Suarez v. Dickmont Plastics Corp.

BERDON, J.,

concurring in part and dissenting in part. I disagree with part III of the majority opinion, in which the court concludes that the trial court improperly denied the motions of the defendant, Dickmont Plastics Corporation, to set aside the verdict and for judgment notwithstanding the verdict because the plaintiff, Alfonso Suarez, failed to establish actual intent to injure as a matter of law. Nevertheless, because I agree with the majority that the trial court incorrectly instructed the jury that the actions of the defendant’s foreman, Santiago Santiago, could be attributed to the defendant under the doctrine of apparent authority, I would remand the case for a new trial.

As a preliminary matter, these issues must be reviewed in the context of the plaintiffs background and the setting at the defendant’s factory on the second shift, which were before the jury. The plaintiff is a Guatemalan native who, at the time of this incident, had a sixth grade education and was unable to speak English. He, like a significant number of his fellow employees who worked the second shift, spoke only Spanish. The bilingual foreman, Santiago, constituted the management of the defendant on the second shift and was described by Richard Scalise, Jr., then vice president of the defendant, as his “eyes and ears and . . . voice” and as the defendant’s “key man.” On the second shift, there was no other person that exceeded *282Santiago’s rank on the corporate ladder. Indeed, Santiago was not only the defendant’s key man, but the jury reasonably could have found that that position authorized him to exercise this authority in a tyrannical manner in order to instill fear in the Spanish-speaking employees that they would lose their jobs unless they followed his orders.

I

The principal issue in this case is whether the exclusivity bar of the Workers’ Compensation Act (act); General Statutes § 31-275 et seq.; prevents the plaintiff from recovering in this action for damages against the defendant “on account of personal injury sustained by an employee . . . .” General Statutes § 31-284 (a). The definition of personal injury includes an accidental injury “causally connected” with the employment. General Statutes § 31-275 (16) (A). In Mingadlos v. CBS, Inc., 196 Conn. 91, 100, 491 A.2d 368 (1985), this court “pointfed] out that it is generally agreed that workers’ compensation laws were not intended to shield an employer from common law liability for injuries he intentionally inflicted upon his employee.” In deciding whether the injury was “intended,” we adopted both in Mingachos v. CBS, Inc., supra, 101, and in Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 108, 639 A.2d 507 (1994), the definition set forth in the Restatement (Second) of Torts — that is, intent “denote [s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to follow from it.” 1 Restatement (Second), Torts § 8A (1965). In other words, the focus is not upon the act, but on the consequences of the act. See Mingachos v. CBS, Inc., supra, 101. In this case, as the majority points out, the jury, through its answers to special interrogatories, rejected the plaintiffs claim that the defendant’s conduct was substantially certain to *283produce the injury, but found that the defendant desired to cause the consequences of the incident.

A

In reversing the trial court’s judgment and directing a judgment for the defendant, the majority concludes that the defendant’s motions to set aside the verdict and for judgment notwithstanding the verdict should have been granted because the plaintiff did not establish, as a matter of law, that the defendant actually intended to cause the plaintiffs injuries. With respect to the issue of sufficiency of the evidence, the majority is short on its analysis and merely concludes that there was insufficient evidence.

I begin my analysis by recognizing the well settled standard for reviewing the denial of motions to set aside the verdict and for judgment notwithstanding the verdict on evidentiary grounds. “Our review of the trial court’s refusal to [grant the motions] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.” (Citations omitted; internal quotation marks omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988).

“Intent is clearly a question of fact that is ordinarily inferred from one’s conduct or acts under the circumstances of the particular case. . . . Thus, whether the actor knows that the consequences of his or her conduct are certain or substantially certain to result from his or her act and still proceeds with the conduct, so that he or she should be treated by the law as though he or she in fact desired to produce the result, is a question of fact for the jury.” (Citation omitted.) Suarez v. Dick *284mont Plastics Corp., supra, 229 Conn. 111. Furthermore, “[questions going to intent and motive, which require the drawing of inferences from proven facts, depend for their resolution upon an assessment of demeanor and credibility that is peculiarly within the province of the trier of fact.” Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 164, 510 A.2d 440 (1986).

In my view, the jury reasonably could have inferred an actual intent to injure the plaintiff based upon the defendant’s workplace policies. The jury heard testimony that the defendant’s foreman, Santiago, required that the plaintiff always clean the hot plastic material by placing his bare hands in the machine while it was still operating. Santiago acknowledged in his testimony that the plaintiff was not permitted to use a vacuum cleaner to remove the material because the defendant was concerned about avoiding waste. The plaintiff was also prohibited from stopping the machines prior to the end of his work shift because the defendant wanted to maximize its production.

Furthermore, the jury heard testimony that the plaintiff was reprimanded and threatened for attempting to turn the machines off prior to cleaning the hot material from the machines. The plaintiff testified that Santiago used “very bad words” when he attempted to stop production in order to clean the machine and threatened to terminate his employment. On another occasion, when the plaintiff attempted to clean the machine with a vacuum, Santiago struck the table with a pipe and threatened the plaintiff again. Although the defendant’s primary motive in requiring the floormen to scoop the hot material from the machines while the machines were still operating may have been to avoid overtime and material waste, the trier of fact reasonably could have found that the defendant, by requiring the plaintiff to remove plastic with his bare hands, intended the consequences of its orders — that is, to injure the plain*285tiff as a result of the defendant’s policies. Indeed, the jury made this finding clear by answering in the affirmative the second interrogatory, which provided: “Has the plaintiff established by a preponderance of the evidence that the defendant deliberately instructed the plaintiff to injure himself based on its policies regarding the cleaning of the plastic injection molding machine?” 1

When these facts are read in conjunction with the evidence from the plaintiff’s engineer, Michael Shanok, with respect to the description of the machine, the conclusion that there was sufficient evidence for the jury to predicate their decision on actual intent becomes obvious. In Suarez, the machine was described “as a plunger type horizontal injection molding machine used to melt thermoplastic and thermoset rubber polymers into a mold through the action of a hydraulically operated plunger. Shanok further explained that the material is fed from a small, cylindrical hopper with a conical bottom directly into a feed chute. From the chute, the material falls into an injection chamber. From there, an injection plunger is pushed by a hydraulic ram through a barrel surrounded by electrical heating bands. As the plastic is melted within the barrel, it is further pushed *286into the mold. The mold is held closed by a damping system, also hydraulically activated. At the conclusion of the molding cycle, the plunger retracts, 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 be vacuum cleaned when the material hopper is positioned away from the feed chute, so that raw plastic cannot be fed into the machine during cleaning. Nevertheless, the plaintiff allege[d] that the foreman had ordered him to clean up during the completion of production, while the machine was still operating, so that the employer could avoid paying personnel overtime. Pursuant to these orders, he was required to reach into the chute with his hand to remove the remaining plastic pellets in the feed chamber to avoid wasting material. On the day of the accident, the plaintiff claim[ed] that he had put his hand into the energized machine’s feed chute while the machine was operating, thereby causing the plunger to move forward in the injection sleeve and partially amputating] two of the plaintiffs right hand fingers.” Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 102-103.

It is clear that the defendant was playing Russian roulette with the plaintiff and its other employees merely to save production time and material. Because there was not a specific intent that the plaintiffs fingers would be cut off, the majority holds that intent was not satisfied. Nevertheless, in Mingachos, this court pointed out that “[t]he intentional injury aspect may be satisfied if the resultant bodily harm was the direct and natural consequence of the intended act.” Mingachos v. CBS, Inc., supra, 196 Conn. 102. The intention in this case may have been the saving of production time and materials, but the direct and natural consequence of that intention was the plaintiffs injury.

*287Notwithstanding the majority’s narrow view of intent, the outrageous facts of this case require that we leave the determination of whether there was intent to the jury. See Gorra Realty, Inc. v. Jetmore, supra, 200 Conn. 164 (“[questions going to intent and motive, which require the drawing of inferences from proven facts, depend for their resolution upon an assessment of demeanor and credibility that is peculiarly within the province of the trier of fact”). Suarez recognized the need to protect workers in the real world, but the application of those principles in this case undermines that decision. Accordingly, I conclude that the juiy reasonably could have inferred from Santiago’s conduct, and from the circumstances leading to the plaintiffs injury, that Santiago actually intended to cause the plaintiff to injure himself.

B

Even if we assume, however, that the majority is correct, in my view, this matter should still be remanded for a new trial. As indicated in part I A of this dissent, our focus in determining intent must be on the consequences of the conduct in question. The majority concedes that there was sufficient evidence to support a finding that the defendant knew that the consequences of its policies were substantially certain to produce an injury. The jury, in finding that the defendant intended the consequences — that is, the injury — logically also found that the defendant believed that the consequences were substantially certain to result from its policies with respect to cleaning the machines. Simply put, the defendant could not have intended the injury as found by the jury, without the jury also believing that the consequences were substantially certain to result under the majority’s interpretation of the second interrogatory.2 The substantial certainty test is a subset of *288the actual intent standard. For example, an employer cannot intentionally cause an injury to an employee by striking him with a pipe, without also knowing with substantial certainty that he would cause injury to the employee.

It is well settled that “intent is broader than a desire or purpose to bring about physical results. It extends not only to those consequences which are desired, but also to those which the actor believes are substantially certain to follow from what the actor does.” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 8, p. 35. “Thus, a specific intent to injure is not an essential element of an intentional tort where the actor proceeds despite a perceived threat of harm to others which is substantially certain, not merely likely, to occur.” (Emphasis in original.) Jones v. VIP Development Co., 15 Ohio St. 3d 90, 95, 472 N.E.2d 1046 (1984). “It may help to perceive ‘substantial certainty’ not so much as a substantive test itself nor as a substitute for a subjective desire to injure, [but] as a specie of evidence that will satisfy the [intent] requirement. . . .”Millison v.E.I. du Pont de Nemours & Co., 101 N.J. 161, 178, 501 A.2d 506 (1985). In other words, because the jury in this case found that the defendant actually intended to injure the plaintiff, which resulted in the plaintiffs injury, the jury logically was required to conclude that, as a result of requiring the plaintiff to clean the machine with his bare hands, the defendant believed that the plaintiffs injury would result with substantial certainty.

Therefore, the jury’s answers to the special interrogatories finding that there was an actual intent to cause the injury that occurred and that the defendant did not know with substantial certainty that it would occur are inconsistent. “Where it is clear that the jury [was] confused and that the verdict rendered is illogical and unreasonable in light of the instructions given ... or the interrogatories addressed,” the verdict cannot *289stand. (Citations omitted.) Labatt v. Grunewald, 182 Conn. 236, 241-42, 438 A.2d 85 (1980). Furthermore, when a “verdict rests upon a factual finding contradictory to another finding of the same issue by the trier the judgment cannot stand.” (Internal quotation marks omitted.) Calabro v. Calabro, 33 Conn. App. 842, 847, 639 A.2d 1046 (1994). Under such circumstances, the verdict must be set aside and a new trial ordered.3

I realize that this argument has not been advanced by the plaintiff. This, however, is one of those “truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings”; (internal quotation marks omitted) Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 25, 664 A.2d 719 (1995); and, therefore, constitutes plain error.

Justice requires that the plaintiff be granted a new trial. In Mingachos v. CBS, Inc., supra, 196 Conn. 101, and Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 108, this court recognized that intent includes not only the intent to cause the injury, but also that such injury was a substantial certainty to occur. The *290actual intent standard without more, “ ‘allows employers to injure and even kill employees and suffer only workers’ compensation damages’ Suarez v. Dickmont Plastics Corp., supra, 109; and allows an employer “ ‘to “cost-out” an investment decision to kill workers.’ ” Id. Under the facts presented to us, however, that is exactly what happened here. The defendant, in order to avoid overtime, to have production for a full shift and to save on material, had an established policy that the plaintiff and other floormen were required to scoop out hot material from the machines by placing their bare hands in the machines while in operation, risking the amputation of their fingers. The majority allows the defendant, through its callous workplace policies, to “cost-out” the business decision to place employees at risk of serious injury. I therefore cannot agree with the majority’s conclusion.

II

Because of its conclusion that there was insufficient evidence to support the plaintiffs verdict under the actual intent standard, the majority declines to address the defendant’s claim that the trial court should have rendered judgment in its favor notwithstanding the verdict because the defendant’s liability is predicated on the actions of a foreman.4 I would conclude that, in the context of a small, family owned corporation in which a foreman has substantial responsibilities and authority, such as in this case, corporate responsibility should not be limited simply because the employee’s title is that of foreman. In other words, it is a question of fact whether the managerial employee is sufficiently high in the chain of command to be considered the alter ego of the corporate employer without respect to the employee’s formal title.

*291The jury reasonably could have found the following facts that are necessary to the resolution of this issue. After Richard Scalise, Sr., the owner of the defendant, and his son, Richard Scalise, Jr., then vice president, would leave for the day between 5 and 6 p.m., Santiago oversaw the entire plant operation during the remainder of the plaintiffs shift, which began at 4 p.m. During the overlapping period between the beginning of the night shift and the time that the Scalises would leave for the day, management would give Santiago instructions necessary for the operation of the night shift. As foreman, Santiago was, as Richard Scalise, Jr., testified, the “eyes and ears” of management and the defendant’s “key man” and, therefore, was responsible for enforcing workplace rules and procedures. Santiago reported directly to the Scalises and never gave instructions contrary to the Scalises’ wishes.

The Scalises always encouraged the employees not to waste material. In the Scalises’ view, production would ideally run as closely to the end of the shift as possible, without the machines being shut down fifteen minutes before the end of the shift to clean out the material. Furthermore, the Scalises knew that the machines were not always turned off when the floormen, such as the plaintiff, cleaned out the hot material. As the night shift foreman, Santiago instructed floormen to remove hot material from the hopper while the machines were still operating and admonished the floormen that they were not allowed to remove the material from the machines with a vacuum cleaner. Santiago would also “yell” at the employees if he thought they were wasting material in the cleaning process.

In Jett v. Dunlap, 179 Conn. 215, 219, 425 A.2d 1263 (1979), this court stated that attribution of corporate responsibility predicated on the alter ego theory “is inappropriate where the actor is merely a foreman or supervisor.” Jett, however, does not, and never was *292intended to, adopt a bright line rule precluding attribution of corporate responsibility based solely on an employee’s title as foreman or supervisor. For example, a person whose position is designated as foreman may occupy a position of great authority within the corporate structure that would make him or her the alter ego of the corporation. On the other hand, the title foreman may be ascribed to a mere “straw boss.”

The proper inquiry should ascertain the specific responsibilities or level of authority that a particular employee may have within a business organization, without regard to his or her title. See Griffith v. Keystone Steel & Wire, 887 F. Sup. 1133, 1139-40 (C.D. Ill. 1995) (foremen were not defendant’s alter egos because they were only one of several layers of supervisory employees and had no direct influence on control or direction of defendant corporation). Nevertheless, I do not mean to suggest that an employer may be liable under a common-law tort action whenever an employee has intentionally injured a coemployee within the course of employment. Nor do I mean to suggest that the injured employee “would have only to show that the assailant was one notch higher on the totem-pole than the victim . . . .” (Internal quotation marks omitted.) Jett v. Dunlap, supra, 179 Conn. 218. Instead, the focus should be on whether an employee has such substantial responsibilities, authority or ownership interest to be deemed the employer’s alter ego.5

*293With these principles in mind, I conclude that the jury reasonably could have found that, under the facts of this case, the night shift foreman, Santiago, was in fact the defendant’s alter ego on the second shift when the Scalises were not present. Richard Scalise, Jr., testified that Santiago was vested with broad authority in terms of directing manufacturing operations, training employees, and adopting and enforcing workplace policies. Because the defendant historically had hired numerous Spanish-speaking employees, such as the plaintiff, the defendant relied on a limited number of bilingual foremen to communicate with those employees. Accordingly, the plaintiff received substantially all of his instructions from Santiago. Scalise also testified that the foremen were directly involved in hiring decisions and that the defendant often relied on the foremen’s recommendations in making such decisions. Furthermore, Scalise stated that the defendant traditionally had relied on the foremen to provide proper safety training and guidance to employees. Indeed, Scalise acknowledged that not only is the foreman a “key man” in management, but that during the night shift the foreman is, in fact, management.6

I would conclude that Santiago had such substantial control and authority to be deemed the defendant’s alter *294ego on the night shift on which the plaintiff worked. I would reverse the judgment of the trial court and remand the case for a new trial.

Accordingly, I dissent.

fail to follow the logic of the majority. The majority concedes in part I of its opinion that the answer to this second interrogatory “fairly could be read to inquire whether the defendant deliberately caused the plaintiff to injure himself in connection with the defendant’s policies with respect to cleaning the machines.” In other words, the majority concedes that the establishment and enforcement of a workplace policy that required the plaintiff to place himself at risk of injury constituted a basis for finding that the defendant actually intended to injure the plaintiff. On the other hand, in part III of its opinion with respect to the sufficiency of the evidence, the majority holds that proof of a workplace policy requiring the plaintiff to place himself at risk does not constitute an actual intent to injure the plaintiff. This inconsistency baffles me. If the policy requiring the plaintiff to clean the machines with his bare hands can satisfy the intent to injure requirement for part I of the majority opinion, I find it difficult to understand why proof of such a policy is insufficient as a matter of law to establish intent to injure, as the majority concludes in part III of its opinion.

See footnote 1 of this dissent.

In this respect, the majority cursorily dismisses my argument as “not jurisprudentially sound,” although it fails to recognize that it is well settled law, as I have pointed out, that a finding of a specific intent to injure necessarily implies a finding that the injury was substantially certain to result. Accordingly, the jury’s finding of actual intent to injure without a finding of substantial certainty is inconsistent.

Instead, the majority simply states that “we cannot endorse a revival of one theory of the case that has been specifically rejected by the jury solely because it contradicts another jury finding.” That, however, is exactly my point. As the Appellate Court stated in a case also cited by the majority: “The verdict forms, the interrogatories, the pleadings, and the jury’s responses cannot be reconciled. In a case such as the one before us, where the error is clear and is one which may well have been determinative, [the case] should be [re] considered in the interest of justice between the parties.” (Internal quotation marks omitted.) Calabro v. Calabro, supra, 33 Conn. App. 847.

See part II B of the majority opinion.

Justice Peters, in her concurrence, would have us believe that the defendant should be shielded from liability in this matter because the foreman, not the corporate defendant, intended to ipjure the plaintiff, even though Scalise, the owner, was aware of the practice that caused the plaintiffs injury- I disagree. The determination of whether the actor is the alter ego of the employer is dependent not only upon the formal title of the employee, but also upon the employee’s responsibilities and the surrounding circumstances. For example, a vice president of a large bank in which there may be 100 vice presidents would not necessarily be the alter ego of the bank. On the other hand, the vice president of a small family owned corporation, like the defendant in this case, could be the corporation’s alter ego.

*293Furthermore, Justice Peters relies on Saphir v. Neustadt, 177 Conn. 191, 209, 413 A.2d 843 (1979), and Zaist v. Olson, 154 Conn. 563, 574, 227 A.2d 552 (1967), cases involving the piercing of the corporate veil in order to create individual liability. Justice Peters is mixing apples with oranges. In this case, the question is not whether the corporate veil should be pierced, but, rather, whether the foreman’s actions in establishing workplace policies, and in enforcing those policies that caused the plaintiff’s ipjury, can be attributed to the defendant.

Moreover, it was reasonable for the jury to conclude in this case that the plaintiffs injury was attributed to the defendant. No one can dispute that the Scalises were the alter egos of the defendant. Santiago was merely following their policies, which, therefore, were the defendant’s policies. See Jett v. Dunlap, supra, 179 Conn. 219 (“[i]f the assailant can be identified as the alter ego of the corporation, or the corporation has directed or authorized the assault, then the corporation may be liable in common-law tort”).