Carolyn Beamer et al. v. O & G Industries, Inc. et al. (2013)

MEMORANDUM OF DECISION ON MOTIONS TO STRIKE (# # 109, 111, 192, 239, 242, 245 & 251)

This matter is before this court on the defendants' ¹ motions to strike ² counts one through forty of the plaintiffs' ³ January 27, 2012 amended complaint.⁴  The complaint alleges that, because of the negligence of the defendants, the plaintiffs' employment was terminated when the Middletown Power Plant exploded, causing the plaintiffs to suffer economic loss in the form of past and future lost wages.   Amended Complaint, Count One ¶ 19.

The defendants have moved to strike the plaintiffs' claims arguing that the economic loss doctrine bars such a claim and that the plaintiffs have failed to allege that the defendants owed them a duty of care.

Standard of Review

The standard for ruling on a motion to strike is well established.   A motion to strike tests the legal sufficiency of the complaint to state a claim upon which relief can be granted.  Himmelstein v. Town of Windsor, 304 Conn. 298, 307, 39 A.3d 1065 (2012).  “It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

Factual Allegations

The plaintiffs' amended complaint alleges the following facts.   The plaintiffs were all employed at a power plant located at 1349 River Road in Middletown, Connecticut. (the “Power Plant.”)   Amended Complaint ¶ 1.   On or about February 7, 2010, there was a gas explosion at the Power Plant.  Id. ¶ 2.   At all times herein mentioned, the defendants, acting through their servants, agents and/or employees were involved in the development, erection, fabrication, installation, start-up, completion, operation and/or supervision of activities surrounding the construction and start up of said Power Plant.  Id. ¶¶ 3–17.   Due to the negligence of the defendants, the plaintiffs' gainful employment was terminated, resulting in economic loss in the form of past and future wages.  Id.¶ 19.

Discussion

Accepting the allegations in the complaint as true and viewing them in the light most favorable to the plaintiffs, the question is, have the plaintiffs alleged sufficient facts to support a negligence cause of action against the defendants.

Many of the defendants argue that the plaintiffs' claims should be stricken under the economic loss doctrine.   Specifically, they argue that the “long established common law rule in [Connecticut] is that in the absence of privity of contract between the plaintiff and defendant, or of an injury to the plaintiff's person or property, a plaintiff may not recover in negligence for a purely economic loss.”  DeVillegas v. Quality Roofing, Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 92 0294190S (November 30, 1993, Freedman, J.) (10 Conn. L. Rptr. 487) (citing Conn. Mut. Life Ins. Co. v. N.Y & N.H. R.R. Co., 25 Conn. 265, 276–77 (1856).   The plaintiffs reply that, “first, Connecticut has yet to adopt the doctrine for causes of action other than breach of contract, second, there is no Appellate authority for the proposition the economic loss doctrine applies to tort cases outside of the Uniform Commercial Code (UCC) arena;  third, the majority of Superior Court cases hold that the economic loss doctrine does not apply in cases such as the one before this Court, as the Plaintiffs are not sophisticated commercial parties to contract;  and fourth, the Plaintiffs have pled sufficient facts to allege a substantial relationship between the parties and/or that a duty was owed to the Plaintiffs.”   Plaintiffs' Objection to the Defendants' Motions to Strike (# 248) p. 4.

The essential elements for a negligence cause of action are well-established:  duty, breach, causation and actual harm.   See Sic v. Nunan, 307 Conn. 399, 406, 54 A.3d 553 (2012).   The primary issue here is the existence of a duty.⁵  “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand ․ If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.”  (Internal quotation marks omitted.)  Id., 407.  “[T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.”  (Internal quotation mark omitted.)  Id., 407–08.

In the present action it is agreed that foreseability is not at issue.   Clearly, if the Power Plant is destroyed, it is foreseeable that the plaintiffs would not be able to work and, thus, would have no income.   Therefore, whether the claims ought to be stricken turns on whether recovery should be permitted as a matter of public policy.

In determining, on the basis of a public policy analysis, whether a defendant should be held accountable for its alleged negligent conduct in a particular situation, the Connecticut Supreme Court has set out a four-factor test:  “(1) the normal expectations of the participants in the activity under review;  (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants;  (3) the avoidance of increased litigation;  and (4) the decisions of other jurisdictions.”  Jarmie v. Troncale, 306 Conn. 578, 603, 50 A.3d 802 (2012).

The first factor to be considered is the normal expectations of the parties.   Here, the plaintiffs argue that, because the defendants worked alongside the plaintiffs at the Power Plant, they could and should expect to be liable should they destroy the Power Plant through their alleged negligence.   The defendants argue that they should not expect to be held liable because liability has not been found to exist in cases similar to that being brought by the plaintiffs here.   Specifically, the defendants argue that the prevailing law in Connecticut holds that a plaintiff may not recover for purely economic losses due to injury sustained from the alleged negligence of the defendant against a third party.   See RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 388, 650 A.2d 153 (1994) (Court held that the “economic harm to the plaintiff in the form of increased premiums and lost dividends is simply too remote to be chargeable to the defendant”);  DeVillegas v. Quality Roofing, Inc., supra, 10 Conn. L. Rptr. 487.

The court agrees with the defendants.   In fact, the factual and procedural posture of this case is very similar to DeVillegas v. Quality Roofing, Inc., supra, 10 Conn. L. Rptr. 487, which involved claims for lost overtime wages by the plaintiff, a corrections officer, against the defendant contractor.   The plaintiff alleged that, while performing roof repairs at the corrections facility where he worked, the defendant negligently caused the roof to catch fire, causing extensive damage.  Id., 488.   The plaintiff alleged that he lost overtime pay due to that fire.  Id. The defendant contractor moved to strike the claim on the grounds that, in the absence of any allegations of injury to the person or their property, purely economic damages, e.g., lost overtime pay, are not recoverable in a negligence claim.  Id. The DeVillegas court agreed, citing Conn. Mut. Life Ins. Co. v. N.Y. & N.H.R.R. Co., supra, 25 Conn. 276–77 for the proposition that the common-law rule in Connecticut is that the court will not permit recovery in negligence for purely economic losses in the absence of privity of contract between parties.  DeVillegas v. Quality Roofing, Inc., supra, 10 Conn. L. Rptr. 489.   In fact, expectations of liability in tort cases have traditionally been tied to physical harm to the person or property of another.   See generally 2 Harper, James and Gray on Torts (3d Ed.2008) § 6.10, p. 386, 392.

The second factor is largely inapplicable to this case.   Performing gas blows are presumably a necessary function for the proper operation of this type of power plant.   Thus, it is not an optional activity that requires a rule of law that encourages or discourages participation in said function.   In addition, the safety of the participants is not at issue as the plaintiffs do not claim any harm to their person or property.

The third factor, avoidance of increased litigation, strongly weighs in favor of striking the plaintiffs' claims.   Here, the plaintiffs were not physically harmed by the explosion of the Power Plant, but rather are claiming that the resulting destruction of the Power Plant prevented them from working, causing them to lose income.   Recognizing a duty owed under such circumstances would create new classes of plaintiffs, and greatly increase potential future litigation of similar claims.   If duty is extended as far as the plaintiffs here argue, claims could also be made by vendors who profit from the operation of the Power Plant, such as equipment suppliers/servicers or the restaurants where the workers eat or the gas stations where the workers fill their vehicles.   Without the requirement of physical harm to person or property, the potential class of plaintiffs who could assert purely economic harms is virtually limitless.

The fourth factor, decisions of other jurisdictions, also weighs strongly in favor of striking such a claim.  “[A]s a general rule ․ a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other [person] unknown to the doer of the wrong ․ The law does not spread its protection so far.”  Robbins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 309, 48 S.Ct 134 (1927).   See also, Local Joint Executive Board v. Stern, 651 P.2d 637 (Nev.1982) (hotel employees could not recover lost wages due to hotel fire allegedly caused by defendants' negligence in the design and construction of the hotel);  United Textile Workers v. Lear Siegler Seating Corp., 825 S.W.2d 83 (Tenn.App.1990) (employee of neighboring company could not recover lost wages due to gas leak allegedly caused by negligence of defendant factory owner);  Willis v. Georgia Northern Railway Co., 169 Ga.App. 743, 314 S.E.2d 919 (1984) (employees could not recover lost wages due to closure of plant which was allegedly caused by the negligence of defendant railway company).   In fact, the court is unaware of a single decision anywhere that has permitted employees to recover under a claim like the one asserted here.

Given all of the above, the court concludes that the defendants owed no legal duty to the plaintiffs.   This conclusion is consistent with our Supreme Court's holdings in RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 388, and Conn. Mut. Life Ins. Co. v. N.Y. & N.H.R.R. Co., supra, 25 Conn. 265, as well as the factually similar DeVillegas v. Quality Roofing, Inc., supra, 10 Conn. L. Rptr. 487.

As our Supreme Court has said, “[w]hile it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world.   Every injury has ramifying consequences, like the ripplings of the waters, without end.   The problem for the law is to limit the legal consequences of wrongs to a controllable degree ․ The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results.”   (Citations omitted;  internal quotation marks omitted.)  Ganim v. Smith & Wesson Corp., 258 Conn. 313, 349, 780 A.2d 98 (2001).   For more than 150 years the law in Connecticut, and elsewhere, has limited tort liability to cases involving physical harm to person or property.   Departing from this requirement would undermine reasonable expectations built on this long held understanding of the law, and would create an endless ripple of liabilities arising from the defendants' conduct.   Public policy is not served by so expanding the defendants' liability to purely economic claims such as those asserted by the plaintiff.

Conclusion

For the reasons stated above, the plaintiffs have failed to sufficiently allege that the defendants owed them a duty of care.   The defendants' motions to strike counts one through forty are granted.   In addition, for the reasons stated above, the Spectra defendants' motion to strike count forty-three is also granted.

Bright, J.

FOOTNOTES

FN1. The named defendants are:  O & G Industries, Inc., Kleen Energy Systems, LLC;  Blue Water Energy Solutions;  Power Plant Management Services, LLC;  Siemens Energy, Inc.;   Worley Parsons Group, Inc.;   Spectra Energy Operating Company, LLC;  Algonquin Gas Transmission, LLC, Spectra Energy Transmission, LLC;  and Spectra Energy Corp..  FN1. The named defendants are:  O & G Industries, Inc., Kleen Energy Systems, LLC;  Blue Water Energy Solutions;  Power Plant Management Services, LLC;  Siemens Energy, Inc.;   Worley Parsons Group, Inc.;   Spectra Energy Operating Company, LLC;  Algonquin Gas Transmission, LLC, Spectra Energy Transmission, LLC;  and Spectra Energy Corp.

FN2. Motions to strike # # 109 and 111 are directed to the original complaint, however, the allegations of the original complaint are the same as those in the amended complaint The amendment merely added additional plaintiffs..  FN2. Motions to strike # # 109 and 111 are directed to the original complaint, however, the allegations of the original complaint are the same as those in the amended complaint The amendment merely added additional plaintiffs.

FN3. The complaint brings identical claims for lost wages for all the plaintiffs.   Reference to the allegations of the plaintiffs' claims complaint will be made as to count one but applies equally to all the plaintiffs as count one is representative of all the plaintiffs' claims..  FN3. The complaint brings identical claims for lost wages for all the plaintiffs.   Reference to the allegations of the plaintiffs' claims complaint will be made as to count one but applies equally to all the plaintiffs as count one is representative of all the plaintiffs' claims.

FN4. In addition, Spectra Energy Operating Company, LLC, Algonquin Gas Transmission, LLC, Spectra Energy Transmission, LLC and Spectra Energy Corp (“Spectra defendants”), have moved to strike count forty-three.   That count alleges that plaintiff Brett Petroka's losses and damages were caused by the defendants engaging in an ultrahazardous activity.   Amended Complaint, Count Forty–Three, ¶ 21.   The Spectra defendants argue that plaintiff Petroka has failed to sufficiently plead facts to support his claim that the activity the defendants engaged in was ultrahazardous.   The Spectra defendants argue whether an activity is ultrahazardous is a question of law for the court to decide.   In making that determination, the court should consider the following factors “(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.”  (Citation omitted.)  Green v. Ensign–Bickford Co., 25 Conn.App. 479, 486, 595 A.2d 1383 (1991).   The Spectra defendants argue that the complaint fails to allege any facts pertaining to these factors and must, therefore, be stricken as a matter of law.   The court agrees.   Count forty-three is devoid of any factual allegations that would show that any of the factors discussed in Green v. Ensign–Bickford Co. exists here.   As such, the Spectra defendants' motion to strike count forty-three is granted..  FN4. In addition, Spectra Energy Operating Company, LLC, Algonquin Gas Transmission, LLC, Spectra Energy Transmission, LLC and Spectra Energy Corp (“Spectra defendants”), have moved to strike count forty-three.   That count alleges that plaintiff Brett Petroka's losses and damages were caused by the defendants engaging in an ultrahazardous activity.   Amended Complaint, Count Forty–Three, ¶ 21.   The Spectra defendants argue that plaintiff Petroka has failed to sufficiently plead facts to support his claim that the activity the defendants engaged in was ultrahazardous.   The Spectra defendants argue whether an activity is ultrahazardous is a question of law for the court to decide.   In making that determination, the court should consider the following factors “(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.”  (Citation omitted.)  Green v. Ensign–Bickford Co., 25 Conn.App. 479, 486, 595 A.2d 1383 (1991).   The Spectra defendants argue that the complaint fails to allege any facts pertaining to these factors and must, therefore, be stricken as a matter of law.   The court agrees.   Count forty-three is devoid of any factual allegations that would show that any of the factors discussed in Green v. Ensign–Bickford Co. exists here.   As such, the Spectra defendants' motion to strike count forty-three is granted.

FN5. The parties' extensive discussions of the economic loss doctrine unnecessarily complicate the issue.   That doctrine, as employed in tort cases to preclude a plaintiff's claim, is merely another way of saying that the defendant owed no duty to the plaintiff because the claimed loss “was a remote and indirect consequence of the misconduct of the defendants.”   Conn. Mutual Life Ins. Co. v. N.Y. & N.H.R.R. Co., supra, 25 Conn. 276–77;  see also DeVillegas v. Quality Roofing, Inc., supra, 10 Conn. L. Rptr. 489, and cases cited therein..  FN5. The parties' extensive discussions of the economic loss doctrine unnecessarily complicate the issue.   That doctrine, as employed in tort cases to preclude a plaintiff's claim, is merely another way of saying that the defendant owed no duty to the plaintiff because the claimed loss “was a remote and indirect consequence of the misconduct of the defendants.”   Conn. Mutual Life Ins. Co. v. N.Y. & N.H.R.R. Co., supra, 25 Conn. 276–77;  see also DeVillegas v. Quality Roofing, Inc., supra, 10 Conn. L. Rptr. 489, and cases cited therein.

Bright, William H., J.