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Sorban v. Sterling Engineering Corp.9/16/2003
.D. 2000) ("' ubstantial certainty should be equated with virtual certainty' "); Birklid v. Boeing Co., 127 Wash. 2d 853, 860, 904 P.2d 278 (1995) (substantial certainty insufficient to show deliberate intention); Fenner v. Municipality of Anchorage, 53 P.3d 573, 576-77 (Alaska 2002) (stating that court has not adopted substantial certainty test).
The Supreme Court of Louisiana set forth the following definition of the substantial certainty test, which we find persuasive: "The traditional definition is simply a way of relieving the claimant of the difficulty of trying to establish subjective state of mind (desiring the consequences) if he can show substantial certainty that the consequences will follow the act. The latter takes the cases out of the realm of possibility of risk (which are negligence terms), and expresses the concept that an actor with such a certainty cannot be believed if he denies that he knew the consequences would follow. In human experience, we know that specific consequences are substantially certain to follow some acts." (Emphasis in original; internal quotation marks omitted.) Reeves v. Structural Preservation Systems, 731 So. 2d 208, 212 (La. 1999). The North Carolina Court of Appeals defined substantial certainty as "more than a possibility or substantial probability of a serious injury but is less than actual certainty." (Emphasis added; internal quotation marks omitted.) Wiggins v. Pelikan, Inc., 132 N.C. App. 752, 755-56, 513 S.E.2d 829 (1999); see also 1 Restatement (Second), Torts ยง 8A (1965).
In Wiggins, the court also established various factors to assist in the determination of whether the substantial certainty test was satisfied. Those factors are " hether the risk that caused the harm existed for a long period of time without causing injury . . . . Whether the risk was created by a defective instrumentality with a high probability of causing the harm at issue.... Whether there was evidence the employer, prior to the accident, attempted to remedy the risk that caused the harm.... Whether the employer's conduct which created the risk violated state or federal work safety regulations.... Whether the ... employer created a risk by failing to adhere to an industry practice, even though there was no violation of a state or federal safety regulation hether the . . . employer offered training in the safe behavior appropriate in the context of the risk causing the harm." (Citations omitted.) Wiggins v. Pelikan, Inc., supra, 132 N.C. App. 756-58. Those factors may provide guidance and serve to assist courts in the future that must address the issue. We agree that this list is not exclusive and that not every factor will be applicable in all factual situations. Furthermore, " o one factor is determinative in evaluating whether [an employee] has stated a valid ... claim; rather, all of the facts taken together must be considered." (Internal quotation marks omitted.) Id., 756.
In summary, we conclude that to satisfy the substantial certainty test, the employee must show that a reasonable person in the position of the employer would have known that the injury or death suffered by the employee was substantially certain to follow from the employer's actions. Substantial certainty means more than substantial probability, but does not mean actual or virtual certainty, or inevitability. Substantial certainty exists when the employer cannot be believed if it denies that it knew the consequences were certain to follow. We also stress, consistent with our prior holdings and those of our Supreme Court, that this exception to the exclusivity provision of the act is strictly construed. See, e.g., Ramos v. Branford, supra, 63 Conn. App. 679, citing Gulden v. Crown Zellerbac
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