Opinion
CV156013709
08-18-2016
Kyle Strunjo et al. v. Donald Mill et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT DONALD MILL'S MOTION FOR SUMMARY JUDGMENT (# 126)
Edward J. Mullarkey, Judge Trial Referee.
The defendant Donald Mill has moved, pursuant to P.B. § 17-44 et seq. for Summary Judgment as to the plaintiff Kyle Strunjo's complaint dated May 11, 2015. The defendant contends that he is entitled to judgment " as a matter of law as the claims [in the complaint] are barred by governmental immunity, and the Workers' Compensation Act is the sole exclusive remedy [available to the plaintiff]." The defendant submitted a memorandum in support of his motion. The plaintiff objects and filed a brief in opposition, and argues that '[t]he plaintiff is not barred by the acceptance of workers' compensation benefits from bringing this cause of action against the defendant for his negligent actions." The defendant filed a reply brief, and the court heard oral argument on August 15, 2016. Each party also attached deposition excerpts, marked as exhibits, for the court's review.
Nature of the Proceedings
In his one-count complaint, the plaintiff alleges that on May 19, 2013, he and the defendant were fellow employees of the Town of Clinton and were " in the course of their employment" as members of the Clinton Police Department. On that date, " each [was] riding a town owned motorcycle escorting other motorcycles on a ride for charity." Paragraph three of the complaint provides as follows:
On or about May 19, 2013, at approximately 12:26 p.m. the plaintiff, Kyle Strunjo, was operating his motorcycle eastbound on Route 80 when the presence of a motor vehicle at the bottom of the Route 9 exit ramp caused him to lose control of his motorcycle whereby it proceeded to slide on the pavement due to the negligence of the defendant, while acting in the discharge of his duties, in one or more of the following ways:
a. That he failed to direct traffic from the Route 9 ramp;
b. That he negligently engaged in traffic control by failing to stop vehicles exiting Route 9 southbound at Exit 5;
c. Failed to stop and block the intersection until a charity procession had cleared the intersection (emphasis added.)
The plaintiff alleges that his injuries and damages were caused by the defendant's negligence as set forth in paragraph three.
Discussion
" 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 facts and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is not a real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). " However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983).
" To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . 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 opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Little v. Yale University, 92 Conn.App. 232, 234-35, 884 A.2d 427 (2005) (emphasis in original; citation and internal quotation marks omitted.) See also Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994) (" Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of an issue").
" Demonstrating a genuine issue of material fact requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . to establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . such assertions are insufficient regardless of whether they are contained in a complaint or brief. Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244-45, 659 A.2d 1226 (1995).
" To defeat a motion for summary judgment, the nonmoving party 'must do more than simply show that there is some metaphysical doubt as to the material facts.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
The defendant asserts two claims with respect to his motion for summary judgment. He contends that the plaintiff's cause of action is barred by the exclusivity provisions of the Workers' Compensation Act, C.G.S. § 31-275, and further asserts that the plaintiff's claim is barred by the doctrine of governmental immunity.
In response, the plaintiff argues that he is not barred by the acceptance of workers' compensation benefits from bringing a cause of action against the defendant for his alleged negligence and that " there are many issues of material fact present which would make this Motion for Summary Judgment inappropriate."
Significantly, the defendant also argues that " this is not a negligence action based on a motor vehicle accident" but claims rather that " the defendant was negligent in the discharge of his duties while employed by the Town of Clinton, " and further asserts, inter alia, the " identifiable person-imminent harm exception" to governmental immunity.
" 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 . . . General Statutes § 31-284(a). Under the act's strict liability provisions, workers are compensated without regard to fault. In return for a relatively low burden of proof and expeditious recovery, employees relinquish their right to any common-law tort claim for their injuries . . . Generally, then, all rights and claims between employers and employees, or their representatives or dependents, arising out of personal injury or death sustained in the course of employment are abolished as a result of the act's exclusivity bar.
" Another provision of [this state's] act, [namely] . . . § 31-293a, creates an exception, however, to the otherwise applicable exclusivity bar. In relevant part, § 31-293a provides that [i]f an employee . . . has a right to benefits or compensation . . . on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee's negligence in the operation of a motor vehicle . . . [I]f an employee suffers injuries, which otherwise would be compensable under the act, due to the negligence of a fellow employee, the injured employee is barred from recovery against that fellow employee unless the injuries were caused by the fellow employee's negligent operation of a motor vehicle." (Citation omitted; emphasis added; internal quotation marks omitted.) Jaiguay v. Vasquez, 287 Conn. 323, 328-29, 948 A.2d 955 (2008).
" [T]he legislature has expressed its preference for a bright line test to determine whether an employee may recover from a fellow employee for injuries sustained as a result of the latter's negligence in the operation of a motor vehicle. Under that test, an injured employee may recover against a fellow employee as long as that fellow employee is operating a 'motor vehicle, ' as that term is defined in [General Statutes] § 14-1[53] and limited under § 31-293a ." (Emphasis added) Colangelo v. Heckelman, 279 Conn. 177, 192, 900 A.2d 1266 (2006); Cirillo v. Sardo, 41 Conn.App. 664, 669, 676 A.2d 1388 (" '[o]peration' of a motor vehicle connotes the control and direction of it, the activity of an 'operator' or 'driver' licensed for that purpose"), cert. denied, 239 Conn. 904, 682 A.2d 998 (1996).
" [R]eview of the defendant's claim hinges on two specific questions: (1) was the accident caused by a motor vehicle and, if so, (2) did the defendant operate that motor vehicle?" Arias v. Geisinger, 126 Conn.App. 860, 866, 15 A.3d 641, cert. denied, 300 Conn. 941, 17 A.3d 476 (2011). " The issue of whether the defendant was engaged in the operation of a motor vehicle at the time of the incident is an issue of law." Id., at 870-71, 15 A.3d 641.
" [Our Supreme Court has] long held that . . . exceptions to statutes are to be strictly construed with doubts resolved in favor of the general rule rather than the exception . . ." (Internal quotation marks omitted.) Surprenant v. Burlingham, 64 Conn.App. 409, 414, 780 A.2d 219 (2001) (concluding that motor vehicle exception in § 31-293 was not applicable).
In Kegel v. McNeely, 2 Conn.App. 174, 476 A.2d 641 (1984), the Appellate Court held that " if a co-employee is not engaged at the time of the fellow employee's injury in any activity related to driving or moving a vehicle or related to a circumstance resulting from the movement of a vehicle, the lawsuit does not fall within the exception of § 31-293a." Id. at 178. (Emphasis added.) This concept was further articulated in Allison v. Manetta, 84 Conn.App. 535, 854 A.2d 84, cert. denied, 271 Conn. 931, 859 A.2d 582 (2004), in which the court stated that " operation of a motor vehicle occurs when there is a setting in motion of the operative machinery of the vehicle, or there is movement of the vehicle, or there is a circumstance resulting from that movement or an activity incident to the movement from one place to another." Id. at 540-41. In Kiriaka v. Alterwitz, 7 Conn.App. 575, 509 A.2d 560, cert. denied, 201 Conn. 804, 513 A.2d 698 (1986), the court explained that " [i]n order to find . . . negligent operation allowing supplementary tort recovery against the employee operator within the exclusion of § 31-293a, the fellow employee's injury must have been caused by the negligent movement or circumstance resulting from the movement of the employer's truck." Id., at 579.
Applying the foregoing legal principles to the allegations contained in the plaintiff's complaint, said allegations do not establish that the plaintiff's injuries were caused by the defendant's movement of his motorcycle or by a circumstance following from its movement. The exception to § 31-293a relates to injury casually connected to the control and direction of the coemployee's vehicle. Put another way, the accident causing the injuries to the plaintiff was removed from the defendant's prior operation of his motorcycle.
Both the defendant and the plaintiff testified during their depositions that the defendant stopped his motorcycle at the intersection of Rt. 80 and the " Exit 5" ramp of Rt. 9 (Defendant's Exhibit A, p. 78; Plaintiff's Exhibit B, p. 78).
Both exhibits reflect that the defendant " stopped directly across from the exit ramp" and " immediately . . . put [his] left foot down, raised [his] hand, because a car was coming down the exit ramp. The car stopped." The plaintiff conceded during his deposition that he had observed the defendant stopped at the intersection, but saw a vehicle on the off ramp roll forward. The plaintiff then swerved to the right, causing the rear wheel of his motorcycle to " get out from behind him." (Defendant's Exhibit B, p. 53.) The plaintiff also conceded that the defendant had " block[ed] off the intersection with his bike." (Defendant's Exhibit B, p. 55.) Finally, the plaintiff engaged in the following colloquy during his deposition:
Q So you're saying what he did wrong is he didn't properly control traffic?
A That's correct.
Q It didn't have to do with his operation of the motorcycle; it had to do with the way he was controlling traffic ?
A That's correct . (Defendant's Exhibit B, p. 59.) (Emphasis added.)
Based on the complaint and the foregoing undisputed facts, it is clear that the plaintiff's claims are not based upon his fellow employee's negligence in the operation of a motor vehicle. Indeed, the plaintiff argued in his brief in opposition to the instant motion that " this was not a negligence action based on a motor vehicle accident" and instead contended that the defendant " was negligent in the discharge of his duties" by allegedly improperly directing traffic.
The plaintiff has not directed the court to any facts or any authority that would, under the circumstances and allegations presented, cause this action to fall outside the purview of the exclusivity provisions of the Workers' Compensation Act. " The right of a plaintiff to recover is limited to the allegations of his complaint." Provenzano v. Provenzano, 88 Conn.App. 217, 225, 870 A.2d 1085 (2005). The plaintiff's injuries were not causally connected to the control, direction, and movement of the defendant's police motorcycle. The plaintiff expressly rejected that theory during his deposition and in his complaint. See Colangelo v. Heckelman, supra, 279 Conn. at 186, 900 A.2d 1266 (court has construed " the term operation of a motor vehicle in § 31-293a as not including activities unrelated to the movement of [a] vehicle" [internal quotation marks omitted]); Rodriguez v. Clark, 162 Conn.App. 785, 133 A.3d 510 (2016).
Applying the rule of statutory construction that the court strictly construes exceptions, the court cannot say that the plaintiff has shown that his case clearly fits within the motor vehicle exception. Surprenant v. Burlingham, supra, 64 Conn.App. at 415, 780 A.2d 219. As a matter of law, the plaintiffs' negligence allegations are insufficient to come within the exceptions in § 31-293a to workers' compensation exclusivity. See Rodriguez v. Clark, supra .
In view of the court's determination that the plaintiff's claim is barred by workers' compensation exclusivity, the court need not address the parties' arguments concerning governmental immunity.
For the reasons stated, the defendant's Motion for Summary Judgment is granted.