [act] ... is to provide compensation for injuries arising out of and in the course of employment, regardless of fault.... Under the statute, the employee surrenders his right to bring a common law action against the employer, thereby limiting the employer's liability to the statutory amount.... In return, the employee is compensated for his or her losses without having to prove liability.... In a word, these statutes compromise an employee's right to a common law tort action for work related injuries in return for relatively quick and certain compensation.... The intention of the framers of the act was to establish a speedy, effective and inexpensive method for determining claims for compensation." (Citations omitted; emphasis in original; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 672, 748 A.2d 834 (2000).

In Morocco v. Rex Lumber Co., 72 Conn. App. 516, 805 A.2d 168 (2002), we discussed the exclusivity provision of the act as well as the exception to that general rule. "Workers' compensation systems ordinarily are limited to recovery in tort actions for injuries arising in the workplace during the course of employment and compensate employees for such injuries. See Jett v. Dunlap, 179 Conn. 215, 222, 425 A.2d 1263 (1979). In most cases, the Connecticut act is a bar to independent actions filed by an employee against an employer for an injury that occurs at the workplace. See General Statutes § 31-284.

"There is an exception, however, to the exclusivity provision of the workers' compensation statute. That one exception exists when the intentional tort of an employer injures an employee or when the employer has engaged in wilful or serious misconduct. Suarez v. Dickmont Plastics Corp., [229 Conn. 99, 106, 639 A.2d 507 (1994) (Suarez I)]. The exception gives an employee a cause of action in addition to the remedies provided by the act.... [T]he employer must have engaged in intentional misconduct, as that has been defined through our case law ... directed against its employee.... Anything short of genuine intentional injury sustained by the employee and caused by the employer is compensable under the [a]ct.... The exception does not include accidental injuries caused by gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury....

"The actual intent standard or test could produce inequities under some hypothetical situations, and it is, therefore, the substantial certainty standard that most often is used." (Citations omitted; emphasis in original; internal quotation marks omitted.) Morocco v. Rex Lumber Co., supra, 72 Conn. App. 520-22.

Our Supreme Court has stated that an employee can prevail only "by proving 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 plaintiff's injuries substantially certain to occur (substantial certainty standard)." Suarez v. Dickmont...