ARTHUR H. HEALEY, J.
This appeal calls into issue the exclusivity of the Connecticut Workers' Compensation Act, General Statutes §§ 31-275 through 31-355.
On October 30, 1979, Frank Mingachos (the decedent) sustained injuries from an explosion while working on the Danbury premises of his employer, the named defendant, CBS, Inc. (CBS). On November 29, 1979, he died as a result of those injuries. On June 3, 1981, the plaintiff, Marcelino Mingachos, as administrator of
The first two counts were directed to CBS. They alleged, in substance, that the explosion and the decedent's injuries and death were caused by CBS'"violations" of certain enumerated Connecticut "statutory regulations" and federal Occupational Safety and Health Administration Act (OSHA) regulations, that the violations were "willful" and "reckless," and that "the natural and probable consequence reasonably to be anticipated ... would be death or serious injury." The third count was directed to Pennozza, Joseph and Dodd. It also alleged in substance that the explosion and the decedent's injuries and death "were caused by and were the direct result" of the individual defendants' violation of the same Connecticut "statutory regulations" and federal OSHA regulations as alleged in the two earlier counts, that the violations were "wilful," and again that "[t]he natural and probable consequence reasonably to be anticipated ... [therefrom] would be death or serious injury." The defendant CBS' answer to the first and second counts included the special defense of the Workers' Compensation Act (the act) and asserted the exclusivity of the act as a bar.
Thereafter, a three count amended complaint was filed. The first two counts, as amended, now alleged that the explosion and the decedent's injuries and death
The defendants thereafter filed their motion for summary judgment
On appeal, the plaintiff claims that the trial court erred: (1) in overruling his motion to strike the special defenses to the first and second counts of the original complaint and (2) in granting summary judgment for the defendants on all three counts of his amended complaint.
The basic issue in this appeal is whether an employer has immunity from suit under General Statutes § 31-284 of the Workers' Compensation Act when the employer is sued in intentional tort. The manner, however, in which the case was presented and argued to two judges in the trial court, one who decided the plaintiff's motion to strike special defenses to the original complaint and one who rendered summary judgment for the defendants on the later filed amended complaint, requires individual treatment.
We first address the plaintiff's claims against the defendant employer. To do so we must necessarily examine the scope of General Statutes § 31-284, the "exclusivity" provision of the Connecticut Workers' Compensation Act.
"The purpose of the workmen's compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer." (Citation omitted.) Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). The act is to be broadly construed to effectuate the purpose of providing compensation "for an injury arising out of and in the course of the employment regardless of fault." Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968); Stapf v. Savin, 125 Conn. 563, 565, 7 A.2d 226 (1939). Under typical workers' compensation statutes, employers are barred from presenting certain defenses to the claim for compensation, the employee's burden of proof is relatively light, and recovery should be expeditious. 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. See Iverson v. Atlas Pacific Engineering Ltd., 143 Cal.App.3d 219, 191 Cal.Rptr. 696 (1983); 81 Am. Jur. 2d, Workmen's Compensation § 2 (1976); see generally Larson, "The Nature and Origins of Workmen's Compensation," 37 Cornell L.Q. 206 (1952). The purposes of the act itself are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes. See Adzima
Under General Statutes § 31-284 (a) an "employer" within the scope of the act is not liable in "any action for damages on account of personal injury sustained by an employee arising out of and in the course of his [or her] employment or on account of death resulting from personal injury so sustained...." (Emphasis added.) The act mandates that the term "[p]ersonal injury ... shall be construed to include, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease as herein defined." (Emphasis added.) General Statutes § 31-275 (8); see Plainville v. Travelers Indemnity Co., 178 Conn. 664, 669-70, 425 A.2d 131 (1979). "Every word in a legislative enactment is presumed to have meaning. State ex rel. Kennedy v. Frauwirth, 167 Conn. 165, 168, 355 A.2d 39 (1974)." State v. Freedom of Information Commission, 184 Conn. 102, 107, 441 A.2d 53 (1981). We have recognized that "courts do not torture words to import ambiguity where the ordinary meaning leaves no room for it...." Heffernan v. Slapin, 182 Conn. 40, 46, 438 A.2d 1 (1980).
We have recently recognized a narrow exception to the exclusivity of the act. In Jett v. Dunlap, supra, we held that an employee's action claiming intentional assault by another employee "identified as the alter ego" of the employer would not be barred by § 31-284. Id., 219. This "alter ego" exception may be applicable in instances in which "the assailant is of such rank in the corporation that he may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity." Id.
The plaintiff would have us construe § 31-284 so that this provision would not bar actions at law against employers in cases such as the one now before us. He points to the statement in Jett v. Dunlap, supra, 218, that "[a]n intentional tort committed upon one employee by another, which causes personal injury arising
In the present appeal the plaintiff is really requesting that we extend judicially the Jett exception to § 31-284 to include injuries to employees resulting from "intentional," or "wilful," or "reckless" violations by the employer of safety standards established pursuant to federal and state laws, such as OSHA. In the absence of any such legislative direction, we decline to do so for a number of reasons that we set forth as follows.
First, our decisional law constrains us from giving such an expansive reading of the terms "intentional," "wilful," or "reckless" because they have been previously defined in the context of common law tort actions. We begin our analysis here by pointing out that it is generally agreed that workers" compensation laws were not intended to shield an employer from common law liability for injuries he intentionally inflicted upon his employee. See Shearer v. Homestake Mining Co., 557 F. Sup. 549, 553 (D.S.D. 1983), aff'd, 727 F.2d 707 (8th Cir. 1984); 2A Larson, Workmen's Compensation Law (1976) §§ 68.10 and 68.13. It will be useful to put such terms as "wilful," "intentional" and
In his description of intentional tortious conduct, Dean Prosser has said: "`Intent' is the word commonly used to describe the desire to bring about the physical consequences [of an act] .... Intent, however, is broader than a desire to bring about physical results. It must extend not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what he does." Prosser, Torts (4th Ed. 1971) § 8. Similarly, according to the second Restatement of Torts, "intent" refers "to the consequences of an act rather than to the act itself"; 1 Restatement (Second), Torts § 8A, comment (a) (1965); and therefore "[t]he word `intent' ... denote[s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to follow from it." 1 Restatement (Second), Torts § 8A (1965).
To bypass the exclusivity of the act, the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted.
Alleged misconduct deemed to be "reckless," as the plaintiff also claims, differs from intentional misconduct. "While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it." 3 Restatement (Second), Torts § 500, comment f (1965). "It is enough that he realizes or, from facts which he knows, should realize that there is a strong probability that harm may result, even though he hopes or even expects that his conduct will prove harmless. However, a strong probability is a different thing from a substantial certainty without which he cannot be said to intend the harm in which his act results." (Emphasis added.) Id.
A second reason that the § 31-284 (a) exclusivity rule bars common law actions for damages against employers for safety violations is the present statutory scheme itself. We have previously recognized that in construing the Workers' Compensation Act, this court "makes
In 1978, the General Assembly amended the act to include a provision that allows a greater amount of compensation to be paid to an employee "who suffers any injury or illness caused by his employer's violation of any health or safety regulation ... after such violation has been cited in accordance with [OSHA or Connecticut OSHA] and not abated within the time fixed by the citation...." Public Acts 1978, No. 78-360, § 1, codified at General Statutes § 31-307.
It is axiomatic that compensation in common law tort serves a two-fold purpose: deterrence of socially undesirable conduct and compensation to those persons
We note that the added remedy under § 31-307, which the legislature contemplated would be the remedy available to an employee injured due to the employer's unsafe working conditions, only applies to cases in which a covered employee is injured as a result of the employer's failure to take appropriate corrective measures after it has received a citation under either General Statutes § 31-375 or federal OSHA for a violation due to the offending condition. Because the issuing of the citation begins the running of the period of
The third reason that we decline to construe § 31-284 as not barring such actions is that to do so would in this case usurp the legislative function.
In light of our discussion of the scope of § 31-284 (a) in barring actions against an employer for job related injuries, we take up first the plaintiff's claim that the trial court erred in overruling his motion to strike the special defenses of the Workers' Compensation Act to the first and second counts of his original complaint. We find no error.
A motion to strike challenges the legal sufficiency of a pleading. Practice Book § 152; Blake v. Levy, 191 Conn. 257, 258 n.1, 464 A.2d 52 (1983); Ivey, Barnum & O'Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 530 n.2, 461 A.2d 1369 (1983). It replaced the demurrer in our practice. Practice Book § 151. Like the demurrer, it admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980); McAdam v. Sheldon, 153 Conn. 278, 282, 216 A.2d 193 (1965). The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting
In overruling the plaintiff's motion to strike and in determining that the act was the exclusive remedy, the trial court noted that the plaintiff had merely alleged "willful" and "reckless" violations of state and federal safety regulations and "significantly" had "not alleged an `intentional' injury."
We also note that in those two counts the plaintiff based his action on the defendant's claimed violations of statutory regulations promulgated under both Connecticut and federal "OSHA" statutes. Neither Connecticut nor federal law provides that alleged violations of OSHA can be the basis of a private right of action "with respect to injuries, diseases or death of employees arising out of and in the course of employment." See General Statutes § 31-369 (b) and 29 U.S.C. § 653 (b) (4); Jeter v. St. Regis Paper Co., 507 F.2d 973, 976-77 (5th Cir. 1975); annot., 35 A.L.R. Fed. 461 (1977). We have said, however, that regulations promulgated under OSHA are admissible, if applicable, as evidence in personal injury cases of the standard of care. Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 181, 439 A.2d 954 (1981); see Van Steensberg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 506, 481 A.2d 750 (1984). It would then appear that both the state and federal OSHA acts do not intend to "supersede or in any manner affect" existing rights, duties or liabilities of affected parties for those referenced matters arising out of or in the course of employment. Accordingly, a complaint which does not allege a legal duty but only alleges violation of federal or state OSHA regulations is vulnerable to a motion to strike.
In sum, in the light of the applicable law, the Workers' Compensation Act was properly pleaded as a special defense to the first two counts of the original complaint. The trial court, therefore, recognizing the exclusivity of the act, correctly denied the motion to strike the special defenses.
We turn now to the plaintiff's claim that the trial court erroneously granted the defendants' motion for
After the trial court's action on the motion to strike, the plaintiff filed an amended complaint. The first two counts, which repeated many of the allegations of the original complaint, now alleged the following: That the explosion and the decedent's injuries and death were caused by "CBS's actions and [violations] ..." of certain enumerated Connecticut statutory regulations and OSHA regulations, that "said actions and violations" were, as to the first count, "willful and intentional, and created a hazardous condition" and that they were, as to the second count, "reckless, and created a hazardous condition." As to each of these two counts, it was now alleged that despite "CBS' knowledge that such hazardous violations and conditions existed," it failed to correct these conditions and violations, it failed to warn its employees, including the plaintiff's decedent,
Thereafter, all the defendants moved for summary judgment on all three counts. Claiming that the plaintiff's claim is "barred by law," their motion alleged that "[a]ll three counts ... are based on the violations of the defendants of certain OSHA rules and regulations and are barred by Connecticut General Statutes Section 31-369 (b) and 29 United States Code Section 653 (b) (4)...."
We reaffirm what we have said earlier in this opinion concerning the purpose, ambit and interpretation of the act in our review of this summary judgment claim. The additional allegations made by the amended complaint do not serve to take any of its counts beyond the exclusivity of the act. We do note that even with the additional allegations each count still only makes out claims of violations of federal and state OSHA regulations quite apart from alleging any legal duty violated by any of the defendants.
The act provides the exclusive remedy to employees sustaining work related injuries or death from such injuries "caused by the negligence or wrong of a 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...." General Statutes § 31-293a.
There is no error.
In this opinion the other judges concurred.
29 U.S.C. § 653 of the Occupational Safety and Health Act is captioned "Geographic applicability; judicial enforcement; applicability to existing standards; report to Congress on duplication and coordination of Federal laws; workmen's compensation law or common law or statutory rights, duties, or liabilities of employers and employees unaffected" and provides in part:
"(b) (4) Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment." General Statutes § 31-369 of the Connecticut Occupational Safety and Health Act is captioned "Application of chapter" and provides in part:
"(b) Nothing in this chapter shall be construed to supersede or in any manner affect any workers' compensation law or to enlarge, diminish or affect in any manner common law or statutory rights, duties or liabilities of employers or employees, under any law with respect to injuries, diseases or death of employees arising out of and in the course of employment."
It has also been written that "[t]he most revolutionary modification of the common law of torts appeared in the form of Workmen's Compensation Acts.... Workmen's compensation legislation established almost a complete substitute for the common law of torts, as it affected the liability of industrial employers to their employees. Eliminating, as it did, the necessity of fault as a basis for liability and the fault of the worker, except in its extreme form, as a bar to recovery, the major economic risk of industrial accidents was shifted from the employee to the employer and his insurance carrier on the theory that industry initially and the consumer ultimately could better absorb the costs of such accidents than the individual victims thereof." 1 Harper & James, Torts (1956), pp. xlii-xliii.
Under Cal. Labor Code § 4553 (Deering 1976), which requires that the compensation award be increased by one-half with a statutory maximum if the worker's injury resulted from the employer's "serious and willful misconduct," such misconduct has been defined as "more than negligence, however gross. The type of conduct necessary to invoke the penalty ... is that of a `"`quasi criminal nature, the intentional doing of something either with the knowledge that it is likely to result in serious injury, or with a wanton and reckless disregard of its possible consequences.' ..."'" (Citation omitted.) American Smelting & Refining Co. v. Workers' Compensation Appeals Board, 79 Cal.App.3d 615, 620, 144 Cal.Rptr. 898 (1978).