## Facts

- Dominick Lucenti, an employee of Martin Laviero Contractors, Inc., was injured on October 28, 2011, while operating an excavator to remove a catch basin.
- The excavator had been modified to operate only at full throttle, causing jerky and difficult-to-control movement.
- While Lucenti attempted to pull the catch basin from the ground, the excavator slipped and swung, injuring him.
- A former employee stated that the excavator had malfunctioned and that Greg Laviero directed a mechanic to modify it to run only at full throttle.
- The former employee allegedly warned Laviero that the modified excavator was too dangerous and that someone would get hurt.
- Lucenti claimed he told Laviero the excavator was jerky and dangerous, and that Laviero acknowledged the danger but declined to repair it because he planned to sell the machine.
- There was evidence that Laviero personally operated the same excavator both before and after Lucenti’s injury.

## Issues

1. Whether the evidence created a genuine issue of material fact that the employer subjectively believed Lucenti’s injury was substantially certain to occur, bringing the claim within the narrow intentional-tort exception to workers’ compensation exclusivity.

## Decision

- The Connecticut Supreme Court affirmed summary judgment for the defendants.
- The court held the Workers’ Compensation Act’s exclusivity provision barred the action because the evidence did not permit a reasonable inference that the employer subjectively believed injury was substantially certain.
- The court concluded that warnings and continued use of dangerous equipment showed, at most, serious risk awareness and reckless conduct, not the near-deliberate intent required for the substantial-certainty exception.
- The court relied in part on evidence that Laviero used the excavator himself, which strongly undercut an inference that he believed injury was virtually inevitable.

## Legal Principles

- Workers’ compensation provides the exclusive remedy for workplace injuries unless the employee proves an intentional tort by the employer.
- The “substantial certainty” exception requires proof that the employer subjectively believed the dangerous condition made employee injury substantially certain to occur; a high degree of risk, gross negligence, or recklessness is insufficient.
- Courts assess whether evidence reflects employer conduct functionally equivalent to intentional wrongdoing; the exception is narrowly confined to egregious cases.
- On summary judgment, even with inferences drawn for the nonmovant, the claim fails if the evidence cannot support a finding of the employer’s requisite subjective belief of substantial certainty.

## Conclusion

The court held that, despite evidence the excavator was dangerously modified and that warnings were given, the record did not support a finding that the employer subjectively believed injury was substantially certain; therefore, workers’ compensation exclusivity barred the employee’s tort action and summary judgment was proper.


Lucenti v. Laviero, 176 A.3d 1 (Conn. 2018)