229 Conn. 99 (1994) | Cited 57 times | Supreme Court of Connecticut | March 16, 1994

The principal issue on appeal is whether theAppellate Court properly affirmed the trial court'sgranting of the defendant's motion for summary judgmentbased on the exclusive remedy provisions of theWorkers' Compensation Act (act).1 We hold that there

[229 Conn. 101]

     is a genuine issue of material fact as to whether the plaintiff'sinjury was "substantially certain" to follow from his employer'sconduct so as to satisfy the narrow exception to the exclusivityprovisions of the act and to allow the plaintiff to pursue hiscommon law remedy in a trial. We further hold that theplaintiff's previous collection of benefits under the act doesnot preclude his pursuit of this action. Accordingly, we reverse.

The following facts are undisputed. The plaintiff, AlfonsoSuarez, filed a complaint alleging that he had been severely andpermanently injured while working for the defendant, DickmontPlastics Corporation, when, while attempting to clear hot moltenplastic out of a plastic molding machine, two of his right handfingers became caught in the machine and were partiallyamputated. The plaintiff alleged that his injuries, whichresulted in a permanent loss of function and use of his masterhand and substantial scarring, were caused by the defendant'swilful and serious misconduct. The plaintiff further alleged,inter alia, that the defendant: (1) always required the plaintiffand other employees to clean the plastic molding machine while itwas in operation; (2) refused to allow the plaintiff or otheremployees to use safer cleaning methods; and (3) refused to equipthe machine with a protective cover or other device in order toprevent injuries to persons operating or cleaning it.

The defendant moved for summary judgment claiming that, in theabsence of proof by the plaintiff that the employer

[229 Conn. 102]

     intended to injure the plaintiff, the exclusive remedyprovisions of the act barred the plaintiff's claim. Byaffidavit, the defendant's president denied the plaintiff'sallegations and maintained that he had not intended for theplaintiff to be injured. In his opposition to the motion,supported by his own deposition and the affidavit and attachedopinion of Michael E. Shanok, a physical engineer, the plaintiffclaimed that the defendant's intentional conduct wassubstantially certain to cause the injuries that occurred. Athis deposition, the plaintiff testified that the defendant'sforeman, although aware of the dangers involved, had told himthat: (1) he could not use a vacuum cleaner to clean the hotmaterial from the machine because it would waste material; (2)the machine could not be turned off during the cleaning becausethe operator would lose time; and (3) if he used the vacuumcleaner, he would be fired.

In his report, Shanok described the equipment involved as aplunger type horizontal injection molding machine used to meltthermoplastic and thermoset rubber polymers into a mold throughthe action of a hydraulically operated plunger. Shanok furtherexplained that the material is fed from a small, cylindricalhopper with a conical bottom directly into a feed chute. Fromthe chute, the material falls into an injection chamber. Fromthere, an injection plunger is pushed by a hydraulic ram througha barrel surrounded by electrical heating bands. As the plasticis melted within the barrel, it is further pushed into the mold.The mold is held closed by a damping system, also hydraulicallyactivated. At the conclusion of the molding cycle, the plungerretracts, the mold opens and the molded part is ejected,whereupon the next molding cycle commences.

Shanok's report further states that the feed chute should bevacuum cleaned when the material hopper is positioned away from the

[229 Conn. 103]

     feed chute, so that raw plastic cannot be fed into the machine duringcleaning. Nevertheless, the plaintiff alleges that the foreman had orderedhim to clean up during the completion of production, while the machinewas still operating, so that the employer could avoid paying personnelovertime. Pursuant to these orders, he was required to reach intothe chute with his hand to remove the remaining plastic pelletsin the feed chamber to avoid wasting material. On the day of theaccident, the plaintiff claims that he had put his hand into theenergized machine's feed chute while the machine was operating,thereby causing the plunger to move forward in the injectionsleeve and partially amputate two of the plaintiff's right handfingers.

In addition, Shanok listed in his report several resultingviolations of the Occupational Safety and Health Act (OSHA);29 U.S.C. § 658 et seq.; General Industry Regulations; 29 C.F.R.; anddeviations from the recommended requirements of the AmericanNational Standard for Safety Requirements for the Construction,Care and Use of Horizontal Injection Molding Machines. AmericanNational Standards Institute, B151.1-1976.2 In particular,Shanok noted that the defendant's alleged conduct violatedaccepted safety standards by requiring employees to insert theirhands into the feed chute of an energized horizontal injectionmolding surface, adding that the "circumstances which existed atthe time of the subject accident caused such action to be evenmore dangerous, because the hydraulic system was not interlocked

[229 Conn. 104]

     to prevent actuation of the plunger and the control panel is sosituated that the operator cannot see an individual who is standingat the maintenance platform."

Shanok concluded that the defendant's actions "crossed theboundary between gross negligence and reckless disregard for thesafety of its employees," that "there was a total absence of anysign . . . that even the slightest consideration for [theplaintiff's] safety had been undertaken," that remedying evenone of the numerous unsafe actions could have prevented theinjury, and that it was clear from the combination of factorsthat the plaintiff's injury "would be, sooner or later, apredictable and probable event."

The trial court granted the defendant's motion for summaryjudgment having determined that the plaintiff's "documentaryproof [fell] short of the standard necessary to entitle him tobenefit from the exception to the exclusivity provisions of theConnecticut Workers' Compensation Act." The plaintiff then fileda motion for articulation to ascertain whether the trial courthad granted the defendant's motion for summary judgment on thegrounds that the "substantial certainty" standard relied upon bythe plaintiff was not controlling3 or because the plaintiffhad not demonstrated a genuine issue of material fact as towhether he could satisfy the substantial certainty test. Thetrial court denied the plaintiff's motion.4 The plaintiffthereafter appealed the granting of the defendant's motion forsummary judgment to the Appellate Court. The Appellate Courtheld that the plaintiff's factual allegations could

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     not support a determination either that his employer hadintended to harm him, or that his employer had believed theinjury that occurred was substantially certain to follow from itsacts or conduct. Suarez v. Dickmont Plastics Corp.,30 Conn. App. 630, 635, 621 A.2d 1356 (1993). Accordingly, thatcourt affirmed the judgment. Id., 636. We granted the plaintiff'spetition for certification limited to the following issues: "(1)Whether an individual may bring a civil action for damagesagainst his employer for injuries sustained at work where suchinjuries were caused by work conditions intentionally created bythe employer which made the injuries substantially certain tooccur?" and "(2) Whether there is a genuine issue of materialfact as to whether the employer's intentional actions created asituation in which the employee's injuries were substantiallycertain to occur?" Suarez v. Dickmont Plastics Corp.,225 Conn. 926, 625 A.2d 827 (1993).

At the outset, we note the standard of review of a trial courtdecision granting a motion for summary judgment. Pursuant toPractice Book 384, summary judgment "shall be rendered forthwithif the pleadings, affidavits and any other proof submitted showthat there is no genuine issue as to any material fact and thatthe moving party is entitled to judgment as a matter of law."The party seeking summary judgment "`has the burden of showingthe absence of any genuine issue as to all the material factswhich, under applicable principles of substantive law, entitlehim to a judgment as a matter of law'"; D.H.R. Construction Co.v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and theparty opposing such a motion must provide an evidentiaryfoundation to demonstrate the existence of a genuine issue ofmaterial fact. Practice Book 381. "In deciding a motion forsummary judgment, the trial court must view the evidence in thelight most favorable to the nonmoving party. . . . The test is

[229 Conn. 106]

     whether a party would be entitled to a directed verdict on thesame facts." (Citations omitted; internal quotation marksomitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116(1990).

We consistently have interpreted the exclusivity provision ofthe act, General Statutes 31-284 (a), as a total bar to commonlaw actions brought by employees against employers for jobrelated injuries with one narrow exception that exists when theemployer has committed an intentional tort or where the employerhas engaged in wilful or serious misconduct. Jett v. Dunlap,179 Conn. 215, 217, 425 A.2d 1263 (1979). This case presents thequestion of whether the complaint, deposition and affidavitssubmitted in opposition to the defendant's motion for summaryjudgment together sufficiently raise the genuine issue ofmaterial fact of whether the defendant employer engaged in anintentional tort or in wilful or serious misconduct, necessary toallow an employee to bring a common law tort action against hisemployer and thereby avoid the exclusivity of the act.

Jett v. Dunlap, supra, 179 Conn. 215, is the seminal case inwhich we articulated this narrow exception and held that theexclusivity of the act would not be eroded when the employeealleges an intentional tort by his supervisor. In Jett, werecognized the distinction between the actor who is "merely aforeman or supervisor," to which attribution of corporateresponsibility for his or her conduct is inappropriate, and theactor who "is of such a rank in the corporation that he [or she]may be deemed the alter ego of the corporation under thestandards governing disregard of the corporate entity," to whichattribution of corporate responsibility is appropriate. Id.,219. This distinction, relying on identification and not agency,was based entirely on status and not on conduct. The pleadingsin Jett, however, did not allege that the employer had

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     directed or authorized the subject conduct or that the actorcould be deemed the "alter ego" of the defendant's organization.Rather, the plaintiff alleged only that the employer had condonedthe supervisor's offensive conduct after the fact. Because theinjury, if any, resulted not from the employer's subsequentratification, but rather from the employee's precedentintentional tort, we held that such condoning was not anintentional tort and did not relate back.

In this case, the plaintiff alleged that it was the defendantwhose wilful and serious misconduct caused his injuries.Moreover, in his deposition, the plaintiff referred to theforeman's warning that "[i]f they see you, they fire you," inreference to what would have happened had he refused to clean theenergized machine manually. The defendant denies requiting theplaintiff to clean the machine while it was in operation,although notably, there is no denial regarding the prohibitionagainst using vacuums, as opposed to hands, to clean the machine.This question of credibility between the parties, however, raisesan issue of fact which the trial court cannot resolve on a motionfor summary judgment. United Oil Co. v. Urban RedevelopmentCommission, 158 Conn. 364, 376, 260 A.2d 596 (1969).

Another significant case relied upon by the parties isMingachos v. CBS, Inc., 196 Conn. 91, 102, 491 A.2d 368 (1985),in which we further delineated the scope of the exception to theact. In that case we declined to "extend judicially the [Jett v.Dunlap, supra, 179 Conn. 215] exception to 31-284 to includeinjuries to employees resulting from `intentional,' or `wilful,'or `reckless' violations by the employer of safety standardsestablished pursuant to federal and state law, such as OSHA."Id., 100. The plaintiff in Mingachos had alleged that theinjuries were caused by the defendant's violations of certainConnecticut statutory regulations and OSHA regulations,

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     that said conduct was, as to the first count, "`wilfuland intentional and created a hazardous condition,'" andthat the violations were, as to the second count, "`reckless, andcreated a hazardous condition.'" Id., 95. The plaintiff furtheralleged, as to both counts, that the defendant had failed to warnits employees of these violations and had failed to report themto certain governmental agencies as required by law, and thatthese failures were "`intentional, malicious, and in willful andwanton disregard of the health of the plaintiff'sdecedent. . . .'" Id., 112. In opposition to the motion forsummary judgment, however, the plaintiff submitted only oneaffidavit, signed by his attorney, that referred to certainallocated, unverified OSHA records and that averred that thedefendant had known of the dangerous ventilation condition butfailed to correct it. Thus, the sole affidavit relied on by theplaintiff lacked personal knowledge of the affiant, the absenceof which can be fatal. Hartford Federal Savings v. AetnaCasualty & Surety Co., 25 Conn. Sup. 418, 427, 206 A. 650 (1964).Moreover, there was nothing on the record to suggest that theplaintiff had put into dispute the statements of the defendant'semployees in their affidavits that each had had no intent toinjure the plaintiff. Accordingly, we affirmed the trial court'sgranting of the summary judgment motion.

In defining the operative terms, we stated in Mingachos v. CBS,Inc., supra, 196 Conn. 101, that "intent refers to theconsequences of an act . . . [and] denote[s] that the actordesires to cause [the] consequences of his act, or that hebelieves that the consequences are substantially certain tofollow from it. 1 Restatement (Second), Torts 8A (1965)."(Citation omitted; internal quotation marks omitted.) "A resultis intended if the act is done for the purpose of accomplishingsuch a result or with knowledge that to a substantial certainty

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     such a result will ensue." 1 F. Harper & F. James, Torts (1956) 3.3,p. 216. An intended or wilful injury "does not necessarily involvethe ill will or malevolence shown in express malice," but it isinsufficient "to constitute such an [intended] injury that theact . . . was the voluntary action of the person involved." Mingachosv. CBS, Inc., supra, 102. Both the action producing the injury andthe resulting injury must be intentional. Rogers v. Doody, 119 Conn. 532,534, 178 A. 51 (1935). "[Its] characteristic element is the designto injure either actually entertained or to be implied from theconduct and circumstances. Sharkey v. Skilton, 83 Conn. 503,507-508, 77 A. 950 (1910). The intentional injury aspect may besatisfied if the resultant bodily harm was the direct and naturalconsequence of the intended act. Alteiri v. Colasso, 168 Conn. 329,334, 362 A.2d 798 (1975). Markey v. Santangelo, 195 Conn. 76,77-78, 485 A.2d 1305 (1985)." (Internal quotation marksomitted.) Mingachos v. CBS, Inc., supra, 102. The known dangerinvolved must go from being "a foreseeable risk which areasonable man would avoid and become a substantial certainty."W. Prosser, Torts (4th Ed. 1971) 8, p. 32.

The substantial certainty test differs from the trueintentional tort test but still preserves the statutory schemeand the overall purposes of the act. The problem with theintentional tort test, i.e., whether the employer intended thespecific injury, "appears to be that it allows employers toinjure and even kill employees and suffer only workers'compensation damages so long as the employer did not specificallyintend to hurt the worker." Beauchamp v. Dow Chemical Co.,427 Mich. 1, 25, 398 N.W.2d 882 (1986). Prohibiting a civil actionin such a case "would allow a corporation to `cost-out' aninvestment decision to kill workers." Blankenship v. CincinnatiMilacron Chemicals, Inc., 69 Ohio St.2d 608, 617, 433 N.E.2d 572(1982) (Celebrezze, J., concurring). The "substantial certainty"

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     test provides for the "intent to injure" exception to be strictlyconstrued and still allows for a plaintiff to maintain "a causeof action against an employer where the evidence is sufficient tosupport an inference that the employer deliberately instructed anemployee to injure himself." Gulden v. Crown Zellerbach Corp.,890 F.2d 195, 197 (9th Cir. 1989).

The issue then is whether the defendant established as a matterof law that the plaintiff's evidence of the defendant's refusalto allow employees to vacuum the machinery after it has been shutdown failed to raise an issue of fact that such conduct wassubstantially certain to result in injury. We are obliged toaccept as true all well pleaded facts and the plaintiff'sevidence offered in opposition to the defendant's motion, and todetermine whether the plaintiff's claim is so clearlyunenforceable as a matter of law that no factual developmentcould possibly justify a right to recovery. The defendantemployer argues that it satisfied its burden of demonstratingthat its conduct did not carry with it, as a substantialcertainty, the dangers that in fact resulted and that the dangerswere known to the defendant.5 We disagree.

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Intent is clearly a question of fact that is ordinarilyinferred from one's conduct or acts under the circumstances ofthe particular case. Waterbury Petroleum Products, Inc. v.Canaan Oil & Fuel Co., 193 Conn. 208, 216-17, 477 A.2d 988(1984). Thus, whether the actor knows that the consequences ofhis or her conduct are certain or substantially certain to resultfrom his or her act and still proceeds with the conduct, so thathe or she should be treated by the law as though he or she infact desired to produce the result, is a question of fact for thejury. This case undoubtedly raises an issue of material factregarding the defendant's conduct toward the plaintiff and thedefendant's knowledge that the plaintiff's injury wassubstantially certain to occur.

Here, a jury could reasonably infer, from all the circumstancesviewed in the light most favorable to the plaintiff, that thedefendant's conduct constituted more than a mere failure toprovide appropriate safety or protective measures, and that theplaintiff's injury was the inevitable and known result of theactions required of him by the defendant. "A specific intent toproduce injury is not the only permissible inference to be drawnfrom [the] defendant's . . . [conduct], but is it one that a juryshould be permitted to consider. It is for the finder of fact,not the court on summary judgment, to determine what inferencesto draw." Gulden v. Crown Zellerbach Corp., supra, 890 F.2d 197."[S]ummary judgment procedure is particularly inappropriate wherethe inferences which the parties seek to have drawn deal withquestions of motive, intent and subjective feelings andreactions." (Internal quotation marks omitted.) Batick v.Seymour, 186 Conn. 632, 646-47, 443 A.2d 471 (1982).

We are not prepared to say as a matter of law that the refusalto allow employees to vacuum the machinery after it has been shutdown did nothing more than merely set the stage for an accidental

[229 Conn. 112]

     injury later, or that it was no more than merely a wilful failureto furnish a safe place to work. Under the circumstances of this case,whether the intentional conduct in which the defendant engagedwas tantamount to a "deliberate infliction of harm comparable toan intentional left jab to the chin"; 2A A. Larson, Workmen'sCompensation (1990) 68.13, p. 13-71; is a question best left tothe jury.6

Notably, several other appellate courts> also have decided thatit is for the jury to evaluate whether the employer's intentionalconduct allows the inference that the employer knew that theoccurrence of the injury was a substantial certainty. See, e.g.,Gulden v. Crown Zellerbach Corp., supra, 890 F.2d 197(allegations that the defendant was aware that the plaintiffs'contact with PCBs would injure them but nevertheless ordered themto perform their task in a manner requiting them to initiate andmaintain such contact were sufficient to allow a jury to decidewhether to draw an inference of deliberate intent to injure fromthose facts); O'Brien v. Ottawa Silica Co., 656 F. Sup. 610, 611-12(E.D. Mich. 1987) (despite knowledge that the plaintiff wascontracting respiratory disease, the employer's failure to takeprecautions to inform the plaintiff of reported health risksmight permit an inference that the employer knew injury wassubstantially certain to occur); Kachadoorian v. Great LakesSteel Corp., 168 Mich. App. 273, 277, 424 N.W.2d 34 (1988) (theplaintiff's allegations that the plaintiff's decedent had beendirected by his foreman to drive his slag-moving machine under avessel containing molten steel during a blowing process that

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     frequently caused overflow spills of molten steel and that the defendanthad disciplined employees for refusing to drive under the vesselduring the blowing process, thereby forcing the employee to choosebetween the substantial certainty of injury and losing his job, wereenough to raise an issue of fact as to the defendant's intent);Kielwein v. Gulf Nuclear Inc., 783 S.W.2d 746, 747-48 (Tex. App. 1990)(whether the employer's failure to take appropriatemeasures to protect the plaintiff during the clean up operationof a radiation spill was substantially certain to cause theplaintiff injury and was substantially certain to result inradioactive contamination is "uniquely a fact question for thetrier of fact after considering all the relevant evidence").

The defendant also claims, as an alternate ground for affirmingthe trial court's judgment, that the plaintiff's application forand receipt of workers' compensation benefits bars him from anyfurther recovery against the defendant. According to thedefendant, the plaintiff's receipt and retention of benefitsunder the act constitutes an admission that the incident fallswithin the scope of the act. As authority for its argument, thedefendant cites to cases that have interpreted General Statutes31-284 to exclude further recovery from the employer by anemployee who has received workers' compensation benefits. SeeHorney v. Johnson, 167 Conn. 621, 622, 356 A.2d 879 (1975);Pagani v. BT II Ltd. Partnership, 24 Conn. App. 739, 744,592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991);Ross v. New Haven, 19 Conn. App. 169, 171, 561 A.2d 457 (1989);Hatcher v. Bullard Co., 39 Conn. Sup. 250, 257, 477 A.2d 1035(1984), aff'd, 4 Conn. App. 260, 493 A.2d 908 (1985).

These cases, however, do not stand for the proposition advancedby the defendant. In Ross v. New Haven, 19 Conn. App. 169, supra,the injured employee was seeking to collect uninsured motorist

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     benefits from the city employer. In Horney v. Johnson, supra,167 Conn. 621, the injured employee was seeking to bring a commonlaw negligence claim against his corporate employer. In Pagani v.BT II Ltd. Partnership, supra, 24 Conn. App. 739, the plaintiff'spassive acceptance of benefits paid by the defendant'sworkers' compensation carrier was held not to preclude her frommaintaining a civil action for a personal injury that she claimeddid not arise out of or in the course of her employment. InHatcher v. Bullard Co., supra, 39 Conn. Sup. 257 n. 2, the trialcourt, in dictum, interpreted the act to preclude an action forintentional, wilful or wanton violations of safety regulations.

The effect of the defendant's argument would be to force aninjured employee to elect, at the outset, whether to pursue hisor her remedies under the act, or to take his or her chanceslater at trial. The defendant's argument finds no support in theact itself or in our case law, and, if successful, wouldundermine the policies underlying the act.

Indeed, judicially imposing the election of remedies doctrinein this case would, in all practical effect, insulate employersfrom the consequences of their intentionally harmful conducttoward their employees. We have little doubt that mostemployees, who had been injured in the course of their employmentby conduct of their employers that would in a subsequent lawsuitbe found to have been intentionally harmful to them would notundergo the financial privations of foregoing workers'compensation benefits in order to litigate their tort actionsagainst their employers years later. The effect would, in alllikelihood, be that the tort action would be a remedy in nameonly, and that the intentionally harmful conduct would gounpenalized.

The act was designed to hold the employer liable for jobrelated injuries, without regard to fault; Klapproth

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     v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968); so thatemployees may obtain relatively quick and certain compensation,while employers generally avoid the risk and expense oflitigation stemming from common law tort actions. Mingachos v.CBS, Inc., supra, 196 Conn. 97. The principle of exclusivity isnot eroded, however, when the plaintiff alleges an intentionaltort, in which case an employee is permitted to pursue remediesbeyond those contemplated by the act. Although an injuredemployee's remedies provided by the act are exclusive and cannotbe supplemented with common law damages, there is no provision inthe act that requires the injured employee to make an electionbetween even mutually exclusive remedies.

Although courts> in some jurisdictions hold that the collectionof workers' compensation benefits bars a damage suit,7others take a less restrictive approach. In Millison v. E.I. duPont de Nemours & Co., 101 N.J. 161, 186, 501 A.2d 505 (1985),for example, the New Jersey Supreme Court held that the doctrineof election of remedies did not bar the plaintiffs, who had filedclaims under the New Jersey Workers' Compensation Act, frompursuing a civil action for intentional torts even though it wasundisputed that the plaintiffs' claims were compensable underthat act. The court held that "the best approach is to allow aplaintiff to process his [or her] workers' compensation claim

[229 Conn. 116]

     without forfeiting the opportunity to establish that he [or she] wasinjured as a result of" intentionally wrongful conduct. Id., 187.Additionally, to the extent that a damage award would serve as adouble recovery, the court held that the employer would beentitled to offset any compensation benefits previously paidagainst a damage award. Id.8

Although the doctrine of election, to the extent that it isdesigned to prevent double redress for the same injury, has asound basis, it can also serve to destroy all rights undercompensation acts without justification.9 "Workmen'scompensation is above all a security system;

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     a strict election doctrine transforms it into a grandiosesort of double-or-nothing gamble. Such gambles are appealing tothose who still think of the judicial process as a glorious gamein which formal moves and choices are made at peril, and in whichthe ultimate result is spectacular victory for one side and utterdefeat for the other. The stricken workman is in no mood forthis kind of play, and should not be maneuvered into thenecessity for gambling with his rights, under the guise ofenforcing a supposed penalty against the employer." 2A A. Larson,supra, 67.31, p. 12-133. Because the employer can be reimbursedby way of a setoff, double redress is avoided. This approach isnot without precedent. See, e.g., Whitney-Fidalgo Seafood, Inc.v. Beukers, 554 P.2d 250, 254 (Alaska 1976) (court held that mereacceptance of workers' compensation benefits by the employee didnot constitute an election and therefore the employee could bringhis common law suit, but payments made would be applied againstany damage judgment he obtained); and Worthington v. IndustrialCommission of Arizona, 85 Ariz. 310, 316, 338 P.2d 363 (1959)(court held that receipt of workers' compensation benefits didnot cause a widow to lose her rights to bring a wrongful deathaction although the sum received in the tort settlement could beoffset against the amount of any compensation recovery); Mike v.Aliquippa, 279 Pa. Super. 382, 393, 421 A.2d 251 (1980) (courtheld that any compensation benefits that had been accepted wouldbe duly credited against any recovery from the tort action toprevent any possibility of double recovery).

We are not unmindful that our opinion today may triggerconcerns among employers regarding their potential exposure toclaims on two fronts. We do not believe that our holding,however, will encourage significant additional litigation, foronly in those rare instances when an employer's conduct allegedly

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     falls within the very narrow exception to the act will such litigationresult. In those very few instances, we believe that it isbetter to allow employees to accept the well conceived and oftenvital benefits of the act rather than to gamble all on apotential recovery that is not likely to provide compensationuntil considerably later. We think the setoff provisions usedroutinely by our judges in other areas10 provide adequateprotection for employers on those rare occasions where a suitfollows recovery under the act.

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The judgment of the Appellate Court is reversed and the case isremanded to that court for further proceedings.

In this opinion BERDON, NORCOTT and PALMER, Js., concurred.

1. General Statutes 31-284 provides in pertinent part:"BASIC RIGHTS AND LIABILITIES. CIVIL ACTION TO ENJOINNONCOMPLYING EMPLOYER FROM ENTERING INTO EMPLOYMENT CONTRACTS.NOTICE OF AVAILABILITY OF COMPENSATION. (a) An employer shall notbe liable to any action for damages on account of personal injurysustained by an employee arising out of and in the course of hisemployment or on account of death resulting from personal injuryso sustained, but an employer shall secure compensation for hisemployees as provided under this chapter, except that compensationshall not be paid when the personal injury has been caused by thewilful and serious misconduct of the injured employee or by hisintoxication. All fights and claims between employer andemployees, or any representatives or dependents of suchemployees, arising out of personal injury or death sustained inthe course of employment are abolished other than fights andclaims given by this chapter, provided nothing in this sectionshall prohibit any employee from securing, by agreement with hisemployer, additional compensation from his employer for theinjury or from enforcing any agreement for additionalcompensation."

2. Shanok explained in his report that, as opposed toOSHA regulations, which require compliance by law, "[t]heAmerican National Standard is a recommended practice which wasdeveloped through the auspices of the Society of the PlasticsIndustry, Inc., and is in such general use in the plasticsindustry that it can be considered to be an [authoritative]standard for the custom and practice of maintaining safety in theindustry."

3. At the hearing on the motion for summary judgment, thetrial court expressed doubt as to whether the plaintiff had toprove that his employer intended harm or whether it wassufficient to prove that his employer knew that injury wassubstantially certain to occur in order to prevail under thiscommon law remedy.

4. Following the trial court's denial of his motion forarticulation, the plaintiff filed a motion for review with theAppellate Court. The Appellate Court granted the motion butdenied the relief requested.

5. The defendant also argues for the first time thatShanok's report may not be considered as evidence because it "issimply a hearsay statement, without foundation of competency asan `expert' opinion." We disagree. Affidavits must be by personswho would testify to their contents at trial; Practice Book 381;however, there is nothing on this record to suggest that Shanokcould not testify regarding his objective findings as containedin his report as an expert or that the trial court everquestioned his competence. There is no reason for this court tobe the first to engage in such an inquiry. Moreover, because thedefendant's allegations "require the plaintiff to undertake thedifficult challenge of providing evidence, in advance of trial,of the mental state of the defendant . . . we are willing to takeinto account whatever relevant information the plaintiff was ableto provide. See Batick v. Seymour, 186 Conn. 632, 645-46,443 A.2d 471 (1982)." Conference Center Ltd. v. TRC, 189 Conn. 212,217, 455 A.2d 857 (1983). This would naturally include Shanok'sdescription of the machinery and the cleaning process theplaintiff was required to perform.

6. The trial judge will be free to make clear to the jurythe differences between intentional conduct that is substantiallycertain to result in injury and conduct that merely carries withit a foreseeable risk. He or she also will be free to comment onthe evidence so that the distinction is clearly before the jurywhere it belongs.

7. See, e.g., Collier v. Wagner Castings Co., 81 Ill.2d 229,241, 408 N.E.2d 198 (1980); Neff v. Baiotto Coal Co.,361 Mo. 304, 307, 234 S.W.2d 578 (1950); Biner v. Dynalectron Corp.,85 Nev. 539, 540, 458 P.2d 616 (1969); Gillespie v. Vecenie,292 Pa. Super. 11, 16-17, 436 A.2d 695 (1981). This is distinct fromthe issues of whether an unsuccessful damage suit bars acompensation claim or whether an unsuccessful compensation claimbars a damage suit. The majority of have held that inneither instance will the injured employee be estopped. See 2AA. Larson, supra, 67.31, pp. 12-152-12-156 nn. 88 and 89, andcases cited therein. According to those cases, the injuredemployee was not forced to elect between two valid butinconsistent remedies. Rather, he only mistakenly pursued amisconceived right when only one right in fact existed. Id.,67.32, p. 12-159.

8. Of those that follow the election theory, many,however, will enforce it only where the court is satisfied thatthe employee had "`[f]irst full knowledge of the nature of theinconsistent rights and the necessity of electing between them[and s]econd, an intention to elect manifested, either expresslyor by acts which imply choice and acquiescence.'" McAlester Corp.v. Wheeler, 205 Okla. 446, 448, 239 P.2d 409 (1951). Mereacceptance of some compensation benefits by an injured employeewill not constitute an election in the absence of some evidenceof both his or her conscious intent to elect the remedy under thecompensation statutes and to waive his or her other rights. 2A A.Larson, supra, 67.35, pp. 12-182-12-189; see Martin v. UnitedStates, 566 F.2d 895 (4th Cir. 1977); Whitney-Fidalgo Seafood,Inc. v. Beukers, 554 P.2d 250 (Alaska 1976); Baker v. RedystickProducts Co., 674 P.2d 1011 (Colo. App. 1983); Bolinger v.Kiburz, 270 N.W.2d 603 (Iowa 1978); Conder v. Hayden, 335 S.W.2d 909(Ky. 1960); Allman v. Great Lakes Dredge & Dock Co., 29 App. Div.2d 605,285 N.Y.S.2d 630 (1967). that apply the election of remedies doctrine have examinedvarious issues regarding its application, including, but not limitedto: whether it should matter if recovery under the act is claimedbefore, or after, a civil suit is commenced; whether the ability tocollect money awarded by a civil judgment should have any impact;and whether it should matter if the collection of benefits underthe act resulted from an award, voluntary agreement or consensualconduct in the absence of a claim. See generally 2A A. Larson,supra, 67.30 - 67.36.

9. This state has obviously already determined thatcompensation protection is a good policy for industry generally.See 1 F. Harper & F. James, Torts (1956) pp. xlii-xliii. To theextent that an election requirement can motivate employers torisk common law liability, it should be discouraged. To theextent that the election requirement may interfere with aninjured employee receiving compensation for his or her injuries,it should be avoided.

10. See, e.g., General Statutes 52-225a, which provides:"REDUCTION IN ECONOMIC DAMAGES IN PERSONAL INJURY AND WRONGFULDEATH ACTIONS FOR COLLATERAL SOURCE PAYMENTS. (a) In any civilaction, whether in tort or in contract, wherein the claimantseeks to recover damages resulting from (1) personal injury orwrongful death occurring on or after October 1, 1987, or (2)personal injury or wrongful death, arising out of the renditionof professional services by a health care provider, occurring onor after October 1, 1985, and prior to October 1, 1986, if theaction was filed on or after October 1, 1987, and whereinliability is admitted or is determined by the trier of fact anddamages are awarded to compensate the claimant, the court shallreduce the amount of such award which represents economicdamages, as defined in subdivision (1) of subsection (a) ofsection 52-572h, by an amount equal to the total of amountsdetermined to have been paid under subsection (b) of this sectionless the total of amounts determined to have been paid undersubsection (c)of this section, except that there shall be noreduction for (1) a collateral source for which a right ofsubrogation exists and (2) that amount of collateral sourcesequal to the reduction in the claimant's economic damagesattributable to his percentage of negligence pursuant to section52-572h. "(b) Upon a finding of liability and an awarding of damages bythe trier of fact and before the court enters judgment, the courtshall receive evidence from the claimant and other appropriatepersons concerning the total amount of collateral sources whichhave been paid for the benefit of the claimant as of the date thecourt enters judgment. "(c) The court shall receive evidence from the claimant and anyother appropriate person concerning any amount which has beenpaid, contributed, or forfeited, as of the date the court entersjudgment, by, or on behalf of, the claimant or members of hisimmediate family to secure his right to any collateral sourcebenefit which he has received as a result of such injury ordeath."

11. have some doubts about the evidentiary admissibilityof other of Shanok's conclusions, but the two identified in thetext are, in my view, the most clearly inadmissible.

12. Indeed, in the criminal arena, experts are statutorilybarred from giving such opinions. See General Statutes 54-86i.

13. I am willing for purposes of this case to assume, asthe majority also does, the evidentiary admissibility of theplaintiff's statement regarding his foreman's warning to him thathe would be fired if he did not follow that cleaning process.

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