Opinion
No. BA 06-5005733
August 21, 2008
MEMORANDUM OF DECISION
The court is presented with a motion for summary judgment in this case, a suit over physical illness suffered by the plaintiff as a result of exposure to asbestos. The defendant, ACMAT Corporation, moves for summary judgment on the grounds that the applicable statute of limitations has expired thereby rendering the plaintiff's claims against unenforceable. The plaintiff and defendant, however, are in dispute over which statute of limitations properly applies to this matter. The plaintiff argues that the correct statute of limitations is provided by Connecticut General Statutes § 52-577c, whereas the defendant contends the proper statute is § 52-584.
Connecticut General Statutes § 52-577c: Limitation of action for damages caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant. (a) For the purposes of this section: (1) "Environment" means any surface water, around water, drinking water supply, land surface or subsurface strata or ambient air within the state or under the jurisdiction of the state; (2) "exposure" means any contact, ingestion, inhalation or assimilation, including irradiation; (3) "hazardous chemical substance or mixture" means petroleum, a petroleum product or any chemical substance or mixture for which there is a federal standard, including any law, requirement, tolerance, prohibition, action level or similar legal authority adopted by an agency pursuant to federal law, including any such standard or legal authority adopted by a state or local government pursuant to federal law, generally intended to prevent, reduce or mitigate the risk of a disease or class or type of diseases to an individual or individuals resulting from exposure to such chemical substance or mixture; (4) "hazardous pollutant" means any designated, specified or referenced chemical considered to be a "hazardous substance" under Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 USC 9601(14); (5) "release" means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment. (b) Notwithstanding the provisions of sections 52-577 and 52-577a, no action to recover damages for personal injury or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered. (c) The provisions of subsection (b) of this section shall not apply to an action brought against (1) any municipal waterworks system established and operated under chapter 102 or any special act, (2) any regional water authority established under any general statute or special act, or (3) any water company as defined in section 16-1.
Connecticut General Statutes § 52-584. Limitation of action for injury to person or property caused by negligence, misconduct or malpractice. No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.
Section 52-584 imposes a three-year limitation on any suit from the date of the act or omission complained of. This stands in contrast to the two-year cap set forth by § 52-577c, which is more favorable to the plaintiff because it would not begin to run until "the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered" — a qualification that potentially allows for a longer span of time during which the plaintiff's suit could have been brought against this defendant.
In determining which statute of limitations should apply, it is noted that § 52-584 applies to personal injuries generally, while § 52-577c applies specifically to injuries incurred as a result of contact with harmful chemical substances. The defendant argues that courts have traditionally applied § 52-584 and § 52-577, rather than § 52-577c, in situations involving outdoor exposure to toxins, and further, that § 52-577c is not in effect in this situation because the statute does not apply to contact with asbestos in an indoor environment. Regarding the first rationale, while § 52-577c does not explicitly state that it preempts § 52-584, the language of the statute does permit its application in suits involving asbestos. Section 52-577c incorporates the chemicals covered by 42 USC 9601(14) which defines "hazardous pollutants" — in a list that includes asbestos. Barring further statement by the legislature or appellant division, the court is disinclined to prevent the plaintiff from applying § 52-577c, especially in light of the statute's explicit reference to federal law in identifying the toxic substances for which exposure to may lead to liability. However, the analysis requires consideration of the defendant's other contention that § 52-577c does not apply in this situation because of the definitions it provides regarding where and how the plaintiff came into contact with the harmful substance.
42 USC 9601(14)(E) states that "any hazardous air pollutant listed under section 112 of the Clean Air Act" qualifies as a hazardous pollutant. Section 112 of the Clean Air Act is codified at 42 USC 7412, and specifically lists asbestos as a covered chemical.
The only definition provided by the statute that this court sees as troublesome for the plaintiff in his application of § 52-577c is how the legislature chose to define "environment." More specifically, it is the use of the term "ambient air" as an element of the environment that jeopardizes the use of § 52-577c. While the Connecticut statute does not define "ambient air," a survey of other courts, from the United States Supreme Court down through various state courts, reveals that ambient air refers to the air that is outdoors and accessible by the public at large, and not the air that is confined to enclosed spaces such as buildings. See Hancock v. Train, 426 U.S. 167, 169 n. 4, 96 S.Ct. 2006, 48 L.Ed.2d 555 (1976); U.S. v. Pearson, 274 F.3d 1225, 1234 n. 11 (9th Cir. 2001); Natural Resources Defense Council v. Train, 545 F.2d 320, 322 n. 2 (2nd Cir. 1976); Natural Resources Defense Council v. E.P.A., 529 F.2d 755, 756 n. 3 (5th Cir. 1976); Union Electric Co. v. Environmental Protection Agency, 515 F.2d 206, 210 n. 9 (8th Cir. 1975); Crane v. Puller, 169 Md.App. 1, 83, 899 A.2d 879 (2006); Kings County Farm Bureau v. City of Hanford, 221 Cal.App.3d 692, 713 n. 3, 270 Cal.Rptr. 650 (1990); Ruffing v. Union Carbide Corp., 193 Misc.2d 350, 365, 746 N.Y.S.2d 798 (2002). Normally the application of this definition would prove fatal to a claim that a plaintiff was exposed to asbestos in the basement of a building. The specifics of this case however lead to a question of fact in that it makes it unclear as to whether the boiler room at Danbury Hospital in which the plaintiff worked and where he allegedly came into contact with asbestos was or was not an enclosed structure free of ambient air. Pictures marked as exhibits at the deposition of Michael Madden reveal that, at the time of his alleged exposure to asbestos particles, the defendant was performing asbestos abatement work in the boiler room. Also, a large hole had been created in the outside wall of the boiler room. A vacuum was created inside to reduce the likelihood of asbestos particle dispersal. The hole in the wall would cause outside air to rush into the interior of the boiler room. Thus a condition may have existed to promote the influx of outside air to the boiler room thereby exposing the plaintiff to "ambient air" in the boiler room. Whether such conditions existed thereby allowing the plaintiff's work area to be exposed to ambient air is a material question of fact that would make summary judgment inappropriate at this time. Accordingly, defendant ACMAT's motion for summary judgment is denied.