QUINTINO DININO, JR.
FEDERAL EXPRESS CORPORATION ET AL.
April 24, 2017
M. Hrelic, with whom was Kimberly A. Knox, and, on the brief,
James J. Walker, for the appellants (named plaintiff).
Tetreault, with whom, onthe brief, was Cristin E. Sheehan,
for the appellee (named defendant).
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.
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.
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.
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.
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.
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.
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.
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
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 . . . .''
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
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.
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
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, ...