Suarez v. Dickmont Plastics Corp., 14765

• Decision Date: 16 March 1994
• Docket Number: No. 14765,14765
• Citation: 229 Conn. 99,639 A.2d 507
• Court: Connecticut Supreme Court
• Parties: Alfonso SUAREZ v. DICKMONT PLASTICS CORPORATION.

Page 507

639 A.2d 507

229 Conn. 99

Alfonso SUAREZ v. DICKMONT PLASTICS CORPORATION.

No. 14765.

Supreme Court of Connecticut.

Argued Jan. 13, 1994.

Decided March 16, 1994. ^*

Scott S. Centrella, with whom, on brief, was Richard E. Castiglioni, Stamford, for appellant (plaintiff).

Ann H. Rubin, with whom, on brief, was Susan S. Chambers and Kevin C. Doyle, New Haven, for appellee (defendant).

Before BORDEN, BERDON, NORCOTT, KATZ and PALMER, JJ.

KATZ, Associate Justice.

The principal issue on appeal is whether the Appellate Court properly affirmed the trial court's granting of the defendant's motion for summary judgment based on the exclusive remedy provisions of the Workers' Compensation Act (act). ¹ We hold that there is a genuine issue of material fact as to whether the plaintiff's injury was "substantially certain" to follow from his employer's conduct so as to satisfy the narrow exception to the exclusivity provisions of the act and to allow the plaintiff to pursue his common law remedy in a trial. We further hold that the plaintiff's previous collection of benefits under the act does not preclude his pursuit of this action. Accordingly, we reverse.

The following facts are undisputed. The plaintiff, Alfonso Suarez, filed a complaint alleging that he had been severely and permanently injured while working for the defendant, Dickmont Plastics Corporation, when, while attempting to clear hot molten plastic out of a plastic molding machine, two of his right hand fingers became caught in the machine and were partially amputated. The plaintiff alleged that his injuries, which resulted in a permanent loss of function and use of his master hand and substantial scarring, were caused by the defendant's wilful and serious misconduct. The plaintiff further alleged, inter alia, that the defendant: (1) always required the plaintiff and other employees to clean the plastic molding machine while it was in operation; (2) refused to allow the plaintiff or other employees to use safer cleaning methods; and (3) refused to equip the machine with a protective cover or other device in order to prevent injuries to persons operating or cleaning it.

The defendant moved for summary judgment claiming that, in the absence of proof by the plaintiff that the employer intended to injure the plaintiff, the exclusive remedy provisions of the act barred the plaintiff's claim. By affidavit, the defendant's president denied the plaintiff's allegations and maintained that he had not intended for the plaintiff to be injured. In his opposition to the motion, supported by his own deposition and the affidavit and attached opinion of Michael E. Shanok, a physical engineer, the plaintiff claimed that the defendant's intentional conduct was substantially certain to cause the injuries that occurred. At his deposition, the plaintiff testified that the defendant's foreman, although aware of the dangers involved, had told him that: (1) he could not use a vacuum cleaner to clean the hot material from the machine because it would waste material; (2) the machine could not be turned off during the cleaning because the operator would lose time; and (3) if he used the vacuum cleaner, he would be fired.

In his report, Shanok described the equipment involved as a plunger type horizontal injection molding machine used to melt thermoplastic and thermoset rubber polymers into a mold through the action of a hydraulically operated plunger. Shanok further explained that the material is fed from a small, cylindrical hopper with a conical bottom directly into a feed chute. From the chute, the material falls into an injection chamber. From there, an injection plunger is pushed by a hydraulic ram through a barrel surrounded by electrical heating bands. As the plastic is melted within the barrel, it is further pushed into the mold. The mold is held closed by a damping system, also hydraulically activated. At the conclusion of the molding cycle, the plunger retracts, the mold opens and the molded part is ejected, whereupon the next molding cycle commences.

Shanok's report further states that the feed chute should be vacuum cleaned when the material hopper is positioned away from the feed chute, so that raw plastic cannot be fed into the machine during cleaning. Nevertheless, the plaintiff alleges that the foreman had ordered him to clean up during the completion of production, while the machine was still operating, so that the employer could avoid paying personnel overtime. Pursuant to these orders, he was required to reach into the chute with his hand to remove the remaining plastic pellets in the feed chamber to avoid wasting material. On the day of the accident, the plaintiff claims that he had put his hand into the energized machine's feed chute while the machine was operating, thereby causing the plunger to move forward in the injection sleeve and partially amputate two of the plaintiff's right hand fingers.

In addition, Shanok listed in his report several resulting violations of the Occupational Safety and Health Act (OSHA); 29 U.S.C. § 658 et seq.; General Industry Regulations; 29 C.F.R.; and deviations from the recommended requirements of the American National Standard for Safety Requirements for the Construction, Care and Use of Horizontal Injection Molding Machines. American National Standards Institute, B151.1-1976. ² In particular, Shanok noted that the defendant's alleged conduct violated accepted safety standards by requiring employees to insert their hands into the feed chute of an energized horizontal injection molding surface, adding that the "circumstances which existed at the time of the subject accident caused such action to be even more dangerous, because the hydraulic system was not interlocked to prevent actuation of the plunger and the control panel is so situated that the operator cannot see an individual who is standing at the maintenance platform."

Shanok concluded that the defendant's actions "crossed the boundary between gross negligence and reckless disregard for the safety of its employees," that "there was a total absence of any sign ... that even the slightest consideration for [the plaintiff's] safety had been undertaken," that remedying even one of the numerous unsafe actions could have prevented the injury, and that it was clear from the combination of factors that the plaintiff's injury "would be, sooner or later, a predictable and probable event."

The trial court granted the defendant's motion for summary judgment having determined that the plaintiff's "documentary proof [fell] short of the standard necessary to entitle him to benefit from the exception to the exclusivity provisions of the Connecticut Workers' Compensation Act." The plaintiff then filed a motion for articulation to ascertain whether the trial court had granted the defendant's motion for summary judgment on the grounds that the "substantial certainty" standard relied upon by the plaintiff was not controlling ³ or because the plaintiff had not demonstrated a genuine issue of material fact as to whether he could satisfy the substantial certainty test. The trial court denied the plaintiff's motion. ⁴ The plaintiff thereafter appealed the granting of the defendant's motion for summary judgment to the Appellate Court. The Appellate Court held that the plaintiff's factual allegations could not support a determination either that his employer had intended to harm him, or that his employer had believed the injury that occurred was substantially certain to follow from its acts or conduct. Suarez v. Dickmont Plastics Corp., 30 Conn.App. 630, 635, 621 A.2d 1356 (1993). Accordingly, that court affirmed the judgment. Id., at 636, 621 A.2d 1356. We granted the plaintiff's petition for certification limited to the following issues: "(1) Whether an individual may bring a civil action for damages against his employer for injuries sustained at work where such injuries were caused by work conditions intentionally created by the employer which made the injuries substantially certain to occur?" and "(2) Whether there is a genuine issue of material fact as to whether the employer's intentional actions created a situation in which the employee's injuries were substantially certain to occur?" Suarez v. Dickmont Plastics Corp., 225 Conn. 926, 625 A.2d 827 (1993).

At the outset, we note the standard of review of a trial court decision granting a motion for summary judgment. Pursuant to Practice Book § 384, 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." The party seeking summary judgment " 'has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law' "; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict on the same facts." (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).

We consistently have interpreted the exclusivity provision of the act, General Statutes § 31-284(a), as a total bar to common law actions brought by employees against employers for job related injuries with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct. Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). This case presents the...