Argued February 4, 2016
Appeal from Superior Court, judicial district of New Britain, Hon. Joseph M. Shortall, judge trial referee.
Edward W. Gasser, with whom, on the brief, was Sara E. Greene, for the appellant (plaintiff).
Kathleen F. Adams, with whom was Peter J. Ponzi-ani, for the appellees (defendants).
DiPentima, C. J., and Prescott and Mullins, Js.
DiPENTIMA, C. J.
In this appeal, the plaintiff, Dominick Lucenti, challenges the trial court’s determination that his complaint for damages resulting from work-related injuries was barred by General Statutes § 31-284 (a),  the exclusivity provision of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. The plaintiff appeals from the summary judgment rendered in favor of the defendants, Greg Laviero and Martin Laviero Contractors, LLC (Laviero Contractors). We affirm the judgment of the trial court.
The record reveals the following facts and procedural history. The plaintiff claimed that he suffered various injuries on October 28, 2011, while working for Laviero Contractors. On the day of the incident, the plaintiff was replacing a catch basin. To accomplish this task, he was operating an excavator in an attempt to pull the catch basin out of the ground. During this operation, the excavator, while ‘‘running at full throttle . . . slipp[ed] off the catch basin and [swung] back and then [swung] forward, ’’ injuring the plaintiff.
On October 23, 2013, the plaintiff commenced this action alleging in a two count complaint that, because of the defendants’ ‘‘reckless conduct, ’’ he suffered injuries. The defendants’ alleged reckless conduct was, inter alia, ‘‘directing that the excavator not be properly repaired prior to the incident even though [they] knew that there was a likelihood that individuals operating the equipment, including the plaintiff, would likely sustain serious bodily injuries . . . .’’ The plaintiff alleged that a temporary repair made prior to the incident made ‘‘the excavator run at full throttle thereby making a jerking action.’’ After the parties conducted discovery, on October 14, 2014, the defendants filed a motion for summary judgment.
The defendants argued that they were entitled to summary judgment because, pursuant to the exclusivity provision of the act, § 31-284 (a), the defendants were exempt from liability for civil damages. The defendants further argued that, because there was ‘‘no wilful, malicious or intentional conduct intended to injure the [p]laintiff in this case, there was no exception to the exclusivity provision in this case.’’ In support of their argument, the defendants submitted excerpts of transcripts from two depositions given by the plaintiff, as well as an excerpt of Laviero’s deposition and his affidavit. Pertinent to this appeal, Laviero stated at his deposition that he had operated the excavator a ‘‘week or so’’ prior to the incident and again after the incident. Laviero also asserted that the excavator operated at ‘‘full throttle’’ because it was the excavator’s hydraulic system that controlled the speed of the machine and not the throttle. In his affidavit, Laviero averred that he neither intended to injure the plaintiff, nor intended to ‘‘create a situation that would result in the [p]laintiff being injured, ’’ and he had not ordered the excavator repaired ‘‘between October 28, 2011, and the time of [his] subsequent operation.’’
The plaintiff filed an objection to the motion for summary judgment. In his memorandum of law, the plaintiff claimed that the defendants had ‘‘rigged’’ the excavator to operate only at ‘‘full throttle’’; thus, the defendants ‘‘intentionally created a dangerous condition that made [the] plaintiff’s injuries substantially certain to occur, thereby overcoming the exclusivity rule of the [act].’’ In support of his argument, the plaintiff submitted an affidavit from Daniel Quick, a former Laviero Contractors employee, as well as his own affidavit and an excerpt from his deposition.
Quick averred that he worked for Laviero Contractors for ‘‘two seasons’’ as a machine operator. Quick also averred that in September, 2011, he was using the excavator at issue when it malfunctioned and would only operate on idle. According to Quick, Laviero instructed a mechanic to ‘‘rig the machine so that it could only be operated at full [throttle].’’ Quick also averred that he told Laviero that the excavator was ‘‘too dangerous to operate’’ and, ‘‘as rigged, ’’ somebody would be injured.
The plaintiff’s affidavit provided additional details to support his argument. Specifically, the plaintiff averred that he had notified Laviero that the excavator ran only in full throttle and that this was dangerous, to which, according to the plaintiff, Laviero concurred. The plaintiff further averred that Laviero stated that he was unwilling to ‘‘put any money into [the excavator]’’ because he was going to sell it. Also, the plaintiff averred that after he was injured, he spoke to a mechanic, Michael Lauder. The plaintiff attached to his affidavit a statement purportedly written by Lauder. This unsworn, but signed statement dated October 8, 2013, claimed, inter alia, that although Lauder and some other unnamed persons notified Laviero Contractors that the excavator needed to be repaired, he and the unnamed persons were ‘‘instructed to rig the machine so the throttle would run at full speed at all times.’’ According to this statement, Laviero Contractors did not ‘‘want to put money into repairs, ’’ because it was considering selling the excavator. Finally, Lauder’s purported statement provided that after the plaintiff was injured, Laviero Contractors ‘‘instructed [Lauder] to fix [the excavator] properly, ’’ and the excavator subsequently was sold.
After a hearing on the motion, the court, Hon. Joseph M. Shortall, judge trial referee, issued a memorandum of decision on February 23, 2015, in which it granted the defendants’ motion for summary judgment on the ground that the exclusivity provision of the act barred the plaintiff’s action against the defendants. The court concluded that the plaintiff could not satisfy an exception to the exclusivity provision pursuant to the substantial certainty test set forth in Suarez v.Dickmont Plastics Corp., 242 Conn. 255, 698 A.2d 838 (1997), because he could not ‘‘prove an intent on the part of the defendant to create a working condition that was ‘substantially certain’ to injure [the] plaintiff or other employees.’’ Specifically, the court found it significant that Laviero regularly operated the excavator at issue, including ‘‘a week before the plaintiff’s claimed injury and shortly after his injury . . . .’’ Thus, the court determined that ‘‘there can be no genuine dispute as to whether the defendants created a condition that they believed was substantially certain to cause injury.’’ The court reasoned, ‘‘[h]ow could a jury conclude that . . . Laviero, the owner and principal of the corporate defendant, intentionally created a dangerous condition that ...