Opinion
AC 43511
01-18-2022
Julian POCE et al. v. O & G INDUSTRIES, INC., et al.
Austin Berescik-Johns, with whom, on the brief, was Paul Levin, for the appellants (plaintiffs). Michael S. Lynch, with whom, on the brief, was Nicole A. Carnemolla, for the appellee (named defendant).
Austin Berescik-Johns, with whom, on the brief, was Paul Levin, for the appellants (plaintiffs).
Michael S. Lynch, with whom, on the brief, was Nicole A. Carnemolla, for the appellee (named defendant).
Alvord, Cradle and Bear, Js.
PER CURIAM. The plaintiffs, Julian Poce, Skerdinand Xhelaj, Michael Meredith, Erjon Goxhaj, and Fatjon Rapo, appeal from the summary judgment rendered by the trial court in favor of the defendant O & G Industries, Inc. On appeal, the plaintiffs claim that the court improperly granted the defendant's (1) motion to strike and (2) motion for summary judgment. We affirm the judgment of the trial court.
The plaintiffs also named Southern Middlesex Industries, Inc. (SMI), as a defendant in this action. SMI moved to strike counts twenty-one through thirty of the plaintiffs’ operative complaint. The court granted SMI's motion to strike as to counts twenty-one through twenty-five and denied it as to counts twenty-six through thirty. SMI thereafter filed a motion for summary judgment as to counts twenty-six through thirty, which the court denied. On July 20, 2020, the plaintiffs withdrew their action against SMI, and, on August 18, 2020, the plaintiffs withdrew their appeal as to SMI. Accordingly, we refer in this opinion to O & G Industries, Inc., as the defendant and to SMI by name.
The plaintiffs commenced the present action in December, 2016, and filed the operative complaint in May, 2017. The plaintiffs, mason laborers who were employed by Connecticut Mason Contractors, Inc., alleged that they repeatedly were exposed to asbestos while working on a large-scale construction project at Wethersfield High School in Wethersfield. Relevant to this appeal, each of the five plaintiffs asserted claims against the defendant, the construction/project manager for the Wethersfield High School project, sounding in negligence, negligent infliction of emotional distress, premises liability, and recklessness. On March 29, 2017, the defendant filed a motion to strike the claims against it. The plaintiffs filed an objection. On December 5, 2017, the court, Noble , J. , issued its memorandum of decision, in which it granted the motion to strike in part as to the plaintiffs’ claims of negligence, premises liability, and recklessness.
On September 7, 2018, the defendant filed a motion for summary judgment as to the plaintiffs’ remaining claims against it, which sounded in negligent infliction of emotional distress. The plaintiffs filed an objection and a memorandum in opposition to the defendant's motion for summary judgment. Oral argument was held on June 3, 2019. On September 30, 2019, the court, Noble , J. , issued its memorandum of decision, in which it granted the defendant's motion for summary judgment and rendered judgment thereon. This appeal followed.
On appeal, the plaintiffs claim that the court improperly granted the defendant's motion to strike and motion for summary judgment. Our examination of the record on appeal, and of the briefs and oral arguments of the parties, persuades us that the judgment of the trial court should be affirmed. Because the court's memoranda of decision fully address the arguments raised in the present appeal, we adopt the court's thorough and well reasoned decisions as proper statements of the facts and applicable law as to the claims against the defendant. See Poce v. O & G Industries, Inc. , Superior Court, judicial district of Hartford, Docket No. CV-17-6074254-S, 2017 WL 11659744 (December 5, 2017) (reprinted at 210 Conn. App. ––––, ––– A.3d ––––) ; Poce v. O & G Industries, Inc. , Superior Court, judicial district of Hartford, Docket No. CV-17-6074254-S, 2019 WL 5295545 (September 30, 2019) (reprinted at 210 Conn. App. ––––, ––– A.3d ––––). It would serve no useful purpose for us to repeat the discussions contained therein. See, e.g., Woodruff v. Hemingway , 297 Conn. 317, 321, 2 A.3d 857 (2010) ; Maselli v. Regional School District No. 10 , 198 Conn. App. 643, 647–48, 235 A.3d 599, cert. denied, 335 Conn. 947, 238 A.3d 19 (2020).
Both memoranda of decision address claims against SMI. See footnote 1 of this opinion. Because SMI is no longer a party to this action, we adopt the trial court's memoranda of decision only as they relate to the claims against the defendant.
The judgment is affirmed.
APPENDIX
JULIAN POCE ET AL. v. O & G INDUSTRIES, INC., ET AL.
Affirmed. Poce v. O & G Industries, Inc. , 210 Conn. App. 82, 269 A.3d 899 (2022).
Superior Court, Judicial District of Hartford
File No. CV-17-6074254-S
Memorandum filed December 5, 2017
Proceedings
Memorandum of decision on motion to strike. Motion granted in part. Austin Berescik-Johns and Paul Stewart Levin , for the plaintiffs.
Michael S. Lynch , for the named defendant.
Michael J. Dugan and Eric R. Schwerzmann , for the defendant Southern Middlesex Industries, Inc.
Opinion
NOBLE, J.
"For more than 150 years, the law in Connecticut, and elsewhere, has limited tort liability to cases involving physical harm to person or property." (Internal quotation marks omitted.) Lawrence v. O & G Industries, Inc ., 319 Conn. 641, 646, 126 A.3d 569 (2015). The motions to strike of the defendants, O & G Industries, Inc. (O & G), and Southern Middlesex Industries, Inc. (SMI), Entries ## 109 and 120 respectively, assert that the harms alleged in the plaintiffs’ complaint—the increased risk of contracting asbestos related pulmonary disease and future medical monitoring as a result of exposure to asbestos by the tortious conduct of the defendants—fail to state a claim upon which relief may be granted because they do not represent an actual injury or actionable harm. The court agrees that claims of negligence, premises liability and recklessness require actual physical injury and grants the motion to strike as to those counts. Because a claim for negligent infliction of emotional distress, however, does not require a present bodily injury, the motions to strike those counts are denied.
FACTS
The plaintiffs, Julian Poce, Skerdinand Xhelaj, Michael Meredith, Erjon Goxhaj, and Fatjon Rapo, commenced this action on December 27, 2016, against O & G and SMI. The thirty count complaint alleges the following facts. The plaintiffs are mason laborers employed by Connecticut Mason Contractors, Inc. While working on a project at Wethersfield High School at 411 Talcott Hill Road in Wethersfield (project site), the plaintiffs were repeatedly exposed to asbestos. The work areas designated by the project manager, O & G, entailed the disturbing of floors, walls and ceilings which, unbeknownst to the plaintiffs, contained asbestos.
O & G had actual and/or constructive knowledge of the dangerous project site conditions and premises defects present on the property, "including asbestos and PCBs," and had the authority to remediate the hazards present; controlled and supervised all phases of the work at the project site; exercised possession and control of the project site, including the premises where the plaintiffs were injured; and had the authority to prevent or and/or suspend work in areas of the building containing asbestos. Areas where the plaintiffs performed work were not properly sampled, remediated and tested before the plaintiffs became exposed to asbestos, and the plaintiffs were not provided with, or required to wear, personal protective equipment.
During the time that the plaintiffs performed work at the project site, the asbestos conditions were disturbed in such a manner making it highly probable that toxic substances would be breathed, thus repeatedly exposing the plaintiffs to the asbestos without protective gear, hazard reduction training, or advance warning. O & G was aware of the repeated exposure despite the fact that the contracts executed between the town of Wethersfield, O & G, and Connecticut Mason Contractors, Inc., required O & G to observe safety protocols and procedures so as to avoid injury and occupational exposures to the plaintiffs. O & G was aware that the plaintiffs were masons, and not experienced and trained in asbestos protection. O & G did not arrange adequately for asbestos protection or hazard reduction training at the project site. None of the laborers were provided with, or advised of the need to use, asbestos protection at the project site, and O & G had advised the plaintiffs’ employer that laborers would only be dispatched to areas of the building that did not contain asbestos, or areas where suitable asbestos remediation had already been accomplished.
During this time period, SMI undertook specified demolition work involving asbestos remediation on the premises. SMI's conduct contributed to the failure to follow reasonable protocols by failing to properly cordon off what should have been regulated work areas to assure that the plaintiffs were not inadvertently exposed to the hazardous materials being remediated. SMI failed to adequately test and sample the materials being removed so that substances, and the nature of exposures, could be adequately documented; and, SMI failed to provide advance warning to the plaintiffs so that they could protect themselves from potentially hazardous exposure, given the proximity of the plaintiffs’ work area to the demolition and remediation underway.
In counts one through twenty, each plaintiff alleges their own separate counts of negligence (counts one through five), negligent infliction of emotional distress (counts six through ten), premises liability (counts eleven through fifteen) and recklessness (counts sixteen through twenty) against O & G. Counts twenty-one through thirty separately allege counts of negligence (counts twenty-one through twenty-five) and negligent infliction of emotional distress (counts twenty-six through thirty) against SMI. Each count contains an allegation that the respective plaintiffs were repeatedly exposed to known carcinogens requiring medical evaluations and lifetime medical monitoring, an increased risk of contracting asbestos related pulmonary disease and/or cancer, and will be required in the future to spend sums of money for medical evaluation and medical monitoring in the event that "asbestos and/or PCP related disease becomes active and will be the source of continuing pain, mental and emotional distress." The counts alleging the negligent infliction of emotional distress additionally allege that O & G and SMI created an unreasonable risk of causing emotional distress to the plaintiffs severe enough that it might result in illness or bodily harm, and that it was foreseeable that such distress might result from the defendants’ conduct, which was the cause of the plaintiffs’ emotional distress.
The complaint does not define "PCP" or the nature of a "PCP related disease."
Practice Book § 11-10 (c) provides: "Surreply memoranda cannot be filed without the permission of the judicial authority." The plaintiffs did not request permission of the court to file a surreply. Our courts, however, have exercised discretion to consider surreplies filed without permission; see Viradia v. Quartuccio , Superior Court, judicial district of New Haven, Docket No. CV-17-6070053-S, 2018 WL 1631608 (February 27, 2018) (66 Conn. L. Rptr. 1 ); and the court in its discretion will consider it. Secondly, the plaintiffs have submitted evidence with their surreplies. "It is within the trial court's discretion whether to accept or decline supplemental evidence in connection with a motion for summary judgment." Corneroli v. Kutz , 183 Conn. App. 401, 425 n.10, 193 A.3d 64 (2018). In its discretion, the court will also consider these submissions.
On March 29, 2017, O & G moved to strike counts one through twenty of the plaintiffs’ complaint on the ground that, as a matter of law, the complaint fails to state claims upon which relief can be granted. In its view, the plaintiffs have failed to allege any facts sufficient to support their claims of negligence, premises liability, recklessness and emotional distress. In their memorandum of law, O & G argues that the plaintiffs have not alleged an actionable harm, because the plaintiffs fail to allege that they suffer from present injury. Rather, the complaint merely alleges an increased risk of future harm, which is insufficient under any of the theories alleged, including the counts asserting a claim for the negligent infliction of emotional distress. Moreover, the plaintiffs are not without remedy, as the statute of limitations in General Statutes § 52-577c, which the legislature enacted specifically for asbestos related illness, does not begin to run until injury is discovered, providing the plaintiffs with a cause of action should they manifest symptoms of asbestos related diseases in the future.
On May 15, 2017, the plaintiffs filed their objection, arguing that the harms they allege constitute actual injuries as defined by Connecticut case law, and that each respective claim alleges elements of damage and actual harm required in order to recover under those claims. In support, the plaintiffs cite to the recent matter of R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co ., 171 Conn. App. 61, 114–18, 156 A.3d 539 (2017), which explicitly defines asbestos exposure as an injury and a harm, and impliedly defines asbestos exposure as an actionable harm. This, the plaintiffs argue, leaves no doubt that a person is legally injured at the point of exposure to asbestos, thus satisfying the element of harm necessary to adequately plead the claims alleged.
On May 19, 2017, the plaintiff filed their first amended complaint as to counts twenty-six through thirty. Thereafter, on June 13, 2017, in a motion virtually identical to that of O & G, SMI moved to strike counts twenty-one through thirty of the plaintiffs’ complaint on the ground that the plaintiffs, as a matter of law, fail to state claims upon which relief can be granted. Like O & G, SMI argues in its memorandum of law that the plaintiffs’ claims do not allege actual harm, only exposure to asbestos, which places the plaintiffs at increased risk for contracting asbestos related diseases, which will require future medical evaluations and monitoring.
The plaintiffs filed their objection to SMI's motion on July 5, 2017, arguing that the harms alleged constitute actual injuries pursuant to Connecticut case law, and their claims meet the legal elements required in order to recover under theories of negligence and negligent infliction of emotional distress.
On August 2, 2017, O & G replied to the plaintiffs’ objection by distinguishing R.T. Vanderbilt Co. from the present matter. R.T. Vanderbilt Co. was a declaratory judgment action, whereby the plaintiff sought a determination as to which of its general liability insurance carriers were obligated to defend and indemnify the claims against it in light of multiple lawsuits alleging injuries from exposure to asbestos. Id., at 75, 156 A.3d 539. The Appellate Court was asked to interpret the contractual language of the various policies in order to determine when insurance coverage was triggered for asbestos related injuries. Id., at 75–76, 156 A.3d 539. The Appellate Court did not define asbestos exposure as a legally compensable injury, nor did it consider that issue, as all underlying lawsuits alleged that the plaintiffs suffered from asbestos related diseases such as mesothelioma, other asbestos related cancer, and asbestosis. See id. The Appellate Court only determined when coverage was triggered and did not make any determinations as to when asbestos exposure becomes a legally compensable injury; rather, it interpreted contractual terms, specifically the meaning of the word "injury," contained in policies of insurance, and found that there are physical consequences of asbestos exposure which fall within the definition of "injury." (Internal quotation marks omitted.) Id., at 118–23, 156 A.3d 539. O & G points out, moreover, that in the present case, the plaintiffs are not alleging present physical injuries or an asbestos related disease, only exposure to asbestos, which is not an actionable harm.
LEGAL STANDARD
"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).
"[A] motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court .... [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 .... Moreover ... [w]hat is necessarily implied [in an allegation] need not be expressly alleged .... 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 .... 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). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank , 219 Conn. 465, 471, 594 A.2d 1 (1991). "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).
ANALYSIS
Negligence, Premises Liability and Recklessness
The negligence counts directed at both O & G and SMI, as well as the premises liability and recklessness counts directed solely against O & G, contain common allegations of injury, essentially, an increased risk of contracting asbestos related diseases and medical monitoring. The complaint itself does not allege any express physical manifestations of symptoms of any asbestos related disease.
As an initial matter, it is necessary to review the elements of a claim in negligence. The long-standing, well accepted elements of a negligence action are "duty; breach of that duty; causation; and actual injury." Ruiz v. Victory Properties, LLC , 315 Conn. 320, 328, 107 A.3d 381 (2015). The existence of an "actual injury," contrasted with a legal technical injury or an invasion of a legal right, is a sine qua non for a claim of negligence. Right v. Breen , 277 Conn. 364, 377, 890 A.2d 1287 (2006). The Supreme Court in Right addressed the question of whether a plaintiff in a negligence action must be awarded nominal damages, thereby making the defendant potentially liable for costs, when the defendant admits liability but denies causing an injury and the plaintiff fails to prove that he suffered an actual injury. Id., at 365–66, 890 A.2d 1287. It concluded that an "actual injury" was required. Id. While the Right decision did not expressly define "actual injury," indeed the parties’ briefs or the court's research has not revealed a definitive definition by a Connecticut appellate court, it held that "bruises, contusions and physical injuries constitute actual damage ...." (Internal quotation marks omitted.) Id., at 375, 890 A.2d 1287. The defendants argue that increased risk of contracting asbestos related diseases and medical monitoring alleged by the plaintiffs is not an actual injury or actionable harm. They cite to two Superior Court decisions, Bowerman v. United Illuminating , Superior Court, judicial district of New London, Docket No. X04-CV-94-0115436-S, 1998 WL 910271 (December 15, 1998) (23 Conn. L. Rptr. 589 ), and Goodall v. United Illuminating , Superior Court, judicial district of New London, Docket No. X04-CV-95-0115437-S, 1998 WL 914274 (December 15, 1998), which held that exposure to asbestos, absent manifestation of symptoms of any asbestos related disease, does not constitute actionable harm. The dispositive question decided by Judge Koletsky in those cases was whether "the scarring of lung tissue and implantation of asbestos fibers in the lungs due to asbestos exposure, as alleged in the plaintiffs’ amended complaint, are compensable injuries as a matter of law." (Emphasis added.) Bowerman v. United Illuminating , supra, 23 Conn. L. Rptr. at 590 ; Goodall v. United Illuminating , supra, 1998 WL 914274, at *3.
Both cases were before the court on motions for summary judgment by the defendants, rather than the motion to strike presently before this court.
The manner in which the answer was framed was informed by this question. "To successfully maintain an action in negligence, a plaintiff must demonstrate: 1) that the defendant has acted in a tortious manner; 2) that the plaintiff has sustained actual injury as a result of the defendant's actions; and 3) that the plaintiff knows of the causal connection between the defendant's tortious conduct and the resulting injury to the plaintiff. ... Regardless of any breach of a standard of care by a defendant, a compensable injury must occur in order for an action in negligence to survive." (Emphasis in original.) Bowerman v. United Illuminating , supra, 23 Conn. L. Rptr. at 590 ; Goodall v. United Illuminating , supra, 1998 WL 914274, at *3. Judge Koletsky concluded that the asymptomatic scarring of lung tissue and the implantation of fibers in the lungs due to asbestos exposure did not constitute detrimental physical harm that was actionable. In large part, his decision was due to the inability of the plaintiffs to demonstrate on summary judgment that they indeed suffered from the conditions alleged in their complaint. Bowerman v. United Illuminating , supra, 23 Conn. L. Rptr. at 593 ; Goodall v. United Illuminating , supra, 1998 WL 914274, at *7.
More recently, the Superior Court has had the occasion to revisit this issue in Dougan v. Sikorsky Aircraft Corp. , Superior Court, judicial district of Hartford, Docket No. X03-CV-12-6033069, 2017 WL 7806431 (March 28, 2017) and concluded, in granting summary judgment, that Connecticut tort law does not permit recovery based on asbestos exposure in the absence of any present clinical injury or physical symptom of an asbestos related illness or disease. The court's decision was based not on whether the plaintiffs, who all alleged "subclinical" injuries—defined as not detectable or producing effects that are not detectable by the usual clinical tests—alleged an "actual injury" but whether Connecticut recognizes a duty to prevent such harm. Id. The court applied the four factor test employed to determine whether public policy supports the imposition of a duty in cases alleging subclinical asbestos exposure claims and determined that it did not. Id.
The four factors are "(1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Dougan v. Sikorsky Aircraft Corp. , supra, Superior Court, Docket No. X03-CV-12-6033069, quoting Lawrence v. O & G Industries, Inc ., supra, 319 Conn. at 650, 126 A.3d 569.
The plaintiffs argue not that Connecticut law recognizes claims for subclinical injuries not demonstrably capable of proof but, rather, relying on R.T. Vanderbilt Co. , that exposure to asbestos has been conclusively recognized as causative of a physical injury. Indeed, the Appellate Court indicated that it "had no difficulty concluding that asbestos exposure damages, harms, hurts, weakens, and impairs the body, beginning at the time of exposure and continuing throughout the latency period until the development of malignancy and the ultimate manifestation of cancer." R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co. , supra, 171 Conn. App. at 117, 156 A.3d 539. This was in large part because it is universally recognized that medical science confirms that some injury to body tissue occurs on the inhalation of asbestos fibers and that once lodged, the fibers pose an increased likelihood of causing or contributing to disease. Id., citing Owens-Illinois , Inc. v. United Ins. Co ., 138 N.J. 437, 454, 650 A.2d 974 (1994). As noted previously, R.T. Vanderbilt Co. decided only whether the physical effects of asbestos exposure fell within the definition of the word "injury" as commonly used in a policy of insurance. R.T. Vanderbilt Co. v. Hartford Accident & Indemnity Co. , supra, at 118–23, 156 A.3d 539.
In the present case, whether the issue is framed as one of duty or actionable harm, the court need not decide whether Connecticut recognizes an absolute duty to prevent the exposure to asbestos resulting in the type of injury to the body found by the court in R.T. Vanderbilt Co. to be medically inescapable, or whether such presymptomatic and subclinical injury constitutes actionable harm, for the simple reason that the plaintiff has no allegations that any physical manifestation occurred as a result of the exposure. That is, the complaint is devoid of any allegation of scarring to the lungs, implantation of asbestos fiber, pleural thickening or any other physical component following the exposure. The court holds that "actual injury" as an element of negligence requires the pleading and proof of some physical component of injury. See Lawrence v. O & G Industries, Inc ., supra, 319 Conn. at 646, 126 A.3d 569 ; Right v. Breen , supra, 277 Conn. at 375, 890 A.2d 1287. The absence of such an allegation renders the negligence, premises liability and reckless claims legally insufficient even under the conclusions reached by the court in R.T. Vanderbilt Co . The motions to strike these claims are granted.
Similarly, these motions do not require the court to answer whether all exposures to asbestos result in clinical disease or illness.
Negligent Infliction of Emotional Distress
The defendants urge the court to strike the claims for negligent infliction of emotional distress for the identical reasons asserted against the other claims. The court is not persuaded. The elements of a claim for negligent infliction of emotional distress are well settled. A plaintiff must allege an unreasonable risk of causing the plaintiff emotional distress, the plaintiff's distress was foreseeable, the emotional distress was severe enough that it might result in illness or bodily harm, and, finally, that the defendant's conduct was the cause of the plaintiff's distress. Olson v. Bristol–Burlington Health District , 87 Conn. App. 1, 5, 863 A.2d 748 (2005), cert. granted, 273 Conn. 914, 870 A.2d 1083 (2005) (appeal withdrawn May 25, 2005). "In order to state a claim for negligent infliction of emotional distress, the plaintiff must plead that the actor should have foreseen that her behavior would likely cause harm of a specific nature, i.e., emotional distress likely to lead to illness or bodily harm." Id. Such a claim does not require the allegation or proof of a present physical injury. Rather, it requires only an emotional injury that might result in bodily harm. The plaintiffs have alleged exactly the requisite elements by their allegations that the defendants "created an unreasonable risk of causing emotional distress to the plaintiff severe enough that it might result in illness or bodily harm. ... It was foreseeable that such distress might result from the defendant's conduct ... [which] was the cause of the [plaintiffs’] emotional distress." Plaintiffs’ Complaint, ¶¶ 20–22, counts six through ten and twenty-six through thirty. The defendants’ motions to strike these counts are denied.
CONCLUSION
Based upon the foregoing the motions to strike are granted as to counts one through five and eleven through twenty-five but denied as to counts six through ten and counts twenty-six through thirty.
APPENDIX
JULIAN POCE ET AL. v. O & G INDUSTRIES, INC., ET AL.*
Superior Court, Judicial District of Hartford
File No. CV-17-6074254-S
Memorandum filed September 30, 2019
Proceedings
Memorandum of decision on motion for summary judgment. Motion granted in part.
Austin Berescik-Johns and Paul Levin , for the plaintiffs.
Michael S. Lynch , for the named defendant.
Michael J. Dugan and Jacqueline A. Maulucci , for the defendant Southern Middlesex Industries, Inc. Opinion
NOBLE, J.
At issue in this asbestos exposure case is whether a genuine issue of material fact exists as to whether the defendants owed these plaintiffs a duty of care. In separate motions for summary judgment, the defendants each argue they owed no duty of care to the plaintiffs. The plaintiffs argue that they were owed a duty of care, which can arise outside of a contract and based on circumstances. For the following reasons, the defendant O & G's motion for summary judgment is granted, and the defendant SMI's motion for summary judgment is denied.
FACTS
This action arises from a building project that took place at Wethersfield High School. The plaintiffs, Julian Poce, Skerdinand Xhelaj, Michael Meredith, Erjon Goxhaj, and Fatjon Rapo, worked on that project during which they allege that they were exposed to asbestos. The plaintiffs commenced this action with a thirty count complaint against the defendants, Southern Middlesex Industries, Inc. (SMI), and O & G Industries, Inc. (O & G), on December 27, 2016, and later filed an amended complaint on May 19, 2017. Following separately filed motions to strike by both defendants, the court issued a memorandum of decision on December 5, 2017, granting the motions to strike counts sounding in negligence as to both defendants; premises liability as to O & G; and recklessness as to O & G. Counts six through ten and twenty-six through thirty of the plaintiffs’ complaint remain viable, sounding in negligent infliction of emotional distress as to both defendants.
In their complaint, the plaintiffs allege the following facts. The plaintiffs were employed as mason laborers by Connecticut Mason Contractors, Inc. At various times between 2013 and 2016, the plaintiffs were assigned to a building project at Wethersfield High School. While working there, the plaintiffs were repeatedly exposed to asbestos by working in areas of the building designated by the defendant O & G, the project manager, thereby disturbing the floors, walls, and ceilings, which contained asbestos.
The plaintiffs further allege that O & G had actual or constructive notice of dangerous site conditions and defects, including the presence of asbestos and PCBs, and failed to remediate the hazards. O & G, as construction manager, supervised all phases of work at the high school, exercising possession and control of the site. O & G controlled, or had the ability to control, the means and methods of work being performed at the site, and could have prevented the designation of work and/or suspended work in areas of the building that contained asbestos. Work areas, however, were not sampled, remediated, and tested prior to the plaintiffs’ exposure, and the plaintiffs were not provided appropriate protective equipment. Asbestos conditions were present and disturbed in such a manner as to make it highly probable toxic substances would be breathed. O & G was aware of the exposure and allowed it to repeatedly occur, in spite of an agreement signed by the town of Wethersfield, O & G, and the plaintiffs’ employer that required O & G to observe safety protocols and procedures. The plaintiffs, mason laborers, were not trained in asbestos protection, and O & G did not arrange for proper training at the site. The plaintiffs had not been advised of a need for asbestos protection. O & G told the plaintiffs’ employer that the plaintiffs would only be required to work in areas that did not contain asbestos or where suitable asbestos remediation had been effected.
Finally, the plaintiffs allege that the defendant SMI performed demolition work involving asbestos remediation at the site. SMI did not properly section off regulated work areas to ensure the plaintiffs were not exposed to hazardous materials being remediated. SMI's conduct contributed to the lack of adequate testing and sampling of materials, and to the lack of advance warning to the plaintiffs.
In their allegations of negligent infliction of emotional distress, the plaintiffs incorporate the prior allegations of the complaint and allege that the defendants created an unreasonable risk of causing emotional distress serious enough that it may result in illness or bodily harm; it was foreseeable that such distress could result from the defendants’ conduct; and that the defendants’ conduct was the cause of the plaintiffs’ emotional distress.
The present motions for summary judgment were filed on September 7, 2018, by the defendant O & G, and on October 31, 2018, by the defendant SMI. In support of its motion, O & G submitted as exhibits document #028216, dated October 15, 2013; AIA Document C132, the August 15, 2012 standard form of agreement between the town of Wethersfield and O & G for additions and renovations to Wethersfield High School; and AIA Document A232, general conditions of the contract for construction, with the same parties. SMI submitted with its motion the sworn affidavit of Michael J. Dugan, Esq.; deposition transcripts of Jeff Bridges; the sworn affidavit of Darrell MacLean; AIA Document A132, the November 22, 2013 standard form of agreement between the town of Wethersfield and SMI regarding additions and renovations to Wethersfield High School; and a change order dated July 27, 2016. The plaintiffs filed an objection to O & G's motion for summary judgment on December 4, 2018, and to SMI's motion on March 25, 2019. In opposing the two motions separately, the plaintiffs submitted another AIA Document A132, standard form of agreement between the town of Wethersfield and Connecticut Mason Contractors, Inc., for additions and renovations to Wethersfield High School; notes from a meeting of the Wethersfield Town Council; a page of SMI's website; and the affidavits and depositions of multiple persons speaking to O & G's general authority on the project site and SMI's experience in asbestos remediation and inadequate performance on site. O & G filed a reply on January 10, 2019, and SMI did so on April 16, 2019, with a copy of an asbestos abatement monitoring report. The plaintiffs filed surreplies on April 26, 2019, with the sworn affidavit of Franklin A. Darius, Jr.1 Oral argument was heard on both the present motions for summary judgment on June 3, 2019.
LEGAL STANDARD
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation , 306 Conn. 523, 534, 51 A.3d 367 (2012). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Stuart v. Freiberg , 316 Conn. 809, 821, 116 A.3d 1195 (2015). "It is axiomatic that in order to successfully oppose a motion for summary judgment by raising a genuine issue of material fact, the opposing party cannot rely solely on allegations that contradict those offered by the moving party ... such allegations must be supported by counteraffidavits or other documentary submissions that controvert the evidence offered in support of summary judgment." GMAC Mortgage, LLC v. Ford, 144 Conn. App. 165, 178, 73 A.3d 742 (2013). "Mere statements of legal conclusions ... and bald assertions, without more, are insufficient to raise a genuine issue of material fact capable of defeating summary judgment." (Internal quotation marks omitted.) CitiMortgage, Inc. v. Coolbeth , 147 Conn. App. 183, 193, 81 A.3d 1189 (2013), cert. denied, 311 Conn. 925, 86 A.3d 469 (2014). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros , 323 Conn. 275, 282, 147 A.3d 1023 (2016).
ANALYSIS
I
O & G's MOTION FOR SUMMARY JUDGMENT
The defendant O & G argues that summary judgment should be granted on the ground that it owed no duty to the plaintiffs because issues relating to hazardous materials were specifically excluded in its contract from its scope of work. The plaintiffs counter, arguing that legal duty is a question of fact; that O & G supervised safety at the worksite; that it had a duty of care to third parties because it was in control of the site; and that it had a duty of care under OSHA regulations. In its reply, O & G further argues that its contract provides that it did not have control over construction means or safety precautions at the site, and that it had no duty under the common law or OSHA regulations. "A cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury .... Whether a duty exists is a question of law for the court, and only if the court finds that such a duty exists does the trier consider whether that duty was breached." (Citation omitted.) Ruiz v. Victory Properties, LLC , 315 Conn. 320, 328, 107 A.3d 381 (2015). "To prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove: (1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." (Internal quotation marks omitted.) Grasso v. Connecticut Hospice, Inc ., 138 Conn. App. 759, 771, 54 A.3d 221 (2012) ; see also Carrol v. Allstate Ins. Co ., 262 Conn. 433, 446–48, 815 A.2d 119 (2003). "[L]ike all negligence claims, both subsets of negligent infliction of emotional distress claims require proof of the breach of a legally recognized duty, causing injury." Marsala v. Yale-New Haven Hospital, Inc ., 166 Conn. App. 432, 444–45, 142 A.3d 316 (2016).
"[W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law." (Internal quotation marks omitted.) Levine v. Massey , 232 Conn. 272, 277–78, 654 A.2d 737 (1995). "It is the general rule that a contract is to be interpreted according to the intent expressed in its language and not by an intent the court may believe existed in the minds of the parties." Id., at 278, 654 A.2d 737. "It is axiomatic that a party is entitled to rely upon its written contract as the final integration of its rights and duties." Id., at 279, 654 A.2d 737. "Negligence cannot be predicated upon the failure to perform an act which the actor was under no duty or obligation to perform." Behlman v. Universal Travel Agency, Inc ., 4 Conn. App. 688, 691, 496 A.2d 962 (1985).
In the present case, the defendant's contract provides in relevant part: "The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral." Def. Ex. 2, AIA Doc. A232 § 1.1.2. Its contract further provides that "[u]nless otherwise required in this agreement, the Construction Manager shall have no responsibility for the discovery, presence, handling, removing or disposal of, or exposure of persons to, hazardous materials or toxic substances in any form at the Project site." Def. Ex. 2, AIA Doc. C132, § 10.6. O & G is named in the agreement as the construction manager. Def. Ex. 2, AIA Doc. C132, 1. Under the terms of its contract, O & G was not responsible for discovering or removing any asbestos on the worksite. Accordingly, it owed no duty to the plaintiffs regarding any exposure to the substance that they may have suffered.
The plaintiffs first argue that a proper analysis of legal duty ordinarily leads to a question of fact. Such issues, on the contrary, pose questions of law for the court. See Ruiz v. Victory Properties, LLC , supra, 315 Conn. at 328, 107 A.3d 381. The plaintiffs contend that O & G was charged with supervising safety, and had the authority to control work performed by the plaintiffs, which creates a genuine issue of material fact as to who was in control of the project site and whether O & G was responsible for avoiding exposures. The question of which party was in control of the site is not at issue in the present case. Nonetheless, the defendant's contract provides that "[t]he Construction Manager ... will not have control over ... the safety precautions and programs in connection with the work ...." Def. Ex. 2, Doc. A232, § 4.2.5. Additionally, as has been established in the previous paragraphs, under the terms of its contract, the defendant was not responsible specifically for the discovery or removal of asbestos at the worksite. Thus, O & G was not in control of the relevant worksite safety procedures.
The plaintiffs contend that O & G owed them a duty of care as third parties under Connecticut common law. With regard to third-party liability, "the undertaking party not only will assume duties to third parties expressly set forth in the contract itself, as well as pass-through duties owed by the hiring party that are assigned or transferred to the undertaking party, but also will assume a duty of care to protect third parties from foreseeable, physical harm within the scope of the services to be performed." (Emphasis in original.) Demond v. Project Service, LLC , 331 Conn. 816, 846, 208 A.3d 626 (2019). O & G did not assume a contractual duty to the plaintiffs, nor was it assigned any such duties by the town. Consequently, any duties that it assumed to the plaintiffs were limited to foreseeable physical harm within the scope of the services to be performed. As responsibility for discovering and removing asbestos was specifically excluded from the scope of O & G's services, it did not owe the plaintiffs a duty under a theory of third-party liability.
Lastly, the plaintiffs claim that O & G owed them a duty of care arising from OSHA regulations. "Both the federal and state OSHA statutes provide that such regulations may not be used to create a private cause of action for injuries arising out of or in the course of employment." Mingachos v. CBS, Inc ., 196 Conn. 91, 112, 491 A.2d 368 (1985). "OSHA regulations, if applicable, may be used as evidence of the standard of care in a negligence action against an employer .... Where an OSHA regulation applies in a civil case, it can provide helpful guidance to the jury in its deliberations." (Citation omitted; internal quotation marks omitted.) Wagner v. Clark Equipment Co. , 243 Conn. 168, 188, 700 A.2d 38 (1997). Nonetheless, "even if an OSHA violation is evidence of [a defendant's] negligence ... [the defendant] must owe a duty ... under a theory of liability independent of OSHA .... OSHA regulations can never provide a basis for liability .... The [Occupational Safety and Health] Act itself explicitly states that it is not intended to affect the civil standard of liability." (Citations omitted; internal quotation marks omitted.) Ellis v. Chase Communications, Inc ., 63 F.3d 473, 478 (6th Cir. 1995). In the present case, the plaintiffs have not provided an OSHA statute that is applicable to O & G. Nonetheless, it has already been established that O & G did not owe the plaintiffs a duty of care with regard to the discovery and removal of asbestos, and OSHA cannot establish such a duty independently. Accordingly, there is no genuine issue of material fact that O & G did not owe the plaintiffs a duty of care with regard to the discovery and removal of asbestos and its motion for summary judgment is granted.
II
SMI's MOTION FOR SUMMARY JUDGMENT
The defendant SMI also moves for summary judgment on the ground that it owed no duty to the plaintiffs. SMI argues that it owed no duty of care to the plaintiffs because it was not hired to identify asbestos; rather, it was hired to remove hazardous materials that had already been identified by other contractors. The plaintiffs contend that an analysis of legal duty ordinarily leads to a question of fact; SMI was in the best position to ensure the safety of the plaintiffs; SMI performed its work in such a way as to create hazardous situations; SMI owed a duty of care under Connecticut common law; and SMI owed the plaintiffs a duty of care arising from OSHA regulations. SMI argues in its reply that it had no duty to perform work that was beyond the scope of its contract.
"Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant .... [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular, consequences or particular plaintiff in the case." (Internal quotation marks omitted.) Sic v. Nunan , 307 Conn. 399, 407–408, 54 A.3d 553 (2012). When a "case is close enough to the margin of reasonable foreseeability ... it would be inappropriate to foreclose the foreseeability inquiry as a matter of law." Ruiz v. Victory Properties, LLC , 135 Conn. App. 119, 127, 43 A.3d 186 (2012), aff'd, 315 Conn. 320, 107 A.3d 381 (2015).
SMI's contract provides in relevant part that "[t]he Contractor shall perform all work required by the Contract Documents for Bid Package 2.01—Abatement & Demolition." Def. Ex. C, AIA Doc. A132, Art 2. In his sworn deposition, former Wethersfield town manager Jeff Bridges stated that "Southern Middlesex Industries was retained or hired to perform both clean and hazardous material demolition." Def. Ex. A, Bridges Dep., 12. Bridges further stated that it was correct that "between EnviroMed and Fuss & O'Neill, those entities, as part of their job, identified hazardous materials within the Wethersfield High School .... And based upon the work that Fuss & O'Neill and EnviroMed did in identifying the hazardous materials, the town then hired an abatement contractor to remove the hazardous materials that had previously been identified ...." Def. Ex. A, Bridges Dep., 71. SMI's President, Darrell MacLean, states in his sworn affidavit that "SMI submitted a bid to the [t]own of Wethersfield ... to perform demolition and hazardous material removal, including asbestos abatement, for the renovation of the Wethersfield High School ...." Def. Ex. B, MacLean Aff., 1. MacLean further stated that "Fuss & O'Neill conducted an environmental assessment of the building for the purpose of identifying and locating the presence of hazardous materials in the building which would have to be removed." Def. Ex. B, MacLean Aff., 1.
On the other hand, Carlos Texidor, project manager for Fuss & O'Neill, when asked in his deposition whether anyone was keeping an eye out for suspect materials at times when Fuss & O'Neill were not present, stated: "To my knowledge I don't know, other than SMI." Pl. Ex. 4, 37. Darrell MacLean, President of SMI, stated that his employees on several occasions came across suspicious material that was found to be asbestos. Pl. Ex. 5, 39–45. The procedure was that "[i]f [the employees] have any doubt, they're supposed to just stop, identify it, and notify the supervisor." Pl. Ex. 5, 39. SMI additionally is alleged to have created a hazard by placing material into non-asbestos dumpsters that was found to contain asbestos. Pl. Ex. 4, 32–33.
It is evident that SMI was not hired for the specific purpose of identifying and locating hazardous materials. That alone, however, does not establish that it bore no responsibility whatsoever for the identification and discovery of asbestos on the worksite while it performed its demolition and remediation duties. Questions of fact therefore remain regarding SMI's capacity to identify any previously undiscovered hazardous materials to which the plaintiffs allege they were exposed. The defendant SMI's motion for summary judgment is accordingly denied.
CONCLUSION
For the foregoing reasons, the defendant O & G's motion for summary judgment is granted and the defendant SMI's motion for summary judgment is denied.
* Affirmed. Poce v. O & G Industries, Inc. , 210 Conn. App. , A.3d (2022).