Opinion
DBDCV186027756S
03-06-2019
Nara Christina RODRIGUEZ FIETOSA, Administratrix of the Estate of Marcos Antonio Silva v. K.T.I. UTILITY CONSTRUCTION & MAINTENANCE, LLC et al.
UNPUBLISHED OPINION
OPINION
D’Andrea, J.
The issue before the court is whether counts one and two of the plaintiff’s amended complaint, sounding in wrongful death and strict liability, are legally sufficient. In its motion to strike, the defendant, K.T.I. Utility Construction & Maintenance, LLC (KTI), asserts that the plaintiff, Nara Christina Rodriguez Fietosa (Fietosa), has failed to sufficiently allege a cause of action for wrongful death and strict liability under the theory of an ultrahazardous activity. For the reasons stated below, the motion to strike counts one and two of the amended complaint is GRANTED.
FACTS
In her amended complaint, the plaintiff alleges the following pertinent facts. The plaintiff is the widow of the decedent, Marcos Antonio DaSilva (DaSilva), and brings this present action for wrongful death in her fiduciary capacity as the Administratrix of the Estate of DaSilva against the defendants, KTI and Eversource Energy Service Company (Eversource). The plaintiff filed a four-count amended complaint against the defendant and Eversource. Counts one and two of the amended complaint assert claims against the defendant for wrongful death and strict liability for an ultrahazardous activity. The defendant is a Connecticut corporation with its principal place of business in Georgetown, Connecticut. At all relevant times, the decedent was an employee of KTI. Eversource is a publicly traded energy company headquartered in Hartford, Connecticut, and Boston, Massachusetts. Eversource owns, controls, and maintains more than 4, 270 miles of electric transmissions lines and 72, 000 pole miles of distribution lines in New England.
The motion to strike concerns only KTI, and, therefore, it will be referred to as the defendant from this point forward.
Eversource contracted with the defendant to install utility poles in Wilton, Connecticut. On June 9, 2016, the decedent and a coworker, Mark Scott, were installing a utility pole on Rivergate Drive in Wilton, Connecticut. The work involved the use of a derrick boom truck. The operator uses the boom to hoist a telephone pole and lower it to a worker on the ground who fits the pole into place. At approximately 12:30 p.m., Scott was moving the boom into position to hoist a telephone pole when the tip of the claw came in contact with an energized 13, 800 volt power line. Scott heard a scream and observed that the decedent was on the ground. The decedent had sustained electrical burns to multiple parts of his body, was electrocuted, and was pronounced dead later that afternoon. Workers’ compensation benefits have been paid.
In count one of the complaint, the plaintiff alleges the following additional facts. The standard of care in the conduct of such work requires the defendant to insure the following workplace conditions: "a. Qualified workers who have completed a 4-year apprenticeship in high voltage electricity. b. Qualified foreman who has completed 2 years as a journeyman lineman. c. Schedule a 3-man crew with a spotter. d. Insulated rubber safety gloves for the workers protection. e. (CFR) 1926.1410— identify a person with the authority to stop operations to ensure safety. f. (CFR) 1926.1410— stop operations if significant safety risk." The defendant took the following active measures in violation of these standards: The defendant knowingly scheduled the decedent to work even though he was not a qualified worker. The decedent had no apprenticeship or formal training in high voltage electricity. The decedent was not trained, qualified, or equipped to work near power lines like those on Rivergate Drive. The defendant deliberately refused to schedule a foreman and a spotter for the crew in order to save money. The defendant deliberately failed to provide the decedent with insulated rubber safety gloves to save money and did not require the decedent to wear the leather gloves provided. The defendant deliberately did not schedule a qualified person with authority to stop the operations to ensure safety to work. The defendant deliberately failed to stop the work to ensure safety to save money. The decedent’s death was the inevitable and known result of the actions required of him and the work conditions created by the defendant. The plaintiff suffered damages as a direct and proximate result of the defendant’s conduct, including the decedent’s wrongful and untimely death, his loss of life, loss of lifetime earnings and wages, and pain and suffering.
In count two of the complaint, the plaintiff alleges the following additional facts. The defendant’s "conduct was ultrahazardous based on: a. The existence of a high degree of risk of harm to persons within the danger zone, such as [the decedent]. b. The likelihood of that harm from such conduct would be great. c. The ability to eliminate the risk of harm by exercise of reasonable care. d. The extent to which the activity is not a matter of common usage. As a direct and proximate result of KTI’s ultrahazardous conduct the plaintiff claims strict liability for its damages, including Silva’s wrongful and untimely death, and his loss of life, loss of lifetime earnings/wages, pain and suffering."
On November 8, 2018, the defendant filed its motion to strike, as well as a supporting memorandum of law. On December 28, 2018, the plaintiff filed its objection to the defendant’s motion to strike, and a memorandum of law in opposition. This motion was heard at short calendar on January 14, 2019.
DISCUSSION
Practice Book § 10-39(a) provides in relevant part: "A motion to strike shall be used whenever any party wishes to contest: (1) the legal sufficiency of the allegations of the complaint ..." "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). The court must "construe the [pleading] in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "[A] party may challenge the legal sufficiency of an adverse party’s claim by filing a motion to strike." Vertex, Inc. v. Waterbury, 278 Conn. 557, 564, 898 A.2d 178 (2006). "The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court ..." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016).
In the defendant’s motion to strike, it argues that counts one and two of the plaintiff’s amended complaint are legally insufficient for failure to state a claim upon which relief can be granted. More specifically, the defendant argues that it is immune from suit based upon the exclusivity provisions of the Workers’ Compensation Act (Act), and, additionally, that it cannot be held strictly liable as a matter of law under the theory of an ultrahazardous activity. In response, the plaintiff argues that the defendant’s motion to strike should be denied because the plaintiff’s cause of action is legally sufficient. Specifically, the plaintiff argues that its claim of wrongful death is exempt from the exclusivity provisions of the act because of the applicable substantial certainty exception.
I
Wrongful Death
At issue is whether the plaintiff’s first count for wrongful death asserts a legally sufficient cause of action. General Statutes § 52-555(a) provides:" In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date of death, and except that no such action may be brought more than five years from the date of the act or omission complained of." "The elements of a cause of action ... for a wrongful death are clear from the explicit language of the statute, which as a statute in derogation of the common law is limited to matters clearly within its scope ... The plaintiff must prove not only a violation of a standard of care as a wrongful act, but also a causal relationship between the injury and the resulting death. A causal relation between the defendant’s wrongful conduct and the plaintiff’s injuries is a fundamental element without which a plaintiff has no case ... If the chain of causation of the damage, when traced from the beginning to the end, includes an act or omission which, even if wrongful or negligent, is or becomes of no consequence in the results or so trivial as to be a mere incident of the operating cause, it is not such a factor as will impose liability for those results ... A wrongful death cause of action, therefore, requires that the party seeking relief allege an underlying theory of legal fault and that such fault is the proximate cause of the injury." (Citation omitted; internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 546-47, 839 A.2d 1259 (2004). The allegations of the plaintiff’s wrongful death count sound in negligence. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).
Pursuant to General Statutes § 31-284(a), if an employer properly complies with the Act regarding satisfactory coverage for its employees, "[a]n 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 or on account of death resulting from personal injury so sustained ... All rights and claims between an employer ... and employees ... arising out of personal injury or death sustained in the course of the employment are abolished other than rights and claims given by this chapter ..." Our Supreme Court has "consistently held that the exclusivity provisions of the Workers’ Compensation Act operate as a total bar to actions brought by employees against their employers for job-related injuries ... This bar operates whether or not the employee actually collects compensation from the principal employer." (Citations omitted.) Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989). Our Supreme Court has held that this complete bar applies to claims for wrongful death brought on behalf of a decedent’s estate when a valid employment contract exists between both parties. Blancato v. Feldspar Corp., 203 Conn. 34, 38, 522 A.2d 1235 (1987) ("[t]he attendant ability on the part of an employer to invoke § 31-284(a) to bar an employee’s common-law damage suit or an action for wrongful death on behalf of his estate similarly arises ... when a valid employment contract exists between the parties").
"Connecticut first adopted a statutory scheme of workers’ compensation in 1913. The purpose of the [act] ... is to provide compensation for injuries arising out of and in the course of employment, regardless of fault ... Under the statute, the employee surrenders his right to bring a common-law action against the employer, thereby limiting the employer’s liability to the statutory amount ... In return, the employee is compensated for his or her losses without having to prove liability ... 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 ... The intention of the framers of the act was to establish a speedy, effective and inexpensive method for determining claims for compensation." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 672, 748 A.2d 834 (2000).
Our Supreme Court has "recognized a narrow exception to this general rule when a plaintiff can establish an intentional tort claim by demonstrating his employer either: (1) actually intended to injure [the employee] ... or (2) intentionally created a dangerous condition that made [the employee’s] injuries substantially certain to occur ... The substantial certainty standard requires that the plaintiff establish that the employer intentionally acted in such a way that the resulting injury to the employee was substantially certain to result from the employer’s conduct ... To satisfy the substantial certainty standard, a plaintiff must show more than that [his employer] exhibited a lackadaisical or even cavalier attitude toward worker safety ... Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm." (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) Motzer v. Haberli, 300 Conn. 733, 743-44, 15 A.3d 1084 (2011). "[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 ... Put differently, satisfaction 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; footnote omitted.) Lucenti v. Laviero, 327 Conn. 764, 779, 176 A.3d 1 (2018).
"[I]ntent is clearly a question of fact that is ordinarily inferred from one’s conduct or acts under the circumstances of the particular case." Id., 780. "Although it is less demanding than the actual intent standard, the substantial certainty standard is, nonetheless, an intentional tort claim requiring an appropriate showing of intent to injure on the part of the defendant ... Specifically, the substantial certainty standard requires that the plaintiff establish that the employer intentionally acted in such a way that the resulting injury to the employee was substantially certain to result from the employer’s conduct ... Substantial certainty exists when the employer cannot be believed if it denied that it knew the consequences were certain to follow." (Citations omitted; internal quotation marks omitted.) Binkowski v. Board of Education, 180 Conn.App. 580, 589-90, 184 A.3d 279 (2018).
Our Supreme Court has indicated that the following types of evidence are influential in deciding whether there is sufficient evidence to satisfy the substantial certainty exception to the exclusivity provision of the Act. See Lucenti v. Laviero, supra, 327 Conn. 790-92. First, whether there were prior accidents involving the activity at issue causing, or nearly causing, injury or death. Second, whether there is an extensive or protracted history of workplace safety violations by the employer in relation to the activity at issue. Third, whether there is deception by the employer regarding the dangers presented by the activity at issue. Lastly, whether the employer placed its employees under significant duress. Id. Furthermore, our Supreme Court has held that evidence of "the failure to comply with safety regulations and the failure to train employees properly are insufficient to satisfy the substantial certainty standard without further evidence that the employer knew or believed that injury to the employee was substantially certain to occur." (Emphasis added.) Motzer v. Haberli, supra, 300 Conn. 745.
In the present matter, the plaintiff argues that she has alleged sufficient facts to satisfy the substantial certainty exception, and therefore, her cause of action is exempt from the exclusivity provisions of the Act. Upon reviewing the plaintiff’s amended complaint, the court finds that that the plaintiff has failed to allege sufficient facts to satisfy the substantial certainty exception. Within the plaintiff’s amended complaint, she asserts the legal conclusion that the "plaintiff’s death was the inevitable and known result of the actions required of him and the work conditions created by KTI." In support, the plaintiff alleges that the defendant cannot be believed if it denies that it knew the consequences that were substantially certain to follow and that the defendant’s knowledge should be implied from its conduct, i.e. deliberately violating safety regulations and knowingly scheduling the decedent to work when he lacked qualifications and training. Furthermore, the plaintiff alleges that the defendant’s knowledge should also be implied from the circumstances of the decedent’s injury.
Although the plaintiff alleges that the defendant deliberately violated various workplace safety standards for financial benefit, the plaintiff has failed to allege specific facts that support her allegation that the defendant either knew or believed that the injury and subsequent death of the decedent was substantially certain to occur based upon the defendant’s conduct and the circumstances of the injury. Our Supreme Court has specifically held that evidence of a failure by the defendant to comply with workplace safety rules or to sufficiently train employees is insufficient on its own to satisfy the substantial certainty exception. See Motzer v. Haberli, supra, 300 Conn. 745. Moreover, the plaintiff has failed to alleged any facts regarding past incidents that occurred relating to the installation of utility poles which resulted in either death or injury. Additionally, the plaintiff has not alleged any facts that there is an extended history of workplace safety violations by the employer relating to installation of utility poles, or facts suggesting deception by the employer regarding the dangers presented by the installation of utility poles.
For the foregoing reasons, the court finds that the plaintiff’s cause of action is not exempt from the exclusivity provisions of the Act. Therefore, the court grants the defendant’s motion to strike count one of the plaintiff’s amended complaint because the plaintiff has failed to state a claim upon which relief can be granted.
II
Strict Liability: Ultrahazardous Activity
The leading case on strict liability for an ultrahazardous activity is Green v. Ensign-Bickford Co., 25 Conn.App. 479, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991). Under the doctrine of strict liability for an ultrahazardous activity, "a plaintiff is not required to show that his loss was caused by the defendant’s negligence. It is sufficient to show only that the defendant engaged in an ultrahazardous activity that caused the defendant’s loss." Id., 482. "The doctrine has traditionally been applied in cases involving blasting and explosives ... Connecticut’s sole extension beyond blasting cases is to damage from a concussion resulting from pile driving." (Citations omitted.) Id., 482-83. "Sections 519 and 520 of 3 Restatement (Second), Torts, address the doctrine of strict liability for ultrahazardous activities. Section 519 provides in pertinent part: (1) [o]ne who carries on an abnormally dangerous activity is subject to liability for harm to the person ... resulting from the activity, although he has exercised the utmost care to prevent the harm. Comment (d) of the Restatement points out that the liability of § 519 is not based on any intent of the defendant to do harm to the plaintiff; rather, it arises out of the abnormal danger of the activity itself, and the risk that it creates of harm to those in the vicinity." (Internal quotation marks omitted.) Id., 485.
"The factors for a court to consider in determining whether an activity is abnormally dangerous are listed in § 520 of the Restatement as: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes." (Internal quotation marks omitted.) Id., 486. "Comment (f) to § 520 provides: In determining whether the danger is abnormal, the factors listed in Clauses (a) to (f) of this Section are all to be considered, and are all of importance. Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will he required for strict liability. On the other hand it is not necessary that each of them be present, especially if others weigh heavily." (Emphasis omitted; internal quotation marks omitted.) Id.
Our Supreme Court has declined to extend strict liability to electric utility companies in connection with providing electric service. See Citerella v. United Illuminating Co., 158 Conn. 600, 266 A.2d 382 (1969); Senderoff v. Housatonic Public Service Co., 147 Conn. 18, 156 A.2d 517 (1959). Moreover, Connecticut superior courts have consistently rejected claims to impose strict liability on electrical utility companies under the theory of an ultrahazardous activity. See McGinnis v. Gallagher Electric, Superior Court, judicial district of Litchfield, Complex Litigation Docket, Docket No. X06-CV-01-171020-S (December 2, 2002, McWeeny, J.); Curtiss v. Northeast Utilities., Superior Court, judicial district of Hartford, Docket No. CV-92-0511572-S (December 5, 1994, Norko, J.) (13 Conn.L.Rptr. 137); Rivera v. Connecticut Light & Power Co., Superior Court, judicial district of New Haven, Docket No. 314570 (July 1, 1993, Stanley, J) (9 Conn.L.Rptr. 415); M. Monterio & Sons, Inc. v. Connecticut Light & Power Co., Superior Court, judicial district of Danbury, Docket No. 030234 (May 9, 1991, Moraghan, J.); Klotz v. Connecticut Light & Power Co., Superior Court, judicial district of Fairfield, Docket No. 041767 (November 9, 1979, Melville, J.); Plourde v. Hartford Electric Light Co., 31 Conn.Supp. 192, 326 A.2d 848 (1974).
Thus, the court determines as a matter of law that the servicing of electrical equipment is not an ultrahazardous activity subject to strict liability. Therefore, the court grants the defendant’s motion to strike count two of the plaintiff’s amended complaint because the plaintiff has failed to state a claim upon which relief can be granted.
CONCLUSION
Based on the analysis above, the defendant’s motion to strike counts one and two of the plaintiff’s amended complaint is GRANTED.