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DiNino v. Federal Express Corp.

Court of Appeals of Connecticut

September 12, 2017

QUINTINO DININO, JR.
v.
FEDERAL EXPRESS CORPORATION ET AL.

          Argued April 24, 2017

          Dana M. Hrelic, with whom was Kimberly A. Knox, and, on the brief, James J. Walker, for the appellants (named plaintiff).

          Brian Tetreault, with whom, onthe brief, was Cristin E. Sheehan, for the appellee (named defendant).

          Laura Pascale Zaino, with whom, on the brief, were Kevin M. Roche, Rachel J. Fain, and Logan A. Forsey, for the appellee (defendant Ernest Hawkins).

          Alvord, Prescott and Pellegrino, Js.

         Syllabus

         The plaintiff, who sustained personal injuries while at work, sought to recover damages for wilful misconduct by the defendant F Co., his employer, and for negligence by the defendant H, his coworker. The plaintiff's injuries resulted when he fell into a gap between the truck that he was unloading, which had been parked by H, and the loading dock. F Co. and H each filed motions for summary judgment based on the exclusivity provision of the Workers' Compensation Act (§ 31-293a), which provides that the act is the exclusive remedy for injured employees and that no civil action maybe brought against an employer or coworker. The trial court granted the motions for summary judgment in favor of each defendant, and the plaintiff appealed to this court. On appeal, the plaintiff claims that the trial court improperly granted summary judgment when it concluded that there were no genuine issues of material fact regarding the applicability of two exceptions to the act's exclusivity provision: the motor vehicle exception if the action is based on a coworker's negligence in the operation of a motor vehicle, and the substantial certainty exception for an employer's intentional tort.

         Held:

2. The trial court properly concluded that there was no genuine issue of material fact regarding the applicability of the substantial certainty exception to the exclusivity provision of the act, which requires the showing that the defendant intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur, and therefore, properly granted summary judgment in favor of F Co.: the plaintiff did not offer facts that tended to demonstrate that other F Co. employees had been injured in a similar manner at the loading dock or that suggested that F Co. knew of any such injuries, nor did the plaintiff offer any evidence that showed F Co. was aware of the potential hazard created by the gap between the truck and the loading dock on the night of the accident; furthermore, even if F Co. had modified the loading dock by eliminating certain safety precautions as alleged by the plaintiff, any such intentional, wilful, or reckless safety violations by an employer do not rise to the level of intent required under the substantial certainty standard.

         Procedural History

         Action to recover damages for, inter alia, the named defendant's wilful misconduct and the defendant Ernest Hawkins' negligence, and for other relief, brought to the Superior Court in the judicial district of Hartford, where the court, Miller, J., granted the motion to intervene as a plaintiff filed by the named defendant; thereafter, the court, Hon. Constance L. Epstein, judge trial referee, granted the motion for summary judgment filed by the defendant Ernest Hawkins and rendered judgment thereon; subsequently, the court, Peck, J., granted the named defendant's motion for summary judgment and rendered judgment thereon, from which the named plaintiff appealed to this court. Affirmed.

          OPINION

          PRESCOTT, J.

         It is well established that the Workers' Compensation Act, General Statutes § 31-275 et seq. (act), provides the exclusive remedy for most workers injured in the course of their employment. This appeal arises out of an action by the plaintiff, Quintino DiNino, Jr., in which he alleges that his employer, Federal Express Corporation (FedEx) and his coworker, Ernest Hawkins, are liable for injuries that he suffered in a work related accident. The plaintiff appeals from the trial court's granting of two separate motions for summary judgment in favor of each defendant. On appeal, the plaintiff claims that the trial court improperly rendered summary judgment because it erroneously concluded that there were no genuine issues of material fact regarding the applicability of two recognized exceptions to the exclusivity provision of the act. We disagree and, accordingly, affirm the judgment of the trial court.

         The record, viewed in the light most favorable to the plaintiff as the nonmoving party, reveals the following facts. At the time of the incident, the plaintiff was employed as a material handler by FedEx. During the course of the plaintiff's employment with FedEx, he was tasked with unloading heavy containers from the back of delivery trucks onto loading docks. The trucks were equipped with airlift roller conveyor systems meant to facilitate the transfer of the containers. The airlift roller conveyor systems made it impossible for the trucks to back up flush to the loading docks, which left a gap between the edge of the loading docks and the rear of the trucks.

         On July 18, 2011, the plaintiff was working at FedEx's loading dock in East Granby, when the last delivery truck of the night pulled into the loading dock. Hawkins, the driver of the truck in question, was returning from a trip during which he picked up materials. Hawkins parked the vehicle just short of the loading dock, leaving a larger than normal gap between the dock and the truck. The plaintiff noticed his supervisor spread his hands apart and shake his head upon noticing Hawkins' improper parking of the delivery truck, signaling that the gap was too large. The plaintiff, who was tasked with unloading that particular delivery truck, did not express concern regarding the size of the gap to any of his coworkers, and no steps were taken by the plaintiff's supervisor or Hawkins to reposition the truck.

         Shortly thereafter, while moving a container off the truck, the plaintiff fell into the gap between the truck and the loading dock. The container subsequently rolled onto and crushed the plaintiff's right leg, fracturing his tibia and fibula. The plaintiff also suffered an extensive degloving of the soft tissue in his lower right leg, requiring skin flap replacement and skin grafting. The plaintiff subsequently received workers' compensation benefits under the act for his injuries.

         The plaintiff commenced the present action on April 8, 2013. The operative complaint contained two counts. In the first count, the plaintiff alleged that FedEx had been ‘‘warned of the significant safety hazard presented by the open gaps/spaces by its own agents, servants, and/or employees, '' but nevertheless ‘‘consciously and deliberately chose not to utilize dock boards, dock plates, dock levelers or any other appropriate safety devices to eliminate the significant safety hazard presented by the open gaps/spaces between the truck trailers and the loading dock.'' The plaintiff also alleged that FedEx's failure to follow proper safety guidelines constituted a violation of the standards of the Occupational Safety and Health Act (OSHA), 29 CFR 1910.22 (c), and that FedEx's ‘‘actions and/or omissions created a substantial certainty that the plaintiff would be injured . . . .''

         In the second count, the plaintiff alleged that Hawkins ‘‘failed to properly position his truck in the loading dock by stopping the truck too far away from the edge of the loading dock and thereby leaving an unsafe space or gap between the rear of the truck and the loading dock . . . .'' The plaintiff also alleged that Hawkins ‘‘failed to warn the material handlers, including the plaintiff, that he had stopped the truck farther away from the loading dock than was normal'' and that the plaintiff's injuries were a direct and proximate result of defendant Hawkins' negligent operation of the delivery truck.

         On February 18, 2015, FedEx filed a motion for summary judgment and accompanying memorandum of law, in which it asserted, inter alia, that it is immune from liability pursuant to the exclusivity provision of the act. FedEx also denied that it intentionally had created a dangerous condition that made the plaintiff's injuries substantially certain to occur, which, if established by the plaintiff, would constitute an exception to the exclusivity provision.

         On March 2, 2015, Hawkins filed a separate motion for summary judgment. In his accompanying memorandum of law, Hawkins asserted that the plaintiff's claims against him were similarly barred by the exclusivity provision of the act and, further, that the plaintiff's injuries did not arise out of Hawkins' negligent operation of a motor vehicle so as to fall within the recognized motor vehicle exception to the exclusivity provision.

         The plaintiff filed an objection and accompanying memorandum of law in response to FedEx's motion for summary judgment, in which he argued that his injuries were a ‘‘substantially certain result'' of FedEx's various ‘‘bad choices'' regarding proper safety procedure, and, therefore, fell within a recognized exception to the exclusivity provision. The plaintiff also filed an objection and accompanying memorandum of law in response to Hawkins' motion for summary judgment, ...


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