Derek Ducharme v. Thames Printing Company, Inc. (2015)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT (# 124) OF DEFENDANT THAMES PRINTING COMPANY, INC.

On August 21, 2009, the plaintiff, Derek Ducharme, filed an amended complaint against his employer, defendant Thames Printing Company, Inc., for injuries sustained in a workplace accident.   On November 5, 2009, the defendant filed an answer including a second special defense that the plaintiff's claims are barred by the Workers' Compensation Act (WCA), General Statutes § 31–284(a), exclusivity provision.   On January 21, 2011, the defendant filed a motion for summary judgment on that ground.   After a bankruptcy stay ended, the plaintiff reclaimed the motion.   On January 2, 2015, the plaintiff filed a brief and exhibits in opposition to the motion.   On January 5, 2015, the defendant filed a reply brief and the motion was argued.

FACTS

In ruling on a motion for summary judgment, the trial court must view the submissions in the light most favorable to the non-moving party.  Patel v. Flexo Converters U.S.A., Inc., 309 Conn. 52, 57, 68 A.3d 1162 (2013).   Statements that are merely conclusions are not evidence.   See Gupta v. New Britain General Hospital, 239 Conn. 574, 583, 687 A.2d 111 (1996).   Viewing the parties' submissions in this light, the court finds the following basic facts.

The plaintiff was employed by the defendant to operate a printing press machine (the press).   The press had three safety features pertinent to the present motion:  a “safety guard” for the “blanket washing device” on the press;  a pivoting gate with a safety switch (“safety switch”);  and a “safe button.”   At the time of the plaintiff's accident, the “blanket washing device” was not functioning and the safety guard had been removed.   The safety switch detected when the pivoting gate (which is different from the safety guard) was open:  the safety switch automatically prevented the press from going into “run mode” (though it could go an inch at a time when the safety gate was open).   The safe button, when manually depressed, would also prevent the machine from going into “run mode,” even if the operator of the press pushed the run button.

Before he was injured, the plaintiff told his supervisor, Bill MacMurray, that there were “multiple defective safeties on the press.”  (MacMurray had the power to hire and promote the plaintiff.)   In particular, the safety guard was gone (removed by the plaintiff), the safety switch did not work—i.e., the press could operate in “run mode” when the safety gate was not in place—and the safe button did not work in that, when manually pushed, it did not prevent the press from going into “run mode.”   The defendant had a safety committee to oversee the safety of its facility where the plaintiff worked.   Prior to the plaintiff's accident, at least one member of the defendant's safety committee knew, from the plaintiff and from the press's manufacturer's mechanic, that the safety switch needed repair and the safety guard needed to be fixed and put back.   Also prior to the accident, MacMurray ¹ said in response to the plaintiff's complaint that the press was in a dangerous, defective condition, “I am not threatening your job, but do you like your job?”   The plaintiff was also told that, because the defendant was going to replace the press, the defendant did not want to put any more money into it.

On October 20, 2008, the plaintiff was working for the defendant at the press.   As periodically happened, a piece of paper got stuck in the press.   To remove it, the plaintiff opened the safety gate, which action alone should have prevented the press from going into “run mode.”   He also pushed, perhaps not fully, the safe button, which if pushed would also have prevented the press from going into “run mode.”   Reaching into the press and holding the paper, and meaning to press the inch button, the plaintiff accidentally pressed the run button and the press started robustly and drew his hand in, causing serious injuries to his right hand and wrist.

The plaintiff is entitled to, and has received, compensation for his injuries under the WCA. Other facts will be found as needed in the context of the court's analysis.

DISCUSSION

Practice Book § 17–49 provides that summary judgment must be rendered if the pleadings, affidavits, and any other proof submitted demonstrate 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.   A genuine issue of material fact has been defined as a triable issue of fact, which can be maintained by substantial evidence.  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).   A motion for summary judgment shall be supported by appropriate documentary evidence, such as affidavits and certified transcripts of testimony given under oath.  Practice Book § 17–45.

In deciding a motion for summary judgment, the moving party has the burden of showing that genuine issues of material fact do not exist;  however, after the moving party has met its burden, the nonmoving party may still defeat the motion by presenting evidence showing that a genuine issue of material fact exists.  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).   In ruling on the present motion, the court's function is to determine whether any issues of material fact exist, not to decide any such issues.  Maltas v. Maltas, 298 Conn. 354, 365, 2 A.3d 902 (2010).

Summary judgment is appropriate only when it is the sole conclusion that a fair and reasonable person could reach based on the evidence.  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).   Summary judgment is inappropriate when necessary inferences concern intent, motive, and subjective feelings and reactions.  Batick v. Seymour, 186 Conn. 632, 646–47, 443 A.2d 471 (1982).

The present motion is based on the defendant's argument that the plaintiff's claims are barred by the exclusivity provision of the WCA, there being no genuine issue of material fact that the intentional acts exception to the WCA exclusivity provision found in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 117–18, 639 A.2d 507 (1994) (Suarez I) and refined in Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 279, 698 A.2d 838 (1997) (Suarez II) does not apply to this case.   Specifically, the defendant claims that the intentional acts exception does not apply because the plaintiff has presented no evidence from which the court could find a triable issue of material fact that the defendant either acted intentionally to injure the plaintiff;  see Suarez I, supra, 110;  or intentionally created a dangerous condition that made the plaintiff's injury substantially certain to occur.   See Suarez II, supra, 257–58.   Because the plaintiff does not claim, and testified he does not believe, that anyone employed by the defendant intended that he be injured, the present issue is whether or not there is a triable issue of fact that the Suarez II exception applies, such that this suit is not barred by § 31–284(a).²

Preliminarily, the defendant objects to the court considering the plaintiff's January 2, 2015 objection because it was untimely under Practice Book § 17–45, which requires opposition to be filed five days before the hearing, and under a scheduling order setting December 1, 2014, as the deadline for responses to dispositive motions (the plaintiff's November 26, 2014 motion for extension of time to respond not having been granted).   The objection is overruled.   While the court disapproves late filings, it has the discretion to consider them.   Margaitis v. Deacon, Superior Court, judicial district of Litchfield, Docket No. CV–04–4000439–S (February 15, 2005) (38 Conn. L. Rptr. 752, 754 n.1).   There is no apparent prejudice to the defendant from doing so in this case and—pertinent also to interpreting evidence in favor of the non-movant—there is a long-standing policy favoring trial on the merits of a dispute unless there is an overriding cause.   See Rocco v. Garrison, 268 Conn. 541, 558, 848 A.2d 352 (2004) (terminating proceedings without fully determining merits is disfavored).

Turning to the merits, pursuant to § 31–284(a), an employee's exclusive remedy for personal injuries sustained during the course of his employment consists of the rights and claims provided therein.   The WCA imposes a form of strict liability on employers, so that the sole remedy for an employee's on-the-job injuries is workers' compensation, and common-law tort claims seeking recovery from the employer are totally barred.  Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979).

To the § 31–284(a) exclusivity provision, there is only one exception that permits a plaintiff to sue his or her employer as well as to receive the remedies available under the WCA. The exceptional case is one in which, as stated above, the defendant acted intentionally to injure the plaintiff or, in this case, intentionally created a dangerous condition that made the plaintiff's injury substantially certain to occur.   See Suarez II, supra, 242 Conn. 257–58.   Common-law liability outside of the WCA cannot be expanded to include accidental injuries caused by the wilful, wanton, gross, deliberate, reckless, intentional, culpable, or even malicious misconduct of an employer that falls short of a deliberate, conscious intent to inflict an injury.   Id., 279.   The public policy justification for the exception is that the employer's intentional injury to the employee changes the origin of the employee's injury from accident to intentional tort.   See Mingachos v. CBS, Inc., 196 Conn. 91, 102–03, 491 A.2d 368 (1985).   The gravity of the employer's conduct is not being tested:  even gross negligence is not intentional conduct.   However, the employer's intentional creation of a condition so dangerous that injury to the employee—or an employee—was substantially certain to occur has been held to constitute deliberate, conscious intent to inflict injury for purposes of this exception.  Suarez I, supra, 229 Conn. 109–10;  see Morocco v. Rex Lumber Co., 72 Conn.App. 516, 523, 805 A.2d 168 (2002) (test is whether employee's injury is result of employer's intentional conduct creating conditions exposing employee to substantially certain injury).

The defendant's briefs present the applicable law with erudition.   It is true that the substantial certainty standard is a high one for an employee to meet.   See Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006).   High probability or foreseeability of injury is insufficient for demonstrating that an employer knew to a substantial certainty that injury would result.  Mingachos v. CBS, Inc., supra, 196 Conn. 103.   Further, evidence demonstrating an employer was lackadaisical about, or had a disregard for, worker safety is not enough;  nor is a demonstration of a violation of safety standards set out in federal and/or state law;  nor is a failure to take remedial action to prevent injury, even if the omission is wrongful.   See Stebbins v. Doncasters, Inc., 263 Conn. 231, 234, 819 A.2d 287 (2003);  Mingachos v. CBS, Inc., supra, 100;  Melanson v. West Hartford, 61 Conn.App. 683, 689, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001).

In order to satisfy the substantial certainty test, an employee must prove that his employer acted intentionally and with a belief that its conduct was substantially certain to cause injury, immediate or eventual, to the employee.  Suarez I, supra, 229 Conn. 104, 108–10.  “Substantial certainty means more than substantial probability, but does not mean actual or virtual certainty, or inevitability.”  Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 455, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003).   Substantial certainty exists when an employer's denial of knowledge that employee injury was, sooner or later, going to result from a condition created by the employer's action or intentional inaction is not credible.   See id.   Direct proof of an employer's intentional creation, by action or knowing inaction, of a condition substantially certain to result in employee injury is rarely available.   See Suarez II, supra, 242 Conn. 275.   Therefore, the requisite intent may, and usually must, be proven by circumstantial evidence.   See id.

Whether a case falls into the exception to the exclusivity provision is an issue of fact that the defendant must rule out before the burden shifts to the plaintiff to show that a genuine issue of material fact exists.   See Segarra v. Bourdon Forge Co., Superior Court, judicial district of Middlesex, Docket No. CV–09–6001148–S (July 2, 2012).   To prevail on the present motion, the defendant must first demonstrate that it is entitled to judgment as a matter of law;  i.e., here, that there is no triable issue of material fact which, if found for the plaintiff, would demonstrate that the plaintiff's claim has merit.   On the other hand, if there is such an issue, the difficulty of the plaintiff's proof does not mean he does not have a valid claim.   See Simpson v. Union Oil Co. of California, 396 U.S. 13, 16, 90 S.Ct. 30, 24 L.Ed.2d 13 (1969) (“a fair and just legal system is not required by difficulties of proof to throw up its hands in despair and leave the sufferer's damage to be borne by him while the person who did the wrong goes scot free”).

The defendant points to the plaintiff's admitted mistakes in not verifying that the safe button was fully depressed and in hitting the run button instead of the inch button as the cause of his injuries.   Neil Blinderman, the defendant's owner, testified by affidavit that the plaintiff's mistakes were unanticipated by the defendant.   Blinderman stated that the defendant never instructed the plaintiff to neglect to press the safe button and hit the run button instead of the inch button while his hand was inside the machine.   The court takes this testimony as true, but that evidence does not defeat as a matter of law the claim that the defendant acted intentionally and with a belief that its conduct was substantially certain to cause injury, immediate or eventual, to the plaintiff or another employee.  Suarez I, supra, 229 Conn. 104, 108–10.   That is because human error is to be expected and, if the apparently defective safety switch worked properly, the press would not have run when the plaintiff mistakenly hit the run button.   The plaintiff's negligence might prove fatal to his claim as to causation of his injuries, but that negligence is not otherwise a defense to an intentional tort.

Blinderman stated that the plaintiff's immediate supervisor, MacMurray, who the plaintiff claims knew of the alleged defects in the press's safety systems, did not have a determinative role within the corporate structure of the defendant.   Assuming that, too, is true, the defendant's motion, particularly in light of the plaintiff's opposition, fails to show there is no triable issue of material fact that the defendant intentionally created, by action of intentional omission, the unsafe condition of the press, which the plaintiff claims was bound, sooner or later, to result in an employee injury.   The defendant is a corporation.   Corporations are organizations led and operated by people.   Corporations do not have knowledge.   People have knowledge which, in certain circumstances, is attributable to a corporation.   Corporations do not have beliefs.   People have beliefs that, in certain circumstances, are attributable to a corporation.   Where a corporation seeks protection from liability in the opacity of its structure, courts should be especially skeptical of proposed findings based on a lack of evidence.³  In this case, only by accepting the defendant's evidence submitted with its motion and disregarding the evidence submitted by the plaintiff, disregarding the reasonable inferences the jury might draw from the plaintiff's evidence, and disregarding the principle that inferences are to be drawn in favor of the party opposing summary judgment could the court grant the present motion.

The evidence, construed in favor of the plaintiff, shows that the defendant had a safety committee;  that at least one member of that safety committee knew of the plaintiff's complaints about the several safety defects in the press;  that several of the defendant's employees, including at least one member of the safety committee, knew the press's manufacturer's mechanic said the safety switch needed repair and the safety guard needed to be fixed and put back;  that the defendant was reluctant to put more money into the press;  and that, even when the replacement safety switch was received, before the plaintiff's accident, the defendant did not promptly install it.   The jury could infer that the defendant's safety committee both knew of the defective safety devices and represented the defendant in dealing—or intentionally not dealing—with them.   Also, the jury could infer one or more of several things from MacMurray's response to the plaintiff's complaint about the safety device defects—”I am not threatening your job, but do you like your job?”   The jury could infer that the defendant already knew about the defects;  that the defendant intended to ignore, and not to fix, the defects—i.e., to maintain by knowing inaction the defective conditions;  and even that the plaintiff's job would be in jeopardy if he continued his complaint or took it to another person in the defendant organization.   It does not matter that, on this motion, there is no evidence that the defendant instructed or authorized MacMurray to respond as he is alleged to have done.   What matters is that only by weighing the facts and by drawing from that absence an inference in favor of the defendant—that MacMurray was not part of the controlling structure of the defendant and was in no way directed or authorized by persons in that controlling structure to say what he said—could the court grant the present motion.

“The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act.”  (Internal quotation marks omitted.)  Suarez I, supra, 229 Conn. 109.   There are triable issues of material fact concerning the defense of the bar of the WCA. To view the present situation in another way, if the evidence submitted on this motion were submitted to a jury and that jury found for the plaintiff as to liability, only if the court would have to reject the verdict, as a matter of law, for lack of evidence could the court grant the present motion.   The court could only do that by impermissibly substituting its assessment of the evidence for the jury's.

For the foregoing reasons, the defendant's motion for summary judgment is denied.

Cole–Chu, J.

FOOTNOTES

FN1. The plaintiff thought MacMurray was a member of the safety committee, but MacMurray denied that..  FN1. The plaintiff thought MacMurray was a member of the safety committee, but MacMurray denied that.

FN2. General Statues § 31–284 provides in relevant part:  “(a) An employer ․ shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.   All rights and claims between an employer ․ and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation ․”.  FN2. General Statues § 31–284 provides in relevant part:  “(a) An employer ․ shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication.   All rights and claims between an employer ․ and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation ․”

FN3. A similar concern arises from our Supreme Court's declaration that a plaintiff “must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm.”  (Emphasis in original.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006) (quoting Stebbins v. Doncasters, Inc., 263 Conn. 231, 234, 819 A.2d 287 (2003)).   Setting aside the impossibility of corporations holding beliefs, and applying this test to a corporate employer's representative with pertinent control, if the “employer believed” test were taken literally, it would be very hard for employers to win summary judgment because state of mind is almost always triable.   Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994) (Suarez I) (intent and knowledge of degree of likelihood of consequences of action are questions of fact for jury);  Battistoni v. Weatherking Products, Inc., 41 Conn.App. 555, 564, 676 A.2d 890 (1996) (credibility is for trier of fact).   Also regarding this quotation, this court concludes that substantial certainty to cause an employee—not necessarily the plaintiff—harm is both consistent with Suarez I and Suarez II and fair to employers and employees.   To hold the contrary—that employee A could not sue under Suarez II because the employer meant only for employee B to be subjected to the substantial certainty of injury—makes no sense to this court.   The “sooner or later” detail of Suarez I suggests the same.  Suarez I, supra, 104..  FN3. A similar concern arises from our Supreme Court's declaration that a plaintiff “must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm.”  (Emphasis in original.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 118, 889 A.2d 810 (2006) (quoting Stebbins v. Doncasters, Inc., 263 Conn. 231, 234, 819 A.2d 287 (2003)).   Setting aside the impossibility of corporations holding beliefs, and applying this test to a corporate employer's representative with pertinent control, if the “employer believed” test were taken literally, it would be very hard for employers to win summary judgment because state of mind is almost always triable.   Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994) (Suarez I) (intent and knowledge of degree of likelihood of consequences of action are questions of fact for jury);  Battistoni v. Weatherking Products, Inc., 41 Conn.App. 555, 564, 676 A.2d 890 (1996) (credibility is for trier of fact).   Also regarding this quotation, this court concludes that substantial certainty to cause an employee—not necessarily the plaintiff—harm is both consistent with Suarez I and Suarez II and fair to employers and employees.   To hold the contrary—that employee A could not sue under Suarez II because the employer meant only for employee B to be subjected to the substantial certainty of injury—makes no sense to this court.   The “sooner or later” detail of Suarez I suggests the same.  Suarez I, supra, 104.

Cole–Chu, Leeland J., J.