Nolan v. Borkowski

Callahan, J.,

dissenting. I respectfully take issue with the result reached by the majority because it is contrary to the principles regarding summary judgment and to the case law discussed in the majority’s opinion. It is clear from the opinion that the majority followed the erroneous logic of the trial court that resulted in an impermissible shift of the initial burden in a summary judgment motion to the nonmovant. In addition, *508the trial court abused its discretion by deciding a material issue of fact contrary to its limited function when deciding a motion for summary judgment.

The fundamental principles of summary judgment procedure, although noted in the decisions of the trial court and the majority, were ignored in the analyses of each court. It is the movant, here the defendants, that bears the initial, heavy burden of demonstrating by way of affidavits and other documentary proof, not only his entitlement to judgment as a matter of law, but also the nonexistence of a genuine issue of material fact. See Practice Book §§ 380, 384; Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984); Kakadelis v. DeFabritis, 191 Conn. 276, 280-81, 464 A.2d 57 (1983). It is only after the movant has met this burden, that the opponent bears the burden of presenting facts which contradict those offered by the movant. Citizens National Bank v. Hubney, 182 Conn. 310, 311, 438 A.2d 430 (1980).

The test for granting a motion for summary judgment is the same as in a directed verdict, which is viewing the evidence and the inferences therefrom “most favorably to the nonmovant, the trier of fact could not reach any other conclusion than that embodied in the verdict as directed.” (Emphasis added.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969); see also DHR Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Most important, in ruling on a motion for summary judgment the trial court’s limited function is not to decide issues of material fact, but rather only to determine whether any exist. Telesco v. Telesco, 187 Conn. 715, 718, 447 A.2d 752 (1982); Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).

After noting the general boiler plate language regarding summary judgment procedure, the trial court begins *509its analysis by indicating that the plaintiff employee’s right to pursue common law remedies was limited by the adoption of the Workers’ Compensation Act, and to bypass the exclusivity provisions of the act the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted. The trial court then makes reference to the affidavits and deposition transcript submitted by the plaintiff and acknowledges that these documents state conduct on the part of the defendants that show an intent to cause the injury which resulted. Then without indicating whether the defendants met either of their two burdens and without any analysis or legal reasoning, the trial court baldly concludes that the plaintiff failed to put the defendants’ intent into dispute. It is clear that the trial court, in recognition of the limited scope of the “wilful or malicious” exception to the exclusivity provision of the Workers’ Compensation Act under General Statutes § 31-293a, and in recognition of the plaintiff’s difficult burden of proof at trial, decided from the documents submitted by the plaintiff that she failed to prove that the defendants’ conduct evidenced the requisite intent sufficient to come within the exception. The trial court thus erroneously decided the merits of the plaintiff’s action rather than simply determining that no genuine issue of material fact existed. While the plaintiff may not be able to prevail at trial by a preponderance of the evidence, the affidavits she submitted along with her deposition transcript clearly contradict and put into issue the statements contained in the affidavits submitted by the defendants. Under such circumstances the trial court erred in granting summary judgment for the defendants. See Mingachos v. CBS, Inc., 196 Conn. 91, 114, 491 A.2d 368 (1985).

I also dissent from the conclusion of the majority and the trial court because of the well established principle of law that ordinarily summary judgment procedure *510is particularly inappropriate where, as here, the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. Batick v. Seymour, supra, 646-47; United Oil Co. v. Urban Redevelopment Commission, supra, 376; see White Motor Co. v. United States, 372 U.S. 253, 259, 83 S. Ct. 696, 9 L. Ed. 2d 738 (1963); Poller v. Columbia Broadcasting Systems, Inc., 368 U.S. 464, 472-73, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962). Intent is clearly a question of fact that is ordinarily inferred from one’s conduct or acts under the circumstances of the particular case. Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 216-17, 477 A.2d 988 (1984); State v. Just, 185 Conn. 339, 355, 441 A.2d 98 (1981); Munn v. Scalera, 181 Conn. 527, 530-31, 436 A.2d 18 (1980); State v. Avcollie, 178 Conn. 450, 466, 423 A.2d 18 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980); Bergen v. Bergen, 177 Conn. 53, 57, 411 A.2d 22 (1979); Heffeman v. New Britain Bank & Trust Co., 175 Conn. 8, 12, 392 A.2d 481 (1978).

The case at hand undoubtedly raises an issue of material fact regarding the defendants’ intent to cause the injury to the plaintiff which must be inferred from the acts and conduct of the defendants coupled with their knowledge of the written orders of the plaintiff’s doctor. The documents submitted by the plaintiff set forth specific acts of the defendants to demonstrate the defendants’ intent. As the majority states, “ ‘[a] wilful or malicious injury is one caused by design. . . . [I]ts characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.’ [Citation omitted.] The intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act.” Given the fact that the affidavits of the plaintiff directly contradict those of the defendants *511on this score, one could not reasonably conclude that the conflicting affidavits did not at least put the statements contained therein in dispute. Consequently, a genuine issue of material fact existed which the trial court resolved in favor of the defendants contrary to its limited function in deciding motions for summary judgment.

Additionally, in order to grant summary judgment here, the trial court must have been able to conclude that a trier of fact could not have reached any other conclusion. The conflicting affidavits alone regarding the defendants’ intent mandates otherwise. Part of the majority’s reasoning also indicates to the contrary. In response to the plaintiff’s claim that the acts of the defendants were intentionally designed to cause the injuries to her, the majority states that the acts of the defendants “might just as reasonably have occurred in the normal process of production at the bakery.” (Emphasis added.) Clearly this indicates that it was reasonable to conclude either way.

Further, the only way in which the trial court or the majority could have concluded that the plaintiff failed to place the defendants’ intent into issue was to discredit the plaintiff’s affidavits and to credit the defendants.’ Absent obvious misstatements within the affidavits, neither court should have judged the credibility of the respective affiants for “ ‘[i]t is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised.’ Poller v. Columbia Broadcasting Systems, Inc., supra, 473; Fortner Enterprises, Inc. v. United States Steel Corporation, 394 U.S. 495, 500, 89 S. Ct. 1252, 22 L. Ed. 2d 495 [1969].” United Oil Co. v. Urban Development Commission, supra, 376. The majority clearly judged the credibility of the plaintiff because the majority dispelled as speculative her opinions regarding the defendants’ possible motives for *512intending to cause her injuries. The true issue here is whether the acts and conduct of the defendants evidence the necessary intent and motive to cause the injuries that resulted to the plaintiff as required by § 31-293a. This court has recognized the inappropriateness of summary judgment with regard to matters, such as intent and motive, that are clearly within the exclusive knowledge of the defendants. Batick v. Seymour, supra. In Batick this court reversed the entry of a summary judgment for a defendant where the plaintiff submitted no affidavits in opposition to the motion because of the virtual impossibility of demonstrating the intent or motives of another in an affidavit.

Accordingly, I would reverse the trial court and order ‘the matter remanded for a trial on the merits.