Nolan v. Borkowski

Hull, J.

The dispositive issue in this case is whether the named plaintiff, Wendy Nolan, submitted proof of the individual defendants’ intent to injure her sufficient to resist the defendants’ motion for summary judgment on the ground of the exclusivity of the workers’ compensation benefits available to her for those injuries. We agree with the trial court that she failed to raise an issue of material fact as to such intent and therefore we find no error in the court’s granting of the motion for summary judgment.

Wendy Nolan1 brought this action against Alan Borkowski, Larry Przybylski, Raymond M. Pons and *497 Pons Bakery, Inc., for injuries received while she was employed at Pons Bakery, Inc. The first count of the complaint alleged that the individual defendants had wilfully and maliciously disobeyed her doctor’s work restrictions which were known to them, thereby causing her injuries. The second count of the complaint claimed liability on the part of Pons Bakery, Inc., on the ground that the named individuals had been acting as its agents.

The defendants filed special defenses alleging that the plaintiff’s claims were barred by the exclusive remedy rule contained in General Statutes §§ 31-2842 and 31-293a3 of the Workers’ Compensation Act. The defendants moved for summary judgment with accompanying affidavits. The plaintiff filed an opposition to this motion with affidavits and a supplemental opposition containing excerpts from a deposition of the plaintiff. The court granted the defendants’ motion for summary judgment on the first count on the ground that the plaintiff had failed to raise an issue of fact as to the defendants’ intent to injure her. As to the see *498 ond count, the court granted summary judgment on the same basis and also because the plaintiff had failed to show that any of the defendants was the alter ego of the employer corporation. On appeal the plaintiff claims in effect that the court erred in failing to construe the affidavits and the deposition in the light most favorable to her and in finding that the plaintiff had not put the issue of the defendants’ intent to injure her sufficiently in dispute to defeat the defendants’ motion for summary judgment.

The plaintiff’s affidavit contained the following claimed material facts. She began work at Pons Bakery, Inc., in September, 1980, as a general laborer and was advancing well. During the spring of 1981 she began having pain in her back and her leg which resulted in disc removal surgery in January, 1982. She was allowed to return to work on February 28, 1982, with the following written instructions: no bending, no lifting over twenty pounds and no working over forty hours a week. These written restrictions were given to Borkowski and also communicated to Przybylski and Pons. Pons was vice-president and general manager of the bakery and Borkowski and Przybylski were co-supervisors or production managers. The individual defendants violated the doctor’s orders by requiring the plaintiff to do work that included bending, pulling one hundred pound racks, lifting one hundred pound sacks of flour, lifting loads of dough weighing up to fifty pounds, loading and unloading trucks and working over forty hours a week.

In June, 1982, after the plaintiff had made numerous requests for relief, she was given a supervisory job which was supposed to relieve her of most heavy physical duties. Borkowski and Przybylski never told her to refrain from doing certain tasks on the job and repeatedly required her to engage in heavy lifting and bending and to work more than forty hours per week.

*499 Excerpts from the plaintiffs deposition before the court contained the following additional factual claims. In the deposition, the plaintiff stated that it was her opinion that Borkowski feared that the plaintiffs performance on the job would place his job in jeopardy. It was also her opinion that Borkowski ordered her to do certain work despite his knowledge of her work restrictions so that she would not be able to continue working. Further, she stated that she “guessed” that by getting rid of her, Borkowski and his friend Keith Briggs got their raises. By August, 1982, the plaintiff had to stop working because of pain and she underwent another operation for a ruptured disc.

The affidavit of the plaintiffs husband, Gary Nolan, declared that he had complained several times to Borkowski, Przybylski and Pons about how they were continuing to make the plaintiff do heavy lifting when they knew she should not. He also stated that when he complained to Borkowski because Borkowski had the plaintiff loading one hundred pound bags of flour into the mix, Borkowski said: “If your wife can’t do her job we have no place for her here.”

Borkowski’s affidavit (1) admitted that he was a manager of the bakery while the plaintiff was employed there, (2) denied that he had wilfully and/or maliciously disobeyed any doctor’s instructions regarding the plaintiff or wilfully and/or maliciously ordered or caused the plaintiff to do any heavy lifting, bending or to work over forty hours a week, (3) denied that there was any intent on his part to cause harm to the plaintiff, (4) stated that because of his awareness of the doctor’s instructions as to the plaintiff she was placed in a supervisory position in order to facilitate those instructions, and (5) stated that he had personally advised the plaintiff against doing any actions on the job that would be contrary to her doctor’s instructions. Przybylski’s affidavit was identical to Borkowski’s. Pons’ affidavit was *500 also identical to the other two and contained an additional paragraph claiming that he had spoken with Gary Nolan asking him to attempt to ensure that the plaintiff not partake of any activities on the job contrary to her doctor’s instructions.

Summary judgment shall be rendered if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and the moving party is entitled to judgment ,as a matter of law. Practice Book § 384. The party moving for summary judgment bears the burden of proving the absence of a dispute as to any material fact. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The court must view the evidence in the light most favorable to the nonmovant. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). In ruling on a motion for summary judgment, the court’s function is not to decide issues of material fact, but rather to determine whether any such issues exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982).

In Connecticut the exclusive remedy for an employee injured in the course of employment is provided by the Workers’ Compensation Act and, with limited exceptions, suits against fellow employees are barred by General Statutes § 31-293a. Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 532, 494 A.2d 555 (1985); Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985); Davey v. Pepperidge Farms, Inc., 180 Conn. 469, 471, 429 A.2d 943 (1980); Jacobs v. Crown, Inc., 7 Conn. App. 296, 298, 508 A.2d 812 (1986); Greene v. Metal Selling Corporation, 3 Conn. App. 40, 45, 484 A.2d 478 (1984). The plaintiff could withstand the defendants’ motion for summary judgment only if the opposing documentation filed by her raised a genuine issue as to the material fact whether *501 any of the individual defendants wilfully or maliciously wronged her.

The issue in this case is whether the plaintiff’s affidavit and accompanying documentation meet the test of Mingachos v. CBS, Inc., supra, 102, in which this court held that the statutory exception of “wilful or malicious” conduct requires a showing of an actual intent to injure the plaintiff. “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. Such a concept is nothing new to our jurisprudence. Once recently, drawing on our earlier cases, we said: ‘ “A wilful and malicious injury is one inflicted intentionally without just cause or excuse. It does not necessarily involve the ill will or malevolence shown in express malice. Nor is it sufficient to constitute such an injury that the act resulting in the injury was intentional in the sense that it was the voluntary action of the person involved. Not only the action producing the injury but the resulting injury must be intentional.” Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). “A wilful or malicious injury is one caused by design. Wilfulness and malice alike import intent. . . . [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.” Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910). The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act. Alteiri v. Colasso, 168 Conn. 329, 334, 362 A.2d 798 (1975).’ Markey v. Santangelo, 195 Conn. 76, 77-78, 485 A.2d 1305 (1985).” Id., 102-103.

Mingachos, however, is not on all fours with the present case. In that case the plaintiffs alleged wilful and malicious acts by the defendant employees. This court stated: “In this motion for summary judgment, affidavits were filed. Practice Book § 381. Each defend *502 ant employee gave his affidavit personally, specifically disavowing, inter alia, any ‘wilful intent’ to violate any [Occupational Safety and Health Administration Act (OSHA)] regulation and each indicating that on the day in question he had spent time in the same area where the accident involved occurred. On the other hand, the only affidavit submitted by the plaintiff was one signed by his attorney, which, after referring to certain attached, unverified, OSHA records, averred that ‘[t]hese exhibits indicate that the employer was aware of the need for ventilation where the explosion occurred; that the lack of ventilation presented a dangerous condition’; and that ‘[t]he employer did nothing to correct the need for ventilation until after the accident which killed the decedent.’ The record before us on this motion for summary judgment does not disclose that the plaintiff put into dispute the statements of the employees in their affidavit that each had no intent to injure the decedent. There was no genuine issue of material fact. Rather, with the exclusivity of the act, an issue of law emerged and summary judgment was properly granted on all counts of the amended complaint.” Id., 114. Although the plaintiff’s documentation in the instant case goes beyond that in Mingachos, we agree, nevertheless, with the defendants’ contention that Mingachos is ultimately dispositive of the present case.

The plaintiff claims that the requisite intent may be implied from the conduct and circumstances in this case, citing Mingachos v. CBS, Inc., supra, 102. She argues that the defendants’ conduct viewed in the light most favorable to the plaintiff easily rises to a level “ ‘ “where the known danger [of injury] ceases to be only a foreseeable risk which a reasonable man would avoid, and becomes a substantial certainty,”’” citing Mingachos v. CBS, Inc., supra, 103.

The plaintiff relies principally on the case of Batick v. Seymour, 186 Conn. 632, 443 A.2d 471 (1982). In *503 Batick, the plaintiff in a negligence action alleged in the second count that the named defendant had fraudulently conveyed certain realty to his defendant wife. The trial court granted the defendants’ motion for summary judgment on that count. The named defendant driver’s affidavit stated that he never suspected that Batick would have any claim against him for the accident and that the conveyance of the real estate to his wife was the result of estate planning and a promise he had made to her before marriage. The affidavit of the named defendant’s attorney confirmed that he had been consulted by both the named defendant and his wife and that he had advised that the husband transfer a one half interest in the real estate as part of their estate plan. He also said that he knew of the accident at that time but did not anticipate that the plaintiff would bring suit. Id., 644.

The court stated that “[t]he plaintiff chose not to file an opposing affidavit, presumably because he had no personal knowledge of the mental state which influenced the defendant to quitclaim a one half interest in his house to his wife.” Id. The plaintiff filed a memorandum of law opposing the motion for summary judgment on the ground that the named defendant had failed to show “ ‘the non-existence of any genuine issue as to all material facts . . . .’ ” Id., 645.

In finding error in the trial court’s granting of the defendants’ motion for summary judgment, the court stated: “We first must consider the effect of the plaintiff’s failure to file an opposing affidavit in the summary judgment proceeding. Practice Book § 380 provides that‘[t]he adverse party . . . shall file opposing affidavits and other available documentary evidence.’ The plaintiff did attach copies of the quitclaim deed which effectuated the transfer and a deposition taken of the defendant in which he admitted that he and his wife were aware of the plaintiff’s serious inju *504 ries at the time the deed was executed. There is no. reason to suppose that the plaintiff had personal knowledge of any of the facts relating to the transfer. His proper course would have been to file an affidavit stating that he could not, ‘for reasons stated, present facts essential to justify his opposition . . . .’ Practice Book § 382. Dorazio v. M.B. Foster Electric Co., 157 Conn 226, 253 A.2d 22 (1968). Nevertheless, the court was not .entitled to assume the truth of the defendant’s declarations concerning his intentions in making the conveyance simply because of the absence of an affidavit contradicting them. It was clear from the documents filed by the plaintiff with his memorandum of law that there was a genuine dispute over the defendant’s intentions and that the plaintiff had done everything he could to present facts to controvert the defendant’s assertion that the transfer was unrelated to the accident. The inference which may ordinarily be drawn from the failure of a party to file an opposing affidavit is not warranted where the other party is the only person having knowledge of the particular facts involved. ‘Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.’ Practice Book § 381. In no way could the plaintiff have complied with these requirements of the rule in an affidavit pertaining to the defendant’s mental state at the time of the transfer. Although it would have been preferable for the plaintiff to have followed the procedure of explaining his predicament in accordance with Practice Book § 382, we do not regard his failure to do so as fatal, since his inability to file an opposing affidavit was obvious.” Batick v. Seymour, supra, 645-46.

The Batick court pointed out that “[t]here are situations . . . which do not lend themselves to summary *505 disposition. ‘It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.’ ” (Citations omitted.) Id., 646-47. The court, relying on United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969), stated that the test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, supra, 647. Finally, the court concluded that the jurors would not have been compelled to believe the defendant’s declarations about his motive in executing the deed to his wife. Id.

In order to agree with the plaintiff’s claim that Batick controls this case, we would be required to read it as holding that a summary judgment may never be rendered in a case involving intent. We decline to hold that the Batick decision cast such a wide net. Batick decided that under the circumstances of that case the absence of a counteraffidavit did not justify the granting of a summary judgment. The defendant knew at the time of the deed that the plaintiff was paralyzed, his spinal cord being severed, and that the defendant’s automobile liability insurance policy was limited to $25,000. Id., 637. Further, “[t]he rule is well established that evidence is admissible that a person after the happening of an accident, or the occurrence of some other event which might render him liable, disposed of his property, on the ground that such evidence tends to show a consciousness of liability and a purpose to evade satisfaction of it. 29 Am. Jur. 2d, Evidence § 274, p. 322; see, e.g., Poston v. Gaddis, 372 So. 2d 1099, 1102 (Ala. 1979); Bush v. Jackson, 552 P.2d 509 (Colo. 1976); Portland Gas Light Co. v. Ruud, 242 Mass. 272, 136 N.E. 75 (1922); Cox v. Wright-Hennepin Cooperative Electric Assn., 281 Minn. 228, 161 N.W. 2d 294 (1968).” Batick v. Seymour, supra, 635.

*506 It is quite another matter to allege that a fellow employee intended to injure the plaintiff by pushing her to work beyond her doctor’s restrictive orders for the reasons the plaintiff claims in this case. Here we are faced not with the narrow issue of the effect of the opponent of a summary judgment motion not filing an affidavit but with a case in which the documentation filed illuminates the issue involved and reveals the lack of a genuine issue of the material fact of intent when viewed in the circumstances of the case. “Since these allegations require the plaintiff to undertake the difficult challenge of providing evidence, in advance of trial, of the mental state of the defendant ... we are willing to take into account whatever relevant information the plaintiff was able to provide. See Batick v. Seymour, [supra, 645-46].” Conference Center Ltd. v. TRC, 189 Conn. 212, 217, 455 A.2d 857 (1983).

The claimed acts of all three individual defendants in and of themselves were neutral. They might just as reasonably have occurred in the normal process of production at the bakery. The plaintiff offered broader proof against Borkowski in the excerpts from her deposition contained in the record. An examination of her claims in the deposition clearly reveals the speculative basis of her testimony. She was asked by counsel why she thought that with Keith Briggs, a male, available to do work, Borkowski would nevertheless tell her to do it, knowing she was under work restrictions. She replied, “My opinion . . . he didn’t want to upset Keith. . . . [A]s long as I was there . . . . A1 [Borkowski] knew his job was in jeopardy because at any time I could step in and take over his job. . . .” When asked why Borkowski would want to give Briggs a raise she replied, “I guess by getting rid of me Keith and A1 got their raises.” When asked why Borkowski would care whether Briggs got a raise, she replied that they were best friends and that it was “possible” she was in Briggs’ *507 way. Such speculative evidence above cannot serve as a basis for opposition to a motion for summary judgment. “Viewed as a whole and in context, the [plaintiffs] testimony is too speculative, too conjectural, to be evidence of [intent].” Acampora v. Asselin, 179 Conn. 425, 427, 426 A.2d 797 (1980); see Citizens National Bank v. Hubney, 182 Conn. 310, 312, 438 A.2d 430 (1980). “The bare assertions before the trial court would not have supported a judgment for the plaintiff and the summary judgment was, therefore, properly rendered.” Kakadelis v. DeFabritis, 191 Conn. 276, 281, 464 A.2d 57 (1983). The court did not err in granting the individual defendants’ motion for summary judgment.

As a result of the summary judgment for the three individual defendants the plaintiff’s second count against the employer Pons Bakery, Inc., based as it must be on the “wilful and malicious” conduct of one or more of the three named employees, must also fail. We therefore do not reach the question whether the plaintiff’s allegations and proffered proof are sufficient to satisfy the “alter ego” exception to the exclusivity of the plaintiff’s workers’ compensation remedy, as set forth in Jett v. Dunlap, 179 Conn. 215, 219, 425 A.2d 1263 (1979).

There is no error.

In this opinion Peters, C. J., Shea and Covello, Js., concurred.

The named plaintiff’s husband Gary Nolan sought damages for loss of consortium. The trial court ruled that this claim failed with the failure of *497 the wife’s cause of action. Gary Nolan’s claim is not involved in this appeal and we will in this opinion refer only to the plaintiff Wendy Nolan.

General Statutes § 31-284 provides in pertinent part: “BASIC RIGHTS AND LIABILITIES. CIVIL ACTION TO ENJOIN NONCOMPLYING EMPLOYER FROM entering employment contracts, (a) An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment. ... All rights and claims between employer and employees . . . arising out of personal injury . . . sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter . . . .”

General Statutes § 31-293a provides in pertinent part: “NO RIGHT against fellow employee; exception. If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter 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 as defined in section 14-1.”