Conn. Civ. Jury Instr. 3.14-8

The plaintiff <name> claims that the defendant <name> is responsible for the injuries suffered

by (him/her) on <insert date> in one or more of the following ways: <insert allegations>.

The law you must apply to the plaintiff's claims is as follows: When an employee is injured at

work (his/her) exclusive remedy is a workers’ compensation claim. The Connecticut Workers’

Compensation Act states in relevant part: “An employer who complies with the [Act] shall not

be liable for any action for damages on account of personal injury sustained by an employee

arising out of and in the course of his employment . . . .” This means that an employer cannot be

subject to a civil action for damages related to injuries occurring to its employees while on the

job. However, there are some exceptions to this general rule. An exception to this general rule

of exclusivity exists when a plaintiff employee can establish an intentional tort claim by

demonstrating that (his/her) employer either:

1. actually intended to injure the employee - this is called the actual intent

standard; or

2. when the employer intentionally creates a dangerous condition that the

employer actually believed would make the employee’s injuries substantially

certain to occur - this is called the substantial certainty standard.

Anything short of genuine intentional injury sustained by the employee and caused by the

employer is compensable under the Workers’ Compensation Act. The exception does not

include accidental injuries caused by gross, wanton, wilful, deliberate, intentional, reckless,

culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of

genuine intentional injury. Intent refers to the consequences of an act and denotes that the actor

desires to cause the consequences of (his/her) act, or that (he/she) believes that the consequences

are substantially certain to follow from it. A result is intended if the act is done for the purpose

of accomplishing such a result or with knowledge that to a substantial certainty such a result will

ensue. An intended or wilful injury does not necessarily involve the ill will or malevolence

shown in express malice, but it is insufficient to constitute such an intended injury that the act

was the voluntary action of the person involved. Both the action producing the injury and the

resulting injury must be intentional. The characteristic element is the design to injure either

actually entertained or to be implied from the conduct and circumstances. The actual intent

standard requires that the plaintiff demonstrate that the defendant deliberately caused (him/her)

to injure (himself/herself) by <insert alleged conduct>. The substantial certainty standard

requires that the plaintiff demonstrate that the defendant knew that the injury suffered by the

plaintiff was substantially certain to follow from the defendant’s actions. Substantial certainty

means more than substantial probability, but does not mean actual or virtual certainty, or

inevitability. Substantial certainty exists when the defendant cannot be believed if it denies that

(he/she) knew the consequences were certain to follow. To satisfy the substantial certainty

standard, the plaintiff must show more than that the defendant exhibited a lackadaisical or even

cavalier attitude toward worker safety.

Therefore, to escape the exclusivity of the Workers’ Compensation Act, the victim of an

intentional injury must prevail 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.

Even if you find that the conduct of which the plaintiff complains was intentional, as I have just

described that to you, in order to hold the defendant liable, the plaintiff must also prove by a

prepsonderance of the evidence that the alleged intentional misconduct was committed by

someone who can be identified as the alter ego of the company or that the act was committed at

the direction of the company.

The law in this area is that where a worker’s personal injury is covered by the Workers’

Compensation Act, statutory compensation is the sole remedy and recovery in common law tort

against the employer is barred and this well established principal is not eroded when the plaintiff

alleges an intentional tort by (his/her) supervisor. Thus it is not enough for a supervisory

employee to have committed the alleged intentional act. The correct distinction to be drawn is

between a supervisory employee and a person who can be characterized as the alter ego of the

corporation. If the person who committed the intentional tort is of such rank in the corporation

that (he/she) may be deemed the alter ego of the corporation under the standards governing

disregard of the corporate entity, then attribution of corporate responsibility for the actor’s

conduct is appropriate. It is inappropriate where the actor is merely a foreman or supervisor.

The distinction is based on identification, not agency. If the actor can be identified as the alter

ego of the corporation, or the corporation has directed or authorized the assault, then the

corporation may be liable in common-law tort; if the actor is only another employee who cannot

be so identified, then the strict liability remedies provided by the Workers’ Compensation Act

are exclusive and cannot be supplemented with common-law damages. The distinction between

a supervisor or other employee and the corporation for whom (he/she) works will be disregarded,

and they will be treated as one, when a corporation is a mere instrumentality or agent of the

individual actor who is of such a rank that (he/she) may be deemed the alter ego of the

corporation. There must be such domination of finances, policies and practices that the

controlled corporation has, so to speak, no separate mind, will or existence of its own and is but a

business conduit for the individual principal.

In other words, unless the plaintiff can demonstrate that the employee who allegedly committed

the intentional misconduct could be considered the alter ego of the corporation, that is, one and

the same, or that upper management employees somehow directed the supervisory employee to

commit the alleged intentional misconduct causing the plaintiff to sustain injury, then the

plaintiff cannot prevail and you should find in favor of the defendant in this case.