Neil Maruszewski v. Ducci Electrical Contractors, Inc. (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE AMENDED COMPLAINT (# 112)

On September 3, 2010, the defendant, Ducci Electrical Contractors, Inc., filed a motion to strike the plaintiff's amended complaint,¹ along with a supporting memorandum of law (# # 112, 113), on the ground that it is barred by the exclusive remedy provisions of the Connecticut Workers' Compensation Act (“CWCA”), General Statutes § 31–284 et seq.   The plaintiff, Neil Maruszewski, filed an objection and supporting memorandum on October 28, 2010 (# # 115, 116).   The defendant filed a reply memorandum on August 2, 2011 (# 118).   This matter was heard at the short calendar on February 21, 2012.

I

PROCEDURAL AND FACTUAL HISTORY

On February 3, 2010, the plaintiff filed his original complaint alleging that he was injured while removing hardened concrete from the interior of the drum of a cement mixer.   On March 9, 2010, the defendant moved to strike the original complaint on the ground that the plaintiff's action was barred by the exclusive remedy provisions of the CWCA. That motion to strike was granted on June 24, 2010.

Thereafter, on July 7, 2010, as of right, the plaintiff filed an amended complaint.   The defendant moved to strike the amended complaint, making essentially the same argument, i.e., that the CWCA provides the exclusive remedy to the plaintiff.   The plaintiff objects to the motion, arguing that the amended complaint alleges sufficient facts to take his claim outside of the limitations imposed by the CWCA.

II

DEFENDANT'S POSITION

There is an exception to the exclusivity provision of the CWCA that will apply when the employer “actually intended to injure [the employee] ․” (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006).   The defendant asserts that the plaintiff is improperly attempting to rely on the intentional tort exception to the CWCA exclusivity provisions.   The defendant claims that the intentional tort exception “cannot ․ be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.”  (Citations omitted;  internal quotation marks omitted.)  Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985).

The defendant also argues that the plaintiff cannot meet the requirements of the second exception to the exclusivity provision of the CWCA, the “substantial certainty standard,” which requires a showing that goes beyond a “lackadaisical or even cavalier attitude toward worker safety ․ Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm.”  (Citation omitted;  emphasis in original;  internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 118.   The defendant argues that even though the amended complaint appears to incorporate language from a Connecticut Supreme Court decision setting forth the “substantial certainty” standard;  Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 257–58, 698 A.2d 838 (1997);  those allegations are mere conclusions of law.

The defendant contends that the amended complaint is devoid of factual allegations to support the conclusion that the defendant intended to harm the plaintiff or subjectively believed that the plaintiff's injuries would result from the work he performed.

III

PLAINTIFF'S POSITION

The plaintiff argues that his amended complaint properly alleges that the defendant created a dangerous condition and placed the plaintiff in that dangerous condition by ordering him to crawl into the drum of a cement truck to clean hardened cement with a hand-held power tool.   The plaintiff contends that he has met the requirements of Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 118.

It does not appear that the plaintiff is seeking relief pursuant to the first exception to the exclusivity provision of the CWCA, i.e., a demonstration that the employer “actually intended to injure” the employee.  Sullivan v. Lake Compounce Theme Park, Inc., supra, 277 Conn. 118.   Rather, his claim appears to be that the incident that led to his alleged injuries falls under the second exception, that the employer “intentionally created a dangerous condition that made [the employee's] injuries substantially certain to occur ․” (Emphasis in original;  internal quotation marks omitted.)  Id.

In support of his assertion that his allegations are more than mere conclusions of law, the plaintiff refers the court to paragraphs 18–24 of the amended complaint which allege, inter alia, that the person who ordered the plaintiff into the drum of the cement mixer knew that a prior, safer method of drum cleaning had failed.   Specifically, the plaintiff claims that initially the defendant placed large rocks or stones inside the drum, which was then rotated, but that method failed to break up the hardened concrete.   The plaintiff then claims that the defendant ordered him into the drum to remove the cement expeditiously.   He claims that the defendant wanted to clean the cement mixer as quickly as possible so that it could be returned to the equipment rental company that had provided it, thus reducing the rental expense.   The plaintiff claims that the order for him to enter the drum, under the circumstances, violated Occupational Safety and Health Administration (“OSHA”) regulations.

IV

DISCUSSION

Practice Book § 10–39(a) provides in relevant part:  “Whenever any party wishes to contest ․ (5) the legal sufficiency of any answer to any complaint ․ or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.”  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).

In ruling on a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).   The court is limited, in its review, “to a consideration of the facts alleged in the complaint.”  Doe v. Marselle, 38 Conn.App. 360, 364, 660 A.2d 871 (1995), rev'd on other grounds, 236 Conn. 845, 675 A.2d 835 (1996);  see Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990).

The amended complaint alleges, inter alia, that the plaintiff was employed by the defendant in December 2007, when “the head foreman, the superintendent and/or an individual considered the alter ego of the defendant corporation [directed the plaintiff] to clean hardened concrete from the interior of the drum of a rented cement mixer.”   Amended Compl. ¶ 5.   The amended complaint further alleges that the foreman was following orders given to him by the worksite superintendent (or someone else) who, the plaintiff claims, was the alter ego of the corporation.   Amended Compl. ¶¶ 7, 9.

The amended complaint alleges that the plaintiff was injured while removing the hardened concrete and it describes how the concrete removal process led to the plaintiff's injuries.   The plaintiff claims that the directions ordering him into the drum were given “with the subjective intent and/or knowledge that [the order] was creating a dangerous condition for the plaintiff and that said condition was substantially certain to cause the plaintiff ․ harm ․” Amended Compl. ¶ 18.   The amended complaint further alleges that the orders were given with the “clear knowledge of the dangerous condition and substantial likelihood of harm ․” Amended Compl. ¶ 19.   Finally, the amended complaint alleges that the plaintiff was injured as a result of the defendant's alter ego “intentionally creating this dangerous condition that was substantially likely to cause harm ․” Amended Compl. ¶ 22.

The “substantial certainty” standard on which the plaintiff relies “requires that the plaintiff establish that the employer intentionally acted in such a way that the resulting injury to the employee was substantially certain to result from the employer's conduct ․ To satisfy the substantial certainty standard, a plaintiff must show more than that [his employer] exhibited a lackadaisical or even cavalier attitude toward worker safety ․ Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm.”  (Emphasis in original;  internal quotation marks omitted.)  Motzer v. Haberli, 300 Conn. 733, 744, 15 A.3d 1084 (2011).   Our Supreme Court has stated that “a high risk or probability of harm is not equivalent to the substantial certainty standard without which an actor cannot be said to intend the harm in which his act results.”  (Internal quotation marks omitted.)  Mingachos v. CBS, Inc., supra, 196 Conn. 101.

In the present case, even construing the complaint in the manner most favorable to sustaining its legal sufficiency, the court must conclude that the plaintiff did not allege facts to support the bare conclusion that the plaintiff's employer “believed” that its conduct was “substantially certain” to cause him harm.   Where a plaintiff has alleged conclusions of law absent sufficient facts to support them, they are subject to a motion to strike.   Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).

The plaintiff does not allege that anyone employed by the defendant knew, or even believed, that the hardened cement was likely to fall from the mixer in a manner that would cause the plaintiff's injuries.   The fact that the employer's initial attempt to remove cement was not successful is not evidence that the alternate method chosen was “substantially certain” to cause injury.²  The fact that the employer wanted the mixer cleaned quickly is not evidence that the orders given to the employee were “substantially certain” to cause injury.   The plaintiff does not allege facts that, even if proven, would support a claim “that the defendants knew or believed that the plaintiff's injury was substantially certain to occur as a result of their conduct.”  Motzer v. Haberli, supra, 300 Conn. 746;  see DaGraca v. Kowalsky Bros., Inc., 100 Conn.App. 781, 791–93, 919 A.2d 525, cert. denied, 283 Conn. 904, 927 A.2d 917 (2007);  Grosky v. Eastern Equipment, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 05 5000346 (December 26, 2007, Upson, J.);   Rodriquez v. Capitol Cleaning Contractors, Inc., Superior Court, judicial district of New Britain, Docket No. CV 06 5000618 (April 27, 2007, Shapiro, J.).

The most that can be said of the plaintiff's factual allegations is that because he was injured while cleaning the cement mixer drum it was “substantially certain” that he would be injured when he entered the cement mixer drum.   Such post hoc reasoning does not meet the “substantially certain” to cause harm standard.

The amended complaint also fails to allege facts, as opposed to legal conclusions, that the plaintiff's orders came from the defendant's alter ego.   Our Supreme Court has made clear that a “foreman” is not the “alter ego” of the employer.  Jett v. Dunlop, 179 Conn. 215, 219, 425 A.2d 1263 (1979).   The court reasoned that “[t]he correct distinction to be drawn in this case is between a 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 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.

In the present case, other than asserting that the plaintiff was under the direction of a “head foreman, superintendent, and/or an individual considered the alter ego of the defendant,” the plaintiff offers no factual allegations to support his claim that the foregoing individual or individuals could be found to be the alter ego of the defendant.   He does not identify the individual(s) by name, he does not sufficiently identify his/their place in the hierarchy of the defendant corporation, nor does he allege facts, other than their title(s), that would permit a finder of fact to conclude that the person(s) giving the orders to the plaintiff served as the alter ego of the corporation.

For all of the foregoing reasons, the plaintiff has failed to allege sufficient facts to avoid the exclusivity provision of the CWCA, and the defendant's motion to strike is granted.

So ordered.

BY THE COURT,

John A. Danaher III

FOOTNOTES

FN1. The defendant correctly notes that, although the operative complaint is entitled “amended complaint,” it should be entitled “substituted complaint,” since it was filed after the court previously granted the defendant's motion to strike the original complaint.  Practice Book § 10–44..  FN1. The defendant correctly notes that, although the operative complaint is entitled “amended complaint,” it should be entitled “substituted complaint,” since it was filed after the court previously granted the defendant's motion to strike the original complaint.  Practice Book § 10–44.

FN2. The plaintiff acknowledges, as he must, that OSHA violations do not support a private cause of action.  Motzer v. Haberli, supra, 300 Conn. 745..  FN2. The plaintiff acknowledges, as he must, that OSHA violations do not support a private cause of action.  Motzer v. Haberli, supra, 300 Conn. 745.

Danaher, John A., J.