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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