Binkowski v. Board of Education ( 2018 )

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AMY BINKOWSKI v. BOARD OF EDUCATION OF
THE CITY OF NEW HAVEN ET AL.
(AC 39298)
DiPentima, C. J., and Bright and Bishop, Js.
Syllabus
The plaintiff school teacher sought to recover damages from the defendants
J and O, the principal and assistant principal of the school at which she
taught, for intentional infliction of emotional distress in connection with
a work related incident at the school. In her complaint, the plaintiff
alleged, inter alia, that the defendants had instituted a policy of denying
assistance to teachers confronted by violent and disruptive students in
their classrooms, and had refused to assist her when she was assaulted
and injured by two students. She further alleged that the defendants’
conduct was wilful and malicious and carried out for the conscious
purpose of causing physical and emotional injury to her and other teach-
ers. The defendants filed a motion to strike the complaint on the ground
that the plaintiff’s claims were barred by the exclusivity provision (§ 31-
293a) of the Workers’ Compensation Act (act) (§ 31-275 et seq.), which
provides that the act is the exclusive remedy for employees injured by
a coworker and that no civil action may be brought against a coworker
unless the wrongful conduct was wilful or malicious. The trial court
granted the defendants’ motion to strike, concluding that the plaintiff’s
complaint did not state a legally sufficient cause of action that fell
within intentional tort exception to the exclusivity provision of the act.
Thereafter, the trial court granted the defendants’ motion for judgment
and rendered judgment in favor of the defendants. On the plaintiff’s
appeal to this court, held that the trial court properly granted the defen-
dants’ motion to strike, as the plaintiff’s complaint failed to state a cause
of action that fell within the intentional tort exception to the exclusivity
provision of the act: the plaintiff’s complaint failed to state a cause of
action under the actual intent standard set forth in Suarez v. Dickmont
Plastics Corp. (242 Conn. 255), the factual allegations in the complaint
having been insufficient to demonstrate that the defendants actually
intended to cause the plaintiff’s injury, as the complaint was devoid of
any factual allegations that supported the plaintiff’s conclusory allega-
tion that the defendants had the conscious purpose of causing the plain-
tiff physical or emotional injury, or that they directed or authorized the
students to assault the plaintiff, the complaint, which alleged that O
sent a nurse to assist the plaintiff, contained factual allegations that
undermined the plaintiff’s claim, and although the complaint alleged
that J stood at the end of the hallway and did nothing during the incident,
there was no allegation that J knew what had happened to the plaintiff;
moreover, the plaintiff’s complaint failed to state a cause of action under
the substantial certainty standard set forth in Suarez because, although
it alleged that the defendants implemented a policy denying assistance
to teachers with the intent to cause her physical and emotional injury, it
failed to allege sufficient facts that would establish that they intentionally
created a situation that they believed was substantially certain to cause
the plaintiff’s injuries.
Submitted on briefs November 29, 2017—officially released March 27, 2018
Procedural History
Action to recover damages for intentional infliction
of emotional distress, and for other relief, brought to
the Superior Court in the judicial district of New Haven,
where the action was withdrawn as against the defen-
dant Board of Education of the City of New Haven;
thereafter, the court, Nazzaro, J., granted the motion
to strike filed by the defendant Yolanda Jones-Generette
et al.; subsequently, the court, Blue, J., granted the
motion for judgment filed by the defendant Yolanda
Jones-Generette et al. and rendered judgment thereon,
from which the plaintiff appealed to this court.
Affirmed.
John R. Williams filed a brief for the appellant
(plaintiff).
Audrey C. Kramer, assistant corporation counsel,
filed a brief for the appellees (defendant Yolanda Jones-
Generette et al.).
Opinion
BRIGHT, J. The plaintiff, Amy Binkowski, appeals
from the judgment of the trial court rendered in favor
of the defendants Yolanda Jones-Generette and Linda
O’Brien1 following the granting of their motion to strike
her third revised complaint. On appeal, the plaintiff
claims that the court improperly concluded that her
complaint failed, as a matter of law, to allege facts that
would bring it within the intentional tort exception to
the exclusivity provision of the Workers’ Compensation
Act (act), General Statutes § 31-275 et seq., as set forth
in General Statutes § 31-293a. We disagree and, accord-
ingly, affirm the judgment of the trial court.
The plaintiff’s third revised complaint2 contains two
counts, one against each defendant, alleging intentional
infliction of emotional distress. Both counts allege iden-
tical facts. The plaintiff’s claims arise out of a work
related incident that occurred on February 26, 2014. At
that time, the plaintiff was a tenured teacher in the
New Haven public school system at Lincoln-Bassett
Elementary School (school) in New Haven. Jones-Gen-
erette was the principal, and O’Brien was the assistant
principal, for the school during the 2013–2014 school
year.
In the summer of 2013, the defendants instituted a
policy for the school regarding student discipline. The
policy established that the administrators of the school
would not be involved in any issues related to student
discipline. In accordance with the policy, the defen-
dants ‘‘refused to allow classroom teachers to send
disruptive students out of the classroom to a different
environment, refused to intervene in any disrupted
classroom, refused to discipline disruptive or violent
students or to permit classroom teachers to discipline
disruptive or violent students, refused to allow help to
be summoned from outside of the school under any
circumstances, and refused to provide any protection
whatsoever to teachers confronted with disruptive or
violent students.’’
During the 2013–2014 school year, violence at the
school escalated. On February 26, 2014, two students
assaulted the plaintiff in her classroom, knocking her
to the floor. As a result of the assault, the plaintiff
severely sprained her left ankle and knee. The plaintiff
was unable to stand, so she called out for help. Adrianna
Petrucci, the teacher in the classroom across the hall,
responded to the plaintiff’s call for help. The plaintiff
was in pain, lying on the floor, and Petrucci immediately
called the school’s main office for assistance. Petrucci
‘‘also sent a text message to . . . O’Brien, stating: ‘[The
plaintiff] is on the floor in her room from being shoved
out of the way.’ ’’ After receiving the text message,
O’Brien told Petrucci to send a student to the office.
Petrucci repeated that the plaintiff ‘‘is on the floor’’ in
her classroom, and O’Brien responded that she did not
know what that meant.
Although O’Brien did not send security to assist the
plaintiff or go to the classroom herself, she sent the
school nurse to help the plaintiff. While the nurse and
another teacher helped place the plaintiff in a wheel-
chair, some students began fighting in the classroom;
the defendants still had not gone to the plaintiff’s class-
room. The plaintiff alleged that ‘‘Jones-Generette was
standing down at the end of the hallway doing nothing.
At no point was 911 called, and at no point was any
outside assistance summoned.’’
The plaintiff alleged that the defendants’ conduct was
‘‘wilful and malicious. It was carried out for the con-
scious purpose of causing physical and emotional injury
to the plaintiff and other teachers and to cause condi-
tions in the school to deteriorate so badly that the state
of Connecticut would offer special financial assistance
to the school, which otherwise would not have been
available. The said conduct was carried out in conscious
disregard of the injuries it would cause to the plaintiff,
to other teachers, and to the students in the school.’’
The plaintiff further alleged that the defendants’ con-
duct ‘‘was extreme and outrageous and was carried out
with the knowledge that it would cause the plaintiff to
suffer severe emotional distress.’’ The plaintiff sought
compensatory and punitive damages, claiming that she
suffered physical injuries and emotional distress as the
result of the defendants’ conduct.
The defendants filed a motion to strike the plaintiff’s
third revised complaint. They argued that the plaintiff’s
claims are barred by the exclusivity provision of the
act because the complaint failed to allege sufficient
facts to support the claim that the defendants’ conduct
was wilful or malicious. Following a hearing on June
22, 2015, the trial court, Nazzaro, J., issued a memoran-
dum of decision granting the defendants’ motion to
strike. The court concluded that there was ‘‘nothing in
the complaint to suggest that there was intent on the
part of the defendants to cause the plaintiff’s particular
injuries.’’ Specifically, the court held that ‘‘the defen-
dants’ failure to take action does not demonstrate that
they intended to cause the harmful situation under
which the plaintiff suffered injury, and therefore their
actions do not fall within an exception [to] the exclusiv-
ity provision of the [a]ct. Accordingly, the plaintiff has
not set forth a legally sufficient cause of action.’’ The
plaintiff filed a notice of intent to appeal on October
9, 2015, and, thereafter, the trial court, Blue, J., granted
the defendants’ motion for judgment and rendered judg-
ment in favor of the defendants. This appeal followed.
We begin by setting forth the standard of review
and legal principles that govern our resolution of this
appeal. ‘‘The standard of review on an appeal challeng-
ing the granting of a motion to strike is well established.
A motion to strike challenges the legal sufficiency of a
pleading, and, consequently, requires no factual find-
ings by the trial court. As a result, our review of the
court’s ruling is plenary. . . . We take the facts to be
those alleged in the complaint that has been stricken
and we construe the complaint in the manner most
favorable to sustaining its legal sufficiency. . . . Thus,
[i]f facts provable in the complaint would support a
cause of action, the motion to strike must be denied.
. . . [W]e assume the truth of both the specific factual
allegations and any facts fairly provable thereunder.
. . . A [motion to strike] admits all facts well pleaded;
it does not admit legal conclusions or the truth or accu-
racy of opinions stated in the pleadings.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Mercer v. Champion, 139 Conn. App. 216, 223,
55 A.3d 772 (2012).
Section 31-293a provides in relevant part that ‘‘[i]f an
employee . . . has a right to benefits or compensation
under [the act] on account of injury . . . caused by
the negligence or wrong of a fellow employee, such
right shall be the exclusive remedy of such injured
employee . . . and no action may be brought against
such fellow employee unless such wrong was wilful or
malicious . . . .’’
‘‘In Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263
(1979), our Supreme Court recognized an exception
to the exclusivity provision for intentional torts of an
employer. . . . Subsequently, in Suarez v. Dickmont
Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994)
(Suarez I), and Suarez v. Dickmont Plastics Corp., 242
Conn. 255, 698 A.2d 838 (1997) (Suarez II), the court
expanded the intentional tort exception to the exclusiv-
ity provision to include circumstances in which either
. . . the employer actually intended to injure the plain-
tiff (actual intent standard) or . . . the employer inten-
tionally created a dangerous condition that made the
plaintiff’s injuries substantially certain to occur (sub-
stantial certainty standard).’’ (Citation omitted; empha-
sis omitted; internal quotation marks omitted.) Dinino
v. Federal Express Corp., 176 Conn. App. 248, 255–56,
169 A.3d 303 (2017).
On appeal, the plaintiff argues that her complaint
states a cause of action under both the actual intent
standard and the substantial certainty standard. We
disagree.
I
The plaintiff first claims that her complaint ‘‘clearly
and explicitly alleged intentional conduct . . . with
great factual detail.’’ The plaintiff argues that the factual
allegations in her complaint ‘‘would support a jury’s
finding that the defendants intentionally and mali-
ciously took affirmative actions, and took some of those
actions with the intent that this specific plaintiff suffer
the injuries which she did suffer.’’ We are not persuaded.
The actual intent prong of Suarez II requires that
‘‘[b]oth the action producing the injury and the resulting
injury must be intentional. . . . [The] characteristic
element is the design to injure either actually enter-
tained or to be implied from the conduct and circum-
stances.’’ (Citation omitted; internal quotation marks
omitted.) Suarez II, supra, 242 Conn. 279. ‘‘Without a
showing that the employer’s violations of safety regula-
tions were committed with a conscious and deliberate
intent directed to the purpose of inflicting an injury
. . . [a] wrongful failure to act to prevent injury is not
the equivalent of an intention to cause injury.’’ (Citation
omitted; internal quotation marks omitted.) Ramos v.
Branford, 63 Conn. App. 671, 685, 778 A.2d 972 (2001).
‘‘A result is intended if the act is done for the purpose
of accomplishing such a result . . . .’’ (Emphasis in
original; internal quotation marks omitted.) Suarez II,
supra, 279.
In her complaint, the plaintiff alleges that the defen-
dants instituted a policy of denying assistance to teach-
ers confronted by violent and disruptive students in
their classrooms, and then refused to assist the plaintiff
when she was assaulted in her classroom by two stu-
dents. According to the plaintiff, this policy of inaction,
and the defendants’ failure to take action once the plain-
tiff had been injured, were ‘‘carried out for the con-
scious purpose of causing physical and emotional injury
to the plaintiff and other teachers’’ in order to receive
financial assistance from the state of Connecticut. Con-
struing these facts in the manner most favorable to
sustaining the legal sufficiency of the complaint, as we
must, we, nevertheless, conclude that the plaintiff has
failed to state a cause of action that falls within the
intentional tort exception to the exclusivity provision
of the act.
In order to satisfy the actual intent prong, there has to
be factual allegations that establish that the employer’s
intentional conduct was designed to cause the employ-
ee’s injury. In McCoy v. New Haven, 92 Conn. App. 558,
560, 886 A.2d 489 (2005), the plaintiff alleged that he
was assaulted by a coemployee and that, ‘‘as the city
affirmatively condoned and thereby positively fostered
. . . assaultive conduct by [the coemployee] against his
co-workers, the city either intended or was substantially
certain that the plaintiff’s injuries would occur.’’ (Inter-
nal quotation marks omitted.) This court affirmed the
trial court’s granting of the city’s motion to strike. Id.
We reasoned that ‘‘[a]lthough [the plaintiff’s complaint]
alleges in conclusory fashion that the [Suarez] excep-
tion applies, the complaint contains no allegations that
the city intended to injure the plaintiff or that the city
directed or authorized [the coemployee] to injure the
plaintiff.’’ Id., 563. Relying on our Supreme Court’s deci-
sion in Jett v. Dunlap, supra, 179 Conn. 215, this court
explained that merely alleging that the employer con-
doned the acts that resulted in the plaintiff’s injury
is not enough. Id., 564. We concluded that ‘‘[a]bsent
allegations that the city . . . directed or authorized the
assault, the Suarez exception does not apply.’’ Id.
In the present case, the plaintiff’s complaint contains
a conclusory allegation that the defendants undertook
their actions for the ‘‘conscious purpose’’ of causing
the plaintiff physical and emotional injury. As in McCoy,
there is no allegation that the defendants directed or
authorized the students to assault the plaintiff, and the
plaintiff’s factual allegations do not support the conclu-
sory allegation that the defendants intended to cause
the plaintiff’s injuries. In fact, the complaint contains
factual allegations that undermine the plaintiff’s claim
that the defendants intended to cause her to suffer
physical and emotional injuries. For example, the com-
plaint alleges that O’Brien sent a nurse to assist the
plaintiff, which is inconsistent with an intent to cause
the plaintiff any type of harm. Additionally, the com-
plaint alleges that Jones-Generette stood at the end of
the hallway doing nothing during the incident, but there
is no allegation that Jones-Generette even knew what
had happened to the plaintiff. Accordingly, the plain-
tiff’s complaint is devoid of any factual allegations that
would support her conclusory allegation that the defen-
dants actually intended to injure the plaintiff. At best,
the plaintiff’s complaint alleges that the defendants con-
doned violence in the school, which is insufficient to
establish that the defendants actually intended to injure
the plaintiff. See McCoy v. New Haven, supra, 92 Conn.
App. 563–64.
Simply put, the factual allegations in the complaint,
if proven, are insufficient to demonstrate that the defen-
dants actually intended to injure the plaintiff. Accord-
ingly, the plaintiff’s complaint fails to state a cause of
action under the actual intent prong of Suarez II.
II
The plaintiff also claims that she has sufficiently
pleaded facts to sustain the legal sufficiency of her
complaint under the substantial certainty standard. The
plaintiff argues that the factual allegations establish that
her ‘‘injuries were known to the defendants to be a
substantially certain consequence of their actions.’’
We disagree.
‘‘Although it is less demanding than the actual intent
standard, the substantial certainty standard is, nonethe-
less, an intentional tort claim requiring an appropriate
showing of intent to injure on the part of the defendant.
. . . Specifically, the substantial certainty standard
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 [a] defendant exhibited a lackadaisical
or even cavalier attitude toward worker safety . . . .
Rather, a plaintiff must demonstrate that [the] employer
believed that its conduct was substantially certain to
cause the employee harm.’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.) Sullivan
v. Lake Compounce Theme Park, Inc., 277 Conn. 113,
118, 889 A.2d 810 (2006). ‘‘Substantial certainty exists
when the employer cannot be believed if it denies that
it knew the consequences were certain to follow.’’ Sor-
ban v. Sterling Engineering Corp., 79 Conn. App. 444,
455, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d
473 (2003).
The trial court, relying on this court’s decision in
Melanson v. West Hartford, 61 Conn. App. 683, 767 A.2d
764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001),
concluded that the plaintiff had failed to state a cause
of action under the substantial certainty prong of
Suarez II. In Melanson, the plaintiff was a police officer
who had been shot accidentally by a fellow police offi-
cer while they were executing a search warrant. Id.,
685–86. The plaintiff, relying on the substantial certainty
standard, claimed that the town’s failure to manage,
train, and staff his team of police officers adequately
permitted the inference that the town intentionally had
created a situation that it knew was substantially certain
to cause his injuries. Id., 686.
This court affirmed the trial court’s granting of the
defendants’ motion to strike the plaintiff’s complaint,
concluding that the plaintiff had not alleged facts that
would permit a finding that the town knew that the
plaintiff’s injury was substantially certain to occur. Id.,
689–90. This court rejected the plaintiff’s claim for two
reasons. First, we reasoned that ‘‘the alleged town fail-
ings on which the plaintiff rests his case are allegations
of misconduct that address negligence rather than
intentional misconduct. Failure to take affirmative
remedial action, even if wrongful, does not demonstrate
an affirmative intent to create a situation that causes
personal injury.’’ (Footnote omitted.) Id., 689. Second,
the plaintiff’s ‘‘complaint provide[d] no factual basis for
a finding that the town was substantially certain that
the specific injury that the plaintiff suffered would
occur.’’ Id.
The present case is controlled by this court’s decision
in Melanson. In Melanson, the plaintiff alleged that the
town and the individual defendants had failed to take
affirmative remedial action. On appeal, this court noted
that such allegations ‘‘address negligence rather than
intentional misconduct.’’ Id., 689. In the present case,
the plaintiff has alleged that the defendants affirma-
tively failed to take certain actions and that they knew
the plaintiff’s injuries would occur as the result of their
policy of inaction. Although the plaintiff has framed
the defendants’ failure to take action as ‘‘intentional
conduct,’’ the plaintiff’s claim is indistinguishable from
the plaintiff’s claim in Melanson. At best, the defen-
dants’ conduct, as alleged in the complaint, establishes a
‘‘lackadaisical or even cavalier attitude towards worker
safety . . . .’’ (Internal quotation marks omitted.) Sul-
livan v. Lake Compounce Theme Park, Inc., supra, 277
Conn. 119. The defendants’ allegedly wrongful conduct
‘‘is not the equivalent of ordering [a] soldier to walk
through a mine field all by himself just to see if it was
working.’’ (Internal quotation marks omitted.) Melan-
son v. West Hartford, supra, 61 Conn. App. 689 n.7.
Although the plaintiff has alleged that the defendants
implemented a policy denying assistance to teachers
with the intent to cause her physical and emotional
injury, she has failed to allege sufficient facts that would
establish that the defendants intentionally created a
situation that they believed was substantially certain to
cause the plaintiff’s injuries. Accordingly, the plaintiff’s
complaint fails to state a cause of action under the
substantial certainty prong of Suarez II.
In sum, the plaintiff failed to allege facts that, if
proven, would be sufficient to allow recovery under
either the actual intent standard or the substantial cer-
tainty standard. Accordingly, the trial court properly
granted the defendants’ motion to strike the plain-
tiff’s complaint.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff initially filed her complaint against the Board of Education
of the city of New Haven (board), Jones-Generette, and O’Brien. Following
the trial court’s granting of the defendants’ first motion to strike, the plaintiff
withdrew the action as to the board. All references to the defendants in
this opinion are to Jones-Generette and O’Brien.
2
The defendants filed a request to revise the original complaint on Decem-
ber 4, 2014, and the plaintiff then filed a revised complaint on December
5, 2014. Thereafter, the defendants filed a motion to strike the plaintiff’s
revised complaint on December 22, 2014, which the trial court granted on
February 23, 2015. The plaintiff then filed the operative complaint on April
13, 2015.