Opinion
No. X04 CV 04 4001303 S
December 9, 2005
RULINGS ON PENDING MOTIONS
This case and its several companions arise from an explosion of chemicals at a facility of the intervening plaintiff Pfizer, Inc., on June 25, 2002. The plaintiff Richard Patterson claims that he was seriously injured as a result of the explosion; the plaintiff Patricia Patterson, Richard's wife, alleges loss of consortium. The Pattersons have claimed damages from the defendants Mine Safety Appliances Company and BASF in product liability arising from the production and the placing into commerce of chemicals which apparently exploded while being stored at Pfizer. Similarly, the defendant Manchester Tank Equipment Company has been sued because of its activity with the tanks in which the chemicals were shipped and stored. Several other entities are defendants in this and other files; companion files contain claims by several different plaintiffs as well. The reasoning of the rulings in this case can be applied to many of the outstanding issues in the other files as well.
I. Mine Safety's Motion to Strike Count Eleven (#156).
Count One of the operative amended complaint dated June 24, 2005, alleges in one count a product liability action against Mine Safety. The count is pled comprehensively and includes, inter alia, allegations of strict tort liability (defective product). In the eleventh count, Patterson claims that Mine Safety is liable for the tort of conducting an ultra-hazardous activity. Mine Safety has moved to strike this count. Its reasons for moving to strike include arguments that the a product liability action is the exclusive remedy in these circumstances and that, in any event, relief cannot be granted on an independent claim of strict tort liability on the facts alleged.
I agree that, in the circumstances, presented a product liability action, as expressed in the first count, is the exclusive remedy. It is as clear as can be that a "product liability claim" brought pursuant to § 52-572m et seq. is the exclusive remedy for "all . . . claims against product sellers, including actions of negligence, strict liability and warranty, for harm caused by a product." General Statutes § 52-572n(a); Winslow v. Lewis-Shepard, Inc., 212 Conn. 462 (1989). A "product seller" means "any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products . . ." General Statutes § 52-572m(a). A "product liability claim" is defined in General Statutes § 52-572m(b):
(b) "Product liability claim" includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. "Product liability claim" shall include, but is not limited to, all actions based on the following theories: Strict liability in tort; negligence; breach of warranty, express or implied; breach of or failure to discharge a duty to warn or instruct, whether negligent or innocent; misrepresentation or nondisclosure, whether negligent or innocent.
A claim arising out of the conducting of an ultra-hazardous activity is a form of strict tort liability. E.g., Green v. Ensign-Bickford Co., 25 Conn.App. 479, 482-83 (1989). Because it is a claim of "strict liability in tort" brought against a product seller for personal injury, the assertion of this claim in a separate count is barred by the exclusive remedy provision of General Statutes § 52-572n(a). Mine Safety's motion to strike the eleventh count is therefore granted.
This conclusion is fortified by additional considerations. The eleventh count alleges factors set forth in the Restatement of Torts (2d Ed.) § 520, to be considered in determining whether a particular activity is the sort of ultrahazardous activity governed by principles of strict tort liability. The Restatement factors as recognized by Green are as follows:
The Restatement of Torts, 2d Ed., was relied upon by the Appellate Court in Green v. Ensign-Bickford, supra, 486. The third edition has more recently been promulgated. The third edition has restated and somewhat simplified the test:
(a) A defendant who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity.
(b) An activity is abnormally dangerous if:
(1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
(2) the activity is not a matter of common usage.
Restatement of Torts (3d Ed.) § 20.
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." 3 Restatement (Second), Torts 520.
Green, supra, 486.
The Restatement, Third Edition, has explicitly stressed the inability to carry out the activity safely even if reasonable care is exercised. The case law referring to the second edition also stressed the primacy of that factor. See cases compiled in the comment to the Restatement of Torts (3d Ed.), comment h; see also AmJur 2d Negligence, § 398. In Steinhoff v. Woodward, 25 Conn. L. Rptr. 241 (Martin, J.) (1999), Judge Martin, referring to a number of Superior Court cases, noted that the hallmark of strict liability cases was the inability to render the activity safe, regardless of the degree of care exercised. He therefore granted a motion to strike a claim of strict tort liability arising from exposure to lead paint, because lead paint can be rendered reasonably safe.
The subject matter of cases subject to strict tort liability is, then, limited. Most common are cases such as blasting and, analogously, pile driving; see Caporale v. C.W. Blakeslee Sons, Inc., 149 Conn. 79 (1961); where the activity is intrinsically dangerous and where harm cannot be avoided because of the nature of the activity itself. The principle was extended somewhat to the manufacture of explosives, by reference to the second Restatement, in Green, supra. But again, in Green it was the activity of producing the explosives that formed the basis for strict tort liability, not the storage.
The striking of the independent count of strict tort liability is consistent, then, with several themes of tort law. First, considerable confusion has evolved in the field of strict tort liability for abnormally dangerous activity once one ventures from the relatively clear-cut category of the use or storage of explosives. See, e.g., Dobbs, The Law of Torts 954 et seq., § 348 (2000). Recognizing the difficulties, the American Law Institute has retrenched somewhat in the third edition of the Restatement of Torts, as noted above, so that the doctrine is now intended to apply only to activities which cannot be pursued safely and the activity is not commonly performed. The activity alleged in the eleventh count of the instant case is not the use or storage of an explosive substance, but rather is the more remote and indirect activity of production, marketing, and the like. The trend, then, is to narrow the tort of strict tort liability.
The doctrine has been applied persuasively to a limited number of other activities as well, such as the spreading of toxic pesticides while crop-dusting. See Dobbs, supra. Apparently courts have decided that the vagaries of air currents prevent the activity from being conducted safely even in the exercise of appropriate care. The doctrine has usually not been applied to more borderline activities, such as asbestos removal, welding on petroleum tanks, the transportation of hazardous substances, most storage activities, and the use of sulfuric acid. See Comment h, supra. I did not find any case in which the manufacture of materials which subsequently exploded somewhere else resulted in strict tort liability on the part of the product seller, except, of course, within the confines of product liability actions.
It is the function of the judge rather than the fact-finder to determine whether an activity is abnormally dangerous such that it qualifies for strict tort liability. See Comment 1, Restatement of Torts (2d Ed.); Green, supra. The plaintiff has the burden to show why the activity should be one governed by strict tort liability. Although it may well be true that there is no burden to present evidence or extrinsic information at this stage of the proceedings, I nonetheless have not seen any information which would persuade me that the storage of the chemical in issue cannot be achieved safely, nor have I seen information to the effect that such production is uncommon. Again, I do not specifically rule on this ground at this point in the case, but it does appear that the allegation lacks the common-sense impact of, say, a blasting case.
Finally, as stated above, it is the expressed policy of the legislature that actions against product sellers are to be brought pursuant to the product liability act. Cases such as Winslow, supra, discuss some of the policy reasons and include some of the legislative history. Standard processes, including considerations such as limitations of actions and joining other parties, have been considered to be commercially beneficial. Although the necessary allegations supporting actions for strict liability based on defective product are not identical to the necessary allegations for strict liability based on abnormally dangerous activities, there is a conceptual similarity and in many ways the requirements for alleging a defective product are less stringent.
In any event, the motion to strike is granted as to the eleventh count.
II. The motion to strike the twelfth count (#156).
The twelfth count realleges the allegations of the eleventh count and asserts a loss of consortium claim on behalf of Patricia. Because the loss of consortium claim is derivative of the strict tort liability claim, the motion to strike is granted as to the twelfth count.
III. Objection to request to revise (#167).
The defendant BASF requested the plaintiff to revise his complaint so that the claims against BASF would be separated into different counts. One claim arises from the supply of an ingredient into the mix which ultimately exploded. A second claim is based on the entirely separate ground that BASF is a subsequent purchaser of an entity which supplied the chemicals. In oral argument, the conundrum was discussed. It is true that under our procedure all theories of recovery under product liability are to be stated in one count. On the other hand, BASF may want to strike or otherwise address only one theory of recovery, and it is equally true that motions to strike are, in theory, not to address less than a whole count. I believe the sensible solution is to sustain the objection to the request to revise, such that both theories of recovery remain in the same count, but to allow the defendant to attack the theories separately if it chooses. Wit that understanding, the objection to the request to revise is sustained.