Opinion
No. CV05 4010897 S
January 6, 2006
MEMORANDUM OF DECISION
MOTION TO STRIKE
The defendant, Airgas East, Inc. has filed a motion to strike Count Two of the plaintiff's complaint dated July 12, 2005. The defendant argues that to the extent that Count Two alleges a violation of General Statutes § 31-49, it should be stricken because there is no private right of action under this statute. The defendant additionally argues that to the extent that Count Two alleges a common-law claim of wrongful discharge in violation of the public policy embodied in Section 31-49 it should also be stricken because the statutory remedy provided for in General Statutes § 31-50 precludes relief for such a claim.
Count One alleges age discrimination in violation of General Statutes § 46a-60(a)(i).
Sec. 31-49. Care required of a master for his servant's safety reads as follows:
It shall be the duty of the master to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work and fit and competent persons as his colaborers and to exercise reasonable care in the appointment or designation of a vice-principal and to appoint as such vice-principal a fit and competent person. The default of a vice-principal in the performance of any duty imposed by law on the master shall be the default of the master.
Section 31-50. Enforcement.
The commissioner shall enforce the provisions of part I of this chapter and section 31-23 to 31-49, inclusive, by giving proper orders or notices to the persons or corporations owning, operating or managing the factories or buildings inspected by him and shall make complaint to the state's attorneys of any violation of said provisions.
The plaintiff in objecting to the motion to strike argues that he has properly alleged a cause of action due to the defendant's failure to provide a safe workplace and that such a cause of action has been recognized by our Supreme Court's decision in Parsons v. United Technologies, 243 Conn. 66 (1997)
A summary of the factual allegations contained in Count Two reveal that the plaintiff was employed by the defendant for 27 years until his discharge on June 24, 2004 for allegedly being involved in a "preventable" accident involving a forklift (or tow motor). The plaintiff in Count Two has alleged that he was wrongfully discharged after the defendant employer required him to operate the forklift without proper training and re-certification. The plaintiff, while using the forklift on the defendant employer's property collided with a parked car which his employer allowed to enter into an area where forklifts were being used. Subsequent to the collision the defendant discharged the plaintiff from his employment with the defendant. The plaintiff alleges that as a result of his discharge from employment he has lost, and will continue to lose wages and his earning capacity has been substantially impaired. He further claims that he has suffered, and will continue to suffer, from humiliation and severe emotional injuries and distress.
Plaintiff's legal memorandum of law states that "Pursuant to Occupational and Safety and Health Administration (OSHA) regulations, the employer is to evaluate and train an employee every three years in the use of a forklift, which did not occur in this case." See, OSHA reg. 1910.178(1)(2)(4).
I Standard of Law
The law regarding the granting of a motion to strike is well-established. "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." Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). A motion to strike shall be granted if "the plaintiff's complaint [does not] sufficiently [state] a cognizable cause of action as a matter of law." Mora v. Aetna Life and Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
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 omitted.) Id. "A motion to strike is properly granted where a plaintiff's complaint alleges legal conclusions unsupported by facts." Id. "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). A motion to strike "is to be tested by the allegations of the pleading demurred to, which cannot be enlarged by the assumption of any fact not therein alleged." (Internal quotation marks and citations omitted.) Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541-50, 427 A.2d 822 (1980).
Upon deciding a motion to strike, the trial court must construe the "plaintiff's complaint in [a] manner most favorable to sustaining its legal sufficiency." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). "The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail." Mingachos v. CBS, Inc., supra, 196 Conn. 108-09. However, if the plaintiff has alleged mere conclusions of law unsupported by the requisite facts, the motion to strike should be granted. Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982).
II General Statutes §§ 31-49 and 31-50
The defendant argues that pursuant to General Statutes § 31-49 and § 31-50 there is no private right of action under these statutes. See, Juleson v. Masterson, Superior Court, judicial district of New Haven at New Haven, Docket No. CV020466932S (November 5, 2003, Zoarski, JTR) ("[Conn. Gen. Stat.] § 31-49 can only be enforced by the labor commissioner and the state's attorney and does not provide a cause of action for employees in the state."); see also, Swaney v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. 541984 (March 17, 1999, Milahakos, J.) 24 Conn L. Rptr. 183 ("There is no recognized private right of action because of an employer's alleged violation of 31-49").
The plaintiff argues that Parsons v. United Technologies Corp., supra, 243 Conn. 79-80, confirms that a private right of action exists under § 31-49. This court respectfully disagrees. The court has reviewed Parsons, as well as other cases cited in the plaintiff's memorandum of law. The court adopts the well reasoned opinion of the court in Swaney v. Pfizer, Inc., Superior Court, judicial district of New London, Docket No. 541984 (March 17, 1999, Mihalakos, J.) 24 Conn L. Rptr. 183.
In Swaney v. Pfizer, supra, Judge Mihalakos undertook a lengthy analysis of Parsons v. United Technologies, supra, and its application to the question of whether a plaintiff may maintain a private cause of action against his employer for an alleged violation of Connecticut General Statutes § 31-49. The court in Swaney v. Pfizer, Inc. supra, concluded that no private cause of action exists and that General Statutes § 31-50 limits enforcement of violations of Sec. 31-49 solely to the labor commissioner.
Count Two, Paragraph 9 reads as follows: "The plaintiff's discharge from employment and the damages and losses caused by the plaintiff's wrongful discharge was a direct result of the defendant's failure to provide the plaintiff with a safe place in which to work, and its failure to provide plaintiff with safe appliances and instrumentalities including proper, reasonable and required training in the operation and use of tow-motors, in addition, all of which is a violation of Connecticut General Statutes Section 31-49."
There is no recognized private right of action because of an employer's alleged violation of § 31-49. In Parsons v. United Technologies Corp, supra, at 66, the Supreme Court held only that an employee could maintain an action for wrongful discharge based primarily on the public policy standards enunciated in General Statutes § 31-49. Furthermore, the Supreme Court's guidance in Perille v. Raybestos-Manhattan-Europe, Inc., supra, at 529, and the holding in Wright v. Turner Seymour Mfg. Co., supra, Superior Court, Docket No. 054079, suggests that General Statutes § 31-50 limits enforcement of § 31-49 violations solely to the Labor Commissioner.
Swaney v. Pfizer, Inc., supra, Superior Court, judicial district of New London, Docket No. 541984 (March 17, 1999, Milahakos, J.) 24 Conn L. Rptr.183.
Accordingly for the reasons set forth herein, the court grants the defendant's motion to strike Count Two of the plaintiff's complaint.