Opinion
CV186088884S
07-08-2019
Carlos DeJesus v. Conve & AVS, Inc.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Wilson, Robin L., J.
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#114)
Wilson, J.
STATEMENT OF CASE AND PROCEDURAL HISTORY
The plaintiff, Carlos DeJesus, commenced this action against the defendants Conve & AVS, Inc. and New Haven Chlor-Alkali, LLC (NHCA), on September 12, 2018. The plaintiff alleges the following facts in his amended four-count complaint, which was filed January 18, 2019. See Docket Entry No. 112. The plaintiff resides at 87 Welton Street in New Haven, Connecticut. Conve & AVS, Inc. is a Florida-based corporation that provides products and services to chlor-alkali plants for the production of gas, chlorine, hydrochloric acid, sodium hypochlorite, caustic soda, and other chemicals. Based at 67 and 71-77 Welton Street in New Haven, Connecticut- several doors down from and on the same side of the road as the plaintiff’s home- NHCA manufactures and stores said chemicals, relying on products and services provided by Conve & AVS, Inc. At its New Haven facility, NHCA uses large effluent tanks to collect water and other waste that must be neutralized for safe disposal.
Conve & AVS, Inc. has not appeared in this case. The plaintiff’s motion for default for failure to appear against Conve & AVS, Inc. was granted November 19, 2018. See Docket Entry No. 104.10. A hearing on damages was held May 20, 2019, and notice was sent thereafter. See Docket Entry No. 128. Conve & AVS, Inc. is not a party to this motion to strike.
The plaintiff further alleges that, on or about December 22, 2016, at 11:30 a.m., an explosion occurred within an effluent tank, causing damage to the facility and nearby area. At the time of the explosion, the plaintiff was sitting at a chair inside his home. The explosion caused the plaintiff to be thrown into the air and land on his knees, resulting in knee, back, and other injuries. The plaintiff alleges the explosion was caused by the mixture of volatile, highly explosive gases in the effluent tanks during production, neutralization, and/or disposal.
The plaintiff asserts four causes of action: product liability against Conve & AVS, Inc., and negligence, strict liability, and trespass against NHCA. NHCA first moved to strike counts three and four- sounding in strict liability and trespass- on November 5, 2018. See Docket Entry Nos. 102-03. The court did not rule on the first motion to strike, as the plaintiff filed an amended complaint on January 18, 2019. On January 23, 2019, NHCA moved to strike the strict liability and trespass counts in the amended complaint. See Docket Entry Nos. 114-15. The plaintiff filed his objection to NHCA’s motion on February 21, 2019. See Docket Entry Nos. 118-19. NHCA replied to the plaintiff’s objection on March 15, 2019. See Docket Entry No. 121. Oral argument was heard on the motion at short calendar on March 25, 2019.
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). The court is limited to facts alleged in the complaint in ruling on a motion to strike. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency ... Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ... [A]ll 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.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
I.
NHCA moves to strike the third count, strict liability, on the ground that the plaintiff fails to sufficiently plead that NHCA was engaged in an ultrahazardous activity. Specifically, NHCA argues this doctrine is limited to cases involving explosives, blasting, or pile driving, and is not to be extended to the production and/or storage of chemicals. The plaintiff counters with a broader view of strict liability, arguing that NHCA’s acts created an explosion hazard in a populated residential area. The plaintiff says he alleges facts in line with Restatement factors that establish the framework for an abnormally dangerous activity.
"A person who uses an intrinsically dangerous means to accomplish a lawful end, in such a way as will necessarily or obviously expose the person of another to the danger of probable injury, is liable if such injury results, even though he uses all proper care." Whitman Hotel Corp. v. Elliott & Watrous Engineering Co., 137 Conn. 562, 565, 79 A.2d 591 (1951). "Under th[e] doctrine [of strict liability], a plaintiff is not required to show that his loss was caused by the defendant’s negligence. It is sufficient to show only that the defendant engaged in an ultrahazardous activity that caused the defendant’s loss." Green v. Ensign-Bickford Co., 25 Conn.App. 479, 482, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991).
Whether an activity is abnormally dangerous is a question of law. See Caporale v. C.W. Blakeslee & Sons, Inc., 149 Conn. 79, 86, 175 A.2d 561 (1961). "To impose liability without fault, certain factors must be present: an instrumentality capable of producing harm; circumstances and conditions in its use which, irrespective of a lawful purpose or due care, involve a risk of probable injury to such a degree that the activity fairly can be said to be intrinsically dangerous to the person or property of others; and a causal relation between the activity and the injury for which damages are claimed." Id., 85. "The courts in Connecticut and other jurisdictions which recognize the doctrine of strict liability for dangerous activities, impose it only in narrow circumstances. Typically, it has been found applicable when an activity, not regularly engaged in by the general public, is conducted in or near a heavily populated area, such that it necessarily subjects vast numbers of persons to potentially serious injury in the event of a mishap. Such activities include storing quantities of water or explosives in an unsuitable or dangerous place, maintaining inflammable liquids in quantity in the midst of a city, blasting in the midst of a city, pile driving with abnormal risk to surroundings, releasing poisonous gas or dust, and drilling oil wells or operating refineries in a thickly settled area." Levenstein v. Yale University, 40 Conn.Supp. 123, 126 (1984). See also Green v. Ensign-Bickford Co., supra, 25 Conn.App. 482-83 ("The doctrine has traditionally been applied in cases involving blasting and explosives ... Connecticut’s sole extension beyond blasting cases is to damage from a concussion resulting from pile driving" [citation omitted]).
"Sections 519 and 520 of 3 Restatement (Second), Torts, address the doctrine of strict liability for ultrahazardous activities. Section 519 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. Comment (d) of the Restatement points out that the liability of § 519 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 ... The factors for a court to consider in determining whether an activity is abnormally dangerous are listed in § 520 of the Restatement as: (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; internal quotation marks omitted.) Id., 485-86.
"For an activity to be abnormally dangerous, not only must it create a danger of physical harm to others but the danger must be an abnormal one. In general, abnormal dangers arise from activities that are in themselves unusual, or from unusual risks created by more usual activities under particular circumstances ... Because of the interplay of [the] various factors, it is not possible to reduce abnormally dangerous activities to any definition. The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care. In other words, are its dangers and inappropriateness for the locality so great that, despite any usefulness it may have for the community, it should be required as a matter of law to pay for any harm it causes, without the need of a finding of negligence." Restatement (Second), Torts § 520, comment (f).
"[T]he question of whether an activity should be considered abnormally dangerous such that strict liability should attach is an intrinsically fact-driven determination that requires each activity to be examined on its own merits." Gonzalez v. O&G Industries, Inc., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X04-CV-10-6034672-S (May 27, 2015, Sheridan, J.). Surveying related authority, courts have usually been hesitant to classify the use, storage, and/or discharge of hazardous substances as an ultrahazardous activity. See, e.g., Liss v. Milford Partners, Inc., Superior Court, judicial district of Hartford, Complex Litigation Docket, Docket No. X 07-CV-04-4025123-S (September 29, 2008, Berger, J.) (46 Conn.L.Rptr. 439, 441-42) (striking strict liability count premised on dumping chemicals, including trichloroethylene, on property); East Greyrock, LLC v. OBC Associates, Inc., Superior Court, judicial district of Stamford-Norwalk, Complex Litigation Docket, Docket No. X08-CV-04-4002173-S (February 7, 2006, Adams, J.) (40 Conn.L.Rptr. 859, 863-64) (striking strict liability count premised on dredging and storing contaminated liquid materials); French Putnam, LLC v. County Environmental Services, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-98-0166445-S (July 21, 2000, D’Andrea, J.) (27 Conn.L.Rptr. 684, 693-95) (striking strict liability counts premised on defendants’ storage and discharge of waste oil, solvents, and other materials at former construction site); Skelton v. Chemical Leaman Tank Lines, Inc., Superior Court, judicial district of New Haven, Docket No. CV-94-0359236-S (May 13, 1996, Corradino, J.) (17 Conn.L.Rptr. 56, 58) ("[T]he mere fact that a business or person stores toxic substances or even uses or disposes of such material does not establish a strict liability claim even if on occasion such material is spilled or released. The nature of the material must be such that its storage, use, or disposal in the ordinary course despite any safety standards that are adopted will and does result in such release or spillage"); but see Mather v. Birken Manufacturing Co., Superior Court, judicial district of Hartford, Docket No. CV-96-0564862-S (December 8, 1998, Hennessey, J.) (23 Conn.L.Rptr. 443, 446-49) (denying motion to strike where defendant’s processes involved treatment and disposal of toxic chemicals and waste). In Gonzalez - where an explosion similarly resulted- the court held after an evidentiary hearing that the plaintiffs failed to sustain their burden as to whether the use of pressurized natural gas to clean debris from fuel supply lines is an abnormally dangerous activity. See Gonzalez v. O&G Industries, Inc., supra, Superior Court, Docket No. X04-CV-10-6034672-S.
In the present case, the plaintiff alleges that the production, neutralization, and/or disposal processes involving volatile chemicals and gases created an unavoidable explosion hazard. The plaintiff attempts to distinguish its facts from other hazardous waste cases on the basis that NHCA created an explosion risk, unlike in other cases. The plaintiff relies on Green, where the defendant-explosives manufacturer was engaged in the research and development of new explosives and an explosion resulted. Green v. Ensign-Bickford Co., supra, 25 Conn.App. 480-81. In finding five of the six factors were satisfied, the Green court emphasized the difficulty of eliminating the risk inherent in the activity, pointing out that this explosion occurred in a specially designed building separate from the defendant’s main facility. Id., 486-87. Though the plaintiff alleges facts specific to some of the Restatement factors, such as that NHCA’s processes created a high probability of explosion and were conducted in a populated city area, the third count is generally silent on NHCA’s ability to conduct this activity safely by exercising reasonable care. See Gonzalez v. O&G Industries, Inc., supra, Superior Court, Docket No. X04-CV-10-6034672-S ("The hallmark of an abnormally dangerous activity is the inability to conduct the activity safely, regardless of the degree of care exercised. Although the Restatement instructs that all six factors are to be considered and all are of importance, the question of whether reasonable care can remove the risk of harm is often central to the determination of whether an activity is abnormally dangerous. In the end, it may be the most decisive factor ..." [internal quotation marks omitted]). Further, the plaintiff repeatedly alleges that the mixture of highly volatile gases and chemicals created an explosion risk in a residential area, as if that an explosion occurred equates the matter with Green, where the defendant was developing and manufacturing explosives. This court is hesitant to expand the narrow doctrine of ultrahazardous activities beyond the facts of the higher court cases, which include blasting, pile driving, and explosives. Accordingly, NHCA’s motion to strike count three is granted.
In P.R.I.C.E., Inc. v. Keeney, Superior Court, judicial district of Hartford, Docket No. CV-94-0542469-S (July 10, 1998, Hale, J.) (22 Conn.L.Rptr. 373), the court held that the disposal of hazardous waste could constitute an ultrahazardous activity as a matter of law, though it granted the defendants’ motion to strike on the ground that the plaintiff failed to plead sufficient facts to weigh against the Restatement factors. Id., 376-79.
"In determining whether the danger is abnormal, the factors listed in Clauses (a) to (f) of this Section are all to be considered, and are all of importance. Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand, it is not necessary that each of them be present, especially if others weigh heavily." Restatement (Second), Torts § 520, comment (f). ---------
II.
NHCA moves to strike the fourth count, trespass, on the grounds that the plaintiff has insufficiently pleaded both the physical invasion and intent elements of trespass. In its memorandum, NHCA concentrates mostly on intent, arguing that it could not have had good reason to know or expect that its processes at the plant would result in the shaking and/or jarring of the plaintiff’s property. Moreover, NHCA argues that the plaintiff alleges negligent acts but not intentional ones. The plaintiff counters that a shaking and/or jarring of the plaintiff’s property can constitute the basis of a trespass and that the allegations in the complaint set forth, at the motion to strike stage, the requisite intent. Specifically, the plaintiff argues that NHCA intended the acts that caused the explosion and that, in engaging in its processes, NHCA had good reason to know or expect a trespass of the plaintiff’s property would result.
"The essentials of an action for trespass are: (1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff’s exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." (Internal quotation marks omitted.) FirstLight Hydro Generating Co. v. Stewart, 328 Conn. 668, 678, 182 A.3d 67 (2018). "The invasion, intrusion or entry must be physical ... [B]ecause it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another’s land." (Internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-88, 931 A.2d 237 (2007).
In relying on the above language from Bristol, NHCA first argues the trespass count should be stricken for want of physical invasion. "[I]t would seem that the jarring of a man’s real property by vibration or the concussion in the atmosphere above it is, in actuality, a physical invasion of that property. Trespass to real property is the doing of direct injury to that property with force ... When one’s building is damaged by vibration or concussion from a blast, the injury is done directly by the physical movement of the earth or the air which has been started by the blast. For any practical purpose such movement is just as much a physical invasion as the throwing of debris through the atmosphere and the injury done by it is just as direct." (Citation omitted.) Whitman Hotel Corp. v. Elliott & Watrous Engineering Co., supra, 137 Conn. 570. Here, the plaintiff alleges that the explosion resulted in the shaking and jarring of his property, bringing the present case within the scope of Whitman Hotel Corp. Though the trial court in Baldwin v. Village Walk Condominium, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-08-5007925-S (November 19, 2010, Tobin, J.) struck a trespass claim based on the vibration of wood and drywall, it distinguished itself from Whitman Hotel Corp. in part in that the Baldwin defendants, unlike in Whitman Hotel Corp., were not alleged to have been engaged in a hazardous activity subject to strict liability. See id., n.3. The court sides with the plaintiff to the extent that NHCA challenges the physical intrusion element.
NHCA next argues that the requisite intent for a trespass claim is not met. "Regarding the element of intent, [i]t is enough that an act is done with knowledge that it will, to a substantial certainty result in the entry of the foreign matter ... In the absence of authoritative Connecticut case law on the meaning of intent in a trespass action, we turn for guidance to federal law. In Scribner v. Summers, 84 F.3d 554, 558 (2d Cir. 1996), the [court] considered whether the migration of toxic substances from the defendants’ property to the plaintiffs’ property constituted a trespass. The court stated that, in determining the existence of the requisite intent for trespass, the issue was not whether the defendants had intended the contaminated substances to enter the plaintiff’s land, but whether the defendants had intended the act that amounted to or produced the unlawful invasion and had good reason to know or expect that subterranean and other conditions would cause the contaminated substances to migrate from the defendants’ to the plaintiffs’ land." (Citations omitted; internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., supra, 284 Conn. 88-89. "[T]he Restatement [Second] makes clear that action taken with the substantial certainty that the activity will result in entry of foreign matter on the property of another is actionable trespass." Ahnert v. Getty, Superior Court, judicial district of New London, Docket No. 537008 (April 4, 1997, Handy, J.). See also Restatement (Second), Torts § 158, comment (i) ("It is enough [for trespass] that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter").
To correctly assess intent in the present case, the standard is not whether NHCA intended to shake and/or jar the plaintiff’s property with an explosion, but rather whether (i) the defendant intended the act that produced the intrusion and (ii) had good reason to know or expect that the act would result in the intrusion of the plaintiff’s property. See Vento v. Marin, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-06-5001778-S (April 6, 2010, Mottolese, J.T.R.). The plaintiff meets the first part of the test, having alleged that NHCA intentionally engaged in its production, neutralization, and/or disposal processes involving volatile chemicals that caused the shaking and/or jarring. In seeking to establish the second part, the plaintiff cites to Bristol v. Tilcon Materials, Inc., supra, 284 Conn. 55, and P.R.IC.E., Inc. v. Keeney, Superior Court, judicial district of Hartford, Docket No. CV-94-0542469-S (July 10, 1998, Hale, J.) (22 Conn.L.Rptr. 373). Each case concerns the disposal of hazardous materials, without proper cover or enclosure, that thereafter entered another’s property. The present case is factually distinct, however, in that the threat of a physical invasion of the plaintiff’s property is far more attenuated, requiring an adverse reaction within the effluent tanks to then blow through the walls of the facility to a degree that nearby residences are also impacted. See Bristol v. Tilcon Materials, Inc., supra, 284 Conn. 89 ("The federal court [in Scribner ] distinguished cases in which the requisite intent was lacking on the ground that the defendants in those cases did not have good reason to know that invasion of the plaintiff’s property would occur because the contaminants had been enclosed in storage tanks or kept in place by a retaining wall through which they had leaked or seeped"). The two cases cited by the plaintiff merely required the hazardous materials to leak onto the plaintiff’s property. Though the plaintiff alleges, inter alia, that NHCA allowed excessive volatile gases to accumulate in the effluent tanks, failed to ventilate and/or monitor the tanks, failed to follow procedure for maintenance of the tanks, and failed to take proper preventative steps to protect against explosion, the allegations are not sufficient to allow a finding that NHCA had good reason to know or expect an explosion- causing the physical intrusion of the plaintiff’s property- would result from its acts. NHCA’s motion to strike count four is therefore granted.
CONCLUSION
For the foregoing reasons, the defendant, NHCA’s motion to strike is granted in its entirety.