Lucenti v. Laviero

**765In this certified appeal, we consider the contours of the proof necessary, under **766Suarez v. Dickmont Plastics Corp. , 229 Conn. 99, 111, 639 A.2d 507 (1994) ( Suarez I ), and Suarez v. Dickmont Plastics Corp. , 242 Conn. 255, 280-81, 698 A.2d 838 (1997) ( Suarez II ), for an employee to establish an employer's subjective intent to create a dangerous situation with a "substantial certainty of injury" to the employee, for purposes of avoiding application of General Statutes § 31-284 (a), the exclusive remedy provision of the Workers' Compensation Act (act), *4General Statutes § 31-275 et seq.1 The plaintiff, Dominick Lucenti, appeals, upon our grant of his petition for certification,2 from the judgment of the Appellate Court affirming the trial court's grant of summary judgment in favor of the defendants, Greg Laviero and Martin Laviero Contractors, Inc. (Laviero Contractors).3 Lucenti v. Laviero , 165 Conn. App. 429, 441, 139 A.3d 752 (2016). On appeal, the plaintiff claims that the Appellate Court improperly concluded that evidence regarding warnings to Laviero from the plaintiff and other employees about the dangers **767posed by the use of a particular excavator, which would operate only when "rigged" to run at full throttle, did not establish a genuine issue of material fact as to whether the defendants subjectively believed that the plaintiff's subsequent injuries from the use of that excavator were substantially certain to occur. We conclude that, in the absence of any evidence demonstrating the hallmarks typical of such employer misconduct, the plaintiff has failed to establish a genuine issue of material fact with respect to the defendants' subjective beliefs. Accordingly, we affirm the judgment of the Appellate Court.

The opinion of the Appellate Court aptly sets forth the following relevant facts and procedural history. "The plaintiff claimed that he suffered various injuries on October 28, 2011, while working for Laviero Contractors. On the day of the incident, the plaintiff was replacing a catch basin. To accomplish this task, he was operating an excavator in an attempt to pull the catch basin out of the ground. During this operation, the excavator, while 'running at full throttle [slipped] off the catch basin and [swung] back and then [swung] forward,' injuring the plaintiff.

"On October 23, 2013, the plaintiff commenced this action alleging in a two count complaint that, because of the defendants' 'reckless conduct,' he suffered injuries. The defendants' alleged reckless conduct was, inter alia, 'directing that the excavator not be properly repaired prior to the incident even though [they] knew that there was a likelihood that individuals operating the equipment, including the plaintiff, would likely sustain serious bodily injuries ....' The plaintiff alleged that a temporary repair made prior to the incident made 'the excavator run at full throttle thereby making a jerking action.' After the parties conducted discovery, on October *514, 2014, the defendants filed a motion for summary judgment. **768"The defendants argued that they were entitled to summary judgment because, pursuant to the exclusivity provision of the act ... the defendants were exempt from liability for civil damages. The defendants further argued that, because there was 'no wilful, malicious or intentional conduct intended to injure the [p]laintiff ... there was no exception to the exclusivity provision in this case.' In support of their argument, the defendants submitted excerpts of transcripts from two depositions given by the plaintiff, as well as an excerpt of Laviero's deposition and his affidavit. Pertinent to this appeal, Laviero stated at his deposition that he had operated the excavator a 'week or so' prior to the incident and again after the incident. Laviero also asserted that the excavator operated at 'full throttle' because it was the excavator's hydraulic system that controlled the speed of the machine and not the throttle. In his affidavit, Laviero averred that he neither intended to injure the plaintiff, nor intended to 'create a situation that would result in the [p]laintiff being injured,' and he had not ordered the excavator repaired 'between October 28, 2011, and the time of [his] subsequent operation.'

"The plaintiff filed an objection to the motion for summary judgment. In his memorandum of law, the plaintiff claimed that the defendants had 'rigged' the excavator to operate only at 'full throttle'; thus, the defendants 'intentionally created a dangerous condition that made [the] plaintiff's injuries substantially certain to occur, thereby overcoming the exclusivity rule of the [act].' In support of his argument, the plaintiff submitted an affidavit from Daniel Quick, a former Laviero Contractors employee, as well as his own affidavit and an excerpt from his deposition.

"Quick averred that he worked for Laviero Contractors for 'two seasons' as a machine operator. Quick also averred that in September, 2011, he was using the **769excavator at issue when it malfunctioned and would only operate on idle. According to Quick, Laviero instructed a mechanic to 'rig the machine so that it could only be operated at full [throttle].' Quick also averred that he told Laviero that the excavator was 'too dangerous to operate' and, 'as rigged,' somebody would be injured.

"The plaintiff's affidavit provided additional details to support his argument. Specifically, the plaintiff averred that he had notified Laviero that the excavator ran only [at] full throttle and that this was dangerous, to which, according to the plaintiff, Laviero concurred. The plaintiff further averred that Laviero stated that he was unwilling to 'put any money into [the excavator]' because he was going to sell it. Also, the plaintiff averred that after he was injured, he spoke to a mechanic, Michael Lauder. The plaintiff attached to his affidavit a statement purportedly written by Lauder. This unsworn, but signed statement dated October 8, 2013, claimed, inter alia, that although Lauder and some other unnamed persons notified Laviero Contractors that the excavator needed to be repaired, he and the unnamed persons were 'instructed to rig the machine so the throttle would run at full speed at all times.' According to this statement, Laviero Contractors did not 'want to put money into repairs,' because it was considering selling the excavator. Finally, Lauder's purported statement provided that after the plaintiff was injured, Laviero Contractors 'instructed [Lauder] to fix [the excavator] properly,' and the excavator subsequently was sold.

"After a hearing on the motion, the court, Hon. Joseph M. Shortall , judge trial *6referee, issued a memorandum of decision on February 23, 2015, in which it granted the defendants' motion for summary judgment on the ground that the exclusivity provision of the act barred the plaintiff's action against the defendants. The court concluded that the plaintiff could not satisfy [the substantial **770certainty exception] to the exclusivity provision ... set forth in [ Suarez II , supra, 242 Conn. at 255, 698 A.2d 838 ], because he could not 'prove an intent on the part of the defendant[s] to create a working condition that was "substantially certain" to injure [the] plaintiff or other employees.' Specifically, the court found it significant that Laviero regularly operated the excavator at issue, including 'a week before the plaintiff's claimed injury and shortly after his injury ....' Thus, the court determined that 'there can be no genuine dispute as to whether the defendants created a condition that they believed was substantially certain to cause injury.' The court reasoned, '[h]ow could a jury conclude that ... Laviero ... intentionally created a dangerous condition that was substantially certain to cause injury to someone operating the excavator when he, himself, operated the machine on a regular basis? While it is seldom appropriate for summary judgment to enter where the material fact is the intent of [a] defendant, this is one of those rare cases in which it is appropriate.' " Lucenti v. Laviero , supra, 165 Conn. App. at 431-34, 139 A.3d 752.

The plaintiff appealed from the judgment of the trial court to the Appellate Court. Id., at 430, 139 A.3d 752. In a unanimous decision, the Appellate Court affirmed the judgment of the trial court, rejecting the plaintiff's claim that he had "presented evidence demonstrating that there was a genuine issue of material fact, namely, that the defendants 'rigged' the excavator, and this created a dangerous condition that made the plaintiff's injuries substantially certain to occur." Id., at 438, 139 A.3d 752. The Appellate Court assumed, for the sake of argument, that the plaintiff correctly asserted that "the excavator was not meant to operate at full throttle and that the excavator was dangerous," with "Quick's affidavit to buttress his argument that the defendants created a dangerous condition that made his injuries substantially certain because the **771excavator, as modified, would only operate at full throttle." Id., at 439, 139 A.3d 752. The court nevertheless relied on its decisions in Martinez v. Southington Metal Fabricating Co. , 101 Conn. App. 796, 799-800, 924 A.2d 150, cert. denied, 284 Conn. 930, 934 A.2d 246 (2007), and Sorban v. Sterling Engineering Corp. , 79 Conn. App. 444, 445-47, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003), to conclude that the "plaintiff does not raise a genuine issue of material fact as to the 'requirement of a showing of the employer's subjective belief that the [plaintiff's] injury was substantially certain to occur' " as a result of the temporarily repaired "excavator that only operates on full throttle." Lucenti v. Laviero , supra, 165 Conn. App. at 439, 139 A.3d 752. Accordingly, the Appellate Court affirmed the trial court's grant of summary judgment in favor of the defendants. Id., at 441, 139 A.3d 752. This certified appeal followed. See footnote 2 of this opinion.

On appeal to this court, the plaintiff argues that the testimony and affidavits submitted in opposition to the defendants' motion for summary judgment establish a genuine issue of material fact regarding the question of whether the defendants knew that "rigging" the excavator was a dangerous act substantially certain to result in injury. The plaintiff emphasizes that requiring more evidence than these warnings to Laviero by Quick and the plaintiff will make the substantial certainty exception meaningless, as it would mean that *7"[o]nly in the unimaginable case, when an employer admits that he intended an injury, could a plaintiff survive summary judgment." To this end, the plaintiff contends that the Appellate Court's analysis has "functionally overruled" this court's decision in Suarez I , supra, 229 Conn. at 111, 639 A.2d 507, insofar as that decision allows the fact finder to infer "the subjective intent of the employer from the totality of the circumstances surrounding an employee's injury." **772In response, the defendants, relying on, among other cases, Suarez II , supra, 242 Conn. at 257-58, 698 A.2d 838, and Mingachos v. CBS, Inc. , 196 Conn. 91, 100-101, 491 A.2d 368 (1985), contend that the Appellate Court's decision was consistent with existing case law, under which the substantial certainty exception is narrowly construed and requires intentional conduct, rather than mere negligence or recklessness. In particular, the defendants rely heavily on Stebbins v. Doncasters, Inc. , 263 Conn. 231, 234, 819 A.2d 287 (2003), and Martinez v. Southington Metal Fabricating Co. , supra, 101 Conn. App. at 802-804, 924 A.2d 150, and argue that the substantial certainty exception requires evidence that the employer subjectively intended to engage in conduct that was substantially certain to injure the employees.4 The defendants assert that there is no evidence in the record of an intent to injure the plaintiff through use of the "rigged" excavator, as demonstrated by the fact that Laviero expressly denied any such intention and personally operated the excavator both before and after the plaintiff's injury. The defendants also emphasize that the plaintiff personally elected to use the excavator in question, despite the fact that he was in charge on the job site, had access to other excavators, and could have chosen a different method by which to remove the catch basin. We agree with the defendants and conclude that the Appellate Court properly determined that the evidence set forth in the record did not give rise to a genuine issue of material fact with respect to the substantial certainty exception to workers' compensation exclusivity under § 31-284 (a).

"The standard of review of a trial court's decision granting summary judgment is well established.

**773Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits 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." (Internal quotation marks omitted.) Cefaratti v. Aranow , 321 Conn. 637, 645, 138 A.3d 837 (2016). "The courts are in entire agreement that the moving party ... has the burden of showing the absence of any genuine issue as to all the material facts .... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.... Once the moving party has met its burden, however, the [nonmoving] party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) State Farm Fire & Casualty Co. v. Tully , 322 Conn. 566, 573, 142 A.3d 1079 (2016). "Our review of the trial court's decision to grant the defendant's *8motion 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." (Internal quotation marks omitted.) Cefaratti v. Aranow , supra, at 645, 138 A.3d 837.

By way of background, we observe that this court has consistently "interpreted the exclusivity provision of the [a]ct ... 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 **774misconduct." Suarez I , supra, 229 Conn. at 106, 639 A.2d 507. This exclusivity represents a balancing of interests, insofar as the purpose of the act "is to compensate 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." (Citations omitted; internal quotation marks omitted.) Mingachos v. CBS, Inc. , supra, 196 Conn. at 97, 491 A.2d 368 ; see also Suarez I , supra, at 124, 639 A.2d 507 (Borden, J. , concurring and dissenting) ("in determining whether an employee has sufficiently established his employer's belief that he will be injured, we are not faced with a choice of leaving the employee without any compensation for his work related injuries by holding him to a strict standard"). Put differently, "[a] damage suit as an alternative or additional 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.) Mingachos v. CBS, Inc. , supra, at 106, 491 A.2d 368. The "principle of exclusivity is not eroded ... when the plaintiff alleges an intentional tort, in which case an employee is permitted to pursue remedies beyond those contemplated by the act." Suarez I , supra, at 115, 639 A.2d 507.

This court first recognized this narrow intentional tort exception to workers' compensation exclusivity in **775Jett v. Dunlap , 179 Conn. 215, 425 A.2d 1263 (1979). See Suarez I , supra, 229 Conn. at 106-107, 639 A.2d 507. In Jett , this court exempted from workers' compensation exclusivity an employer's tortious act of intentionally directing or authorizing another employee to assault the injured party. Jett v. Dunlap , supra, at 218, 425 A.2d 1263.

Moving beyond actual intent to injure, in Mingachos v. CBS, Inc. , supra, 196 Conn. at 100-101, 491 A.2d 368, this court declined to extend Jett 's intentional tort exception to the workers' compensation 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. Instead, this court held in Mingachos : "To bypass the exclusivity of the act, the intentional or deliberate ... conduct alleged must have been *9designed to cause the injury that resulted." Id., at 102, 491 A.2d 368. This court noted that "the mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent." (Internal quotation marks omitted.) Id., at 103, 491 A.2d 368. Accordingly, this court concluded in Mingachos that reckless misconduct differs from intentional misconduct, and that the employee must establish that the employer knew that injury was substantially certain to follow its deliberate course of action. Id.

This court elaborated on the contours of this substantial certainty standard as an alternative method of proving intent in Suarez I and Suarez II , which arose from amputation injuries suffered by an employee who claimed that his foreman 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. Suarez I , supra, 229 Conn. at 101, 639 A.2d 507. Specifically, the employee alleged that the foreman, as the alter ego of the employer, knew the dangers involved with **776cleaning the machines, but had told him that he could not use a safer method, such as a stick to reach in, because (1) it would waste material, (2) the operator would lose time, and (3) if he used a safer method, he would be fired. Id., at 102, 639 A.2d 507. The employee further alleged that the foreman had ordered him to clean the machine during production, "so that the employer could avoid paying personnel overtime." Id., at 103, 639 A.2d 507. The employee appealed from the trial court's grant of 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., at 101-102, 639 A.2d 507.

In applying this substantial certainty exception to the facts of Suarez I , this court further defined the terms of the doctrine, 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 follow from it.... A result is intended if the act is done for the purpose 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 producing the injury and the resulting injury must be intentional.... [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....

**777"The substantial certainty test differs from the true intentional tort test but still preserves the statutory scheme and the overall purposes of the act. The problem with the intentional tort test, i.e., whether the employer intended the specific injury, appears to be that it allows employers to injure and even kill employees and suffer only workers' compensation damages so long as the employer did not specifically intend to hurt the worker.... Prohibiting a civil action in such a case would allow a corporation to cost-out an investment decision *10to kill workers.... The substantial certainty test provides for the intent to injure exception to be strictly construed and still allows for [an employee] to maintain a cause of action against an employer where the evidence is sufficient to support an inference that the employer deliberately instructed an employee to injure himself." (Citations omitted; internal quotation marks omitted.) Id., at 108-10, 639 A.2d 507. Ultimately, this court concluded in Suarez I that summary judgment was inappropriate in that case, and it was a jury question with respect to whether the employer's intentional conduct allowed an inference that the employer knew that the occurrence of the injury was a substantial certainty. Id., at 111-12, 639 A.2d 507.

On remand following Suarez I , a jury returned a verdict for the employee under the actual intent standard, rather than under the substantial certainty exception, and the employer then appealed to this court. See Suarez II , supra, 242 Conn. at 261 and n.2, 698 A.2d 838. In Suarez II , this court restated the substantial certainty test "to emphasize that the employer must be shown actually to believe that the injury would occur ...." (Emphasis added.) R. Carter et al., 19 Connecticut Practice Series: Workers' Compensation (2008) § 15:16. In Suarez II , this court described its decision in Suarez I as establishing an exception to workers' compensation exclusivity if the employee can prove "either that the **778employer actually intended to injure the [employee] or that the employer intentionally created a dangerous condition that made the [employee's] injuries substantially certain to occur ...." Suarez II , supra, at 257-58, 698 A.2d 838. Although the employee in Suarez II urged this court to conclude that the employer's insistence that he clean the machines with his hands while the machines were operating, along with the reprimands and threats receiv