DocketNumber: No. CV96 0053222S
Citation Numbers: 1999 Conn. Super. Ct. 1272, 24 Conn. L. Rptr. 126
Judges: CORRADINO, JUDGE.
Filed Date: 2/4/1999
Status: Non-Precedential
Modified Date: 4/17/2021
It has also been said "that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent, and subjective feelings and reactions." United Oil Co. v. UrbanRedevelopment Commission,
For the court, at least the foregoing discussion frames the issue to be decided which turns ultimately on the viability of summary judgment procedure under the substantial certainly exception to the exclusivity provision of our act. The court will discuss the facts in order to frame the ambit of this issue as it applies to this case.1
The court will first discuss the undisputed facts presented by the defendant Emhart because it is the moving party and has the burden of persuasion on this motion. The court will then discuss the facts and evidence raised by the plaintiff Recalde; the defendant Werner Pfleiderer has adopted Recalde's factual and evidentiary presentation.
Immediately prior to his injury, the plaintiff was operating a rubber injection molding machine manufactured by Werner Pfleiderer (Werner) and sold to the defendant Emhart. This machine was used by Emhart to manufacture rubber grommets; these grommets are fashioned out of heated rubber poured into a mold. A pneumatically driven internal knockout device, at the rear of the machine, dislodges the grommets from the mold. The operator of the molding machine directs the entire process from a control panel at the front of the machine, that is, the normal production process involves the worker operating the machine by means of a control panel located at the front of the machine.
Mr. Recalde was hired by Emhart on January 2, 1993 as a molding machine operator at its Pop Fasteners facility in Shelton. Prior to that, Recalde had worked on industrial machines for many years. At one employer he received one month of on the job training in the operation of cutting machines and drill presses. He then worked at Gordon Rubber operating rubber compression molding machines where he received training on their operation. In 1979, he became employed at General Electric where he remained until its Bridgeport plant closed in 1987. While at General Electric, he operated extruder and coiling machines. He then worked for two years as a grinding machine operator and then five years at another company as a molding machine operator.
When Recalde was hired in January 1993 by the defendant, he received safety training for the operation of the molding machines he was to work at. None of Recalde's numerous previous CT Page 1275 positions involving the operation of industrial machinery required him to repair machines nor had he been trained on the repair of industrial machinery. Regarding the repair of the molding machines he was assigned to operate at Emhart, the defendant it its supplemental brief quotes the following language from a deposition given in this case by Mr. Recalde:
Q Okay. But did anyone at Pop Fasteners tell you that it was your responsibility to fix the machines? A I don't remember.
Q Did you ever set up a machine at Pop Fasteners? A No.
Q Besides replacing — withdrawn. Did you ever repair a machine prior to your accident at Pop Fasteners? A Like I said before, I would change the knockout pins but that wouldn't be to repair them.
Q That's not a repair? A No, just change them.
Q Did you receive any training on repairing machinery at Pop Fasteners? A No.
Q Did anyone ever tell you to repair the machines at Pop Fasteners? A No.
(Pages 310-311 of Recalde deposition.)
The defendant also refers to the deposition testimony of Mr. Cavallaro, the manager of the Pop Fastener plant. He testified that Recalde was told not to repair the machine. The court has reviewed pages 82 and 83 of his deposition and will discuss it in more detail. Cavallaro said the molding machines do not operate trouble-free but the operator runs the machine. It is the "set-up" person's job to fix the machine, not the operator. If "something gets jammed or broken or whatever," the operator calls the setup person and, if there's no setup person, the operators "usually leave it down. . . . You don't run it. . . . That's what they are supposed to do. I mean, they're not trained to repair it; they shouldn't try to repair it." The court will discuss in more detail the question of repair to the machines by operators CT Page 1276 like Mr. Recalde when it discusses the plaintiff's factual allegations. The court should note that Mr. Cavallaro also testified that on the night of the accident there were two machines available to be operated and only one more person scheduled to come in to work at the machines.
The defendant presented the following facts with respect to the actual occurrence of this tragic accident which caused such serious injury to Mr. Recalde: Mr. Recalde reported to work for the third shift on the evening of February 21, 1993. Twenty minutes into his shift, Recalde noticed that the internal knock-out device on the molding machine was malfunctioning. He unsuccessfully tried to restart the knock-out device by using the molding machine's control panel. He then got an adjustable wrench from a toolbox which was not used to fulfill his responsibilities in operating the machine. He walked to the rear of the machine climbed a ladder to the top of the knock-out device and attempted to manually repair it. He proceeded to tighten two bolts that appeared to him to be causing the malfunction. As he tightened the second bolt, the knock-out device retracted and Recalde's right hand was caught in the internal knock-out device.
The plaintiff has referred to additional facts in its opposition to the motion for summary judgment. The plaintiff notes that the manufacturer of the molding machine at which he was injured had installed a "safety gate" on the back portion of the knock-out system of the machine (testimony of a Mr. Huber who was apparently a customer service employee of Werner Pfleiderer Corp., the manufacturer). The plaintiff then points to the pleadings of the manufacturer to add Emhart as a third party defendant to establish that Emhart removed the "safety gate." But Werner is certainly not an agent of the defendant Emhart so as to bind the latter by allegations in its pleadings and a statement or admission by one party cannot be considered an admission of another party. Cf. Palombizio v. Murphy,
The night of the accident, Recalde and only one other CT Page 1277 employee were scheduled for work; a bad snowstorm was in progress but the plant did not close down and Recalde showed up to work. Recalde was alone in the plant because the other employee did not appear for work. As was his custom, Recalde checked the instructions left by the supervisor of an earlier shift as to what he was to do and the machine he was supposed to run. Mr. Cavallaro at his deposition testified that the operators must run the machines they were scheduled to run. The note from the supervisor indicated that Recalde and the other employee were to run machines number one and four; Recalde started to run machine four. The machine got stuck and Recalde tried to locate the source of the problem so he could continue with his work. There was another machine at which he could have worked; the reason he did not do so is that he was "expecting" the other worker to show up. "I didn't know if she was coming or not. Yeah, there was another machine."
The plaintiff also refers to that portion of Mr. Recalde's deposition where he states he just started the job and was fearful of losing it if he did not perform. However, Mr. Recalde also testified that he did not know if, based on anything communicated to him while at the plant, he would have gotten into trouble if he shut the machine down, wrote in the log how it malfunctioned and went home. He did not know what the company policy was if a worker's machine would not function and the worker left; no spoken or written policy was given to him regarding such a situation. Recalde also testified that while he worked there he never observed a situation where a worker missed work and was penalized or reprimanded.
In any event, the plaintiff proceeded to try to fix or repair the machine when it malfunctioned. The court will now refer to the plaintiff's position on the repair responsibility of machine operators like Mr. Recalde. In its brief, the plaintiff takes strong issue with the defendant's statement that Recalde "was explicitly told not to attempt to repair the machine." The plaintiff believes this characterization of Cavallaro's deposition testimony is rebutted by what Cavallaro in fact said at other points in his deposition. The defendant notes Cavallaro said he had no knowledge of whether Recalde was told he should not do any repair work — he, Cavallaro, never told him that. The plaintiff goes on to note that the way Recalde learned to operate the machines was by watching other operators, so if Recalde, during his training, observed other operators "doing repairs, it's conceivable that he could think that that's part of his job CT Page 1278 description." The plaintiff then refers to a portion of his own deposition testimony to the effect that he was told that part of his responsibilities was to repair a "few small things." Also, no one at the plant ever told him he should not repair or attempt to repair the machinery. The court has already referred to that portion of Recalde's deposition testimony the defendant Emhart believes is dispositive on this point. Giving the nonmoving party the benefit of every inference, the court concludes that the following facts are undisputed: Recalde was not told he had to repair machines at the defendant's plant but he was also not told he could not repair machines. During his training period, he observed other operators; if they repaired machinery, he could conceivably conclude that was also part of his responsibilities, but Recalde never testified what actual repair work he might have seen other operators perform. Also, he said he was told he should repair "small things" but no definition was given by him or through other operators as to what those "small things" might involve except to say it involved "ring damage" or to "change one knockout" which were not defined or "knockout things" which involved "fingers" which apparently were the knock out pins referred to earlier in this opinion from pages 310-311 of the Recalde transcript. No testimony was presented that it was Recalde's understanding that trying to fix stuck knock out plates was one of the "small things" he was told to repair and certainly no evidence was presented that he saw other operators make such a repair. The only "repair" Mr. Recalde testified he ever did was to replace "knock out pins" on the machine.
In any event, Mr. Recalde went to the rear of the machine to try to correct the malfunction. Mr. Recalde said he put the machine on manual before doing this because during his training he was told when you had a "small problem" that is what was done, (a small problem, apparently that could be repaired by the operator). At one point Recalde testified by putting the machine in manual he was told that shut the machine down (p. 328 of Recalde deposition) but at other points he seemed to say you could in fact operate the machine in manual but it would not go in full cycle. Mr. Cavallaro testified that when the machine is in manual someone could fix a stuck knock out plate "without any risk of injury". Although the machine was put in manual, when Recalde tightened a bolt it activated because an air cylinder under pressure was activated automatically causing the knock out plate to move which trapped his hand. The plaintiff concludes its factual presentation by describing how the accident happened with respect to what Mr. Recalde did after he got to the rear of the CT Page 1279 machine and observed the knock out device. The plaintiff takes the position that if the safety guard on the knock out device were not removed, Mr. Recalde could not have reached into the device and would not have been injured.
Again, the plaintiff relies on the manufacturer's pleadings to "settle" this factual claim between it and Emhart. However, Emhart in its brief seems to concede for the purposes of the motion for summary judgment that this factual representation is true (See Section III D. of defendant's 7/21/98 brief especially title and pages 17 et seq.)
Apart from the separate question of whether "intent" in the context of a case of this type can be resolved by way of summary judgment the relevant facts are in the court's opinion undisputed. Although there is some dispute in the case law about the propriety of using deposition testimony to resolve such motions, here both sides relied almost exclusively on deposition testimony and based on an examination of this material the court can determine whether a genuine issue of fact exists, cf Dubay v.Irish,
"Substantial certainty centers on whether the employer believed the injury was substantially certain to follow the employer's acts or conduct." (Emphasis added by court).
It could be said that given the policy compromise represented by the various workers compensation acts real dangers are presented by the adoption of even this fairly restrictive version of the substantial certainty test. Lawson comments on a Louisiana case which also adopted the formula that requires that the employer must have believed that the injurious results were substantially certain to follow, Bazley v. Tortorich,
The dangers then of a broad indiscriminate application of the substantial certainty test are apparent but if the reasons articulated by several courts and including our own are focused on the reasons why it was felt necessary to adopt the test, it can be properly limited. At page 109 of the first Suarez case (
These certainly justifiable concerns can be addressed without opening the Pandora's box feared by Lawson if, in effect, the substantial certainty test, is broken down into its component parts. First it should be viewed from a solely factual or empirical perspective — did act A cause injury B to a substantial certainty. This then should be combined with a belief test regarding the likelihood of injury that requires the production of predicate facts to show the belief as to injury in fact CT Page 1281 existed. That is (1) from a purely physical perspective was the intentional doing of act A substantially certain to cause injuryand (2) did the employer in fact believe this to be so. Belief would be established, for example, though prior warnings of accidents involving certain equipment, orders or threats to proceed with a job known by prior experience to be dangerous. These two poles of the test are not unrelated to each other as Lawson seems to assume — occurrence of prior accidents is some indication that such accidents are substantially certain to occur in the future and threats or orders to keep working at a dangerous task indicate the employer believed such tactics were necessary because employees would otherwise be unwilling to work at a dangerous job which the employer believed also to be dangerous.
The question remains, given these general observations is summary judgment procedure appropriate for resolving employee civil actions based on the substantial certainty test.
It is true as previously noted that: "Questions going to intent and motive, which require the drawing of inferences from proven facts, depend for their resolution upon an assessment of demeanor and credibility that is peculiarly within the province of the trier of fact", Gorra Realty Inc. v. Jetmore,
But the whole point of the substantial certainty test is that it is not an actual or true intent test and an examination of cases that apply it in the summary judgment context require the establishment of certain predicate facts for it to operate having nothing to do with ordinary questions of "credibility's or "motive". In fact, necessary limitations on the substantial certainty test and the very purpose for its adoption which the court has just discussed require such a result. Even in actual intent cases our court has said: "While we continue to adhere to the general principle that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions';. . . . it remains, nevertheless, incumbent on the party opposing summary judgment to establish a factual predicate from which it can be determined as CT Page 1282 a matter of law, that a genuine issue of material fact exists",Connell v. Colwell,
Looking at it from a more general policy perspective it would certainly be an odd result, given the reasons for the exclusivity of remedy provisions of these acts, to conclude that summary judgment procedure is generally not applicable to test a civil action brought by an employee on the basis of the substantial certainty test. Talking about the general purposes of these acts Lawson has said at § 68.15(c), page 13-108:
"There are two central purposes to exclusiveness: first to maintain the balance of sacrifices between employer and employee in the substitution of no fault liability for tort liability, and second, to minimize litigation, even litigation of undoubted merit."
The very purpose of summary judgment procedure is to minimize litigation" by winnowing out frivolous and legally unmeritorious claims. A simplistic position that equates actual intent with the imputed intent envisaged by the substantive certainty test and dictates leaving these cases to be resolved by juries without the monitoring provided by summary judgment procedure carries with it real dangers for the intelligent enforcement of these workers' compensation acts. That is so because, in deciding whether summary judgment should be entered "the test is whether a party would be entitled to a directed verdict on the same facts",Suarez v. Dickmont Plastics Corp. ,
The court has examined numerous cases from several jurisdictions which follow the substantial certainty test and which involve appellate review of motions for summary judgment or motions analogous to our motion to strike filed by employers. Even in cases where rulings on these motions favorable to employers have been reversed, the courts base their decision on the establishment of predicate facts, presented in the record, which dictate that jury resolution is appropriate. They do not CT Page 1283 merely state that such cases are not amenable to summary judgment procedure or resolution on the pleadings because of the nature of the claim made which sounds vaguely in some form of intent.
In fact, several cases explicitly address the issue of whether summary judgment procedure is appropriate in substantial certainty cases and have held that it is. Thus, in King v.Shuykill Metals Corp, et al,
"In brief, plaintiff contends summary judgment is not the proper procedure in which to determine whether an employee's injury resulted from an intentional act. This argument is without merit since the jurisprudence of this state clearly holds that summary judgment is a proper procedural method to consider an employee's allegation that his injury resulted from an intentional act of his (sic) employer" (Court then cites several cases including Louisiana Supreme Court case.)
In a leading substantial certainty Ohio Supreme Court case the court in Van Fossen v. Babcock Wilcox Co.,
"Upon a motion for summary judgment pursuant to Civ. R. 56, the burden of establishing that the material facts are not in dispute and that no genuine issue of fact exists is on the party moving for the summary judgment . . . . . However, in that Civ. R. 565(E) requires that a party set forth facts showing that there is a genuine issue for trial, such party must so perform, if he (sic) is to avoid summary judgment. Accordingly, in an action by an employee against his employer alleging an intentional tort, upon motion for summary judgment by the defendant employer, the plaintiff employee must set forth specific facts which show there is a genuine issue of whether the employer had committed an intentional tort against his employee"
See also Rose v. Isenhour Brick Tile Co. Inc.,
The just quoted language from Van Fossen exactly parallels the observations on summary judgment standards made in Suarez v.Dickmont Plastics Corp. ,
Thus in Woodson v. Rowland,
In Wehri, et al v, Countrymark, Inc.,
In a peculiarly tragic case the lower court's granting of summary judgment was reversed in case where a college boy working on a construction project fell through a sky light to his death. The employee was not wearing a safety harness. Not only did OSHA regulations require people working within six feet of an opening be tied off, indicating that that agency concluded injury was otherwise certain to occur, id p. 722, but the plaintiff presented reports from "two well qualified experts who stated that given (the employer's) policies, a fall was only a matter of time. The job supervisor did not have even rudimentary knowledge of the need for and use of safety equipment, id. 723. CT Page 1286
In Gray v. McInnis Brothers Construction Inc., et al,
"Without the exact combination of events — unsecured forms lined up in a row; a co-employee accidently stepping onto one form, causing the others to fall like dominoes; and plaintiff positioned, tying off forms near at hand — plaintiff would not have been injured. These fortuitous circumstances hardly necessitate the conclusion that the result was nearly inevitable or virtually sure to follow, even assuming arguendo the intentional violation of a safety statute."
In McConnell v. Schwegman Bros. Grant Supermarkets Inc.,
In Casto v. Fred's Painting Inc.,
In O'Brien v. Ottawa Silicia Company,
The courts often look to warnings received by the employer concerning a dangerous condition or machine prior to the accident in question from other workers or individuals, Woodson v.Rowland,
An important factor is whether prior accidents involving the same job site or equipment had occurred and the frequency of such occurrence.
An absence of prior accidents or injury using the same equipment or work procedures has been cited by some courts as one reason why summary judgment should not be granted. Van Fossen v.Babcock Wilcox, supra at
In Kachadorian v. Great Lakes Steel Corp. ,
The cases also consider whether the employer had violated its own safety procedures or whether the accident resulted from a violation of its own safety regulations or those of governmental agencies such as OSHA. This coupled with a dangerous condition provides some indication that the employer had reason to know and believe the danger existed because of its past history and was not acting innocently.
In Richie v. Rogers Cartage Co.,
Finally, the court will discuss a subcategory of cases that specifically address the problem raised by the factual setting of this case. These cases involve the removal of safety devices.
Some states do not give the fact that a safety device was removed any special significance as such but just analyze such CT Page 1290 action in terms of the dangers it presents and use the just discussed standard criteria to determine whether the substantial certainty test has been met. Thus, in King v. Schuykill MetalsCorp. ,
The court upheld the trial court's granting of the employer's motion for summary judgment. It said "high probability" that an accident will occur does not translate into the "virtually sure" or "incapable of failing" standards of Louisiana's substantial certainty test. The court noted the finding that there was no substantial certainty here was "supported by the fact that other Schuykill employees cleaned similar screw conveyors in this manner for years without injury, and that plaintiff himself had previously cleaned the same conveyor without incident on prior occasions," id. Page 303. The court concluded by saying that no issue of material fact was raised by the plaintiff's affidavits nor by the fact that the company had been warned of the danger presented by the machine and a "near injury" had occurred in the past, also see Arnstead-v. Schwegmann Grant Supermarkets, supra.
The North Carolina Supreme Court takes a similar view as the Louisiana courts as to the effect of the removal of safety guards on machines which are meant to protect the operator while working at the machine. In Pendergrass v. Card Caretric,
The development of Ohio case law on this subject is interesting and conflicting. In Watson v. Aluminum ExtrudedShapes, 575 N.E.2d 234 (1989) an intermediate appellate court held that the test established by its Supreme Court in Van Fossen, and a predicate to proving "intent" under the substantial certainty test, is satisfied where there is "direct evidence of the employer's removal of the safety guard on equipment that the employee was assigned to operate," id. Interestingly, the court still felt it necessary to refer to testimony from a plaintiff's expert that injury is virtually certain where an employee operates a hand-fed, foot operated unguarded punch press. Perhaps even more importantly the expert went on to say "point of operation guarding" on power presses has existed for fifty years and is required by state and federal regulations. id, p 237. InWatson and indeed in all the cases discussed in this portion of the decision the safety device was designed to protect the worker in the ordinary operation of the machine or in ordinary removal of waste materials and cleaning activities associated with the machine's operations. In Watson itself, the worker's thumb was removed as he tried to remove a piece of metal he was working on after it became jammed. Without the safety guard the press activated as he tried to free the metal. But very interestingly the court in a footnote at page 237 said "Our interpretation of Ohio case law does not extend to removal of a safety device during a process unrelated to the operation of machinery." An Ohio Court of Appeals case decided one year after Watson did not follow the latter case's apparent finding of prima facie establishment of substantial certainty where an operational safety device was removed — other evidence had to be presented that the employer knew that the operation of a turkey deboner without a safety guard was substantially certain to cause injury so summary judgment was appropriately granted. McNeal v. Bil-MarFoods of Ohio,
The court seemed to be saying that in administering the substantial certainty test at the summary judgment level the removal of operational safety guards was to be viewed just as any other dangerous condition created by employer actions.
In Fyffe itself, the court reversed the court of appeals upholding of the trial court's granting of the employer's motion for summary judgment. The court's rendition of the facts indicates a la Watson that an operational safety device was involved. The worker was required to put his hand in a conveyor to retrieve objects while it was running and was never told not to do so. The safety device wou]d have prevented a worker from doing so and being injured as the plaintiff claims to have been injured. Employer knowledge and belief about the substantial certainty of injury was established by a supervisor's acknowledgment that the machine should not have been run without the safety device and a post| accident report prepared by management which admitted the hazardousness of the condition, id. pp 1113-1114. The opinion is replete with references to the fact that the safety device was removed to push the plaintiff to work faster, a supervisor stated the conveyors were cleaned while being run because they cleaned faster that way. The practice was "normal", "sanctioned", and a "common practice", id. p 1113.
These comments of the court on the nature of the safety device being considered are related to one of the very reasons Ohio adopted the substantial test in Blankenship v. CincinnatiMalacron Chemicals Inc., supra, in the first place. Corporations must not be allowed to cost out an investment decision to maim or kill workers (reasoning which Suarez adopted). This reasoning applies only to those safety devices directly affecting the speed or productivity of a worker while he or she is engaged in the ordinary operation of the machinery. That is the only context in which a cost out calculation by an employer can be made with any degree of certainty or such degree of certainty as would warrant making an exception to the exclusivity provision of the act.
Interestingly, an intermediate Ohio appellate court case seems to contradict Fyffe in stating how to treat the removal of safety devices in a summary judgment context but still appears to CT Page 1293 recognize a distinction regarding the application of its rule depending on the nature of the safety device in relation to the operation of the machine: .
. . "we hold that where the safety feature omitted is not a secondary or ancillary guard, but the primary protective device, the failure of the employer to attach such a guard creates a factual issue which would be sufficient to overcome a summary judgment exercise in the rule announced in Fyffe," Walton v. Springwood Products,
There have not been many Connecticut Appellate cases in this area. Jett v. Dunlap,
In Suarez v. Dickmont Plastics Corp. ,
Based on these facts, the court overruled the trial court's granting of the employer's motion for summary judgment. The result is not surprising and corresponds with what most appellate courts in substantial certainty jurisdictions would have done given a similar fact pattern. As in those cases, various relevant factors were pervasive to the court's result. Given the nature of the process the plaintiff was ordered to perform, expert testimony was hardly needed to convince the court that a worker at this machine was substantially certain to be injured — the dangerous process was a planned and continuance part of the plaintiff's job responsibilities.
The belief part of the test is amply met; the foreman knew of the dangers and there were several violations of safety regulations. In fact, the foreman said the dangerous procedure would continue to be standard operating procedure because it saved the company money and increased productivity. The employer's belief in the dangers the procedure presented was underlined by the fact that its foreman had to threaten firing workers to insure compliance with its orders. The only material submitted by the employer was apparently an affidavit by the company president that he had not intended for the plaintiff to be injured. The case is a veritable catalogue of all the reasons why courts in other jurisdictions have held that summary judgment for the employer would not be appropriate. A variety of predicate facts were set forth by the plaintiff which indicated a prima CT Page 1295 facie case for the substantial certainty test had been made out and that a genuine issue of material fact prevented the appropriate granting of the motion. The only factor not mentioned was any history of prior accidents. But the operational process was so obviously dangerous, that absence of this factor did not require a result contrary too that reached by the court. In fact, this is a classic case where at least at the summary judgment stage a prima facie case had been made out to indicate the employer was costing out an investment decision to maim workers and trying to use the protections afforded by the act to do so — if the statements of the foreman are to be believed this is not even implicitly but rather explicitly the case.2
If the more appropriate focus is not the immediate process which injured Mr. Recalde, the substantial certainty finding would be even more difficult to reach. Mr. Recalde was hired to operate not repair machines. The machine he worked on had operating problems fairly frequently but Mr. Cavallaro who was the defendant's plant manager the day of the accident and had held that job for eight years stated in his experience a knock out plate had jammed as it did the night of the accident only once or twice and the workers had gotten them to work properly by hitting them with a "rake". Thus, even if Recalde as an operator was trained by other operators to make "small repairs" — a term never completely defined — there was no indication he was trained or would have reason to be trained to make the type of repair that would unjam the knock out plates or go to the back of the machine and place his hands somehow inside it to do so.
The third shift, on which Mr. Recalde was injured, did not have a maintenance person assigned to it — this is certainly a cost saving factor. But the problem for the plaintiff's position is that there is no predictable pattern of machine breakdown involving the jamming of the knock out plate so how could it be said that failure to have a maintenance person on this shift made an injury of this type involving the knock out plate a substantial certainty?
Mr. Recalde was alone in the plant the night of the injury and when his hand became stuck in the machine for a horrible thirty minutes or more no one could come to assist him but this was due to a severe snow storm. When he came to work he could have worked at machine one or four in light of the fact that the only other operator scheduled to work did not appear. He chose to continue to work at machine four despite the note as to the loose plate and the fact that his machine in fact ended up jamming.
This tragic incident seems to have been the result of the very type of fortuitous circumstances and decisions made by the employee himself that hardly form a basis to conclude that the CT Page 1297 injury that occurred here from the point of view of physical causation was substantially certain to result, of Van Fossen v.Babcock Wilcox, supra, Gray v. McGinnis Brothers Construction, Inc., supra.
There are really no such predicate facts. There is no prior history of injury caused by this machinery. As noted, a man who had been the plant manager for eight years at the time of the accident said the knock out plates had jammed only once or twice in his experience and the workers had fixed this problem by banging on the machine with rakes. Mr. Recalde himself had never seen a note when he came on duty similar to the one he saw from another operator the night of the accident that the knock out plate was loose. From this perspective, it is of no relevance that Recalde was not taught safety procedures surrounding the knock out plate or not putting his hand inside it or that even on manual the machine could engage, since the employer would have no warning and thus, basis to believe such precautions would be necessary. This is especially so since Mr. Recalde was hired to operate, not repair the machines, and there is no indication his training in "small matters's had anything to do with the type of breakdown that occurred here even though he might have assumed this breakdown was a small matter he could deal with himself. From all of this, it can be said that there is no indication that the employer or anyone who could bind it legally was actually aware of any danger presented by assigning Recalde to his job — what facts have been , produced to indicate the employer had reason to know the machine would break down, what evidence indicates even that the employer knew Recalde would try to repair the machine? There was a note left on the machine, apparently by the previous operator that the knock out plate was loose — whatever that means; let it be assumed that the employer can be held to have notice of this portion of the note. But the note went on to say the machine was running fine.
Unlike Suarez there is no evidence to indicate Recalde or any CT Page 1298 other employee was ever told that he or she had to continue working at the machine and if it broke down the employee would be fired if the worker did not somehow get it running again. Mr. Recalde may have felt leaving early on the night of the accident would not look very good since he was a new employee but nothing has been offered to indicate this perception was created by anything the employer said or did.
The plant manager, Cavallaro, stated in his deposition that if a worker left a machine down because it would not operate, he would work on another machine or "sort". A worker in that situation could go home if there was no work to be done after a machine breakdown and still collect four hours pay. All of this hardly indicates a scenario where employer threats and warnings can be used to inferentially establish that such measures were necessary and consciously taken to ensure workers would work on a machine known to be dangerous.
Referring to other factors cited in the cases, unlike the situation in Suarez, there is no indication or evidence of violations of OSHA or other safety regulations or codes either involving this machine, the knock out plate aspect of the machine, or general plant operations.
In addition, there is no indication that removal of the safety guard permitting access to the knock out plates was done to enable workers to engage in dangerous operational tasks in order to increase productivity or otherwise speed production — in other words, the act of removing the safety guard had nothing to do with enhancing operational performance as in Suarez. As noted, even the Ohio cases seem to make this a prerequisite of any weight they in fact do give to the removal of safety devices. Why is this so? Because, as previously discussed, it is related to the whole reason why Ohio in Blankenship is such a strong advocate of its method of application of the substantial certainty test — employers must not be permitted to cost out investment decisions to maim or kill workers. Suarez adopted and cited this language in Blankenship. In other words, if the safety device has nothing to do with day to day operational productivity but is some kind of ancillary device to protect against injury when some fortuitous breakdown occurs or unpredictable repair is necessary, how can it rationally be said that under these circumstances a company would be permitted to cost out investment decisions to maim workers by removal of a safety device of this type if it was still permitted to rely on the protections of the CT Page 1299 act.
This is a tragic case. Personally, the court is not quite so sure that the great "compromise" reached by the workers' compensation act should be operative where a worker is maimed — life long pain and suffering after all are involved. But short of any constitutional difficulty with the "compromise", a court's personal feelings and values must be irrelevant as Lawson admonishes, § 68.15(e), page 13-97. It is up to the legislature not the courts to address aspects of the compromise that might not seem fair or might seem to lead to overly strict results. At page 13| 108 Lawson says: "As to how intentional tort fits in with the balance of sacrifices, it must be remembered once again that this is a no-fault system as to both employer and employee. `Unjust' results by conventional standards are commonplace." As Lawson further points out, the concept of intentional injury should not be stretched because courts "cannot quite accept the non-fault nature of workers' compensation", p. 13-97. This the court found difficult to do but under the case law it concludes it has no other choice than to grant Emhart's motion for summary judgment.
Corradino, J.
Palombizio v. Murphy , 146 Conn. 352 ( 1959 )
United Oil Co. v. Urban Redevelopment Commission , 158 Conn. 364 ( 1969 )
Bazley v. Tortorich , 397 So. 2d 475 ( 1981 )
Pluhowsky v. City of New Haven , 151 Conn. 337 ( 1964 )
Spencer v. Good Earth Restaurant Corporation , 164 Conn. 194 ( 1972 )
Jett v. Dunlap , 179 Conn. 215 ( 1979 )
Kolbinsky v. Paramount Homes, Inc. , 126 N.C. App. 533 ( 1997 )
Woodson v. Rowland , 329 N.C. 330 ( 1991 )
Pendergrass v. Card Care, Inc. , 333 N.C. 233 ( 1993 )
Regan v. Amerimark Building Products, Inc. , 127 N.C. App. 225 ( 1997 )
Rose v. Isenhour Brick & Tile Co., Inc. , 344 N.C. 153 ( 1996 )
Beauchamp v. Dow Chemical Co. , 427 Mich. 1 ( 1986 )
King v. Schuylkill Metals Corp. , 581 So. 2d 300 ( 1991 )
Millison v. E.I. Du Pont De Nemours & Co. , 101 N.J. 161 ( 1985 )
Kielwein v. Gulf Nuclear, Inc. , 783 S.W.2d 746 ( 1990 )
McNeal v. Bil-Mar Foods of Ohio, Inc. , 66 Ohio App. 3d 588 ( 1990 )