Opinion
No. CV06-5004882
May 16, 2007
MEMORANDUM OF DECISION
This action arises out of injuries and damages allegedly sustained by the McKnight, on June 25, 2004, as a result of an explosion of the compress gas switch he was dismantling into component parts. The plaintiff alleges that on that date, he worked as an independent contractor for the Regan Metal Corporation, and that the defendant, Electric Services, Inc., a manufacturer and wholesaler, had sold as scrap metal the compress gas switch to Regan Metal.
On July 7, 2006, the plaintiff filed a two-count complaint, and, subsequently, on October 23, 2006, a revised two-count complaint. In count one, he alleges a cause of action pursuant to the Connecticut Products Liability Act (act), General Statutes § 52-572m et seq., and in count two, a claim in negligence. The plaintiff also seeks punitive damages under General Statutes § 52-240b with respect to count one.
General Statutes 52-240b provides: "Punitive damages may be awarded if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product. If the trier of fact determines that punitive damages should be awarded, the court shall determine the amount of such damages not to exceed an amount equal to twice the damages awarded to the plaintiff."
On November 13, 2006, the defendant filed a motion to strike count two of the plaintiff's revised complaint on the ground that the exclusivity provision of the act, General Statutes § 52-572n(a), bars the plaintiff's common-law negligence claim. It also seeks to strike the plaintiff's prayer for punitive damages on the ground that count one lacks any allegation that the defendant acted in reckless disregard for the safety of the plaintiff. On December 28, 2006, the plaintiff filed a memorandum of law in opposition to the motion.
General statutes § 52-572n(a) provides: "A products liability claim as provided in sections 52-240a, 52-240b, 52-572m to 52-572q, inclusive, and 52-577a may be asserted and shall be in lieu of all other claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product."
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). "A motion to strike . . . requires no factual findings by the trial court." (Internal quotation marks omitted.) Nazami v. Patrons Mutual Ins. Co., 280 Conn. 619, 624, 910 A.2d 209 (2006). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "Practice Book . . . § 10-39, allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325, 709 A.2d 1089 (1998).
The defendant moves to strike count two on the ground that the plaintiff's common-law negligence claim is barred by § 52-572n(a), which provides the exclusive remedy for a product liability claim. The plaintiff concedes that, if the gas switch is a "product" under the meaning of § 52-572m, his common-law negligence claim is barred by § 52-572n(a). He notes, however, that § 52-572m does not provide any definition for "product" and it is not clear whether the present action falls within the scope of the act. Thus, he argues that, if the gas switch were held not to be a "product" for the purposes of the act, he has to bring this negligence claim as an alternative cause of action.
"Connecticut passed a comprehensive product liability act in 1979. See Public Acts 1979, No. 79-483, as amended by Public Acts 1979, No. 79-631. A principal purpose of the product liability statute [was] to protect people from harm caused by defective and hazardous products . . . Another important purpose of the act was to eliminate the complex pleading provided at common law . . ." (Citations omitted; internal quotation marks omitted.) Vitanza v. Upjohn Co., 257 Conn. 365, 380-81, 778 A.2d 829 (2001). The act "provides the exclusive remedy for a claim falling within its scope, thereby denying a claimant the option of bringing common law causes of action for the same claim." (Internal quotation marks omitted.) Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800, 756 A.2d 237 (2000).
The parties do not dispute that the gas switch in itself constitutes a product for the purposes of the act as it is marketed to the general public. The issue is whether a product sold to a scrap metal dealer for dismantling falls within the definition of "product" for the purposes of the act. The act does not define the term "product," Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987), and research revealed no Connecticut cases in which the court addressed this particular issue. "Connecticut has adopted the principles underlying § 402A" of the Restatement (Second) of Torts in applying the act, Vitanza v. Upjohn Co., supra, 257 Conn. 376, and this court looks for guidance to other jurisdictions that have also adopted § 402A.
Section § 402A of the Restatement (Second) of Torts provides: "(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."
Several jurisdictions have applied products liability law to the products that were sold for the purpose of dismantling or recycling. For example, in Kalik v. Allis-Chalmers Corp., 658 F.Sup. 631 (W.D. Pa. 1987), the plaintiffs, owners of a scrap metal business, set forth a products liability claim under § 402A against manufacturers and suppliers of "junk electrical components" containing polychlorinated biphenyls or terphenyls ("PCB"). The plaintiffs alleged that, during the course of dismantling the junk electrical components, PCB produced dioxins, which polluted the plaintiffs' site. Id., 634. In that case, the United States District Court for the Western District of Pennsylvania held that, as a matter of law, "the dismantling and processing of junk electrical components was not a reasonably foreseeable use of [the defendant's] product." Id., 635. Although this holding does not address the particular issue raised in the present case, it can be inferred from it that the products sold for the purpose of dismantling may constitute "products" to which products liability law is applicable.
In Kalumetals, Inc. v. Hitachi Magnetics Corp., 21 F.Sup.2d 510 (W.D. Pa. 1998), the plaintiff was hired by the defendant to dry a grinding swarf, which exploded causing damages to the plaintiff's property while the plaintiff was processing it in a drying furnace. In that case, the district court held that the defendant "placed the product in the stream of commerce for the purposes of section 402A" and that "[t]he use made of the swarf by plaintiffs' employees is at least arguably a public use — the `consuming public' to which [the defendant] marketed the swarf." Id., 516. This holding suggests that it is not required for a product to be marketed to the general public in order to constitute a "product" under § 402A and that the term "user or consumer" should be construed broadly to include those persons who purchase and use products for reprocessing or recycling.
Also, in Johnson v. Murph Metals, Inc., 562 F.Sup. 246 (N.D. Tex. 1983), the defendant, a manufacturer of automotive batteries, resold used batteries to the plaintiffs, employees of lead smelting companies, who recycled the lead in them. The plaintiffs claimed that they were exposed to harmful lead fumes during the lead smelting process and that the defendant was liable for the injuries and damages caused by the fumes under § 402A. In that case, the United States District Court for the Northern District of Texas found that the products at issue were the automotive batteries, not the lead, and held that it was "untenable to find that the creation of dangerous gases due to the smelting of scrap metal is a `use' of [the defendants] automotive batteries." Id., 249. The court further stated that, at the time of the injuries, the defendant's product "had ceased to exist" in that, in the recycling process, the batteries were first destroyed to extract the lead, which then was smelted. Id. The holding of this case suggests that the products sold for dismantling may constitute products for the purposes of the act until and while they are broken into separate parts although the separated parts themselves are not products any more.
In the present case, the plaintiff alleges that the defendant sold a compress gas switch as scrap metal, which suddenly exploded while the plaintiff was dismantling it into its component parts. A few cases in other jurisdictions provide instructive authority to determine, as a matter of law, that the gas switch constitutes a "product" for the purposes of the act notwithstanding that it was sold for the purpose of dismantling and the only potential consumers of the product were the employees in scrap metal industry. Accordingly, it is submitted that the gas switch is a product that falls within the purview of the act, and, because of the exclusivity provision of the act, the plaintiff's common-law negligence cause of action in count two should be stricken.
Next, the defendant argues that the plaintiff's request for punitive damages under § 52-240b should also be stricken because the allegations in count one are insufficient to demonstrate that the defendant acted in reckless disregard for the safety of the plaintiff or other users. In response, the plaintiff counters that he has alleged sufficient facts to show recklessness on the part of the defendant.
"General Statutes § 52-240b provides that punitive damages may be awarded in a products liability action if the claimant proves that the harm suffered was the result of the product seller's reckless disregard for the safety of product users, consumers or others who were injured by the product." (Internal quotation marks omitted.) Wagner v. Clark Equipment Co., 243 Conn. 168, 200, 700 A.2d 38 (1997). "To furnish a basis for recovery of punitive damages, the pleadings must allege and the evidence must show wanton or wilful malicious misconduct, and the language contained in the pleadings must be sufficiently explicit to inform the court and opposing counsel that such damages are being sought." Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 335, 852 A.2d 703 (2004). "[I]n order to state a cause of action under this statute, the plaintiff must allege, inter alia, that the [defendant was] aware of [the alleged] defects and willfully, wantonly and recklessly failed to eliminate the defects . . . [E]ven though evidence is presented that the defendant was aware of the general danger . . . the plaintiff must provide sufficient evidence to demonstrate that the defendant's conduct rose to the level of reckless conduct . . ." (Citation omitted; internal quotation marks omitted.) Angiolillo v. Stanwich Club, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 020191905 (January 23, 2004, D'Andrea, J.T.R.) ( 36 Conn. L. Rptr. 442, 443).
"As a general matter, [p]unitive damages, applying the rule in this state as to torts, are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." (Internal quotation marks omitted.) Dunn v. Peter L. Leepson, P.C., 79 Conn.App. 366, 371, 830 A.2d 325, cert denied, 266 Conn. 923, 835 A.2d 472 (2003). "One is guilty of reckless misconduct when knowing or having reason to know of facts which would lead a reasonable [person] to realize that the actor's conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result . . ." (Internal quotation marks omitted.) Craig v. Driscoll, 64 Conn.App. 699, 721, aff'd, 262 Conn. 312, 813 A.2d 1003 (2003). "[R]eckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 350 n. 11, 885 A.2d 734 (2005).
CONCLUSION
In the present case, in count one, the plaintiff alleges, inter alia, that the defendant's product was placed into the stream of commerce in a defective and "unreasonably dangerous" condition because it was sold in a "gas charged" condition and that the defendant failed to warn or instruct him that the product was subject to instantaneous explosion even though it was foreseeable that the plaintiff would be unaware of the risk. Although it can be inferred from these allegations that there was a high degree of danger that the gas switch might explode in the course of dismantling it, the plaintiff failed to show that the defendant wilfully, intentionally and wantonly failed to eliminate the dangerous condition. The plaintiff's claim that the defendant created an unreasonable risk mirrors ordinary negligence rather than recklessness or aggravated negligence. Accordingly, the court concludes that the plaintiff is not entitled to punitive damages under § 52-240b and, thus, the defendants' motion to strike the request for punitive damages is granted.