Hassiem v. O and G Industries, Inc. ( 2020 )

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DILA HASSIEM v. O & G INDUSTRIES, INC.
(AC 41794)
Lavine, Bright and Devlin, Js.
Syllabus
The plaintiff employee sought to recover damages from the defendant
employer for personal injuries he sustained at work while cleaning
equipment that allegedly resulted from the defendant’s having intention-
ally created a dangerous condition that it knew with substantial certainty
would result in injury to the plaintiff. The trial court granted the defen-
dant’s motion for summary judgment and rendered judgment for the
defendant. The court concluded that the plaintiff’s claim was barred by
the exclusivity provision (§ 31-284 (a)) of the Workers’ Compensation
Act because the plaintiff failed to present a genuine issue of material
fact to show that the defendant engaged in intentional conduct that it
knew with substantial certainty would result in injury to him. The court
determined, inter alia, that there was no information that the defendant’s
failure, prior to the plaintiff’s injury, to install a lockout device it had
previously required that would have activated and controlled the equip-
ment was intentional or would cause injury. The court also determined
that, in the months prior to the plaintiff’s injury, the defendant had
discussed with the plaintiff and other employees changes it was making
for safety and other operational procedures, and that there was no
evidence of a failure to follow safety regulations before the plaintiff’s
injury or that the defendant had disabled or changed any of its devices
for any improper reason. On appeal to this court, the plaintiff claimed
that the trial court improperly granted the defendant’s motion for sum-
mary judgment because questions as to intent are to be decided by the
trier of fact, and the defendant coerced him into cleaning the equipment
and was deliberately deceptive in having failed to install the lockout
device when it knew that the device was required to be used. Held that
the trial court properly granted the defendant’s motion for summary
judgment, the plaintiff having failed to show that there was a genuine
issue of material fact as to whether the defendant had the subjective
intent to create a dangerous situation knowing that there was a substan-
tial certainty he would be injured: there was no genuine issue of material
fact that the defendant was not deliberately deceptive in failing to install
the lockout device and did not subjectively believe the plaintiff’s injury
was certain to follow, as the defendant was aware, and informed its
employees that it was aware, of the dangers posed by powerful machines
that could accidentally be turned on, it informed its employees of its
intention to install the lockout devices it had acquired and, although
the defendant failed to install the lockout devices expeditiously, decep-
tion or a subjective intent to injure employees could not be inferred
from that failure and was not sufficient to demonstrate the necessary
intent to injure; moreover, there were no genuine issues of material fact
as to the plaintiff’s claim that he was coerced into cleaning the equip-
ment, as the plaintiff presented no evidence that he previously had
safety concerns about cleaning the equipment or that he could not
complain about the dangerous procedure used to clean it in light of a
complaint he had raised in the past with respect to another task he was
asked to perform.
Argued January 9—officially released June 2, 2020
Procedural History
Action to recover damages for personal injuries sus-
tained as a result of the defendant’s allegedly intentional
creation of a dangerous workplace condition, and for
other relief, brought to the Superior Court in the judicial
district of Waterbury, where the court, Brazzel-Mas-
saro, J., granted the defendant’s motion to strike; there-
after, the court granted the defendant’s motion for sum-
mary judgment and rendered judgment thereon, from
which the plaintiff appealed to this court. Affirmed.
John T. Bochanis, for the appellant (plaintiff).
Michael S. Lynch, with whom was Nicole A. Carnem-
olla, for the appellee (defendant).
Opinion
LAVINE, J. Our Workers’ Compensation Act (act);
General Statutes § 31-275 et seq.; provides the exclusive
remedy for an employee who sustains an injury that
arises out of and in the course of employment, unless
the employee can establish ‘‘an employer’s subjective
intent to create a dangerous situation with a substantial
certainty of injury to the employee [thereby] avoiding
application of General Statutes § 31-284 (a), the exclu-
sive remedy provision of the [act] . . . .’’ (Internal quo-
tation marks omitted.) Lucenti v. Laviero, 327 Conn.
764, 766, 176 A.3d 1 (2018). Decisions issued by this
court and our Supreme Court repeatedly have stressed
the need for this stringent rule to uphold the legislative
intent underlying our workers’ compensation scheme.
In the present matter, the plaintiff, Dila Hassiem,
appeals from the summary judgment rendered by the
trial court in favor of the defendant, O & G Industries,
Inc., after concluding that the plaintiff’s claim was
barred by the exclusivity provision of the act. On appeal,
the plaintiff claims that the court improperly deter-
mined that there were no genuine issues of material
fact that the defendant did not engage in an intentional
act knowing that there was a substantial certainty that
the plaintiff would be injured. We affirm the judgment
of the trial court.
There are no material factual disputes concerning
the manner and nature of the injury the plaintiff sus-
tained. The plaintiff was employed by the defendant at
its asphalt production facility in Stamford. Once a year,
the defendant performed routine maintenance of its
equipment, including a horizontal auger in a trough that
is used to transfer stone and sand in the making of
asphalt. The defendant’s employees turn power to the
auger on and off in a control room. On December 27,
2011, Robert Buchetto, the defendant’s maintenance
supervisor, ordered the plaintiff to clean the auger and
the trough.1 The plaintiff was not aware that power to
the auger was on when he prepared to clean it with a
high pressure hose. He climbed a ladder to a platform
above the auger, which had no protective barrier, and
was pulling up the hose when he slipped and fell into
the trough. The plaintiff’s left leg was caught in the
auger and severed above his knee. As a result of his
injuries, the plaintiff applied for and received workers’
compensation benefits.
The plaintiff commenced the present litigation in
which he alleged that the injuries he sustained were
a direct result of the defendant’s intentionally having
created a dangerous condition, knowing that the dan-
gerous condition made his injuries substantially certain
to occur. In response to the plaintiff’s revised com-
plaint,2 the defendant filed a motion for summary judg-
ment, claiming that there were no genuine issues of
material fact as to whether it ‘‘had a substantially certain
belief that cleaning the auger would cause the plaintiff
to sustain injuries.’’ The plaintiff opposed the motion
for summary judgment. Following the parties’ submis-
sion of exhibits, numerous memoranda of law, and after
oral argument, the trial court issued a comprehensive
memorandum of decision on June 12, 2018. The court
granted the defendant’s motion for summary judgment,
stating, in part, that the plaintiff had failed to present
a genuine issue of fact to show that the defendant had
engaged in intentional conduct knowing that there was
a substantial certainty that the plaintiff would be injured
while cleaning the auger. The court concluded that,
‘‘[b]ecause there is no intentional act that was substan-
tially certain to cause serious injury, the exception to
the [act] does not apply.’’ The plaintiff, thereafter,
appealed to this court. The central issue presented to
us is whether the trial court properly determined that
there were no issues of material fact as to the defen-
dant’s subjective intent to create a dangerous situation
with a substantial certainty of injury to the plaintiff.
We conclude that it did.
Before addressing the plaintiff’s claim, we set forth
the applicable standard of review and the principles
that guide our analysis of an appeal from the granting
of a motion for summary judgment. ‘‘Our review of the
trial court’s decision to grant the defendant’s motion
for summary judgment is plenary. . . . 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.’’ (Citation
omitted; internal quotation marks omitted.) Gold v.
Greenwich Hospital Assn., 262 Conn. 248, 253, 811 A.2d
1266 (2002).
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits 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 seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under the applicable principles of substantive law, enti-
tle him to a judgment as a matter of law . . . and the
party opposing such a motion must provide an eviden-
tiary foundation to demonstrate the existence of a genu-
ine issue of material fact. . . .
‘‘A material fact is a fact that will make a difference
in the result of the case. . . . It is not enough for the
moving party merely to assert the absence of any dis-
puted factual issue; the moving party is required to bring
forward . . . evidentiary facts, or substantial evidence
outside the pleadings to show the absence of any mate-
rial dispute. . . . The party opposing summary judg-
ment must present a factual predicate for his argument
to raise a genuine issue of fact. . . . Once raised, if it is
not conclusively refuted by the moving party, a genuine
issue of fact exists, and summary judgment is inappro-
priate. . . . [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.
. . . Demonstrating a genuine issue requires the parties
to bring forward before trial evidentiary facts, or sub-
stantial evidence outside the pleadings, from which the
material facts alleged in the pleadings can warrantably
be inferred.’’ (Citations omitted; internal quotation
marks omitted.) Martinez v. Premier Maintenance,
Inc., 185 Conn. App. 425, 434–35, 197 A.3d 919 (2018).
‘‘The fundamental purpose of summary judgment is
preventing unnecessary trials. . . . If a plaintiff is
unable to present sufficient evidence in support of an
essential element of his cause of action at trial, he
cannot prevail as a matter of law. . . . To avert these
types of ill-fated cases from advancing to trial, following
adequate time for discovery, a plaintiff may properly
be called upon at the summary judgment stage to dem-
onstrate that he possesses sufficient counterevidence
to raise a genuine issue of material fact as to any, or even
all, of the essential elements of his cause of action.’’
(Citations omitted; internal quotation marks omitted.)
Stuart v. Freiberg, 316 Conn. 809, 822–23, 116 A.3d 1195
(2015). Summary judgment is mandated ‘‘after adequate
time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case,
and on which that party will bear the burden of proof
at trial. In such a situation, there can be no genuine
issue as to any material fact, since a complete failure of
proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immate-
rial.’’ (Internal quotation marks omitted.) Celotex Corp.
v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 91 L.
Ed. 2d 265 (1986). ‘‘The test is whether a party would
be entitled to a directed verdict on the same facts.’’
(Internal quotation marks omitted.) Scheirer v. Frenish,
Inc., 56 Conn. App. 228, 232, 742 A.2d 808 (1999), cert.
denied, 252 Conn. 938, 747 A.2d 3 (2000).
I
The plaintiff’s appeal concerns the exception to the
exclusive remedy provision of our workers’ compensa-
tion scheme, § 31-284 (a), which provides in relevant
part: ‘‘An employer who complies with the requirements
of subsection (b) of this section 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 . . . .’’ Our Supreme Court
consistently has ‘‘interpreted the exclusivity provision
of the act . . . 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.’’ Suarez v. Dickmont Plastics Corp., 229
Conn. 99, 106, 639 A.2d 507 (1994) (Suarez I).
The exclusivity provision ‘‘represents a balancing of
interest, insofar as the purpose of the act is to compen-
sate the worker for injuries arising out of and in the
course of employment, without regard to fault, by
imposing a form of strict liability on the employer. . . .
The act is to be broadly construed to effectuate the
purpose of providing compensation for an injury arising
out of and in the course of the employment regardless
of fault. . . . Under typical workers’ compensation
statutes, employers are barred from presenting certain
defenses to the claim for compensation, the employee’s
burden of proof is relatively light, and recovery should
be expeditious. 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.’’ (Internal quotation marks omit-
ted.) Lucenti v. Laviero, supra, 327 Conn. 774; Min-
gachos v. CBS, Inc., 196 Conn. 91, 106, 491 A.2d 368
(1985) (same). ‘‘A damage suit as an alternative or addi-
tional source of compensation, becomes permissible
only by carving a judicial exception in an uncarved
statute. . . . Neither moral aversion to the employer’s
act nor the shiny prospect of a large damage verdict
justifies interference with what is essentially a policy
choice of the [l]egislature.’’ (Internal quotation marks
omitted.) Id. The ‘‘principle of exclusivity is not eroded,
[however] . . . when the plaintiff alleges an inten-
tional tort, in which case an employee is permitted to
pursue remedies beyond those contemplated by the
act.’’ Suarez I, supra, 229 Conn. 115.
Our Supreme Court first recognized the narrow inten-
tional tort exception to the act’s exclusivity in Jett v.
Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979). In Jett,
the court exempted from the exclusivity provision of
the act an employer’s tortious act of intentionally direct-
ing or authorizing another employee to assault the
injured party. Id., 218–19. In Mingachos v. CBS, Inc.,
supra, 196 Conn. 100–101, the court ‘‘declined to extend
[the] intentional tort exception to [the] act’s exclusivity
provision to situations in which an injury resulted from
the employer’s intentional, wilful, or reckless violations
of safety standards as established pursuant to federal
or state laws.’’ Lucenti v. Laviero, supra, 327 Conn.
775. ‘‘To bypass the exclusivity of the act, the intentional
or deliberate . . . conduct alleged must have been
designed to cause the injury that resulted.’’ Mingachos
v. CBS, Inc., supra, 102. ‘‘[T]he mere knowledge and
appreciation of a risk, short of substantial certainty, is
not the equivalent of intent.’’ (Internal quotation marks
omitted.) Id., 103. Reckless misconduct differs from
intentional misconduct, and an employee must estab-
lish that the employer knew that injury was substantially
certain to follow its deliberate course of action. Id.
Our Supreme Court ‘‘elaborated on the contours of
this substantial certainty standard as an alternative
method of proving intent in Suarez I and [Suarez v.
Dickmont Plastics Corp., 242 Conn. 255, 698 A.2d 838
(1997) (Suarez II)], which arose from amputation injur-
ies suffered by an employee who claimed that his fore-
man had forced him to clean out plastic molding
machines while those machines were still running, and
forbade him and other employees from using safer
cleaning methods under threat of termination of their
employment, despite the risk of injury to their hands.’’
Lucenti v. Laviero, supra, 327 Conn. 775.
In Suarez I, the trial court granted the employer’s
motion for summary judgment ‘‘on the ground that the
exclusivity provision of the act barred his claim,
because he had introduced no evidence that the
employer intended to injure him.’’ Id., 776. The
employee appealed and our Supreme Court further
defined the substantial certainty exception, concluding
that ‘‘intent refers to the consequences of an act . . .
[and] denote[s] that the actor desires to cause [the]
consequences of his act, or that he believes that the
consequences are substantially certain to flow from it.
. . . A result is intended if the act is done for the pur-
pose of accomplishing such a result or with knowledge
that to a substantial certainty such a result will ensue.
. . . An intended or wilful injury does not necessarily
involve the ill will or malevolence shown in express
malice, but it is insufficient to constitute such an
[intended] injury that the act . . . was the voluntary
action of the person involved. . . . Both the action pro-
ducing the injury and the resulting injury must be inten-
tional. . . . [Its] characteristic element is the design to
injure either actually entertained or to be implied from
the conduct and circumstances. . . . The intentional
injury aspect may be satisfied if the resultant bodily
harm was the direct and natural consequence of the
intended act. . . . The known danger involved must
go from being a foreseeable risk which a reasonable
man would avoid and become a substantial certainty.’’
(Internal quotation marks omitted.) Id. The court
reversed the summary judgment and remanded the case
for further proceedings, concluding that it was a ques-
tion for the jury to determine whether the employer’s
intentional conduct permitted an inference that the
employer knew that there was a substantial certainty
an injury would occur. Id., 777; Suarez I, supra, 229
Conn. 119.
On remand, the jury returned a verdict in favor of
the employee under the actual intent standard, rather
than under the substantial certainty exception; the
employer appealed. Lucenti v. Laviero, supra, 327
Conn. 777. In Suarez II, our Supreme Court ‘‘restated
the substantial certainty test to emphasize that the
employer must be shown actually to believe that the
injury would occur . . . .’’ (Emphasis in original; inter-
nal quotation marks omitted.) Id. The court ‘‘described
its decision in Suarez I as establishing an exception to
workers’ compensation exclusivity if the employee can
prove either that the employer actually intended to
injure the [employee] or that the employer intentionally
created a dangerous condition that made the [employ-
ee’s] injuries substantially certain to occur . . . .’’
(Internal quotation marks omitted.) Id., 777–78. The
court stated that ‘‘[p]ermitting an employee to sue an
employer for injuries intentionally caused to him consti-
tutes a narrow exception to the exclusivity of the act.
. . . Since the legal justification for the common-law
action is the nonaccidental character of the injury from
the . . . employer’s standpoint, the common-law lia-
bility of the employer cannot . . . be stretched to
include accidental injuries caused by the gross, wanton,
wilful, deliberate, intentional, reckless, culpable, or
malicious negligence, breach of statute, or other mis-
conduct of the employer short of a conscious and delib-
erate intent directed to the purpose of inflicting an
injury. . . . What is being tested is not the degree
of gravity of the employer’s conduct, but, rather, the
narrow issue of intentional versus accidental con-
duct.’’ (Emphasis in original; internal quotation marks
omitted.) Id., 778–79.
In Lucenti, the Supreme Court noted that ‘‘it is now
well established under Connecticut law that proof of
the employer’s intent with respect to the substantial
certainty exception demands a purely subjective
inquiry. . . . Put differently, satisfaction of the sub-
stantial certainty exception requires a showing of the
employer’s subjective intent to engage in activity that
it knows bears a substantial certainty of injury to its
employees.’’ (Citations omitted.) Id., 779. The court,
however, noted that intent is a question of fact ‘‘ordi-
narily inferred from one’s conduct or acts under the
circumstances of the particular case.’’ (Internal quota-
tion marks omitted.) Id., 780. Historically, there was a
substantial body of Connecticut law rejecting an
employee’s claim of entitlement to the substantial cer-
tainty exception, but no decision described ‘‘the kind
of evidence that would allow for an inference that an
employer subjectively believed that employee injury
was substantially certain to follow its actions.’’ Id. The
court, therefore, looked to other jurisdictions in which
the substantial certainty exception was a common fea-
ture of workers’ compensation law and found New Jer-
sey law instructive. Id.; see Millison v. E.I. du Pont de
Neumours & Co., 101 N.J. 161, 178–79, 501 A.2d 505
(1985) (New Jersey’s ‘‘leading decision articulating sub-
stantial certainty test’’).
‘‘New Jersey courts engage in a [two step] analysis.
First, a court considers the conduct prong, examining
the employer’s conduct in the setting of the particular
case. . . . Second, a court analyzes the context prong,
considering whether the resulting injury or disease, and
the circumstances in which it is inflicted on the worker,
[may] fairly be viewed as a fact of life of industrial
employment, or whether it is plainly beyond anything
the legislature could have contemplated as entitling
the employee to recover only under the [New Jersey
Workers’ Compensation Act].’’ (Internal quotation
marks omitted.) Lucenti v. Laviero, supra, 327 Conn.
780–81.3
The New Jersey conduct prong of the substantial
certainty test is closely akin to the factual inquiry Con-
necticut courts ‘‘undertake in determining whether the
employer knew of a substantial certainty of employee
harm . . . .’’ (Footnote omitted.) Id., 781–82. An
employer’s mere knowledge ‘‘that a workplace is dan-
gerous does not equate to an intentional wrong. . . .
[T]he dividing line between negligent or reckless con-
duct on the one hand and intentional wrong on the
other must be drawn with caution, so that the statutory
framework . . . is not circumvented simply because a
known risk later blossoms into reality. [Courts] must
demand virtual certainty.’’ (Internal quotation marks
omitted.) Id., 782. ‘‘In considering whether the totality
of the circumstances indicates that the conduct prong
is satisfied, New Jersey courts consider factors such
as: (1) prior similar accidents related to the conduct at
issue that have resulted in employee injury, death, or
a near-miss, (2) deliberate deceit on the part of the
employer with respect to the existence of the dangerous
condition, (3) intentional and persistent violations of
safety regulations over a lengthy period of time, and
(4) affirmative disabling of safety devices.’’4 (Footnote
omitted; internal quotation marks omitted.) Id.
Our Supreme Court found that the body of New Jer-
sey case law ‘‘applying the factors that guide the con-
duct prong of the substantial certainty exception dem-
onstrates that proof of negligent or even reckless
conduct will not suffice, and only the most egregious
examples of employer conduct will defeat workers’
compensation exclusivity.’’ Id., 783. In addition, cases
from other states ‘‘applying the substantial certainty
doctrine are consistent with the factors applied in New
Jersey.’’ Id., 785. Importantly, the court found that Con-
necticut appellate decisions also are consistent with
the New Jersey multifactor standard, ‘‘including our
decisions that stand for the proposition that, although
warnings to the employer regarding the safety of work-
place conditions are relevant evidence, they do not,
without more, raise a genuine issue of material fact to
defeat summary judgment with respect to whether an
employer subjectively believes that its employee’s injur-
ies are substantially certain to result from its action.’’
(Footnote omitted.) Id., 786.
The court in Lucenti noted that in Stebbins v. Doncas-
ters, Inc., 263 Conn. 231, 235, 819 A.2d 287 (2003)
(adopting trial court’s decision in Stebbins v. Doncas-
ters, Inc., 47 Conn. Supp. 638, 820 A.2d 1137 (2002)), the
employees had presented evidence that the employer
failed to follow warnings and recommendations from
the University of Connecticut Health Center concerning
air quality. Lucenti v. Laviero, supra, 327 Conn. 786–87.
‘‘Despite evidence that the [employer] received these
warnings and did not follow them, the [trial] court ulti-
mately held that the evidence submitted by the employ-
ees provided nothing more than a mere failure to pro-
vide appropriate safety or protective measures. . . .
The [trial] court concluded that [t]he [employees’] sub-
missions may show that the [employer] exhibits a lacka-
daisical or even cavalier attitude toward worker safety,
but are bereft of evidence from which one might reason-
ably and logically infer that the [employer] believed its
conduct was substantially certain to cause hypersensi-
tivity pneumonitis in these [employees]. . . . Thus, the
evidence did not establish that the employer believed
that its conduct was substantially certain to cause injury
to the employees, and the act’s exclusivity provision
barred the employees’ claim.’’ (Citations omitted; inter-
nal quotation marks omitted.) Id., 787.
The court in Lucenti also noted that in Sorban v.
Sterling Engineering Corp., 79 Conn. App. 444, 446,
830 A.2d 372 (overruled in part by Lucenti v. Laviero,
327 Conn. 764, 788 n.10, 176 A.3d 1 (2018)), cert. denied,
266 Conn. 925, 835 A.2d 473 (2003), ‘‘an employee
warned his supervisor that a lathe was not working
properly. In response, the supervisor told the employee
to be careful.’’ Lucenti v. Laviero, supra, 787. The lathe
malfunctioned and threw a piece of material that broke
through a safety shield and struck the employee’s arm,
causing a severe laceration. Id. The employee presented
evidence that the employer was aware that its employ-
ees operated the machine without the proper safety
shield and had been warned of the dangerous condition.
Id., 787–88. Nonetheless, the trial court concluded that,
‘‘[a]lthough the [employer’s] failure (1) to repair the
lathe, (2) to provide adequate butt blocks and shield
guards, and (3) to alert employees to a policy regarding
the use of the rotating table [from which the material
that struck the employee was thrown] may constitute
negligence, gross negligence or even recklessness,
those allegations fail to meet the high threshold of sub-
stantial certainty . . . . The combination of factors
demonstrated a failure to act; however, such a failure
is not the equivalent of an intention to cause injury.’’
(Internal quotation marks omitted.) Id., 788; Sorban v.
Sterling Engineering Corp., supra, 446.5
Our review of the trial court’s thorough memorandum
of decision in the present case discloses that the court
was well aware of the stringent standard applicable to
the substantial certainty doctrine when adjudicating the
defendant’s motion for summary judgment. The court
discussed the evolution of the substantial certainty doc-
trine in Suarez I; Suarez II; Stebbins v. Doncasters,
Inc., supra, 47 Conn. Supp. 638; Sorban v. Sterling Engi-
neering Corp., supra, 79 Conn. App. 444; Mingachos v.
CBS, Inc., supra, 196 Conn. 91; and noted the factual
distinctions and similarities between those cases and
the facts of the present case. Most significantly, the
court was knowledgeable with respect to the New Jer-
sey hallmarks that define intentional acts and substan-
tial certainty to injure that are at the heart of the excep-
tion to the exclusivity provision of the act.
In adjudicating the question posed by the defendant’s
motion for summary judgment, i.e., whether the plaintiff
had provided evidence that there is a genuine issue of
material fact that the actions of the defendant in giving
the plaintiff the task of cleaning the auger intentionally
created a dangerous condition and that there was a
substantial certainty that the plaintiff would be injured,
the court stated that, ‘‘[u]nder Connecticut law, proof
of the employer’s intent with respect to the substantial
certainty exception demands a purely subjective
inquiry. Sullivan v. Lake Compounce Theme Park, Inc.,
277 Conn. 113, 118–20, 889 A.2d 810 (2006); Stebbins
v. Doncasters, Inc., supra, [263 Conn. 234]. Thus, in
order to satisfy the substantial certainty exception, the
plaintiff must show that the [defendant’s] subjective
intent was to engage in an activity that it knows bears
a substantial certainty of injury to its employees.
[Suarez I and Suarez II] established a heavy burden
to demonstrate intentional acts.’’
The court noted the New Jersey multifactor frame-
work that our Supreme Court found ‘‘particularly
instructive’’: ‘‘(1) prior similar accidents related to the
conduct at issue that have resulted in employee injury,
death, or a near-miss, (2) deliberate deceit on the part
of the employer with respect to the existence of the
dangerous condition, (3) intentional and persistent vio-
lations of safety regulations over a lengthy period of
time, and (4) affirmative disabling of safety devices.
Lucenti v. Laviero, supra, 327 Conn. 782.’’ (Internal
quotation marks omitted.) Applying those factors to the
facts of the case at hand, the court concluded that
those facts did ‘‘not yield a showing that the [defendant]
intentionally created a dangerous condition and that
the condition was substantially certain to cause injury
to the [plaintiff].’’
More to the point, the court found that ‘‘there is no
evidence of any prior similar accidents or any accident
that occurred during the past years performing this
same process to clean [the auger]. The plaintiff has not
provided any evidence that the defendant did anything
to deceive or place the employees in a dangerous posi-
tion. The plaintiff argue[d] that the defendant was to
put in new lockout devices to activate and control the
equipment, but there is no information provided that
the failure to have them installed in the six months
prior to the accident had been purposeful to either save
time or money or that the lack of or initiation of these
procedures was intentional or would cause injury. The
failure to have the new device in place on this date,
while possibly a sign of poor management, is not tanta-
mount to the intentional conduct which is described
by our courts. Interestingly enough, according to the
plaintiff’s deposition testimony, the defendant took the
time with its employees to discuss various changes it
was making for safety and other operational procedures
just six months before this accident. The change which
was to be made for the starting controls of the auger
. . . was known to the plaintiff because he had been
present in meetings which were obviously scheduled
to discuss the operations the plant and new procedures.
Unlike many of the cases discussed [in this memoran-
dum of decision], the defendant in this case was taking
positive action for oversight of the operations. Even
prior to the discussion of the lockout device, the defen-
dant had in place a procedure for the person cleaning
the auger to determine that it was ready to turn on.
There was no testimony that this had changed. The
plaintiff offered this testimony and then could not
remember specifically what he did or if the process
was followed.
‘‘The process at issue in this action did not, unlike
other actions, involve direct contact with the auger
. . . . Unlike [the Suarez cases], where the plaintiff
was . . . cleaning the machine out with his hands
while it was still running, or Sorban, where the machine
was working and [something broke off] hitting the plain-
tiff, the operation here called for the machine to be off
until the person cleaning it gave the approval to start
it. If anything, the evidence presented by both parties
as to training and oversight creates the image of negli-
gence in the operation or a lackadaisical approach to
the placement of the new process to the factory.
‘‘It should also be noted that up until this accident
there [were no violations of the Occupational Safety
and Health Act of 1970 (OSHA), 29 U.S.C. § 651 et seq.],
no accidents, no verbal complaint by [the plaintiff] or
any others, no evidence that the defendant chose to
not install the lockout [devices] for purposes of saving
money or time in the operation and, therefore, there was
no deceitful or even improper purpose demonstrated
by the plaintiff. . . .
‘‘[T]here is no testimony or evidence that the place-
ment of a checks and balance process would have cre-
ated a different scenario. The plaintiff testified in his
deposition that there was a process that was followed,
to his knowledge, which is [that] the [auger] would not
go on until he or whoever was performing the cleaning
would give a sign to begin it. The plaintiff testified at
his deposition that his understanding was, if he saw
the auger . . . on when he was preparing to clean [it],
he would communicate to turn it off. He was not as clear
in the affidavit he submitted to support the objection
to the motion for summary judgment. The plaintiff was
not clear as to whether the machine was on or off when
he first climbed the ladder and, although he stated he
does not recall, he cannot say that he failed to follow
his own training and/or understanding to have it turned
off at his signal.
‘‘Lastly, there was no evidence or testimony of either
a failure to follow safety regulations before this inci-
dent, a citing by any agency of particular safety viola-
tions, or even any knowledge of the existence of any
safety concerns before this incident. As to the final step,
there was absolutely no testimony that the defendant
did anything to disable or change any device, including
the starting of the auger, for any improper reason. These
findings, which follow [our Supreme Court’s decision
in] Lucenti, lead to the conclusion that there was no
intentional action by the [defendant] that was substan-
tially certain to injure.’’ (Internal quotation marks
omitted.)
II
In his appellate claim that the court improperly
granted the defendant’s motion for summary judgment,
the plaintiff raises three issues: summary judgment was
inappropriate because (1) questions regarding intent
are questions of fact to be resolved by the trier of fact,
(2) the defendant was deliberately deceptive by failing
to install the lockout devices when it knew that they
were required, and (3) the defendant coerced the plain-
tiff into cleaning the auger.6 The claims are not per-
suasive.
A
The plaintiff first claims that the court improperly
rendered summary judgment because a party’s intent
is a question of fact for the jury to determine. The
plaintiff is correct that, as a general proposition, intent
is a question of fact for the trier of fact. E.g., State v.
Johnson, 26 Conn. App. 779, 784, 603 A.2d 440, cert.
denied, 221 Conn. 925, 608 A.2d 690 (1992). In the pres-
ent case, however, there are no facts to substantiate the
plaintiff’s claim that the defendant intended to create
a dangerous condition with substantial certainty to
cause injury.
‘‘To oppose a motion for summary judgment success-
fully, the nonmovant must recite specific facts . . .
which contradict those stated in the movant’s affidavits
and documents.’’ (Internal quotation marks omitted.)
Reynolds v. Chrysler First Commercial Corp., 40 Conn.
App. 725, 729, 673 A.2d 573, cert. denied, 237 Conn. 913,
675 A.2d 885 (1996). To successfully oppose a motion
for summary judgment when intent is at issue, a plaintiff
must raise a necessary factual predicate to demonstrate
a genuine issue of material fact regarding intent. E.g.,
U.S. Bank National Assn. v. Eichten, 184 Conn. App.
727, 782–83, 196 A.3d 328 (2018).
‘‘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. . . . Substantial certainty
exists when the employer cannot be believed if it denies
that it knew the consequences were certain to follow.’’
(Citation omitted; internal quotation marks omitted.)
Binkowski v. Board of Education, 180 Conn. App. 580,
589–90, 184 A.3d 279 (2018).
Our Supreme Court has held that ‘‘even with respect
to questions of motive, intent and good faith, the party
opposing summary judgment must present a factual
predicate for his argument in order to raise a genuine
issue of fact. See, e.g., Connell v. Colwell, [214 Conn.
242, 251, 571 A.2d 116 (1990)] (summary judgment
granted in issue of fraudulent concealment); Dubay v.
Irish, 207 Conn. 518, 534, 542 A.2d 711 (1988) (summary
judgment granted in issue of wilful, wanton or reckless
conduct); Multi-Service Contractors, Inc. v. Vernon,
193 Conn. 446, 452, 477 A.2d 653 (1984) (summary judg-
ment granted on questions of good faith and wilful
misconduct).’’ Wadia Enterprises, Inc. v. Hirschfeld,
224 Conn. 240, 250, 618 A.2d 506 (1992); see also
Scheirer v. Frenish, Inc., supra, 56 Conn. App. 233–35
(summary judgment properly granted on question of
employer’s intent).
In support of his claim, the plaintiff argues that there
are questions of fact regarding two of the factors the
court was to consider in determining whether there
was sufficient evidence as to the defendant’s intent,
namely, whether the defendant was deliberately decep-
tive with respect to installing the lockout devices and
whether the defendant placed him under significant
duress to clean the auger. For the reasons stated in
part II B and C of this opinion, we disagree, as a matter
of law, as to whether there were any genuine issues of
fact regarding the defendant’s intent.
B
The plaintiff claims that there were genuine issues
of material fact as to whether the defendant was deliber-
atively deceptive in failing to install the power lockout
device for the auger. We disagree.
The following additional undisputed facts are rele-
vant to this claim. Approximately six months prior to
the plaintiff’s accident, the defendant met with its
employees at the facility and informed them that it
would be installing power lockout devices on machin-
ery. The lockout devices require the use of multiple
keys to turn on the power to a machine. The plaintiff
argues that the purpose of the lockout devices was
to prevent a machine from being turned on without a
number of employees with keys taking steps to initiate
power. Although the defendant acquired the lockout
devices, the devices were stored in the control room
at the time of the plaintiff’s injury. The plaintiff claims
that the defendant’s failure to install the devices, even
though they were in its possession, was deliberate
deception akin to disabling a lockout device.7
In its memorandum of decision, the court noted that
the defendant had presented an affidavit from Anthony
Damiano, a recently retired vice president of the defen-
dant, who averred that there had not been any injuries
at the Stamford facility and that cleaning the auger was
performed two or three times per year for the past
twenty years by many different employees. In addition,
the court correctly noted: ‘‘[W]hat the plaintiff does
emphasize as the basis for a finding of an intentional
act is the failure to install a lockout system that would
require multiple individuals to use a key to start the
auger machine and the OSHA finding after the accident.
[See footnote 6 of this opinion.] The [court in] Lucenti
. . . stated that our appellate courts, consistent with
the New Jersey multifactor standard, have found that,
although warnings to the employer regarding the safety
of workplace conditions are relevant evidence, they do
not, without more, raise a genuine issue of material fact
to defeat summary judgment with respect to whether
an employer subjectively believes that an employee’s
injuries are substantially certain to result from its
actions. The [court in] Lucenti . . . analyzed Stebbins
v. Doncasters, Inc., supra, 47 Conn. Supp. 640, where
the employer failed to follow warnings and recommen-
dations but the court determined this was nothing more
than mere failure to provide safety or protective mea-
sures. . . . [T]he [court in] Lucenti . . . opined that
such submission may have exhibited a lackadaisical
attitude toward worker safety but that such a finding
does not logically infer that the employer believed its
conduct was substantially certain to cause injury to the
employees. So, too, in the [present] action, the defen-
dant did not install the lockout devices, but it is not
logical with the evidence in this action to find that the
failure to do so was intentional conduct to injure the
[plaintiff] with substantial certainty.’’ (Internal quota-
tion marks omitted.)
On the basis of our review of the record, we conclude
that the court’s analysis of the undisputed facts and the
cases it relied on was proper. We, therefore, agree with
the court’s conclusion that there is no genuine issue of
material fact that the defendant was not deliberately
deceptive in failing to install the lockout devices and
did not subjectively believe that the plaintiff’s injury
was certain to follow. There is no question that the
defendant was aware of the dangers posed by powerful
machines that could accidentally be turned on, causing
injury to its employees. The defendant not only
informed its employees that it was aware of potential
danger and of its intention to install the lockout devices;
it also had acquired the devices. Although the defendant
may not have made a wise managerial decision by failing
to install the lockout devices expeditiously—which is
unclear from the record—one cannot infer deception
or a subjective intent to injure employees from that
decision. See Sorban v. Sterling Engineering Corp.,
supra, 79 Conn. App. 457 (failure to act does not meet
high threshold of intent to cause injury). Finally, failure
to install safety devices promptly is markedly different
from affirmatively disconnecting the safety devices, and
the failure in this case is not sufficient to demonstrate
the necessary intent to injure.
C
The plaintiff’s third claim is that the court improperly
granted the defendant’s motion for summary judgment
because there are genuine issues as to whether he
cleaned the auger under duress. We do not agree.
On the basis of the plaintiff’s testimony, the court
noted that he had not been specifically trained to clean
the auger. He, however, had performed the task the
year before, and he had seen the cleaning performed
by various employees at other times. He did not ask
for direction or assistance because he was unclear as
to how to perform the task. He did not complain that
it was unsafe, and he provided no evidence that before
the incident he believed he was performing a task that
could even possibly lead to injury. The court stated:
‘‘This is unlike the plaintiffs who believed they would
be fired if they did not do the job [as occurred in Suarez
I. The plaintiff’s] testimony about an unrelated job [he
performed while working for the defendant] and the
[related] innuendo for some actions does not rise to
the level of being forced to perform the task. The plain-
tiff was not specific as to the details involving the prior
verbal warning [he received], and without more there
is no evidence that there is any similarity between the
incidents. Interestingly, this belief by the plaintiff was
never verbalized until [he was deposed], and even then,
he indicated that no supervisor gave him such a warning
for this task. He also testified that he never complained,
unlike the plaintiff in Ducharme,8 and never asked to
perform the task in a different manner.’’ The plaintiff
raised no genuine issue of material fact because he
provided no evidence of any prior difficulties or injury
that occurred in the years before the event at issue in
this case.
On appeal, the plaintiff claims that there are genuine
issues of material fact that he was coerced to clean
the auger and that he could not complain about the
dangerous procedure used to clean it. In his brief on
appeal, the plaintiff points to a complaint he raised in
the past with respect to another task he was asked to
perform. On the basis of that experience, he claims that
he believed that he could not raise his concerns about
cleaning the auger. The plaintiff, however, presented
no evidence that he previously had safety concerns
about cleaning the auger. The trial court, therefore,
found that the plaintiff’s deposition testimony was
insufficient to create an issue of fact that he was
coerced to clean the auger. On appeal, the plaintiff has
not pointed to any facts that cause us to disagree with
the trial court’s determination. The plaintiff, therefore,
cannot prevail—despite his catastrophic injury—and
we conclude that the court properly granted the defen-
dant’s motion for summary judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In its memorandum of law in support of its motion for summary judgment,
the defendant stated that the plaintiff, a nine year employee, was performing
annual maintenance, which included cleaning ‘‘the industrial screw auger
machine . . . to remove debris and other accumulated particles contained
in the trough encasing the auger. [The annual cleaning] involved spraying
pressurized water into the screw trough while a small section of the screw
cover was uncovered and the screw was turning, so that the accumulated
debris and particles along the trough could be pushed down and eventually
out of the trough.’’ The plaintiff does not dispute this description of the
auger cleaning process.
2
The defendant filed a motion to strike the plaintiff’s original complaint
on the ground that it failed to allege facts in support of an intentional act.
The court granted the motion to strike, and the plaintiff pleaded over. The
plaintiff’s revised complaint is the operative pleading.
In paragraph 7 of the revised complaint, the plaintiff alleged: ‘‘The defen-
dant established a policy and procedure whereby the auger machine would
be cleaned without turning the power off whereby the defendant knew with
substantial certainty that requiring employees to clean the auger machine
with the power on would cause the plaintiff to be seriously injured. The
defendant, through its established policy and procedure and by and through
the defendant’s assistant vice president, Raymond Bradford Oneglia, who
oversaw the operation of the defendant’s Stamford asphalt plant and the
supervisors at the Stamford asphalt plant, including Robert Buchetto,
ordered the plaintiff to clean out the operating, rotating auger machine with
full knowledge that the exposed rotating auger would cause serious personal
injury to the plaintiff if the plaintiff was caused to come into contact with
the rotating auger.’’
3
For a discussion of the context prong of the two step New Jersey analysis,
see Lucenti v. Laviero, supra, 327 Conn. 781 n.7. Our Supreme Court declined
to adopt the context prong as a matter of Connecticut law at that time, as
it was not pertinent to the issue of intent to injure in Lucenti, which also
is the case in the present matter. See id., 781–82 n.7.
4
‘‘With respect to decisions made to cut corners as to safety in order to
save time or money, the New Jersey Supreme Court considers a profit motive
of only limited relevance, applicable only to critique an employer’s long-
term choice specifically to sacrifice employee safety for product-production
efficiency.’’ (Internal quotation marks omitted.) Lucenti v. Laviero, supra,
327 Conn. 782–83.
5
See also Martinez v. Southington Metal Fabricating Co., 101 Conn. App.
796, 798, 806–807, 924 A.2d 150 (testimony that employee’s arm was crushed
while positioning steel plate in metal bending machine was not sufficient
to defeat summary judgment), cert. denied, 284 Conn. 930, 934 A.2d 246
(2007); DaGraca v. Kowalsky Bros., Inc., 100 Conn. App. 781, 791–93, 919
A.2d 525 (expert testimony that employer, given its experience, had to
know of dangers of untested manholes was insufficient to defeat summary
judgment), cert. denied, 283 Conn. 904, 927 A.2d 917 (2007).
6
The court further found that there was no evidence that the defendant
failed to follow safety regulations or even had knowledge of the existence
of any safety concerns before the present incident. The court found ‘‘abso-
lutely no testimony that the defendant did anything to disable or change
any device, including the starting of the auger, for any improper reasons.’’
The court concluded that these findings followed our Supreme Court’s
decision in Lucenti v. Laviero, supra, 327 Conn. 764, and led to the conclu-
sion that there were no intentional actions by the defendant that were
substantially certain to injure an employee.
The plaintiff does not claim that the court improperly determined that
there was no evidence of a prior similar incident at the facility or that there
were intentional and persistent violations of safety regulations over a lengthy
period of time. We reject the plaintiff’s claim that an intent to injure should
be inferred from OSHA violations found at the facility after he was injured.
Lucenti requires evidence of intentional and persistent violations of safety
regulations over a prior lengthy period of time. See id., 782.
7
In making this claim, the plaintiff compares the facts of the present case
with the facts of Lucenti v. Laviero, supra, 327 Conn. 789. The Lucenti facts
are wholly distinguishable. In Lucenti, the employer ‘‘rigged’’ the throttle
of a malfunctioning excavator, rather than repair the piece of equipment.
Id. But even under those facts, our Supreme Court concluded that the rigging
of the excavator’s throttle did not establish a genuine issue of material fact
with respect to whether the ‘‘defendants believed there was a substantial
certainty that the rigged excavator would injure the plaintiff or any other
employee.’’ Id., 790–91.
8
In Ducharme v. Thames Printing Co., Superior Court, judicial district
of New London, Docket No. CV-XX-XXXXXXX-S (May 5, 2015) (Cole-Chu, J.)
(60 Conn. L. Rptr. 736), the plaintiff was a printing press operator, a position
that required him to remove paper that jammed the press. Id., 737. On the
day he was injured, he activated the safety features before attempting to
remove paper, which should have prevented the press from turning back
on. Id. As he reached into the press, he accidentally started the press, which
resulted in injuries to his hand. Id. In denying the defendant’s motion for
summary judgment, the court found evidence that the press’ multiple safety
devices were not functioning and the manufacturer’s safety guards had been
removed. Id. Prior to being injured, the plaintiff had complained to his
supervisor about the safety defects. Id., 739. His supervisor threatened him
with the loss of employment if he did not perform and told the plaintiff that
the defendant was not going to invest money in a machine it intended to
replace. Id. The court concluded that a jury could infer from the evidence
that the defendant knew of the safety issues, taking the case out of the
exclusivity provision of the act. Id., 739–40.