Jesse Knight v. Ernest Weise, Jr. (2010)

MEMORANDUM OF DECISION MOTION TO STRIKE No. 118

FACTS

On August 12, 2010, the plaintiff, Jesse Knight, filed a five-count revised complaint against the defendant, Ernest Weise, Jr., alleging the following facts.   On June 16, 2007, the plaintiff was a patron at the defendant's business, Ernie's Crane Service, in Preston, Connecticut seeking to have his tractor trailer truck power washed by the defendant's employee.   At the request of the defendant's employee, the plaintiff “climbed on the trailer mounted water tank to reset the high pressure water pump and fell off the trailer when he either stepped on a piece of copper piping that was being stored on said trailer or when he stepped on a piece of metal that broke off of the trailer.”   Count one of the revised complaint alleges negligence by the defendant on the ground that Ernie's Crane Service was dangerous and poorly managed, causing the plaintiff's injuries.   Count two alleges a products liability claim on the ground that the defendant's conduct in maintaining the water tank in a public area constituted a dangerous activity which exposed the plaintiff to an unreasonable risk of harm.   Count three alleges a claim for negligent training in that the plaintiff's injuries were caused by the defendant's failure to train his employee's properly in the safe operation of the water tank.   Count four alleges negligent hiring on the ground that the defendant failed to hire competent employees to manage the business properly and safely.   Finally, count five alleges that the defendant maintained, installed and/or assembled the water tank which contained a defective condition, rendering maintenance of the water tank an ultrahazardous activity.

On August 31, 2010, the defendant filed a motion to strike counts two, three, four and five of the revised complaint on the grounds that they are legally insufficient as a matter of law.   The motion is accompanied by a memorandum of law.   On September 2, 2010, the plaintiff filed a memorandum in opposition to the motion to strike.   The defendant filed a reply to the plaintiff's objection on September 3, 2010.   The plaintiff has no objection to striking count two of the complaint, so the court grants the defendant's motion with respect to count two without further discussion.   The remainder of this opinion will focus on counts three, four and five.

DISCUSSION

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   The court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  American Progressive Life & Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).  “A motion to strike admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Emphasis in original;  internal quotation marks omitted.)   Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997).  “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.

In the present case, the defendant argues that the plaintiff's negligent training claim is legally insufficient because the complaint fails to allege that the defendant knew or should have known of the employee's proclivity for engaging in tortious conduct.   Second, the defendant argues that the plaintiff's claim for negligent hiring is legally insufficient because the complaint does not allege that the defendant failed to select a fit and competent employee to perform the job.   Finally, the defendant seeks to strike the plaintiff's ultrahazardous activity claim because the complaint does not allege that the defendant partook in an ultrahazardous activity recognized by Connecticut law.

In response, the plaintiff argues that he has alleged sufficient facts establishing the necessary elements of each contested count to meet the threshold requirement of withstanding a motion to strike.

A. Negligent Training-Count Three

“It is unclear whether Connecticut law recognizes a claim for negligent training distinct from one for negligent supervision ․ As a result of this uncertainty, Superior Court decisions dealing with negligent training claims have applied the standard applicable to a claim for negligent supervision.”   (Citation omitted.)   Dumas v. Price Chopper, LLC, Superior Court, judicial district of Windham at Putnam, Docket No. CV 09 5004896 (March 31, 2010, Riley, J.).  “Under Connecticut law, an employer may be held liable for the negligent supervision of employees.”  Seguro v. Cummiskey, 82 Conn.App. 186, 191, 844 A.2d 224 (2004).  “A defendant does not owe a duty of care to protect a plaintiff from another employee's tortious acts unless the defendant knew or reasonably should have known of the employee's propensity to engage in that type of tortious conduct.”  Roberts v. Circuit-Wise, Inc., 142 F.Sup.2d 211, 214 (D.Conn.2001).  “Consistent with the Appellate Court's decision in Seguro [v. Cummiskey, supra, 82 Conn.App. 186], Superior Court decisions have required plaintiffs alleging negligent supervision to plead injury by an employee whom the defendant had a duty to supervise, failed to supervise and whom the defendant knew or should have known would cause the injury.”   (Internal quotation marks omitted.)  Dumas v. Price Chopper, LLC, supra, Superior Court, Docket No. CV 09 5004896.  “[J]udges of the Superior Court have granted motions to strike in cases where the pleadings in question fail to allege facts that the employer knew or should have known of the employee's propensity for tortious conduct.”   Pursuit Partners, LLC v. UBS AG, Superior Court, complex litigation docket at Stamford, Docket No. X05 CV 08 4013452 (July 8, 2009, Blawie, J.).

In the present case, the court finds that the plaintiff has failed to allege facts that support the element of foreseeability in his claim of negligent training.   The only fact alleged by the plaintiff to support the legal conclusion that the defendant failed to train its employees properly is that the “employees were required to manage the entire operation while [the defendant] spent significant time away from the business.”   That the employees were forced to operate the business without the defendant present is irrelevant to a claim for negligent training.   Nowhere in count three is it alleged or implied that the defendant knew or had reason to know of the employee's propensity for tortious conduct or that such conduct was foreseeable.   Accordingly, the court finds that the plaintiff's negligent training claim is insufficient as a matter of law, and the motion to strike with respect to count three is granted.

B. Negligent Hiring-Count Four

An employer will be liable in “any situation where a third party is injured by an employer's own negligence in failing to select an employee fit or competent to perform the services of employment.”  Shore v. Stonington, 187 Conn. 147, 155, 444 A.2d 1379 (1982).  “[I]n the context of negligent hiring, courts generally rule that an employer cannot be held liable for the conduct of its employees that injure a third party if the employer could not have foreseen that the employee would engage in such conduct.”  (Internal quotation marks omitted.)   Hearn v. Yale-New Haven Hospital, Superior Court, judicial district of New Haven, Docket No. CV 02 0466339 (April 2, 2007, Licari, J.).

“Ultimately, the elements for negligent supervision are nearly the same as those for negligent hiring, the only difference being at what point the defendants became aware of the actor's propensity for tortious conduct.”   Id. “Whether the claim is for negligent hiring, negligent supervision or negligent retention, a plaintiff must allege facts that support the element of foreseeability.”   Elbert v. Connecticut Yankee Council, Inc., Superior Court, judicial district of New Haven, Docket No. CV 01 0456879 (July 16, 2004, Arnold, J.).  “Our Superior Court has interpreted this foreseeability requirement as one in which the employer knew or should have known of the employee's propensity to engage in the alleged harmful conduct.”  (Internal quotation marks omitted.)   Bertocki v. Williams, Superior Court, judicial district of New London, Docket No. CV 09 6000929 (August 16, 2010, Devine, J.).

In the present case, the plaintiff alleges in count four that the defendant failed to hire competent employees properly because he hired an employee who had no specialized training or education.   Yet, the plaintiff does not allege that operating a water tank requires any specialized training or education, and thus it is not clear from these allegations that the defendant knew or should have known of the employee's propensity for tortious conduct at the time of the employee's hiring.   Therefore, the court finds that the plaintiff's claim for negligent hiring is insufficient as a matter of law and the defendant's motion to strike with respect to count four is granted.

C. Ultrahazardous Activity-Count Five

Count five of the revised complaint alleges a cause of action for strict liability stemming from an alleged ultra hazardous activity.   Connecticut's appellate courts have applied the doctrine of strict liability for engaging in ultrahazardous or abnormally dangerous activities sparingly.  “Under this doctrine, a plaintiff is not required to show that his loss was caused by the defendant's negligence.   It is sufficient to show only that the defendant engaged in an ultrahazardous activity ․” Green v. Ensign-Bickford Co., 25 Conn.App. 479, 482, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991).   The few activities which have been classified as abnormally dangerous are pile driving, Caporale v. C.W. Blakeslee & Sons, Inc., 149 Conn. 79, 86, 175 A.2d 561 (1961);  blasting, Whitman Hotel Corp. v. Elliott & Watrous Engineering Co., 137 Conn. 562, 570, 79 A.2d 591 (1951);  Worth v. Dunn, 98 Conn. 51, 118 A. 467 (1922);  and conducting research with highly volatile chemicals in a residential neighborhood, Green v. Ensign-Bickford Co., supra, 25 Conn.App. 487.  “The factors for a court to consider in determining whether an activity is abnormally dangerous are listed in § 520 of the Restatement as:  (a) existence of a high degree of risk of some harm to the person, land or chattels of others;  (b) likelihood that the harm that results from it will be great;  (c) inability to eliminate the risk by the exercise of reasonable care;  (d) extent to which the activity is not a matter of common usage;  (e) inappropriateness of the activity to the place where it is carried on;  and (f) extent to which its value to the community is outweighed by its dangerous attributes.”  (Internal quotation marks omitted.)  Green v. Ensign-Bickford Co., supra, 25 Conn.App. 486.

Construing the allegations in the complaint even in the light most favorable to sustaining its legal sufficiency, the activity that gave rise to the alleged injury in this action cannot be classified as an ultrahazardous activity.   None of the six factors that courts have considered in defining an ultrahazardous activity apply to power washing and the operation of a high pressure water pump.   Further, this court follows our appellate courts' policy of cautiously and narrowly prescribing bases for strict liability and will not extend the definition of an ultrahazardous activity to include commercial power washing.   The defendant's motion to strike with respect to count five is granted.

CONCLUSION

For the foregoing reasons, the defendant's motion to strike counts two, three, four and five is granted in its entirety.

Martin, J.

Martin, Robert A., J.