CT Worker Fails in Intentional Tort Action Against Employer
A Connecticut appellate court recently held that a state trial court did not err when it granted summary judgment in favor of an employer-defendant in an intentional tort claimed filed by a worker whose leg was severed above the knee when it got caught in an auger that he had attempted to clean [Hassiem v. O & G Indus., 197 Conn. App. 631, 2020 Conn. App. LEXIS 169 (June 2, 2020)]. Specifically, the plaintiff failed to show that there was a genuine issue of material fact as to whether the employer had the subjective intent to create a dangerous situation knowing that there was a substantial certainty the plaintiff would be injured. While the employer had conducted safety meetings addressing the dangers involved in using the auger and other machines, and had actually purchased a lockout system for the auger, yet failed to install it, there still was no genuine issue of material fact; the employer had not been deliberately deceptive, and did not subjectively believe the plaintiff’s injury was certain to follow.
Background
The plaintiff, an employee at an asphalt production facility, sustained serious injuries while performing annual routine maintenance on a horizontal auger used to transfer stone and sand in the making of asphalt. Power to the auger was controlled by the defendant’s employees in a control room. On the date of the injury, the plaintiff was not aware that power to the auger was on when he prepared to clean it with a high pressure hose. 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 then filed a tort action against the employer, alleging that the injuries he sustained were a direct result of the defendant-employer’s intentionally having created a dangerous condition, knowing that the dangerous condition made his injuries substantially certain to occur. Following a hearing, the trial 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.
Appellate Court Opinion
The appellate court provided a hornbook examination of the intentional tort exception to workers’ compensation exclusivity and noted that the burden of establishing the necessary intent on the part of the employer was not easy to overcome. The court noted from the record that some six months prior to the accident, the employer met with its employees at the facility and informed them that it would be installing power lockout devices on machinery. The appellate court noted that although the employer acquired the lockout devices, the devices were stored in the control room at the time of the plaintiff’s injury.
The appellate court disagreed with plaintiff’s assertion that the employer’s failure to install the devices, even though they were in its possession, was deliberate deception akin to disabling a lockout device. The court observed that the employer’s recently retired vice president indicated, via affidavit, 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 20 years by many different employees. The court said that while the defendant may not have made a wise managerial decision by failing to install the lockout devices expeditiously — which the court added was unclear from the record — one could not infer deception or a subjective intent to injure employees from that decision.
Fault on the Part of the Plaintiff
The appellate observed that the trial court considered the fact that the plaintiff had had performed the task the year before, and had seen the cleaning performed by various employees at other times, yet he did not ask for direction or assistance because he was unclear as to how to perform the task. Nor, said the trial court, had the plaintiff complained that the operation was unsafe. The plaintiff provided no evidence that before the incident he believed he was performing a task that could even possibly lead to injury. The appellate court stressed that the plaintiff had raised no genuine issue of material fact since he provided no evidence of any prior difficulties or injury that occurred in the years before the event at issue in this case. Summary judgment was appropriate.
Author’s Comment About Plaintiff’s Element of Fault
At first, I bristled when I read the appellate court’s recounting of how the trial court had considered the failure of the plaintiff to object to cleaning the machine and had failed to complain that the operation was unsafe. Those issues, of course, would not be viable in a workers’ compensation claim. That, of course, isn’t the issue here. The court essentially said that if the plaintiff did not think injury was substantially certain to occur, how could he claim the employer should have known that it was — interesting argument on the part of the employer.