DocketNumber: No. 456264
Citation Numbers: 2002 Conn. Super. Ct. 3429
Judges: BLUE, JUDGE.
Filed Date: 3/21/2002
Status: Non-Precedential
Modified Date: 4/18/2021
The Amended' Complaint makes the following allegations. Metal Management operates a facility in North Haven, Connecticut and is engaged in the business of recycling scrap metal. Weed "was employed as a welder/burner by Metal Management at its . . . North Haven facility." Amended Complaint ¶ 4. While at work, on April 4, 2001, Weed "engaged in torch cutting a steel girder measuring 40 feet long by 5 feet wide." Id. ¶ 4. The Amended Complaint further alleges that:
6. On said date at or about 2:45 p. m. the plaintiff, Bruce Weed, was standing on the steel girder and cutting down its length when suddenly and without warning the girder shifted causing him to be thrown in to the air thereafter violently striking the ground and causing the injuries and damages hereinafter more specifically set forth.
7. The incident was caused by the willful and CT Page 3430 serious misconduct of the defendants acting through their agents, servants and/or employees.
8. The defendants herein engaged [sic] willful or serious misconduct, the natural consequences of which caused the plaintiff's injuries. An employer in the defendants [sic] position could and should have reasonably believed that injury was substantially certain to occur from its conduct.
9. The defendants herein did not furnish the plaintiff, Bruce Weed, with employment and a place of employment which was free from recognized hazards that were causing or likely to cause death or serious physical harm to him in violation of Section 5(a)(1) of the OSHA standard.
10. The subject incident was further caused by the willfhl and serious misconduct of the defendants in one or more of the following ways:
a. The defendants [sic] failure to properly train and instruct the plaintiff in welding and cutting large steel girders of this nature;
b. The defendants who warn [sic] the plaintiff of the danger associated with welding and cutting in the manner in which he was engaged at the time of the subject accident;
c. The defendants [sic] failure to provide adequate training and supervision to the plaintiff prior to and during the welding operation;
d. The defendants [sic] failure to properly secure or stabilize the steel girder prior to allowing its worker to weld and cut it;
e. The defendants failed to provide adequate and appropriate safety equipment to protect Bruce Weed from injury during the welding and cutting operations.
11. Through the effects of one or more of the aforesaid acts or omissions amounting to willful and serious misconduct, the plaintiff, Bruce Weed, was CT Page 3431 placed in the position where there was a substantial certainty that he would be injured if he continued to weld and cut.
Id. ¶ 6-11.
Weed suffered serious injuries. He commenced this action against Metal Management by service of process on September 27, 2001. On December 12, 2001, Metal Management filed the motion to strike now before the court. The motion was heard on February 11, 2001.
In 1979, the Connecticut Supreme Court first recognized a narrow exception to the exclusivity provision of the Workers' Compensation Act for intentional torts committed by an employer against an employee. Jettv. Dunlap,
"We like to think that employers, given the judicial stick of the substantial certainty test, will be persuaded to provide safe workplaces." Ramos v. Town of Branford,
The Appellate Court recently considered the substantial certainty issue CT Page 3432 in a case brought by a police officer seeking to collect damages for injuries sustained when he was accidentally shot by another officer.Melanson v. Town of West Harford,
Weed has not provided the requisite "factual basis" for a finding that Metal Management was substantially certain that the specific injury that he suffered would occur. The Amended Complaint declares that an "employer in the defendants [sic] position could and should have reasonably believed that injury was substantially certain to occur from its conduct." Amended Complaint ¶ 8. This declaration is conclusory in nature. The actual facts alleged by Weed do not supply a basis for this conclusion.
Weed is required to demonstrate that Metal Management knew to a substantial certainty that he would sustain injury as a result of torch cutting the girder in question. He alleges that his employer intentionally directed him to cut the girder that caused his injuries. He additionally alleges that his employer failed to provide him with "adequate training and supervision" and "adequate and appropriate safety equipment." Amended Complaint ¶ 10. These statements are conclusory in nature. We do not know what Weed's training, supervision, and equipment actually were. Equally important, we do not know what additional training, supervision and experience Weed needed or how his asserted lack of training, supervision and experience made his injury substantially certain to occur. We do not know the factual basis for Weed's contention that his employer's conduct was in violation of OSHA standards. Similarly, Weed has not described how his employer failed to properly secure or stabilize the girder prior to his sustaining injury. CT Page 3433 The answers to these questions are fact-specific, and Weed has not pled sufficient facts to allow a finding that his injuries were substantially certain to occur as a result of his act of cutting a large metal girder.
Weed might be able to make such a demonstration on repleading. To begin with an extreme example, there would surely be a substantial certainty that a six-year-old child would suffer injuries if instructed to torch cut a large steel girder. Moving to a more realistic scenario, it is possible that an adult with no training at all would be substantially certain to meet the same fate. It is conceivable that a worker with minimal training, or perhaps the wrong training, would also face a substantial certainty of injury. Unhappily, the Amended Complaint offers no factual information concerning Weed's actual training and supervision. Without additional information, the requisite factual basis for a finding of substantial certainty does not appear.
Weed additionally claims that Metal Management failed to inform him of the danger associated with the particular cut that caused his injuries. In the absence of further detail we do not know what that danger was or why the accident that occurred was substantially certain to occur.
The gravamen of the Amended Complaint is that Metal Management should have known that there was a substantial certainty that Weed would be injured while engaged in the act of torch-cutting a large steel girder. Although there may be factual scenarios that would support this claim, the factual basis for a finding of substantial certainty has not been pleaded here. If such a basis exists, Weed will have an opportumty to state it in a new pleading. Practice Book §
The motion to strike is granted.
Jon C. Blue Judge of the Superior Court