Opinion
No. CV04-0352014 S
November 4, 2004
MEMORANDUM OF DECISION UPON MOTION OF THE DEFENDANTS TO STRIKE ALL COUNTS OF COMPLAINT
The court grants both defendants' motions to strike counts one, two, three, four, five and seven sounding, respectively, in breach of contract, reimbursement under General Statutes § 22a-452, negligence, indemnification, strict liability and equitable relief. All but count six disappear because of provisions in the purchase contracts.
The case is a suit by the buyer of a filling station against two successive predecessor selling owners, regarding problems with soil contamination. In these contract-based counts, the defendants have invoked the contracts involving sale of the realty and the business, specifically, provisions involving environmental contamination problems.
While it may be generally so that consideration of a motion to strike restricts a court to the four corners of a complaint, this court has come to conclude that where the baffle may be centered in dueling provisions of sales contracts, and provisions are cited and quoted in the complaint, economy benefitting courts and parties is served where no one is compelled to await dismissal and/or summary judgment settings.
That procedural determination made, one notes that the parties do not seem much in disagreement that the "as is" nature of the sales require much more from plaintiff which, of course, is now anticipated (oral argument reveals) to be forthcoming via plaintiff "pleading over," alleging fraud. That is to say with these contracts in play, plaintiff appears to acknowledge they would bar the counts now being stricken.
As to counts five and six, it is not necessary to weigh procedural strike motion "irregularities" for these arguments by defendants fit the traditional "legal insufficiency" configuration so often seen in "strike" litigation.
The defendant argues that the plaintiff's tort claims are barred by expiration of the statute of limitations. The plaintiff argues that a motion to strike is not the proper means to assert expiration of the statute of limitations.
"[A] claim that an action is barred by . . . the statute of limitations must be pleaded as a special defense, not raised by a motion to strike . . ." There are two exceptions to that holding but they are not applicable here. "Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitations, would be permitted. If all of the facts pertinent to the statute of limitations are pleaded in the complaint and the parties agree that they are true, or if a statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted, a motion to strike would be allowed." Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996). Neither exception applies here.
Count five sounds in strict liability, alleging the storage of gasoline is an ultra-hazardous activity. In the absence of a broad statutory scheme providing strict liability for such storage, which is judicially noticeable to be vastly more common than the clearly ultra-hazardous activities of blasting and pile driving, there is obviously no recognized body of thought or consensus in our law that this is an ultra-hazardous activity. As a result, count five must be stricken.
"[The storage of gasoline in underground tanks] is a matter of common usage in both residential and commercial areas, due to the great value of having a gasoline fueling station near any area through which gasoline powered vehicles must travel." Goodrich v. Jennings, Superior Court, judicial district of Stamford/Norwalk, Docket No. CV 96 150074 (May 22, 1997, Mintz, J.) ( 19 Conn. L. Rptr. 542).
"[T]he doctrine of strict liability has traditionally been applied in cases involving blasting and explosives . . . Connecticut's sole extension beyond blasting cases is . . . pile driving." (Internal quotation marks omitted.) Blackburn v. Miller-Stephenson Chemical Company Inc., Superior Court, judicial district of Danbury, Docket No. 314089 (January 12, 1995, Stodolink, J.) ( 13 Conn. L. Rptr. 364).
Count six sounds in negligence per se, alleging that defendants violated General Statutes §§ 22a-427, 22a-430, and 22a-450 of the Water Pollution Control Act (WPCA). This court is persuaded that the superior court cases allowing a private cause of action are, in general terms, correct. In a relevant case, where the defendant contaminated land with gas and oil, violating a licensing-permit statute, it was held that: "If such a cause of action is appropriate to compensate the general public for the cost of cleanup that it would otherwise bear in the interest of public health and safety, a similar cause of action is appropriate to compensate a private or property-owning plaintiff for the acute damage and injury that, can result from unlicensed disposal." Bagley v. Controlled Environment Corp., 127 N.H. 556, 564, 503 A.2d 823 (1986) (Souter, J.) (Emphasis added).
See also Putnam v. County Environmental, Superior Court, judicial district of Stamford/Norwalk, Docket No. CV98 166445 (July 12, 2000, D'Andrea, J.) ( 27 Conn. L. Rptr. 684) (holding that plaintiffs properly pled a sustainable negligence per se cause of action pursuant to § 22a-452.); Accashian v. Danbury, Superior Court, complex litigation docket at Waterbury, Docket No. XO1 CV 97 0147228 (January 6, 1999, Hodgson, J.) ( 23 Conn. L. Rptr. 648); Walker v. Barrett, Superior Court, judicial district of Stamford/Norwalk, Docket No. CV 99 0169673 (November 8, 1999, D'Andrea, J.) ( 25 Conn. L. Rptr. 665); Mirarchi v. Jennings, Superior Court, judicial district of Stamford/Norwalk, Docket No. CV 96 152917 (May 22, 1997, Mintz, J.); Blackburn v. Miller-Stephenson Chemical Company, Inc., Superior Court, judicial district of Danbury, Docket No. 314089 (January 12, 1995, Stodolink, J) ( 13 Conn. L. Rptr. 364); Connecticut Light Power Co. v. Knight, Superior Court, judicial district of Windham at Putnam, Docket No. CV 87 033646 (June 16, 1988, Noren, J.); but see, Oink, Inc. v. Ann Street Limited Partnership, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 93 0532065 (October 18, 1994, Corradino, J.) ( 12 Conn. L. Rptr. 547).
Generally speaking, regarding Connecticut law, "[w]here a statute is designed to protect persons against injury, one who has, as a result of its violation, suffered such an injury as the statute was intended to guard against has a good ground of recovery." (Internal quotation marks omitted.) Gore v. People's Savings Bank, 35 Conn.App. 126, 130, 644 A.2d 945 (1994); (reversed on other grounds, 235 Conn. 360 (1995). A private cause of action is permissible when a party violates a provision of the WPCA, through the theory of negligence per se. Goodrich v. Jennings, Superior Court, judicial district of Stamford/Norwalk, Docket No. CV 96 150074 (May 22, 1997, Mintz, J.) ( 19 Conn. L. Rptr. 544).
Against this notion, it is suggested, however, that the plaintiff, a merchant of petroleum, is not the water-related "victim" sought to be protected via the scheme plaintiff invokes in its negligence per se count. It has been noted that ". . . the two-prong test for negligence per se: [is] (1) that the plaintiffs were within the class of persons protected by the statute; and (2) that the injury suffered is of the type that the statute was intended to prevent." Gore v. People's Savings Bank, 235 Conn. 360, 368-69 (1995). According to defendants' memorandum in support of their motion to strike, the plaintiffs have not plead that their claims meet these requirements.
The policy behind the WPCA is "[t]he proposition that water pollution is of statewide concern . . . [and] the pollution of the waters of the state is inimical to the public, health, safety and welfare of the inhabitants of the state . . ." (Internal quotation marks omitted.) Cyr v. Coventry, 216 Conn. 436, 440, 582 A.2d 452 (1990), quoting General Statutes § 22a-422.
This is superficially so, for as defendants note, plaintiff hardly complains about damage to its water. However, it might be anomalous to hold that this "victim" is not within the class of victims the statutory scheme envisions if, under it, this plaintiff was compelled by regulators to remediate for the harms of its predecessors. What sort of appropriate reading of the scheme would cast out of a plaintiff status one who was compelled to pay for the protection of those who are ostensibly specified victims.
This notion is raised because plaintiff alleges in its complaint that it was "forced to remove, repair, remediate, and account for the soil and water contaminated by the petroleum products." As long as there appears to be compulsion brought to bear by enforcers of the scheme plaintiff invokes, the court is unwilling to suggest plaintiff is not allowed a cause of action. The motion to strike count six is denied.
NADEAU, J.