Robert Lawrence et al. v. O & G Industries, Inc. et al. (2013)

MEMORANDUM OF DECISION ON MOTIONS TO STRIKE (# # 105, 164, 166, 169, 172, 174 & 181)

This matter is before this court on the defendants' ¹ motions to strike ² counts five through twelve of the plaintiffs' ³ January 26, 2012 amended complaint.   In counts five, seven, nine and eleven of the amended complaint, the plaintiffs allege 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 Five. In counts six, eight, ten and twelve, the plaintiffs allege that the defendants engaged in an ultra-hazardous activity which caused the plaintiff's losses.

The defendants have moved to strike the plaintiffs' claims arguing that the economic loss doctrine bars such claims and that the plaintiffs have failed to allege that the defendants owed them a duty of care.   The defendants ⁴ further allege that the plaintiffs' complaint fails to state a claim for strict liability because it fails to allege sufficient facts that a non-negligently performed gas blow constitutes an ultra-hazardous activity, nor have the plaintiffs alleged that the defendants participated in said ultra-hazardous activity.

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 employed at a power plant located at 1349 River Road in Middletown, Connecticut (the “Power Plant”).   Amended Complaint, Count Five, ¶ 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.   Amended Complaint, Count One, ¶¶ 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.   Amended Complaint, Count Five, ¶ 19.   In addition, the plaintiffs also allege that the injuries, losses and damages suffered by them were caused by the defendants engaging in an ultra-hazardous activity.   Amended Complaint, Count Six, ¶ 20.

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 in counts five, seven, nine and eleven or a strict liability cause of action in counts six, eight, ten and twelve.

For the reasons stated in the court's July 10, 2013 memorandum of decision (# 266) on the motions to strike in the companion case of Beamer v. O & G, Inc., X04 HHD CV 11 6034685S, the court finds that the plaintiffs have failed to sufficiently allege in their negligence claims that the defendants owed them a duty of care.   Therefore, the motions to strike as to counts five, seven, nine and eleven are granted.

With respect to counts six, eight, ten and twelve, “the doctrine of strict liability for ultra-hazardous activities ․ provides in pertinent part:  (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm ․ [L]iability ․ is not based on any intent of the defendant to do harm to the plaintiff, rather, it arises out of the abnormal danger of the activity itself, and the risk that it creates of harm to those in the vicinity.   It is founded upon a policy of law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against the harm when it does in fact occur.”  (Citations omitted;  internal quotation marks omitted.)  Green v. Ensign–Bickford Co., 25 Conn.App. 479, 485–86, 595 A.2d 1383 (1991).   Certain defendants claim that the plaintiffs have failed to sufficiently allege the elements necessary to support a claim for strict liability for an ultra-hazardous activity.   Specifically, those defendants claim that the complaint fails to sufficiently allege that gas blows are an ultra-hazardous activity and that they participated in such an activity.   In addition, the defendants rely on the same lack of duty argument addressed to the plaintiffs' negligence claims.   The court concludes that the issue of duty, or lack thereof, is dispositive.

Just as the court conducts a public policy analysis in the context of determining if a duty is owed in a negligence cause of action, the Connecticut Supreme Court in Whitman Hotel v. Elliot & Watrous Eng. Co., 137 Conn. 562, 568–69, 79 A.2d 591 (1951), also conducted a public policy analysis to find the defendant strictly liable for an ultra-hazardous activity, dynamite blasting.   In Whitman Hotel, the plaintiff brought suit against the defendant for damage to the water and heating pipes, cracks in the plaster and a split in a terrazzo floor at its hotel.   The plaintiff alleged that all the damage was caused by the nearby blasting operations of the defendant.   The defendant argued that, even under the ultra-hazardous activity analysis, the court must still find that a defendant failed to use reasonable care to hold it liable.   The Court disagreed.   It framed the issue as one of public policy considerations.   The Court found that there was a split of authority among various jurisdictions on the question of whether a defendant should be held liable for damage caused by concussion of the atmosphere or vibration of the earth as compared to being held liable only for harm caused by flying debris from the explosion of dynamite.   The Court found that the majority of jurisdictions that considered this issue held that there should be no distinction from damage caused by concussion or vibration as opposed to flying debris.   It found unpersuasive the minority position that holding a defendant liable for damage caused by concussion or vibrations would violate public policy because doing so would operate as a deterrent to improvement and development of property.   It reasoned that the same deterrent effect of holding a party liable for damage caused by concussion or vibration would apply equally to holding a party liable for flying debris.   Thus, if public policy requires the law to compensate a party for damage done by flying debris, irrespective of the chilling effect such liability might have on improvement and development of property, then it ought to make no difference if the damage is caused by concussion or vibrations as opposed to flying debris.

Nevertheless, the Court's language made clear that the duty arose where there was damage or injury to persons or property.  “[T]o make out a case of intrinsically dangerous operation upon which absolute liability may be predicated, it is essential that it appear that the dynamite was discharged under such circumstances that it, in fact, necessarily or obviously exposed the person or property of another to the danger of probable injury.”  Whitman Hotel v. Elliot & Watrous Eng Co., supra, 137 Conn. 566.

Thus, the same public policy considerations that the court found persuasive in concluding that the defendants owed no duty to the plaintiffs under the facts as alleged in the negligence claims also lead it to conclude that the plaintiffs have failed to allege sufficient facts that would create a duty in their ultra-hazardous activity claims.   To find the defendants strictly liable to the plaintiffs under the facts as alleged here would greatly increase potential future litigation of similar claims.   Even in the context of abnormally dangerous activities performed by a party, the court still must set some reasonable limits on the legal consequences for said activity.   As such, the motions to strike counts six, eight, ten and twelve are granted.

Conclusion

For the reasons stated above, the defendants' motions to strike counts five through twelve are 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. Motion to strike # 105 is 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. Motion to strike # 105 is 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 the following plaintiffs:  Dean Novak;  Carlton Pruitt;  Daniel Rogers;  Malissa Valentin.   Reference to the “plaintiffs” in the decision shall only be to the above named plaintiffs.   Reference to allegations of the complaint will be made as to counts five and six but applies equally to all the plaintiffs as counts five and six are representative of all the plaintiffs' claims..  FN3. The complaint brings identical claims for lost wages for the following plaintiffs:  Dean Novak;  Carlton Pruitt;  Daniel Rogers;  Malissa Valentin.   Reference to the “plaintiffs” in the decision shall only be to the above named plaintiffs.   Reference to allegations of the complaint will be made as to counts five and six but applies equally to all the plaintiffs as counts five and six are representative of all the plaintiffs' claims.

FN4. Only Spectra Energy Operating Company, LLC, Algonquin Gas Transmission, LLC, Spectra Energy Transmission, LLC, Spectra Energy Corp. and Bluewater Energy Solutions, Inc.'s motions to strike contained a separate argument for striking counts six, eight, ten and twelve based upon failure to adequately state a claim for strict liability.   All other defendants' motions sought to strike counts five through twelve on the same basis..  FN4. Only Spectra Energy Operating Company, LLC, Algonquin Gas Transmission, LLC, Spectra Energy Transmission, LLC, Spectra Energy Corp. and Bluewater Energy Solutions, Inc.'s motions to strike contained a separate argument for striking counts six, eight, ten and twelve based upon failure to adequately state a claim for strict liability.   All other defendants' motions sought to strike counts five through twelve on the same basis.

Bright, William H., J.