July 15, 2009
By: David K. Jaffe
Narrow Exception under Suarez
The Connecticut Workers' Compensation Act bars all common-law actions brought by employees against their employer 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 willful or serious misconduct." Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 106 (1994).
Suarez outlines the two tests that allow an employee to qualify for the willful misconduct exception. The first test, the "intentional tort test," allows an employee to bring a common-law action against an employer if the employee alleges that the employer intentionally committed the act that injured the employee and that the employer also intended for the employee to be injured. Suarez, supra, at 110. "Both the action producing the injury and the resulting injury must be intentional." Id. at 109. The second test, the "substantial certainty test," allows the employee to bring a common-law action against an employer if the employee shows that the employer intentionally committed the act that injured the employee and that the employer knew the act would be substantially certain to result in injury to the employee. Id. at 111. See also Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 280 (1997) ("Suarez II").
Under the standard articulated in Suarez, the plaintiff must allege facts to establish "either that the employer actually intended to injure the plaintiff (actual intent standard), or that the employer intentionally created a dangerous condition that made the plaintiffs injuries substantially certain to occur (substantial certainty standard)." Suarez II, supra, at 257-58. Under either theory of liability, the "characteristic element 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." Dubay v. Irish, 207 Conn. 518, 533 (1988).
"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." Ramos v. Branford, 63 Conn. App. 671, 680-81 (2001). "A high risk or probability of harm is not equivalent to the substantial certainty without which an actor cannot be said to intend harm in which his act results." Mingachos v. CBS, Inc., 196 Conn. 91, 101 (1985).
 Conn. Gen. Stat. § 31-284(a) provides, in pertinent part: "An employer ... 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, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the willful and serious misconduct of the injured employee or by his intoxication."