Opinion
No. CV-01-0458531 S
September 20, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (#130)
On April 9, 2002, the plaintiff, Margaret Donaruma, individually and in her capacity as administratrix of the estate of Charles Donaruma, filed a four-count amended complaint against the defendants, the city of New Haven (the city), Robert Levine, Christy Hass Dlugolenski and Joe Durso. The plaintiff alleges that on or about February 10, 2000, the plaintiff's decedent, Charles Donaruma, was cutting down a tree with a chain saw in the Middletown Avenue park in New Haven in the course of his employment with the city's parks and recreation department when a tree fell on him, causing his death.
The evidence submitted by the parties reveals that after the plaintiff's decedent cut down the tree, another tree that was behind the plaintiff's decedent fell on him. (See Plaintiff's Memorandum of Law in Opposition to Motion for Summary Judgment, Exhibit C: Deposition of John Sehl, pp. 55, 116-18.)
In count one, the plaintiff alleges, inter alia, that the city intentionally and knowingly created a dangerous condition that made the injuries or death of the plaintiff's decedent substantially certain to occur by ordering him to cut down the tree without proper training and protective equipment. In count two, the plaintiff makes substantially the same allegations against the individual defendants Levine, director of the city's parks, recreation and trees department, Dlugolenski, deputy director of said department, and Durso, assistant superintendent of said department, as she did against the city in count one. In count three, the plaintiff claims indemnity from the city for the conduct of its employees, Levine, Dlugolenski and Durso, pursuant to General Statutes § 7-465. In count four, the plaintiff alleges a claim for loss of consortium.
At oral argument, the plaintiff conceded that summary judgment should be granted as to the individual defendant Levine.
On May 23, 2002, the defendants filed an amended answer and special defenses. In the first special defense, the city alleges that the plaintiff's claims against it in counts one, three and four are barred by the workers' compensation exclusivity provisions contained in General Statutes § 31-284(a). In the second special defense, the city alleges that it is immune from liability pursuant to General Statutes § 52-557n(a) and, therefore, the plaintiff's claims against it in counts one and four are barred. In the third special defense, the city alleges that the plaintiff's claims against it in counts one and four are barred by virtue of the common-law doctrine of governmental immunity. In the fourth special defense, the individual defendants allege that the plaintiff's claims against them in counts two and four are barred by the workers' compensation exclusivity provisions contained in General Statutes § 31-293a. In the fifth special defense, the individual defendants allege that the plaintiff's claims against them in counts two and four are barred by the doctrine of qualified immunity.
On June 18, 2004, the defendants filed a motion for permission to file a motion for summary judgment with the motion for summary judgment appended thereto. On July 8, 2004, the court, Robaina, J., granted the motion for permission. The defendants have moved for summary judgment on the grounds that no genuine issue of material fact exists and that they are entitled to judgment as a matter of law because the plaintiff's claims are barred by the exclusivity provisions of the Workers' Compensation Act. In support of the motion for summary judgment, the defendants have submitted the following: (1) a memorandum of law; (2) a certified portion of the transcript of the deposition of John Sehl, a park foreman for the city's parks department with whom the plaintiff's decedent was cutting down the tree in the Middletown Avenue park; (3) copies of three work orders of the city's parks department, one dated January 19, 2000, and two dated February 3, 2000; (4) the sworn affidavit of Levine; and (5) the sworn affidavit of Dlugolenski.
The defendants filed another copy of the motion for summary judgment and supporting documentation on July 12, 2004.
On July 21, 2004, the plaintiff filed a memorandum of law in opposition to the motion for summary judgment, accompanied by the following: (1) the sworn affidavit of Eric Tornberg, a former foreman in the city's parks maintenance division; (2) a certified copy of the transcript of the deposition of Sehl; (3) a goals memorandum of the city's parks department that lists tasks to be completed by the parks department at locations throughout the city and that was purportedly created after a meeting of foremen initiated by Dlugolenski; (4) a certified copy of the transcript of the deposition of Dlugolenski; (5) copies of two work orders of the city's parks department; and (6) the sworn affidavit of Irwin Langewisch, the tree warden of the city of Milford.
On July 23, 2004, the defendants filed a reply memorandum of law, accompanied by the sworn affidavit of Sehl. The court heard oral argument on July 26, 2004.
"The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Webster Bank v. Oakley, 265 Conn. 539, 545, 830 A.2d 139 (2003), cert. denied, 124 S.Ct. 1603, 158 L.Ed.2d 244 (2004). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to judgment as a matter of law . . ." (Citation omitted; internal quotation marks omitted.) Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000).
"As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Id., 252-53. "The existence of the genuine issue of material fact must be demonstrated by counter affidavits and concrete evidence . . . If the affidavits and the other supporting documents [submitted by the nonmovant] are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof." (Internal quotation marks omitted.) DeCorso v. Watchtower Bible Tract Society of New York, Inc., 78 Conn.App. 865, 871, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003).
I
In count one, the plaintiff alleges that the city, acting through its alter egos, Levine, Dlugolenski and Durso, knowingly and intentionally created a dangerous condition that made the injuries sustained by the plaintiff's decedent substantially certain to occur. Specifically, the plaintiff alleges that the city deliberately instructed the plaintiff's decedent to cut down a tree with a chain saw in bad weather despite a lack of established procedures for the removal of trees, lack of training and lack of protective equipment. The plaintiff alleges that the city refused allow the plaintiff's decedent to undertake a safer procedure for tree removal and that the city refused to take steps to prevent the injury of the plaintiff's decedent. The plaintiff further alleges violations of the Connecticut Occupational Safety and Health Act.
The city argues in support of the motion for summary judgment as to count one that the plaintiff's claim is barred by the exclusivity provision of the workers' compensation statutes. The city argues that the plaintiff cannot demonstrate that the city intended for the plaintiff's decedent to be injured or knew to a substantial certainty that the plaintiff's decedent would be injured. The city contends that the plaintiff has not presented any evidence that any defendant ordered the plaintiff to cut down the tree. The city further argues that there is no evidence that any of the individual defendants were the alter ego of the city. Alternatively, the city argues that the plaintiff has failed to plead facts or a statute that would abrogate the city's governmental immunity and that it is entitled to governmental immunity pursuant to § 52-557n(a).
General Statutes § 52-557n(a) provides in relevant part:
(2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct . . .
The plaintiff argues in opposition that the determination of the intent of the city in this case is a factual question. The plaintiff argues that Dlugolenski and Durso knew about the dangerous condition prior to the death of the plaintiff's decedent and, despite that knowledge, they ordered the plaintiff's decedent to cut down the tree. The plaintiff further argues that genuine issues of material fact exist as to whether Dlugolenski was an alter ego of the city and whether Dlugolenski ordered the plaintiff's decedent to cut down the tree by means of a written work order and a goals memorandum created after a meeting of foremen. The plaintiff contends, therefore, that her claim falls within the exception to the workers' compensation exclusivity rule set forth in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 639 A.2d 507 (1994) ( Suarez I), and Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 698 A.2d 838 (1997).
It is noted that the basis for the plaintiff's argument that Durso ordered the plaintiff's decedent to cut down the tree is that Durso's name appears on two work orders dated February 3, 2000, following the phrase "assigned to." The work orders are attached to the defendants' memorandum of law in support of the motion for summary judgment as exhibits C and D.
"Workers' compensation systems ordinarily are limited to recovery in tort actions for injuries arising in the workplace during the course of employment and compensate employees for such injuries . . . In most cases, the Connecticut act is a bar to independent actions filed by an employee against an employer for an injury that occurs at the workplace." (Citation omitted.) Morocco v. Rex Lumber Co., 72 Conn.App. 516, 520-21, 805 A.2d 168 (2002). The relevant portion of the exclusivity provisions of the Workers' Compensation Act is contained in § 31-284(a), which provides in pertinent part: "An employer who complies with subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained . . ." The exclusivity provision of the act "manifests a legislative policy decision that a limitation on remedies under tort law is an appropriate trade-off for the benefits provided by workers' compensation." Driscoll v. General Nutrition Corp., 252 Conn. 215, 220-21, 752 A.2d 1069 (2000).
The Supreme Court has interpreted "the exclusivity provision of . . . § 31-284(a), as a total bar to common-law actions brought by employees against employers for job-related injuries with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct." Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 106. An employee will prevail only by proving that "the employer actually intended to injure the plaintiff (actual intent standard) or that the employer intentionally created a dangerous condition that made the plaintiff's injuries substantially certain to occur (substantial certainty standard)." Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 257-58.
In this case, the plaintiff argues that her claim comes within the substantial certainty standard. "The substantial certainty test provides for the intent to injure exception to be strictly construed and still allows for a plaintiff to maintain a cause of action against an employer where the evidence is sufficient to support an inference that the employer deliberately instructed an employee to injure himself." (Internal quotation marks omitted.) Id., 258. The employer "must have intended the act and have known that the injury was substantially certain to occur from the act." Id., 280. Furthermore, "only when the assailant is of such rank in the corporation under the standards governing disregard of the corporate entity [is] attribution of corporate responsibility for the actor's conduct . . . appropriate. It is inappropriate where the actor is merely a foreman or supervisor." (Internal quotation marks omitted.) Id., 275.
Under the substantial certainty test, "the characteristic element [of wilful misconduct] is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Not only the action producing the injury but the resulting injury also must be intentional." (Internal quotation marks omitted.) Melanson v. West Hartford, 61 Conn.App. 683, 688, 767 A.2d 764, cert. denied, 256 Conn. 904, 772 A.2d 595 (2001). "What is being tested is not the degree of gravity of the employer's conduct, but, rather, the narrow issue of intentional versus accidental conduct." Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 279. "The exception does not include accidental injuries caused by gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury." (Internal quotation marks omitted.) Morocco v. Rex Lumber Co., supra, 72 Conn.App. 521. "Substantial certainty centers on whether the employer believed the injury was substantially certain to follow the employer's acts or conduct . . ." (Emphasis in original.) Suarez v. Dickmont Plastics Corp., supra, 280. In order to satisfy the substantial certainty test, the employee must show "that a reasonable person in the position of the employer would have known that the injury or death suffered by the employee was substantially certain to follow from the employer's actions." Sorban v. Sterling Engineering Corp., 79 Conn.App. 444, 455, 830 A.2d 372, cert. denied, 266 Conn. 925, 835 A.2d 473 (2003).
In Suarez I, the Supreme Court reversed the Appellate Court's "ruling that affirmed a trial court's granting of the defendant's motion for summary judgment, which had been based on the exclusive remedy provision of the act. Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 100-01. The plaintiff in Suarez I had alleged that the defendant (1) required the plaintiff and other employees to clean a plastic molding machine while it was running, (2) refused to allow the plaintiff to use safer methods to clean the machine and (3) refused to place a protective cover on the machine. Id., 101. The plaintiff alleged that the defendant ordered those cleaning techniques to avoid paying overtime, to save time and to avoid wasting material. Id., 102. It also was alleged that the defendant had told the plaintiff that if he used safer methods to clean the machine, his employment would be terminated. Id. Our Supreme Court stated that `the defendant's [alleged] conduct constituted more than a mere failure to provide appropriate safety or protective measures, and that the plaintiff's injury was the inevitable and known result of the actions required of him by the defendant.' Id., 111." Morocco v. Rex Lumber Co., supra, 72 Conn.App. 522-23.
In the present case, the city asserts in support of the motion for summary judgment that the plaintiff has not submitted any evidence to establish that the injury of the plaintiff's decedent was done intentionally or was substantially certain to occur. The city has submitted documentary evidence that indicates that it harbored no belief that its actions or conduct were substantially certain to cause injury to the plaintiff's decedent. Both Levine and Dlugoleuski have attested that they had no knowledge that the plaintiff's decedent would be cutting down trees on February 10, 2000. Dlugolenski testified at her deposition that the plaintiff's decedent was acting outside the scope of his authority when he was cutting down the tree. (See Plaintiff's Memorandum, Exhibit B: Deposition of Christy Hass Dlugolenski, p. 38.) The city has met its initial burden of showing that no one in the position of alter ego of the city believed that the plaintiff's decedent was substantially certain to be injured as a result of its actions.
The issue then becomes whether the plaintiff has provided "an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., supra, 263 Conn. 252. While "summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of . . . intent . . . it remains, nevertheless, incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists." (Citations omitted; internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990).
The plaintiff submits the affidavit of Tornberg, a former foreman in the city's parks maintenance division, in opposition to the motion for summary judgment. Tornberg attests that in his capacity as a foreman in 1999, he supervised the Middletown Avenue park where the plaintiff's decedent was killed. Tornberg attests that about a year before the plaintiff's decedent was killed, Tornberg was instructed by Tony Speranzio to cut down trees in the exact area where the plaintiff's decedent was cutting down the tree when he was killed. Speranzio told Tornberg that those instructions came from Dlugolenski. After receiving the instructions, Tornberg attests that he refused to cut down the trees because "cutting them down would be extremely dangerous." (Plaintiff's Memorandum, Exhibit A: Affidavit of Eric Tornberg, p. 2, ¶ 9.) Tornberg further attests that, prior to the death of the plaintiff's decedent, Tornberg personally informed Dlugolenski and Durso that cutting down the trees would be unsafe.
The plaintiff also asserts that, according to Dlugolenski's deposition testimony, Dlugolenski knew that Sehl and his crew, including the plaintiff's decedent, were untrained in chainsaw use and site hazard assessment and that it was unsafe for a crew without training to take down trees. (See Plaintiff's Memorandum, Exhibit E: Deposition of Christy Hass Dlugolenski, pp. 31-36.) The plaintiff argues, therefore, that there is a "genuine issue of material fact as to whether Dlugolenski and Durso engaged in intentional misconduct in that they knew of the substantial certainty that Sehl's crew would be injured taking down those trees and they nonetheless told them to do it." (Plaintiff's Memorandum, p. 10.)
The plaintiff further argues that Dlugolenski has attempted to evade responsibility regarding her role in the death of the plaintiff's decedent and that a jury should be permitted to consider her evasive conduct when assessing the intent of the city. Specifically, the plaintiff asserts that Dlugolenski's statements at her deposition regarding a standing order among foremen not to take down standing trees and the use of pole pruners to cut back branches conflict with statements made by Sehl at his deposition.
In addition, the plaintiff submits the affidavit of Langewisch, the tree warden of Milford, as evidence in the form of expert opinion that Dlugolenski and Durso knew that the order to take down the tree in this case was substantially certain to result in injury. Langewisch attests that he has extensive experience in taking down trees and site hazard assessment and that he has reviewed materials relating to the instant action and investigation of the accident. He attests: "Ordering such an untrained crew [of which the plaintiff's decedent was a member] to take down any tree would pose a substantial danger to their safety. These circumstances are far more serious, though, than ordering such a crew to take down any tree. Ordering this untrained crew to take down the [tree in this case], which posed a known hazard about which they were not told, exposed them to extreme danger and created a substantial certainty of injury." (Emphasis in original.) (Plaintiff's Memorandum, Exhibit I: Affidavit of Irwin Langewisch, p. 2, ¶ 10.)
The plaintiff has failed to establish facts that demonstrate that the city intentionally created a dangerous condition that made the harm suffered by the plaintiff's decedent substantially certain to occur. The plaintiff contends that Dlugolenski and Durso knew about the dangerous condition before the plaintiff's decedent was killed and, nonetheless, ordered Sehl and the plaintiff's decedent to cut down the tree even though they were untrained and had not properly performed a site hazard assessment plan. "The substantial certainty standard still is a subset of the intentional tort exception to the act, and intent is a vital element that the plaintiff must prove." Morocco v. Rex Lumber Co., supra, 72 Conn.App. 523; see also Ramos v. Branford, 63 Conn.App. 671, 679-80, 778 A.2d 972 (2001). Furthermore, "A wrongful failure to act to prevent injury is not the equivalent of an intention to cause injury . . . An employers' intentional, wilful or reckless violation of safety standards established pursuant to federal and state laws . . . is not enough to extend the intentional tort exception for the exclusivity of the act . . . The employer must believe the injury was substantially certain to occur." (Citations omitted; internal quotation marks omitted.) Morocco v. Rex Lumber Co., supra, 527-28. In the record before the court, there is no evidence that the city's actions were committed with the purpose of causing injury. Like the plaintiff in Morocco, "[t]he best the plaintiff can show is that the defendant failed to provide a safe work environment." Id., 528. Moreover, unlike the plaintiff's allegations in Suarez I, there is no evidence of coercion not to employ a safer method to cut down the tree and no evidence that the plaintiff's decedent was required to conduct himself in a manner that would "support an inference that the employer deliberately instructed an employee to injure himself." (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 110; see also Morocco v. Rex Lumber Co., supra, 526; Ramos v. Branford, supra, 685.
The plaintiff's arguments that the expert opinions of Langewisch, as well as Dlugolenski's attempts to evade responsibility, create an issue of fact as to whether the defendants intentionally created a dangerous condition that made the harm suffered by the plaintiff's decedent substantially certain to occur are unpersuasive. The plaintiff's arguments are similar to the arguments made by the plaintiff employee in Sorban v. Sterling Engineering Corp., supra, 79 Conn.App. 456-57. In Sorban, the plaintiff, who brought suit against his employer after he was injured by a piece of material thrown from a machine that he was operating in the course of his employment, alleged that his injuries were caused by the intentional misconduct of the defendant employer inasmuch as the defendant employer required, caused and allowed the plaintiff to do work in which it was substantially certain that injury would result. Sorban v. Sterling Engineering Corp., supra, 446-47. The Appellate Court affirmed the trial court's granting of the defendant's motion for summary judgment, which had been based on the exclusive remedy provision of the Workers' Compensation Act. Id., 458. In opposition to the motion for summary judgment, the plaintiff had submitted the expert opinion of a professional engineer, who noted that a similar incident occurred in 1995 and concluded that if the defendant employer had adopted a policy regarding the operation of the machine, it was never communicated to the employees. Id., 456. The plaintiff alleged that he was never trained to operate the machine with the rotating table turned off and claimed that the defendant employer knew that the machine was defective. Id., 456-57. The plaintiff also argued that the defendant employer "misrepresented a material fact to the investigator by stating that the [machine] did not have brakes when in fact it did." Id., 457.
The Appellate Court concluded as follows: "In the record before us, there is no evidence that the defendant's actions were committed with the purpose of causing injury . . . Although the defendant's failure (1) to repair the [machine], (2) to provide adequate butt blocks and shield guards, and (3) to alert employees to a policy regarding the use of the rotating table may constitute negligence, gross negligence or even recklessness, those allegations fail to meet the high threshold of substantial certainty, even under [the reasonable person] definition . . . The combination of factors demonstrated a failure to act; however, such a failure is not the equivalent of an intention to cause injury." (Citation omitted.) Id., 457-58. In the present case, the plaintiff's assertions regarding the opinions of Langewisch and the discrepancies in the testimony of Dlugolenski and Sehl do not meet the high threshold of substantial certainty set forth in Sorban and do not demonstrate an intention to cause injury.
Moreover, Langewisch's affidavit presents no first-hand evidence, does not appear to be based on his personal knowledge, is conclusory and invades the ultimate issue. Even if admissible such an affidavit is not dispositive upon summary judgment. Ramos v. Branford, supra, 681.
The plaintiff argues that a genuine issue of material fact exists as to whether there was an order to cut down the tree. Dlugolenski and Levine have attested that they did not give an order to cut down trees on February 10, 2000, and Sehl has attested that he did not receive any order to cut down trees. The plaintiff contends, however, that both the goals memorandum and the work orders that state to "cut back all trees" create an issue of fact as to whether Dlugolenski and Durso ordered Sehl and the plaintiff's decedent to cut down the tree in the area where the plaintiff's decedent was killed. The plaintiff further argues that a genuine issue of material fact exists as to Dlugolenski's status as an alter ego because Dlugolenski testified that she was a high ranking managerial employee responsible for making decisions regarding the removal of trees. However, the court need not determine these issues because even if there were an order to cut down the tree and even if Dlugolenski and Durso were alter egos of the city, the plaintiff has failed to establish a factual predicate that the city intended, under the substantial certainty standard, to injure the plaintiff's decedent. See Morocco v. Rex Lumber Co., supra, 72 Conn.App. 527; Suarez v. Dickmont Plastics Corp., supra, 242 Conn. 277. "Therefor, although . . . facts may be in dispute, they do not present genuine issues of any material facts." Ramos v. Branford, supra, 63 Conn.App. 685.
As to the city's argument that the plaintiff's claim is barred by the doctrine of governmental immunity, the court need not address that issue because it has already determined that the plaintiff has failed to establish facts that demonstrate that the city intentionally created a dangerous condition that made the harm suffered by the plaintiff's decedent substantially certain to occur.
Therefore, the city's motion for summary judgment as to count one on the ground that the plaintiff's claim is barred by the exclusivity provision of the Workers' Compensation Act is granted.
II
In count two, the plaintiff alleges that the individual defendants in this case engaged in "serious and wilful misconduct" inasmuch as they intentionally and knowingly created a dangerous condition that made the injuries or death of the plaintiff's decedent substantially certain to occur by ordering the plaintiff's decedent to cut down the tree without proper training and protective equipment. The relevant allegations are substantially similar to the allegations made against the city in count one.
In support of the motion for summary judgment as to count two, Dlugolenski and Durso argue that the plaintiff's claim is barred by § 31-293a because the plaintiff cannot demonstrate that they wilfully or maliciously created a dangerous condition that made the injuries or death of the plaintiff's decedent substantially certain to occur.
General Statutes § 31-293a provides in relevant part:
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.
(Emphasis added.)
The plaintiff argues in opposition that her intentional tort claims against Dlugolenski and Durso are not barred by § 31-293a. She argues that "[f]or the same reasons plaintiff raised a genuine issue of material fact as to the requisite intent in [c]ount [o]ne, plaintiff raises a genuine issue here as to whether . . . [the] death [of the plaintiff's decedent] was a direct and natural consequence of ordering the untrained crew to take down trees which were known to be extremely dangerous — and of ordering them to do so without any warning of the danger." (Emphasis in original.) (Plaintiff's Memorandum, pp. 27-28.)
In Nolan v. Borkowski, 206 Conn. 495, 501, 538 A.2d 1031 (1988), the court described what is meant by the phrase "wilful or malicious" in § 31-293a. The court stated: "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 . . . 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." (Citation omitted; internal quotation marks omitted.) Nolan v. Borkowski, supra, 501; see also Melanson v. West Hartford, supra, 61 Conn.App. 692.
In the present case, there is no evidence in the record that Dlugolenski and Durso acted with the intent or design to injure the plaintiff's decedent. Furthermore, this action is not based on a fellow employee's negligence in the operation of a motor vehicle. See General Statutes § 31-293a. Accordingly, the court grants the individual defendants' motion for summary judgment as to count two.
III
In counts three and four, the plaintiff sets forth claims of indemnity and loss of consortium, respectively. The defendants argue in support of the motion for summary judgment that because they are derivative claims, the defendants are entitled to judgment as a matter of law if summary judgment is granted as to counts one and two. The plaintiff concedes that counts three and four are derivative of the outcome of counts one and two. Accordingly, the court grants the defendants' motion for summary judgment as to counts three and four because summary judgment has been granted as to counts one and two.
Licari, J.