Opinion
No. CV-04-0092470-S
July 15, 2005
MEMORANDUM OF DECISION
This matter came before the court on February 28, 2005, on a motion to strike filed by the defendant, Fuelcell Energy, Inc. The defendant moves to strike the second count of the complaint. For the reasons stated below, the motion to strike is denied.
The court notes that more than 120 days have passed since the oral argument of this motion to strike. The parties engaged in unsuccessful settlement negotiations and asked that the decision on the motion to strike be postponed until the conclusion of those negotiations. On June 27, 2005, the parties asked the court to rule on the motion to strike and agreed to an extension to August 31, 2005.
I. NATURE AND HISTORY OF THE PROCEEDINGS
On February 19, 2004, the plaintiff, Doreen Gibbons, filed a two-count complaint against the defendant. The plaintiff alleges that on January 14, 2002, "a massive explosion" occurred at the defendant's manufacturing site in Torrington, Connecticut. She states that this explosion was caused by solvents and other chemicals used by the defendant in the manufacturing of their products. The explosion caused permanent damage to the plaintiff's home and impaired the home's value. Count one is brought under the theory of res ipsa loquitor. Count two, the subject of this motion to strike, is based on a theory of strict liability.
On December 16, 2004, the defendant filed a motion to strike count two of the complaint accompanied by a memorandum of law in support. On December 27, 2004, the plaintiff filed a memorandum in opposition to the defendant's motion to strike. The plaintiff filed a supplemental memorandum in opposition on December 28, 2004. The defendant submitted a reply to the plaintiff's memorandum in opposition on February 25, 2005.
II. 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 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). "For the purpose of ruling upon a motion to strike, the facts alleged in the complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 822 A.2d 1202 (2003).
The defendant moves to strike the second count of the complaint on the ground that the plaintiff's claim of "ultrahazardous activity" is legally insufficient because Connecticut does not recognize such a claim under the factual circumstances presented in this case. In strict liability actions, the defendant argues, the definition of ultrahazardous activity has been traditionally applied to blasting and explosives, and later pile driving. The defendant contends that its activities cannot be defined as ultrahazardous and as such, the second count of the complaint is insufficient.
In response, the plaintiff argues that the courts have laid out a specific test to determine whether an activity is ultrahazardous. This test was first laid out in Caporale v. C.W. Blakeslee Sons, Inc., 149 Conn. 79, 175 A.2d 561 (1961). The Appellate Court later made the test more specific while staying within the bounds of the Caporale standard in Green v. Ensign Bickford Co., 25 Conn.App. 479, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 34 (1991). Nowhere in the language of these cases, the plaintiff contends, does the court limit the doctrine of strict liability and the definition of ultrahazardous activity to blasting and pile driving. The plaintiff argues that he has met the test laid out in both cases and that the motion to strike should be denied. The plaintiff also notes that the doctrine of strict liability has been extended to the mixing of chemicals.
The defendant replies that because the actual cause of the explosion that allegedly caused the damage to the plaintiff's home has yet to be determined (as the plaintiff pointed out in her memorandum in opposition to the defendant's motion to strike), the complaint is factually insufficient and the motion to strike should be granted. The defendant argues that Connecticut is a fact pleading state and that the plaintiff does not have the necessary facts to support a legal conclusion that the defendant was engaged in an ultrahazardous 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 . . . [T]he principle stated governs liability for injury to property as well." (Citation omitted.) Whitman Hotel Corp. v. Elliot Watrous Engineering Co., 137 Conn. 562, 565, 79 A.2d 591 (1951). "Under [the strict liability] doctrine, 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 [plaintiff's] loss. The doctrine has traditionally been applied in cases involving blasting and explosives . . . Although liability was initially limited to damage directly caused by flying debris resulting from the explosion, this was in time expanded to include damage caused by concussion or vibration." (Citations omitted.) Green v. Ensign Bickford Co., supra, 25 Conn.App. 482-83.
In Caporale v. C.W. Blakeslee Sons, Inc., supra, 149 Conn. 79, the Supreme Court stated: "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. In Green v. Ensign Bickford Co., supra, 25 Conn.App. 479, the Appellate Court adopted the sections 519 and 520 of 3 Restatement (Second), Torts, stating: "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 is dangerous attributes." (Internal quotation marks omitted.) Id., 486. "It is important to note that comment (f) of § 520 clearly states that all of the factors need not be present for an activity to be considered abnormally dangerous." Id., 486.
In her complaint, the plaintiff alleges that the damage to her home was caused by a massive explosion at the defendant's Torrington manufacturing site. She states that the blast was caused by "highly explosive" solvents and other chemicals used in the manufacturing of the components of the defendant's product. The plaintiff further alleges that the defendant's use of highly explosive solvents and chemicals in its manufacturing activities is an ultrahazardous activity. While not identifying the particular solvents and chemicals that caused the explosion, the plaintiff has pleaded sufficient facts to withstand a motion to strike. In Green, the court held that the defendant's experimentation with chemicals in a residential area met the Restatement criteria and was an ultrahazardous activity. In the present case, the plaintiff alleges that the defendant used highly explosive solvents and chemicals that led to a massive explosion causing extensive damage to her residence. Whether the plaintiff can produce evidence sufficient to prove the facts alleged is not a matter to be dealt with on a motion to strike; the plaintiff should be afforded the opportunity to prove her allegations at trial. Prete v. Laudano, Superior Court, judicial district of New Haven, Docket No. 33 79 66 (January 25, 1993, Thompson, J.) ( 8 Conn. L. Rptr. 263)
III. CONCLUSION
The allegations made by the plaintiff, which must be taken as admitted on a motion to strike, allege sufficient facts to sustain a claim for strict liability. The motion to strike is therefore denied.
Wilson J. Trombley, Judge