Opinion
No. CV 07-5012441-S
June 4, 2008
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO STRIKE
On August 9, 2007, the plaintiff, Travelers Indemnity Company of America, commenced this action by service of process against the defendants, Connecticut Light and Power and Northeast Utilities Service Company. The plaintiff filed a two-count complaint. In count one plaintiff alleges negligence and in count two a violation of the Connecticut Product Liability Act, (CPLA).
Connecticut Light and Power is a subsidiary of Northeast Utilities Service Company. The companies will hereinafter be referred to collectively as the defendants.
Linda Murphy and Michael Murphy (insureds) were the owners of a home in Bristol, Connecticut and were customers of the defendants. A handhole/vault which contained the defendants' underground electrical distribution system was located on the insureds' property. In this distribution system was a secondary connector block, which the defendants were obligated to maintain. During the week prior to September 16, 2005, the insureds reported problems with voltage variations in their home to the defendants. The defendants performed tests and identified a defective neutral connection within the vault and cited it as the source of the voltage fluctuations within the home. The defendants allegedly told the insureds that the problem had been fixed. After the repairs were made, however, the insureds' home was damaged by a fire, allegedly caused by the same voltage fluctuations. The plaintiff, who is the insurer of the home, has paid and may continue to pay the insureds for the loss of the use of the real and personal property that was damaged by the fire.
On January 28, 2008, the defendants filed a motion to strike count two of the plaintiff's complaint on the grounds that: (1) Electricity is not a product within the meaning of the Connecticut product liability act; and (2) count two violates the exclusive remedy provision of General Statutes § 52-572n(a). The defendants have submitted a memorandum of law in support of the motion. On February 21, 2008, the plaintiff filed a memorandum of law in opposition.
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." Batte-Holmgren v. Commissioner Of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (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).
In its memorandum of law in support of the motion to strike, the defendant argues that electricity is not a product under Connecticut's products liability act (CPLA) General Statutes § 52-572m, et seq. Rather, the defendants argue that electricity is a service. The plaintiff counters that the defendants are product sellers of electricity under the CPLA.
The CPLA governs "product liability claims," which are defined as "all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product." General Statutes § 52-572m(b). "Product seller" is defined as "any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption." General Statutes § 52-572m(a).
"The doctrine of strict liability in tort is concerned with the character of the product injected into the stream of commerce, not with the specific conduct of the defendant." (Internal quotation marks omitted.) Lang v. Brom Builders, Inc., Superior Court, judicial district of New Haven, Docket No. CV 95 0369766 (February 3, 1998, Hartmere, J.) [ 21 Conn. L. Rptr. 225], quoting Wagner v. Clark Equipment Co., 243 Conn. 168, 195, 700 A.2d 38 (1997). "To maintain a product liability action under § 52-572m et seq., the plaintiff must establish and prove, inter alia, that . . . the defendant was engaged in the business of selling the product . . . [and] the defect existed at the time of the sale . . . Once a particular transaction is labeled a service, as opposed to a sale of a product, it is outside the purview of our product liability statute." (Citations omitted; internal quotation marks omitted.) Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, CT Page 9128 528 A.2d 805 (1987).
There is a split among the judges of the Superior Court as to whether electricity can be classified as a product for the purpose of the CPLA. The plaintiff cites Carbone v. Connecticut Light and Power Co., 40 Conn.Sup. 120, 482 A.2d 722 (1984), and the analysis in the Restatement (Third) of Torts § 19 to substantiate its position that electricity may be considered a product after it has passed through the meter of the consumer.
The Restatement (Third of Torts § 19 states: "The second major category of intangible, harm-causing products involves the transmission of intangible forces such as electricity . . . With respect to transmission of electricity, a majority of courts have held that electricity becomes a product only when it passes through the customer's meter and enters the customer's premises. Until then, the system of high voltage transmission provides, not a product, but a service; before passing the meter and entering the plaintiff's premises, so it is said, the electricity has not entered in the stream of commerce."
In Carbone, the plaintiff brought a cause of action against Connecticut Light Power for a fire which was allegedly caused when a surge of high voltage electrical current overwhelmed a service panel in the plaintiff's home. The court stated: "In considering whether electricity is a product within the products liability statute, the issue is not so much semantic, but rather the underlying social policy as to whether the doctrine of strict liability, which is applicable to an action under the products liability statute, should be made available to one sustaining damage as a result of excessive electric voltage entering his home in an action against the power company." (Internal quotation marks omitted.) Carbone v. Connecticut Light Power Co., supra, 40 Conn.Sup. 121. The court found that it could not rule, as a matter of law, that a large surge of electricity that entered the plaintiff's home was not a defective condition in the defendant's product. Instead, the court found the reasoning of the Wisconsin Supreme Court in Ransome v. Wisconsin Electric Power Co., 87 Wis.2d 605, 275 N.W.2d 641 (1979), persuasive. In Ransome, the court reasoned that "electricity can be a product within the meaning of [Restatement (Second) of Torts] [§]402A and therefore subject to principles of strict liability in tort in appropriate cases." Moreover, the court stated: "[T]o classify electricity as a product is warranted, indeed mandated, by the social policies which underlie and justify the imposition of strict liability on sellers who place dangerously defective products into the stream of commerce."
Under the Restatement (Second) of Torts § 402A, in order to recover under the doctrine of strict liability in tort the plaintiff must prove that: (1) the defendant was engaged in the business of selling the product; (2) the product was in a defective condition unreasonably dangerous to the consumer or user; (3) the defect caused the injury for which compensation was sought; (4) the defect existed at the time of the sale; and (5) the product was expected to and did reach the consumer without substantial change in condition. It is noted that the plaintiff relies on the analysis in the Restatement (Third) of Torts. Considering that the court found that electricity was a product under the previous Restatement, the case for continuing that line of thought under the reasoning of Restatement (Third) § 19 is strong.
It is noted that courts which have labeled electricity a product have been consistent in holding that the electricity must have been placed into the stream of commerce before strict liability can attach. See Aversa v. Public Serv. Elec. Gas Co., 186 N.J.Super. 130, 451 A.2d 976 (1982); Houston Lighting Power Co. v. Reynolds, Tex.App. 712 S.W.2d 761 (Tex.App. 1st Dist. 1986); Thibos v. Pacific Gas Electric Co., 232 Cal.Rptr. 11 (Cal.App. 1st Dist. 1986).
The plaintiff, in support of its position, also cites cases outside of Connecticut that have held that electricity can be considered a product in appropriate circumstances. See Pierce v. Pacific Gas Electric Co., 166 Cal.App.3d 68, 212 Cal.Rptr. 283 (1985) (electricity was considered a product where woman was injured when mechanical failure in electric utility transformer sent 7000 volts of electricity into her home); Smith v. Home Light Power Co., 734 P.2d 1051, 1055 (Colo. 1987) (when electricity reaches a point where it is made available for consumer use, it becomes a product that has been sold or otherwise placed in the stream of commerce for purposes of strict products liability under Restatement (Second) of Torts § 402A); Butler v. Peru, 733 N.E.2d 912 (Ind. 2000) (electricity may be a product under the Indiana Product Liability Act); Bryant v. Tri-County Elec. Membership Corp., 844 F.Sup. 347 (W.D.K.Y. 1994) (concluding that state court would apply strict liability to electric company where there was a claim of defective current supplied to sawmill which eventually resulted in a fire); and Schriner v. Pennsylvania Power Light Co., 348 Pa.Super. 177, 501 A.2d 1128 (1985) (doctrine of strict liability may lie, under appropriate circumstances, against public utility).
The defendants challenge the plaintiff's position by indicating that no other Connecticut court has adopted the reasoning in Carbone. The defendants cite Curtiss v. Northeast Utilities, Superior Court, judicial district of Hartford, Docket No, CV 92 0511572 (December 5, 1994, Norko, J.) ( 13 Conn. L. Rptr. 137), for the proposition that, "the acceptance of electricity as a product is rare, and that conceptualizing electricity as a product for a cause of action predicated on strict liability has not found a solid home in the area of product liability case law." Id., 140. Likewise, the court in Taylor v. Connecticut Light Power Co., Superior Court, judicial district of Fairfield at Stamford, Docket No. 012848 (June 30, 1970, Callahan, J.), declined to extend strict tort liability to electricity. In addition, the defendants point out that Connecticut has not adopted the Restatement's view of electricity as a product.
The defendants also cite generally to the annotation in 60 A.L.R.4th 732 (1988) §§ 7-9. This is the product liability section of the American Law Reporter dealing with products liability claims generally, and electricity specifically. However, the case law articulated in the cited sections deals largely with incidents where a person came in contact with a power line, or other source of electricity, when the electricity was in route and had not yet passed through the meter of the consumer. Thus, those cases are distinguishable from the present case.
Moreover, 60 A.L.R.4th 732 (1988) § 3 identifies cases, both inside and outside Connecticut, which subscribe to the view that electricity is a product or good, and therefore subject to strict liability.
Case law provides little definitive guidance, but it is clear that there is common-law support for both parties' position. A few judges in the Superior Court have not followed the court's reasoning in Carbone and, in fact, have questioned the decision outright. However, there is both Connecticut case law and case law from other jurisdictions that provide support for the proposition that electricity, once it passes through the meter of the consumer, may be a product for the purpose of imposing strict liability on the product seller.
To maintain a product liability action under § 52-572n "the plaintiff must establish and prove, inter alia, that . . . the defendant was engaged in the business of selling the product . . . [and] the defect existed at the time of the sale." (Citations omitted; emphasis added; internal quotation marks omitted.) Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987). It is axiomatic that electricity can only be "sold" once it passes through the meter of the consumer, is registered, and the consumer is charged for its usage. Thus, even assuming, as the defendants do, that the neutral connector caused the delivery of defective electricity, the electricity was still sold by the defendants in a defective manner. Consistent with the view of the court in Carbone, and the Restatement (Third) of Torts § 19, the point of sale, and the moment that the electricity became a product, was when it passed through the meter of the insureds.
In addition, the plaintiff has alleged that the defendants were responsible for the maintenance of the handhole/vault and the neutral connector located therein. Therefore, there is no allegation which would serve to break the chain of responsibility of the defendant.
In this case, the plaintiff alleges that the defendants failed to deliver power to the insureds' residence within the required standard voltage, or within an acceptable deviation from the same. The plaintiff alleges that this defect in electricity was caused by a defective neutral connector block located on the subject property. In its memorandum, the plaintiff argues that the electricity passed through the meter of the insureds, at which point, the deviation from the normal standard voltage caused the fire to their home. The defendants, however, argue that the defect occurred prior to the electricity passing though the meter of the home, specifically at the site of the neutral connector. This distinction is immaterial, however, because in either case, the electricity would have been defective at the time it entered the insureds' home and allegedly started the fire.
It is the opinion of this court that the electricity is a product for the purposes of The Connecticut Product Liability Law once it passes through the meter of a consumer.
The defendants also make a public policy argument. The defendants argue that the CPLA was not intended to extend to injuries caused by the transmission of electricity by a utility company. In support of their argument, the defendants point to the fact that utility companies are highly regulated by statute and are restrained in their ability to shift the costs of accidents to purchasers.
The analysis of the appellate court in California is instructive on the issue. In Pierce v. Pacific Gas Elec. Co., 166, Cal.App.3d 68, 212 Cal.Rptr. 283 (1985), the court stated: "[W]e believe the policy justifications for strict liability in tort support its imposition in this case. This court has identified four main policy grounds for the doctrine: (1) to provide a short cut to liability where negligence may be present but is difficult to prove; (2) to provide an economic incentive for improved product safety; (3) to induce the reallocation of resources toward safer products; and (4) to spread the risk of loss among all who use the product." (Internal quotation marks omitted.) Id., 83.
"Proof of negligence in cases such as this requires a plaintiff to present to a jury evidence of the inner workings of an electrical power system of vast and complex proportions. The technical operation of such systems and of electricity itself is far beyond the knowledge of the average juror." Pierce v. Pacific Gas Elec. Co., supra, 166 Cal.App.3d 83. A cause of action predicated on strict liability would provide a short cut to the plaintiff, in this case, where negligence may be present, but difficult to prove. Moreover, such a cause of action would, undoubtedly, provide economic incentive to the utility company in situations like that alleged in the present case (i.e., a situation where a consumer has notified the company of electrical surges to their home and the utility company failed to fix the problem).
Like Pierce, where a surge of electricity is traceable to a defective component (in this case, the neutral connector), the imposition of strict liability also creates an incentive for the defendant to reallocate resources to avoid such incidents in the future. Lastly, "strict liability in tort spreads the costs of personal injuries among millions of consumers of electricity instead of imposing those costs upon blameless victims chosen by chance. It is proper that those who seek to benefit from a product should bear the associated costs and should not ask the unfortunate but inevitable victims selected (literally) by accident to bear the burden unaided." Pierce v. Pacific Gas Elec. Co., supra, 166 Cal.App.3d 83.
The reasoning of the Carbone court and the Restatement (Third) of Torts § 19 are persuasive. Moreover, the public policy reasons for viewing electricity as a product once it passes through the meter of the consumer are strong. It is the opinion of the court that electricity should be considered a product for the purpose of imposing strict liability after the electricity has passed through the meter of the consumer.
The defendants argue that count two violates the exclusive remedy provision of General Statutes § 52-572n(a). Section 52-572n(a) provides, in relevant part: "A product liability claim 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." "[T]he purpose behind the act is to merge the numerous causes of action and to create one statutory cause of action, embracing the various theories of liability . . . With the consolidation of all product liability claims into a single form of action, the CPLA became the exclusive remedy for claims falling within its scope . . . [A] plaintiff may not assert a cause of action against the seller of a product for harm caused by the product except within the framework of the CPLA." (Citations omitted; internal quotation marks omitted.) Williams v. McDonalds of Torrington, Superior Court, judicial district of Hartford, Docket No. CV 96 0562657 (May 8, 1997, Hale, J.) ( 19 Conn. L. Rptr. 427, 428-29).
The CPLA is the exclusive remedy for any action falling within its scope. It is clear, from the face of the statute, that a plaintiff may not assert a cause of action against the seller for harm caused by the product except within the framework of the CPLA. The plaintiff's argument is erroneous, however. The exclusivity provision contained within § 52-572n(a) mandates that common-law counts be stricken when a cause of action falls within the scope of the CPLA. See Winslow v. Lewis Shepard Inc., 212 Conn. 462, 562 A.2d 517 (1989). It does not mandate that the cause of action pleaded under the CPLA be stricken when a plaintiff pleads a common-law cause of action in the alternative. In other words, although the common-law cause of action may fail in this instance, the claim brought under the CPLA does not.
The plaintiff has pleaded a legally sufficient claim in count two, and therefore, the defendant's motion to strike is denied.