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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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