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Workers' Compensation - Exceptions to Exclusivity Provision
Authored by: Justin R. Bengtson
Marisco v. Tree Wise Guys, LLC et al., Superior Court, Judicial District of New Haven, Docket No. NNH-CV-22-6122386-S (Nov. 14, 2022). The plaintiff, in the course of his employment, was working with a coworker and supervisor to cut down a tree. The plaintiff was operating a chainsaw at the direction of his supervisor, while the plaintiff’s coworker operated a pickup truck that was attached to the tree. The employer, supervisor and coworker were all named defendants. The supervisor was in charge of the operation; he ordered the coworker to drive the pickup truck away from the tree to pull the tree in the direction of the truck while the plaintiff was cutting a notch in the tree. When the truck pulled the tree, the tree kicked up and landed on the plaintiff’s foot, causing bodily injuries. The defendants moved to strike the plaintiff’s claims, arguing that the plaintiff’s exclusive remedy was through the Workers’ Compensation system. The plaintiff first argued that the defense of workers’ compensation exclusivity must be raised by way of special defense, therefore it was improper to consider on a motion to strike. The Court disagreed, citing the split of authority at the Superior Court level and lack of appellate authority regarding same. The plaintiff next argued that his claims were legally sufficient based on the intentional tort exception. The Court explained the extremely high threshold where intentional conduct can serve to circumvent the exclusivity provision on the Workers’ Compensation Act. In order to survive a motion to strike, the plaintiff needed to allege intentional conduct where the employer would be substantially certain that the employer’s act would cause the resultant harm. Here, the Court found that the plaintiff alleged that the defendants were negligent and careless in various ways, but that the complaint lacked facts that support intentional conduct on the part of the defendants and that only the most egregious examples of employer conduct will defeat workers’ compensation exclusivity. Plaintiff next argued that his claims were legally sufficient based on the fellow employee exception to the Workers’ Compensation Act. The fellow employee exception only allows an injured employee to bring a cause of action against his or her fellow employee if the plaintiff suffers injuries due to the fellow employee’s negligent operation of a motor vehicle. Here, the Court found that the plaintiff’s complaint alleged sufficient facts to sustain a cause of action again the coworker. The Court did not find the exclusion could apply to the supervisor. Further, the Court struck the claims against the employer, following precedent that rejected the plaintiff’s claim that vicarious liability of the employer could arise out of the plaintiff’s on-the-job injuries when a fellow employee was the tortfeasor.
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Discovery - Work Product Privilege
Authored by: Megan H. DeFrank
240 GA, LLC v. Greenwich Harbor View Ass’n, Inc., Superior Court, Judicial District of Stamford-Norwalk at Stamford, 2022 WL 17102225 (Nov. 17, 2022). The plaintiff brought an action seeking declaratory relief which would allow for certain uses of a unit within a condominium association. During the action, the plaintiff asserted claims of attorney-client privilege and work product privilege regarding numerous email correspondences between the plaintiff’s trial attorneys, and the plaintiff’s title insurers/real estate attorneys. The defendant argued that the correspondences which occurred 18 to 22 months prior to the commencement of the underlying action cannot be privileged pursuant to the work product doctrine because there was no pending or anticipated litigation at the time. Pursuant to the Connecticut Practice Book, there is no requirement that litigation be commenced within a fixed period of time for a communication to be deemed “in anticipation of” litigation. The Court found that while there may have been a long lead-up to litigation, it could not agree with the defendant’s characterization that “there was not even any anticipated litigation.” The defendant also attempted to draw a distinction between the plaintiff’s real estate attorneys and trial attorneys, alleging that only the plaintiff’s trial attorneys may assert claims of privilege regarding the underlying action. The plaintiff argued, and the Court agreed, that there is no identified or known basis for distinctions based on an attorney’s specialty with respect to claims of privilege. Lastly, the defendant claimed that correspondences involving third parties are not entitled to invoke the work product doctrine. The defendant argued that the plaintiff’s correspondences involving a third party, in this case title insurers who were also attorneys for the title insurance company, constituted voluntary disclosure or waiver of attorney-client and work product privilege. However, the Court found that the title insurance company can be claimed to have been acting in furtherance of preparation for litigation. Therefore, employees of the title insurance company would be encompassed by the privilege, particularly since the individuals in this case were attorneys working for the title insurance company.
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Premises Liability - Ongoing Storm Doctrine
Authored by: Lisa M. Gutierrez
Mallon v. Target Corp. et. al., Superior Court, Judicial District of New London at New London, 2022 WL 16947691 (Nov. 8, 2022). The plaintiff brought a negligence action against Target Corp., Target Stores, Inc., Kellermeyer Bergesons Services, LLC, and B & B Landscaping, LLC. The plaintiff claimed she slipped and fell on snow/ice and suffered injuries, while she was an invitee on the premises of Target. Specifically, the plaintiff alleged Target Corp., as owner of the premises, did not properly maintain a defective condition caused by snow and ice; Target Stores, Inc., as lessee of the premises, did not maintain control over the defective parking lot; Kellermeyer Bergesons Services, LLC, who was under contract with Target Corp. to provide snow and ice removal, disregarded its contractual duty to properly maintain the parking lot; and B & B Landscaping, LLC, who was under contract with the snow/ice contractor to provide snow and ice removal and sanding, failed to provide said services. The defendants moved for summary judgment on the grounds that there existed no genuine issue of material fact that there was an active ongoing storm in progress at the time of the plaintiff’s fall. The defendants relied on an expert meteorologist report, stating that that the storm was ongoing at the time of plaintiff’s fall (data of which was obtained from a location approximately 14 miles from the subject premises). The defendants also relied on the incident report prepared by Target, which noted that it was sleeting outside, and the lot was not sanded or salted. However, the meteorologist report and incident report relied on by defendants were inconsistent with the evidence presented from the plaintiff’s deposition testimony. Specifically, the plaintiff testified that she lived three minutes from Target, that the storm had passed earlier that day, and that she waited for it to be “fine” before she went out to Target. The Court held that the evidence submitted to the Court established the existence of a genuine issue of material fact, requiring a denial of the motion for summary judgment.
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