The plaintiff, Timothy F. Sullivan, the administrator of the estate of the decedent, Wilfredo Martinez, brought this action against the defendants, Lake Compounce Theme Park, Inc., Lake Compounce, L.P., and Kennywood Entertainment Company (Kennywood), to recover damages for fatal injuries sustained by the decedent during the performance of his duties as a maintenance worker while employed at the defendants' theme park. The sole issue in this appeal
The plaintiff's complaint alleged the following facts. The defendants employed the decedent as a grounds maintenance laborer at their amusement park facility in Bristol. On the morning of June 13, 2001, a grounds manager instructed the decedent to cut grass and weeds beneath the "Boulder Dash" roller coaster using a gasoline powered weed cutter. While the decedent was cutting weeds beneath the roller coaster, a ride mechanic began testing the roller coaster to prepare it for the day's business. Unaware that the decedent was working under the tracks, the mechanic sent the roller coaster on a test run, during the course of which it struck and killed the decedent. The decedent's estate received the appropriate workers' compensation benefits.
The plaintiff subsequently filed this three count complaint against the defendants. The first count, which was entitled, "Intentional Tort Premised Upon Substantial Certainty," alleged thirteen ways in which Lake Compounce, L.P., insufficiently had provided for the decedent's safety,
The defendants moved to strike the complaint pursuant to Practice Book § 10-39(a),
On appeal, the plaintiff claims that "the trial court incorrectly concluded that the first count of the plaintiff's complaint was barred by the exclusivity provision of the [act] on the ground that the allegations were insufficient to [satisfy the substantial certainty test]."
"The standard of review in an appeal challenging a trial court's granting of a motion to strike is well established. A
Section 31-284(a) is the exclusivity provision of the act and provides that an employer, although required to compensate an employee as set forth in the act for death or personal injury sustained in the course of employment, is not liable in a civil action for damages arising from that injury. See footnote 2 of this opinion. An exception to this general rule of exclusivity exists when a plaintiff can establish an intentional tort claim by demonstrating that his employer either: (1) "actually intended to injure [the employee] (actual intent standard)"; or (2) "intentionally created a dangerous condition that made [the employee's] injuries substantially certain to occur (substantial certainty standard)." (Emphasis added.) Suarez II, supra, 242 Conn. at 257-58, 698 A.2d 838.
The plaintiff in the present case seeks to recover under this second theory of liability. 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. Suarez I, supra, 229 Conn. at 109-10, 639 A.2d 507. 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. Id. To satisfy the substantial certainty standard, a plaintiff must show more than "that [a] defendant exhibited a `lackadaisical or even cavalier' attitude toward worker safety...." Stebbins v. Doncasters, Inc., 263 Conn. 231, 234, 819 A.2d 287 (2003). Rather, a plaintiff must demonstrate that his employer believed that its conduct was substantially certain to cause the employee harm. Id.
In the present case, although the plaintiff's complaint contains numerous allegations of state and federal safety violations, inadequate communication procedures, and deficient safety training, the complaint conspicuously omits any claim that the defendants intended harm to befall the decedent or anticipated that harm would result from their conduct. Although the plaintiff's complaint does assert that the defendants "intentionally" failed to correct several dangerous conditions on the premises, this assertion, standing alone, is insufficient to satisfy the substantial certainty test because, as the trial court correctly stated, "failure to take effective remedial action does not translate to an affirmative intent to create an injury causing situation." Cf. Mingachos v. CBS, Inc., 196 Conn. 91, 101, 491 A.2d 368 (1985) ("a high risk or probability of harm is not equivalent to the substantial certainty without which an actor cannot be said to intend the harm in which his act results" [internal quotation marks omitted]); Melanson v. West Hartford, 61 Conn.App. 683, 689, 767 A.2d 764 ("failure to take affirmative remedial action, even if wrongful, does not demonstrate an affirmative intent to create a situation that creates personal injury"), cert. denied, 256 Conn. 904, 772 A.2d 595 (2001).
Accordingly, because the plaintiff's complaint contained no allegations that the defendants' conduct was motivated by their intention to cause the decedent harm or knowledge that such harm would result, we conclude that it did not satisfy the substantial certainty standard as set forth in Suarez I and Suarez II. The trial court, therefore, properly granted the defendants' motion to strike the complaint.
The judgment is affirmed.
In this opinion the other justices concurred.