Lucenti v. Laviero

Connecticut Appellate Court · Torts

TortsWorkers' compensation exclusivityIntentional tort exceptionSubstantial certaintyworkers' compensationexclusivity provisionintentional tort exceptionsubstantial certainty test

Facts

The plaintiff was injured while operating an excavator for Laviero Contractors on October 28, 2011, when the machine, allegedly running at full throttle, slipped off a catch basin and swung back and forward. He sued the owner, Greg Laviero, and the company, alleging reckless conduct based on directing that the excavator not be properly repaired and instead temporarily fixing it so it operated only at full throttle. In opposing summary judgment, the plaintiff submitted affidavits stating that workers had warned Laviero the excavator was dangerous as rigged and that someone would get hurt. The defendants submitted evidence that Laviero himself had operated the excavator a week before and again after the incident and denied any intent to injure the plaintiff or create a situation resulting in injury.

Issue

Whether the plaintiff presented sufficient evidence to create a genuine issue of material fact that the defendants intentionally created a dangerous condition making the plaintiff's injuries substantially certain to occur, thereby avoiding the Workers' Compensation Act's exclusivity bar. More specifically, the question was whether the evidence showed the defendants subjectively believed the plaintiff's injury was substantially certain to occur.

Rule

An employee injured in the course of employment is generally limited to workers' compensation and may sue the employer in tort only if the employer actually intended to injure the employee or intentionally created a dangerous condition that made the injury substantially certain to occur. Under the substantial certainty standard, the plaintiff must show more than reckless or cavalier disregard for safety; the plaintiff must present evidence that the employer believed its conduct was substantially certain to cause the employee harm. The act producing the injury must be intentional or deliberate, and the resulting injury, from the employer's standpoint, must be substantially certain to result.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Akron, Ohio, Lena Ortiz worked for Summit Ridge Paving, a small road-construction company. Her supervisor ordered a compactor back into service after a makeshift repair, despite repeated complaints from operators that the machine lurched unpredictably and that "someone is going to get badly hurt," but there is no evidence the supervisor ever said injury was inevitable or certain.

If Lena sues the employer in tort for her workplace injuries, which is the strongest argument for the employer's summary judgment motion?

Explanation. The majority rule is that workers' compensation exclusivity bars the tort suit unless the employee shows actual intent to injure or that the employer intentionally created a dangerous condition while believing injury was substantially certain to occur. Warnings that equipment is dangerous and that someone might get hurt show unsafe conditions and perhaps cavalier disregard, but not the employer's subjective belief that harm was substantially certain. That falls short as a matter of the substantial certainty exception.