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SUAREZ v. DICKMONT PLASTICS CORPORATION2/18/1997
tional. Rogers v. Doody, 119 Conn. 532, 534, 178 A. 51 (1935). characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances. Sharkey v. Skilton, 83 Conn. 503, 507-508,
77 A. 950 (1910)." (Emphasis added; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 108-109. Therefore, to escape the exclusivity of the act, the victim of an intentional injury must rely on the intended tort theory or the substantial certainty theory. Under the former, the actor must have intended both the act itself and the injurious consequences of the act. Under the latter, the actor must have intended the act and have known that the injury was substantially certain to occur from the act.
In the present case, viewing the evidence in a light most favorable to the plaintiff; Mather v. Griffin Hospital, supra, 207 Conn. 130; the most that can be stated about Santiago's intent is that when he required the plaintiff to clean the machines while they were still in a production cycle and threatened the plaintiff with termination if he disregarded the directive, Santiago intended for the defendant to save money and that the plaintiff's injury was substantially certain to follow from Santiago's conduct. Santiago's actions may indeed have been taken with the knowledge that to a substantial certainty the plaintiff's injury would ensue, but the evidence does not support the inference that they were done for the express purpose of accomplishing such a result. 1 F. Harper, F. James & O. Gray, Torts (3d Ed. 1996) ยง 3.3, p. 3:9. Substantial certainty centers on whether the employer believed the injury was substantially certain to follow the employer's acts or conduct, but when substantial certainty is no longer in the case,
" o bypass the exclusivity of the act, the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted." (Emphasis added.) Mingachos v. CBS, Inc., supra, 196 Conn. 102.
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 Plastic 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 plaintiff's 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
Santiago's rank on the corporate ladder. Indeed, Santiago was not only the defendant's key man, but the jury reasonably could have found 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
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