Lucenti v. Laviero (3 Concurrence)
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*********************************************** The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. *********************************************** LUCENTI v. LAVIERO—CONCURRENCE PALMER, J., concurring. I agree with and join the majority opinion. I write separately only to underscore the importance of the fact that the defendant Greg Laviero regularly operated the excavator that caused the injuries to the plaintiff, Dominick Lucenti. As the trial court, the Appellate Court and a majority of this court have explained, it is virtually impossible to fathom that Laviero would have operated the excavator on a regular basis if he was substantially certain that he would have been seriously injured from such operation. Indeed, there is nothing in the record to indicate that Laviero would have engaged in such intentionally selfdestructive behavior. Although Laviero’s own use of the excavator is not the only fact that leads me to conclude that the plaintiff cannot demonstrate a subjective belief by Laviero that an injury was substantially certain to result from the operation of the excavator, it is a consideration that distinguishes this case from virtually all other cases in which an employee has been able to surmount the exclusivity provision of the Workers’ Compensation Act, General Statutes § 31-275 et seq. Accordingly, I concur.
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