Sorban v. Sterling Engineering Corp.9/16/2003
les in mind, we turn to the present case. The court stated that " ubstantial certainty is equivalent to inevitability and is certitude beyond even high probability." The plaintiff's argument focuses solely on the use of the term "inevitability." The plaintiff urges that this standard for substantial certainty should be rejected and requests that this court perform the "daunting" task of defining substantial certainty.
We note that neither this court nor our Supreme Court has definitively discussed what is meant by the substantial certainty test. We have stated that "the substantial certainty standard is a subset of the intentional tort exception." Ramos v. Branford, supra, 63 Conn. App. 679; A. Sevarino, Connecticut Workers' Compensation After Reforms (3d Ed. 2002) § 4.32.3, p. 528. To meet that standard, the employee must show that the employer's act in producing the injury was deliberate or intentional and that the resulting injury was substantially certain, from the employer's perspective, to occur. Ramos v. Branford, supra, 680. "Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer's standpoint, the common-law liability of the employer cannot . . . be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of a conscious and deliberate intent directed to the purpose of inflicting an injury. 6 A. Larson & L. Larson, Workmen's Compensation (1997) § 68.13, pp. 13-12 through 13-13. What is being tested is not the degree of gravity of the employer's conduct, but, rather, the narrow issue of intentional versus accidental conduct." (Emphasis added; internal quotation marks omitted.) Ramos v. Branford, supra, 680-81. Last, we note that our Supreme Court has stated that "a high risk or probability of harm is not equivalent to the substantial certainty without which an actor cannot be said to intend the harm in which his act results." (Internal quotation marks omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 101, 491 A.2d 368 (1985).
"Inevitable" is defined as " ncapable of being avoided . . . ." Black's Law Dictionary (6th Ed. 1990). "Certainty" is defined as the " bsence of doubt ... definite. The quality of being specific, accurate and distinct." Id. It would appear, therefore, that " inevitable" and "certainty" are equivalent terms. If the test were "actual certainty," or "virtual certainty," then the court's use of inevitability would be proper. The test, however, is not actual certainty, but rather substantial certainty.
Courts in other jurisdictions have endorsed the use of a substantial certainty standard as a less demanding standard than actual or virtual certainty. In Turner v. PCR, Inc., 754 So. 2d 683, 687 n.4 (Fla. 2000), for example, the court stated: "We recognize that some courts have elevated the standard . . . from 'substantial certainty' to 'virtual certainty.' . . . Although we continue to find that 'substantial certainty' requires a showing greater than 'gross negligence,' we emphasize that the appropriate standard is 'substantial certainty,' not the heightened 'virtual certainty' standard." (Citations omitted). See, e.g., Bazley v. Tortorich, 397 So. 2d 475, 482 (La. 1981); Laidlow v. Hariton Machinery Co., 170 N.J. 602, 613-14, 790 A.2d 884 (2002); Fyffe v. Jeno's, Inc., 59 Ohio St. 3d 115, 118, 570 N.E.2d 1108 (1991); Mandolidis v. Elkins Industries, Inc., 161 W. Va. 695, 246 S.E.2d 907 (1978), superseded by statute, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172, 175, 475 S.E.2d 172 (1996); but see Fryer v. Kranz, 616 N.W.2d 102, 106 (S
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