Summary
In Heaslip, the court granted defendant's motion to strike Plaintiffs' claim of strict liability because, inter alia, the Plaintiff was employed as a blaster and thus clearly a participant in the ultrahazardous activity.
Summary of this case from Anchundia v. Northeast Utilities Service CompanyOpinion
No. 5002500
October 15, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE [#113]
FACTS
On December 27, 2006, the plaintiff, James Heaslip, filed a two-count complaint against the defendants, Mota's Sewer Service, LLC, Mota's Sewer Service, LLC d/b/a Mota Construction Enterprise (collectively Motas) and Domingos Santos. Subsequent thereto, on March 8, 2007, Heaslip filed an amended four-count complaint. Therein, Heaslip alleges that during all times relevant to the allegations, Motas was "engaged in the business of providing home improvement contractor products and services." Heaslip further alleges that, on December 7, 2004, "he was an employee of J J Blasting Corp., J J Blasting Corporation and/or Cox Drilling and Blasting Corporation, a subcontractor of [defendant Santos]." Heaslip also contends that, on December 7, 2004, "while in the scope of his employment as a blaster, [he] was struck by an excavator bucket and/or a 6,000 pound blasting mat hanging from the bucket of the excavator and, as a result thereof, was propelled approximately 10-15 feet, thereby causing [him] serious injuries and damages . . ." Heaslip alleges that the excavator was owned, possessed or controlled by Motas, and was operated within the scope of the employment of employer and/or principal Motas and/or Santos. Accordingly, Heaslip specifically alleges in count one that his injuries and damages were caused by the negligence and carelessness of Motas. In count two, Heaslip alleges that Motas are liable for the personal injuries he sustained in this incident because Motas was engaged in an ultrahazardous activity which causes them to be strictly liable for any injuries stemming from such activity. Count three and four contain corresponding allegations against defendant Santos.
On May 24, 2007, Motas filed a motion to strike count two of Heaslip's amended complaint on the ground that the "complaint does not contain allegations that [Motas] was engaged in an [ultrahazardous] activity giving rise to strict liability." Motas has submitted a memorandum of law in support of the motion. On June 12, 2007, Heaslip filed a memorandum of law in opposition. The matter was heard at the short calendar on June 19, 2007.
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). In determining the legal sufficiency of a complaint or a part thereof "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). "[C]onsequently, [such motion] requires no factual findings by the trial court." (Internal quotation marks omitted.) Greco v. United Technologies Corp., 277 Conn. 337, 347, 890 A.2d 1269 (2006). Furthermore, the court "construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Greco v. United Technologies Corp., supra, 277 Conn. 347. Conversely, "[a] motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
Practice Book § 10-39 provides in relevant part: "Whenever any party wishes to contest the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof."
In their memorandum of law in support of the motion to strike, Motas argues that Heaslip has failed to allege that his injuries were caused by any blasting that was being conducted at the subject premises. Accordingly, Motas argues that since Heaslip was not injured as a result of the blasting operations, he "cannot seek recovery in strict liability based on [the ultrahazardous] activity [doctrine]." Motas concedes that the Connecticut Supreme Court has found that the activity of blasting is an ultrahazardous activity; however, Motas argues that strict liability is only appropriate where the injury is caused by the actual blasting or vibration/concussion resulting from the blasting. Based on the aforementioned limitation on the applicability of the ultrahazardous activity doctrine, Motas argues that Heaslip's allegations contained in count two of his amended complaint "fail as a matter of law to establish that [Motas] was engaged in an [ultrahazardous] activity" that caused Heaslip's injuries. Specifically, Motas argues that Heaslip's allegations merely state that an employee of Motas or Santos was operating an excavator, which was carrying a blasting mat on the bucket of the excavator, and that it struck Heaslip. Motas contends that "this type of activity does not involve blasting . . ." Therefore, Motas maintains that Heaslip's second count should be stricken since it fails to set forth any basis to find that Motas was engaged in an ultrahazardous activity at the time Heaslip's injuries were inflicted.
Heaslip counters that the injuries he suffered after being struck by a 6,000 pound blasting mat were inflicted during the course of Motas' blasting operations at the worksite. Heaslip specifically argues that the activity of "blasting encompasses the act of transporting [a blasting] mat to calculated locations within [a given] worksite." Heaslip also argues that in order to establish a claim under the doctrine of strict liability, in the realm of ultrahazardous activities, he is only required to show that Motas engaged in an ultrahazardous activity that caused his injuries. Accordingly, Heaslip contends that his "second count is legally sufficient in that it alleges that [Motas] was engaged in the [ultrahazardous] activity of blasting and that [he] was injured as a result of such blasting operations."
The doctrine of absolute or strict liability may be imposed on those who engage in ultrahazardous activities. "Under this 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 defendant's loss. The doctrine has traditionally been applied in cases involving blasting and explosives." Green v. Ensign-Bickford Co., 25 Conn.App. 479, 482-83, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991). See Curtis v. Northeast Utilities, Superior Court, judicial district of Hartford-New Britain, Docket No. CV 92 0511572 (December 5, 1994, Norko, J.) ( 13 Conn. L. Rptr. 137). Accordingly; "when one engages in the [ultrahazardous activity] of blasting with dynamite under such circumstances that the person or property of another is necessarily or obviously exposed to the danger of probable injury, he does so at his peril. He is absolutely liable for damages which result from that blasting whether he was negligent in his conduct of the operation or not." (Emphasis added.) Whitman Hotel Corp. v. Elliott Watrous Engineering Co., 137 Conn. 562, 571, 79 A.2d 591 (1951).
"The issue of whether an activity is [ultrahazardous] . . . is a question of law for a court to decide. Green v. Ensign-Bickford Co., [ supra, 25 Conn.App. 485]. The courts in Connecticut and other jurisdictions which recognize the doctrine of strict liability for dangerous activities, impose it only in narrow circumstances." Levenstein v. Yale University, [ 40 Conn.Sup. 123, 126, 482 A.2d 724 (1984)]. Traditionally, strict liability for ultrahazardous activity has been applied solely in the context of blasting and explosives; Whitman Hotel Corp. v. Elliott Watrous Engineering Co., 137 Conn. 562, 79 A.2d 591 (1951); and was later extended to pile driving; Caporale v. C.W. Blakeslee Sons, Inc., [ 149 Conn. 79, 85, 175 A.2d 561 (1961); and research experiments involving highly volatile chemicals. See Green v. Ensign-Bickford Co., supra, 25 Conn.App. 485-87." (Internal quotation marks omitted.) French Putnam LLC v. County Environmental Services, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0166445 (July 21, 2000, D'Andrea, J.) (27 Conn. L. Rptr 684).
Additionally, "[i]n strict liability, just as in negligence, a defendant's activity must have been [the] proximate cause of the harm suffered in order for liability to be imposed." 57A Am.Jur.2d Negligence § 405 (2004). Therefore, in cases like the one currently before this court, the blasting has to have been the proximate cause of the damage and/or injury sustained by the plaintiff. "Proximate cause is defined as [a]n actual cause that is a substantial factor in the resulting harm . . . The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence [and/or ultrahazardous activity]." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 656, 904 A.2d 149 (2006). Case law clearly specifies that in order for a plaintiff to prevail on an allegation of strict liability in a blasting operations case, the injury or damages alleged must result from the explosion of dynamite. See Whitman Hotel Corp. v. Elliott Watrous Engineering Co., supra, 137 Conn. 567-68.
This limitation on the extent of protection afforded under this doctrine is also discussed in § 519 of the Restatement (Second) of Torts, which addresses the general applicability of strict liability to ultrahazardous activities. Section 519 provides: "(1) One who carries on an [ultrahazardous] 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. (2) This strict liability is limited to the kind of harm the possibility of which makes the activity [ultrahazardous]."
Comment (e) to § 519 discusses the extent of the protection afforded under this doctrine, and provides in relevant part: "The rule of strict liability stated in Subsection (1) applies only to harm that is within the scope of the abnormal risk that is the basis of the liability. One who carries on an [ultrahazardous] activity is not under strict liability for every possible harm that may result from carrying it on. For example, the thing that makes the storage of dynamite in a city [ultrahazardous] is the risk of harm to those in the vicinity if it should explode. If an explosion occurs and does harm to persons, land or chattels in the vicinity, the rule stated in Subsection (1) applies. If, however, there is no explosion and for some unexpected reason a part of the wall of the magazine in which the dynamite is stored falls upon a pedestrian on the highway upon which the magazine abuts, the rule stated in Subsection (1) has no application. In this case the liability, if any, will be dependant upon proof of negligence in the construction or maintenance of the wall. So also, the transportation of dynamite or other high explosives by truck through the streets of a city is [ultrahazardous] for the same reason as that which makes the storage of the explosives [ultrahazardous]. If the dynamite explodes in the course of the transportation, a private person transporting it is subject to liability under the rule stated in Subsection (1), although he has exercised the utmost care. On the other hand, if the vehicle containing the explosives runs over a pedestrian, he cannot recover unless the vehicle was driven negligently." 3 Restatement (Second), Torts § 519, comment (e) (1977).
In the present case, the court assumes for the purposes of this motion that Motas was engaged in the ultrahazardous activity of blasting, somewhere on the worksite, at the time that Heaslip was inflicted with his injuries. Based on that assumption, however, Motas would be held absolutely liable only for damages and/or injuries resulting from the blasting activity (explosion of dynamite). The facts as alleged in the second count of Heaslip's amended complaint, even when construed in a manner most favorable to Heaslip, clearly fail to adequately allege that the blasting was the proximate cause of his injuries. Heaslip merely alleges that his injuries were inflicted as a result of being randomly struck by an excavator bucket and/or a blasting mat hanging from the bucket on the worksite. Simply, Heaslip has failed to allege the causal link between his injuries and the alleged ultrahazardous activity of Motas. Furthermore, the harm that allegedly occurred in this case, injuries inflicted by the operation of worksite equipment, is not the kind of harm that makes the activity of blasting ultrahazardous. The kind of harm that makes the activity of blasting ultrahazardous is injury or damage from flying debris caused by the actual blasting or from the vibration/concussion of the blasting.
Additionally, this court is persuaded by the following principle articulated in American Jurisprudence, which has also been followed by courts outside of Connecticut. This principle provides: "The rule of strict liability for engaging in ultrahazardous activities does not apply where the person harmed has reason to know of the risk that makes the activity ultrahazardous and takes part in it or brings himself within the area which will be endangered by its miscarriage . . . In other words, the benefit of strict liability does not run to a person participating in the activity deemed to be ultrahazardous." 57A Am.Jur.2d Negligence § 390 (2004). See Whitlock v. Duke University, 637 F.Sup. 1463, (M.D.N.C. 1986), aff'd, 829 F.2d 1340 (4th Cir. 1987). In the present case, Heaslip alleges in his amended complaint that he was injured "while in the scope of his employment as a blaster" at the worksite. Clearly, Heaslip claims to have been a participant in the ultrahazardous activity alleged to have been carried out at the worksite. Accordingly, Heaslip is precluded from relying on the ultrahazardous activity doctrine in seeking to recover from Motas.
CONCLUSION
Based on the foregoing, the court hereby grants Motas' motion to strike the second count of the amended complaint because the allegations contained therein do not set forth a cause of action for strict liability based on the ultrahazardous activity doctrine.