Connecticut Supreme Court Connecticut Supreme Court (Courtesy photo)

A divided Connecticut Supreme Court has ruled a New Britain-based contractor is not liable for injuries suffered on the job by an excavator operator, affirming appellate and lower court rulings.

The ruling knocks down the plaintiff’s attempt to invoke the rarely used and difficult-to-prove substantial certainty doctrine, which imputes criminal intent when a party is determined to have had prior knowledge of a potential for injury.

Dominick Lucenti, 62, sued his employer Greg Laviero and Martin Laviero Contractors after suffering a back injury while operating an excavator in 2011. In February 2015, a New Britain Superior Court judge issued a summary judgment that was granted in favor of the company. The Connecticut Appellate Court affirmed that ruling on May 10, 2016.

Lucenti argued the company had failed to warn him and other employees of the risks associated with the excavator, which could only operate at full throttle. Lucenti was attempting to remove a catch basin from the ground when the excavator slipped and rocked violently, injuring his back.

For the majority, Justice Richard Robinson concluded, “In the absence of any evidence demonstrating the hallmarks typical of such employer misconduct, the plaintiff has failed to establish a genuine issue of material fact with respect to the defendant’s subjective beliefs.”

Avon attorney Edward Gasser, one of Lucenti’s two attorneys, said the decision hinged on testimony from the owner of the company, who noted he had operated the same excavator less than a week prior to the accident. “Ultimately, that was what the trial judge hung his hat on. We argued that just because the owner himself used the excavator does not mean you can’t have reckless employers willing to take risks. We argued that a jury should decide this, and the jury could decide whether he is the largest risk-taker in the world.”

Fazzano & Tomasiewicz Partner Patrick Tomasiewicz said the substantial certainty doctrine sets a high hurdle for plaintiffs. “You have to show intent to injure, which is very hard to do,” he said. “It’s for the narrowest of circumstances. Tomasiewicz agreed that the owner’s use of the same equipment swayed the justices.”

“You have the owner willing to drive the excavator, which completely flies in the face of any argument that the owner had an intent to injury anyone,” Tomasiewicz said, adding, “You would not expect an owner to drive an excavator if he could hurt himself. That was the killer fact in this case. if the owner had not driven the excavator, I believe the plaintiff would have had a good chance of winning.”

Leonard McDermott, a Naugatuck-based employment attorney, said workers compensation claims do not pay anything close to what a personal injury claim could pay, but that it is more difficult to prove intentional negligence.

Gasser acknowledged that filing and winning a lawsuit would have brought more money to his client than a typical workers’ compensation claim. “Recovery in a worker’s compensation claim is based on the wage rate plus the percentage of impairment. Obviously, that is not the case with a lawsuit,” he said.

Despite rulings in the defendant’s favor at the lower court and appellate levels, Gasser said he had been confident he could win on appeal to the high court. Tuesday’s decision now ends the matter. “Our intention is to close the file. I can’t imagine the court reconsidering the decision they just rendered. Our client has no further remedy.”

Chief Justice Chase Rogers and Justice Dennis Eveleigh dissented.

Rogers posited that “a jury could find that Laviero had used the excavator only briefly, that he was aware of, but indifferent to, the risk of injury and/or that there was some other explanation for his behavior that would be consistent with the knowledge that operating the excavator was substantially certain to result in injury.”

Gasser was seeking unspecified monetary damages for his client.

Gasser was assisted by attorney Gregory Potrepka, who is now an associate with Levi & Korsinsky.

The construction company was represented by Kathleen Adams and Peter Ponziani of Litchfield Cavo Attorneys at Law in Simsbury. Ponziani declined comment Tuesday. Adams did not respond to a request for comment.