Opinion
KNLCV176031428S
01-10-2020
Luis Lopes v. Blast-All, Inc. et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Murphy, Shari A., J.
MEMORANDUM OF DECISION
Shari Murphy, J.
Facts and Procedural History
This personal injury action arises out of an incident in which the left arm of the plaintiff, Luis Lopes, was ensnared by a vacuum hose as he was working for his employer, Blast-All, Inc. The following procedural history and facts are relevant to this motion for summary judgment.
On September 26, 2017, the plaintiff, Luis Lopes, initiated this personal injury action by summons and a three-count complaint against Blast-All, Inc., and ECS North America, LLC. On May 8, 2018, this court, Devine, J., granted ECS North America, LLC’s motion to implead Vector Technologies, LTD as a third-party defendant. On July 13, 2018, the plaintiff filed his first request for leave to amend complaint, adding a fourth and fifth count as to Vector Technologies, LTD. In October of 2018, the plaintiff moved to join The Middlesex Corporation as a defendant in this proceeding, which was granted by this court, Calmar, J. Thereafter, the plaintiff filed a second amended complaint on November 9, 2018, adding a sixth and seventh count alleging claims of negligence, premises liability, and vicarious liability against The Middlesex Corporation. On April 24, 2019, Vector Technologies, LTD filed a motion to implead ARS Recycling Systems, LLC, which was granted by this court, Devine, J. On June 10, 2019, the plaintiff filed his third amended complaint, the operative complaint, adding an eighth count as to ARS Recycling Systems, LLC.
On June 6, 2019, the defendant, Blast-All, Inc., filed a motion for summary judgment on the plaintiff’s claim brought against Blast-All, Inc., in the first count of the plaintiff s operative complaint. In its motion, Blast-All, Inc., moves for summary judgment on the ground that the plaintiff’s claim is barred by the exclusivity provision of the Workers’ Compensation Act, General Statutes § 31-284(a), because (1) it is undisputed that the plaintiff’s injuries were not intentionally caused by any conduct of any principal of Blast-All, Inc., (2) the plaintiff’s injuries were not substantially certain to occur, and (3) Blast-All, Inc., had no subjective belief that its conduct was substantially certain to cause injury to the plaintiff.
Blast-All, Inc., filed this motion for summary judgment and will be referred to by name as appropriate. All of the named defendants in this action, Blast-All, Inc., ECS North America, LLC, Vector Technologies, LTD, The Middlesex Corporation, and ARS Recycling Systems, LLC, will be referred to, collectively, as the defendants or, individually, by name for purposes of this memorandum.
Blast-All, Inc.’s motion for summary judgment was directed to the plaintiff’s claim brought against Blast-All, Inc., in the first count of the plaintiff’s second amended complaint, dated November 2, 2018. In Blast-All, Inc.’s reply brief, Blast-All, Inc., stated the following: "Plaintiff requested permission from the court on June 10, 2019, to amend its prior complaint to add the additional defendant ARS Recycling Systems, Inc. In addition to the adding ... of the defendant, plaintiff made minor amendments to Count One directed at Blast All, Inc. The minor amendments were not substantive in nature and do not change the claims being directed against Blast All, Inc." Blast-All, Inc.’s Rep. Br., p. 3 n.2. Accordingly, the court will treat Blast-All, Inc.’s motion for summary judgment as though it is directed to the operative complaint, the plaintiff’s third amended complaint.
In its motion, Blast-All, Inc., incorrectly cites to "§ 31-282(a)" as the exclusivity provision of the Workers’ Compensation Act. The correct statute is § 31-284(a), which Blast-All, Inc. addresses in its briefs.
On October 1, 2019, the plaintiff filed an objection to Blast-All, Inc.’s motion for summary judgment on the grounds that there are genuine issues of material fact as to whether (1) the evidence shows that the employer intended the act and knew that the injury was substantially certain to occur and (2) the injury was substantially certain to occur. On October 9, 2019, Blast-All, Inc., filed a reply to the plaintiff’s memorandum in opposition to summary judgment. The plaintiff and Blast-All, Inc., both filed exhibits in support of their briefs and both filed supplemental memoranda. On December 2, 2019, oral argument was heard on the motion for summary judgment at short calendar.
Standard
"Summary judgment is a method of resolving litigation when 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). "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.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Doe v. West Hartford, 328 Conn. 172, 191-92, 177 A.3d 1128 (2018). "[I]t is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Insurance Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013).
Discussion
In count one, the plaintiff alleges the following pertinent facts. At the time of the plaintiff’s injuries, he was employed by Blast-All, Inc., as an apprentice sandblaster. On May 3, 2017, while working for Blast-All, Inc., the plaintiff suffered injuries when his left arm was sucked into the hose of a high-powered industrial vacuum which was required to be operated by the plaintiff as part of his job assignment. The plaintiff’s job assignment required vacuuming debris left over from abrasive blasting at a bridge repair site. The vacuum at issue is extremely powerful and equipped with a four-inch suction hose powered by a large diesel motor. The assignment required the plaintiff to hold the suction end of the hose while moving about an uneven suspended plywood platform surrounded by tenting which prevented a direct line of sight from outside the dimly lit containment area. The plaintiff was required to wear a respirator and mask, which limited his ability to communicate. While performing his assignment, the plaintiff stumbled after losing his balance on the uneven platform and suddenly, and without warning, the vacuum hose sucked in his left arm up to the shoulder. Unable to turn off the vacuum suction from his location and unable to free himself from the suction, the plaintiff shouted for help and banged on the containment structure. The vacuum was shut off after the plaintiff got the attention of a coworker. The plaintiff alleges that the vacuum was extremely powerful and posed a risk of severe personal injury or death and that Blast-All, Inc., knew of those risks and, further, knew from past experience and claims that operators had been pulled into the vacuum hose and suction mechanism. The plaintiff further alleges that Blast All-Inc.’s knowledge and actions caused the plaintiff’s injury substantially to occur. More particularly, the plaintiff alleges that Blast-All, Inc., (1) did not provide the plaintiff with the corded emergency shutoff button originally furnished with the vacuum, (2) did not provide the plaintiff any shut off device or safety device to enable the plaintiff to break the suction force, (3) did not provide a hose end guard, (4) did not assign anyone to observe, assist or oversee the plaintiff with the operation of the vacuum, (5) did not conduct a factory-recommended safety inspection of the vacuum or have a safety plan for its operation, (6) did not conduct safety inspections of the work area, and (7) did not provide the plaintiff with adequate operating instruction, warnings or training. The plaintiff further alleges that Blast-All, Inc., provided an unsafe plywood platform and instructed the plaintiff to place his fingers inside the suction while operating the vacuum. The plaintiff alleges that the deliberate actions and omissions of Blast-All, Inc., were substantial factors in causing him to suffer serious and painful injuries and asserts that his claims fall under the exception to the Connecticut Workers’ Compensation Act arising from deliberate actions taken by an employer resulting in injuries which were substantially certain to occur.
"Connecticut’s Workers’ Compensation Act ... is the exclusive remedy for injuries sustained by an employee arising out of and in the course of his employment ..." (Citation omitted; internal quotation marks omitted.) Jaiguay v. Vasquez, 287 Conn. 323, 328-29, 948 A.2d 955 (2008). The exclusive remedy provision of the act provides in relevant part: "An employer ... 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 ..." General Statutes § 31-284(a).
Our Connecticut Supreme Court has "consistently interpreted the exclusivity provision of the [Workers’ Compensation 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 willful or serious misconduct." (Internal quotation marks omitted.) Lucenti v. Laviero, 327 Conn. 764, 773-74, 176 A.3d 1, 8 (2018). The Lucenti decision sets forth a concise summary of the development and application of the exception to the exclusivity provision of the Workers’ Compensation Act. Extracting the portions most relevant to this motion, the intentional tort exception was first recognized in the case of Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979), wherein the court "exempted from workers’ compensation exclusivity an employer’s tortious act of intentionally directing or authorizing another employee to assault the injured party." See Lucenti v. Laviero, supra, 775. Subsequently, in the case of Mingachos v. CBS, Inc., 196 Conn. 91, 491 A.2d 368 (1985), the court defined "intentional or deliberate ... conduct" as that conduct "designed to cause the injury that resulted" and that "the mere knowledge and appreciation of the risk, short of substantial certainty, is not the equivalent of intent." See Lucenti v. Laviero, supra, 775. The Mingachos court concluded 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." See Lucenti v. Laviero, supra, 775.
The substantial certainty exception was again analyzed in the case of Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994) (Suarez I). In Suarez I, the court concluded 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 ... 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." (Citations omitted; internal quotation marks omitted.) Suarez I, supra, 229 Conn. 108-09. The Suarez I court went on to say that "[t]he 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." (Internal quotation marks omitted.) Id., 109-10.
Thereafter, in Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 698 A.2d 838 (1997) (Suarez II), the court restated the substantial certainty test to emphasize that the employer must be shown actually to believe that the injury would occur. See Lucenti v. Laviero, supra, 777. In Suarez II the court concluded that the evidence was "inadequate to support a rational inference that the [employer] specifically intended for the [employee] to be injured." Suarez II, supra, 278. The Suarez II court further clarified the substantial certainty exception by noting: "[P]ermitting an employee to sue an employer for injuries intentionally caused to him constitutes 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 liability of the employer cannot ... be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate 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 conduct." (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 278-79; see also Lucenti v. Laviero, supra, 327 Conn. 778-79.
"[I]t 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 ... [S]atisfaction of the substantial 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; internal quotation marks omitted.) Lucenti v. Laviero, supra, 327 Conn. 779. "[A]lthough 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 its employee’s injuries are substantially certain to result from its action." (Footnote omitted.) Id., 786. A failure to provide appropriate safety or protective measures alone is not enough to establish that the employer believed that its conduct is substantially certain to cause injury to the employee. See Stebbins v. Doncasters, Inc., 47 Conn.Supp. 638, 820 A.2d 1137 (2002), aff’d, 263 Conn. 231, 819 A.2d 287 (2003). The failure to act is not the equivalent to an intention to cause injury. See Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 458, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003), overruled on other grounds by Lucenti v. Laviero, supra, 327 Conn. 788 n.10.
The court concludes that the evidence presented on this motion does not give rise to a genuine issue of material fact as to whether Blast-All, Inc., subjectively believed that an injury was substantially certain to occur as a result of operating the vacuum at issue under the circumstances as alleged.
In support of its motion for summary judgment, Blast-All, Inc., offered the affidavit of Stephen Bogan, the vice president of Blast-All, Inc., in which in pertinent part he stated: (1) he has been vice president of the company since 1988, (2) prior to the subject incident, the vacuum was being used on the job in the manner intended by the manufacturer and had not been altered in any way by Blast-All, Inc., (3) since 1988, Blast-All, Inc., had performed between 30, 000 and 40, 000 hours of vacuuming, (4) the incident involving the plaintiff is the first incident of its kind to occur on Blast-All, Inc.’s job sites since its incorporation in 1988, (5) no prior similar type incidents have been reported to Blast-All, Inc., by its employees, (6) at the time of the subject incident and prior thereto, he had no knowledge of any prior similar type claim directed to Blast-All, Inc. These statements were further evidenced by Bogan’s deposition testimony in which he testified in pertinent part that safety is a priority at Blast-All, Inc.’s job sites and he would never do anything to put an employee in harm’s way and, further, he personally knows of no prior injuries or accidents involving a hose at a Blast-All, Inc., job site.
Blast-All, Inc., also offered the deposition testimony of numerous employees including (1) Savit Sayavong, who testified that he had never seen anything like what happened to the plaintiff while working for Blast-All, Inc., (2) foreman Jeffrey Stoddard, who testified that he never had to report an injury to anyone from the vacuum suction, (3) Stevan Mendez, who testified that he has been employed by Blast-All, Inc., since 2013, has spent approximately 5, 000 hours vacuuming, has no personal experience with the vacuum getting stuck on any part of his body, hands or legs and has not heard of any other similar type incident, and (4) Autry Derrick, who testified that he has vacuumed for thousands of hours and was never injured while vacuuming or operating the vacuum and, further, that he doesn’t recall anyone else being injured and requiring medical attention other than the plaintiff and has never seen anyone else get their entire arm sucked into a vacuum hose. Lastly, Blast-All, Inc., also offered the deposition testimony of the plaintiff, in which he testified that (1) he has never had any safety concerns while on the Hartford job site, (2) never felt that his life was in danger or (3) that there was something threatening that would put him in a position or anybody else that would get hurt, (4) that he stumbled and fell, and (5) it was an accident.
The burden to demonstrate the existence of a genuine issue of material fact then shifts to the plaintiff. The plaintiff argues that he was told to use the vacuum in dimly lit conditions on a suspended platform after only a few days of working at the Hartford job site without proper instruction and without anyone assigned to spot him. The plaintiff argues that Bogan (1) knew the vacuum was powerful enough to cause serious injury or even death, (2) knew the manufacturer offered training yet Blast-All, Inc., didn’t train new hires, (3) knew the manufacturer supplied safety guards for placement at the end of the suction hose, (4) knew why the manufacturer supplied warnings and training manuals, and (5) knew what type of environment the plaintiff would be working in.
In the present case, the plaintiff alleges he stumbled over an uneven section of flooring and lost his grip on the hose, which latched onto his forearm. The plaintiff argues that tripping is a common risk and that Blast-All, Inc., should have foreseen tripping in a containment area. The plaintiff further argues that the vacuum was stripped of safety devices designed to present the sort of injury that the plaintiff received when the vacuum sucked in his entire left arm. The plaintiff also argues that Blast-All, Inc., did not supply the plaintiff with an emergency shut off button despite instructions in the operating manual and Occupational Safety and Health Administration (OSHA) requirements that mechanical and electrical power control be provided on each machine to make it possible for the operator to cut off the power from each machine without leaving his position at the point of operation.
In support of his arguments, the plaintiff offered deposition testimony and exhibits which included testimony of the plaintiff that he was vacuuming alone without anyone else assisting him or observing him and that just before he finished vacuuming the containment area, he stumbled over an uneven section of flooring and lost his grip on the hose which latched onto his forearm and, since he had no one assigned to spot him, there was no one to help free him from the vacuum. Deposition testimony offered also included testimony of Bogan reading from a manual concerning not placing hands, face, clothing or any body part near the suction, hose or nozzle when operating the vacuum and that powerful suction will cause real personal injury or death and the recommendation for employees to carry a knife when operating the vacuum.
The deposition testimony also included lack of factory training and lack of an emergency button on the plaintiff or within reach of the plaintiff at the time of operating the vacuum. Testimony of other employees included statements that the hose was all the way up the plaintiff’s arm and that prior to the plaintiff’s injury there was no guard at the end of the vacuum hose but there is today. The plaintiff also offered testimony of Jeffrey Stoddard concerning a former employee’s statement that he had to free his hand from the suction of the vacuum by using a knife to cut the hose. However, Stoddard did not witness the incident and did not have any idea when it happened. The testimony did not include any statement relative to the injury or report of the incident or injury or if, in fact, the incident actually occurred on a job site of Blast-All, Inc., or some other job site.
Lastly, the plaintiff also offered the testimony of a disclosed expert witness, Michael Shanok, concerning the incident and his understanding of how it happened, his opinion that the ultimate injury did not happen because of a trip hazard, and certain OSHA concerns. This court does not find that Shanok’s testimony raises any issue of genuine material fact concerning Blast-All, Inc.’s intent in creating a working condition that was substantially certain to injure the plaintiff or other employees. See DaGraca v. Kowalsky Brothers, Inc., 100 Conn.App. 781, 791-93, 919 A.2d 525 (expert testimony opining that employer, based on its experience, had to have known of dangers of untested manholes was not sufficient to defeat summary judgment), cert. denied, 283 Conn. 904, 927 A.2d 917 (2007).
Despite viewing the evidence presented in a light most favorable to the plaintiff, the court concludes that no evidence exists to raise a genuine issue of material fact as to whether Blast-All, Inc., subjectively believed that in using the vacuum at issue, in the environment as alleged, the plaintiff’s injuries were substantially certain to occur.
Accordingly, the motion for summary judgment is GRANTED.
Judgment enters for defendant, Blast-All, Inc.