Lawrence v. O & G Indus., Inc.

Decision Date24 November 2015
Docket Number19331.,Nos. 19330,s. 19330
Citation319 Conn. 641,126 A.3d 569
CourtConnecticut Supreme Court
Parties Robert LAWRENCE et al. v. O AND G INDUSTRIES, INC., et al. Carolyn Beamer et al. v. O and G Industries, Inc., et al.

Joseph M. Barnes, with whom, on the brief, was Robert I. Reardon, Jr., New London, for the appellants (plaintiff Dean Novak et al. in the first case, named plaintiff et al. in the second case).

Proloy K. Das, with whom were John W. Bradley, Hartford, Michael S. Lynch, Shelton, Peter J. Ponziani, Simsbury, William J. Scully, and, on the brief, Robbie T. Gerrick, Hartford, Christopher J. Sochacki, Simsbury, David E. Rosengren, Hartford, Frank Sherer, Middlebury, Anthony J. Natale, Glastonbury, Robert L. Joyce, Thomas M. McKeon, Shelton, and Joseph B. Burns, Hartford, for the appellees (named defendant et al. in both cases).

ROGERS, C.J., and PALMER, ZARELLA, ESPINOSA, ROBINSON and VERTEFEUILLE, Js.

ROBINSON, J.

The sole issue in this appeal is whether construction companies owe a duty of care to workers employed on a job site who suffer purely economic harm, namely lost wages, as a result of an accident caused by the construction companies' negligence. The plaintiffs in these two civil actions1 were gainfully employed in numerous trades at the Kleen Energy power plant (power plant) construction project in the city of Middletown. The plaintiffs brought their claims against the defendants, which include the general contractor of the construction project, the named defendant, O & G Industries, Inc.,2 alleging that their negligence caused a gas explosion that resulted in the termination of the plaintiffs' gainful employment, causing them to suffer economic loss in the form of past and future lost wages. The plaintiffs now appeal3 from the judgments of the trial court rendered following its grant of the defendants' motions to strike the applicable counts of their complaints. On appeal, the plaintiffs claim that the trial court improperly concluded that the defendants did not owe them a duty of care on the ground that "public policy is not served by expanding the defendants' liability to purely economic claims such as those asserted by the plaintiffs." We disagree with the plaintiffs and, accordingly, affirm the judgments of the trial court.

The record reveals the following relevant facts and procedural history. The plaintiffs were gainfully employed in various trades at the power plant construction site in Middletown. Each defendant was a contractor or subcontractor actively involved in the construction and start-up of the power plant. On February 7, 2010, a gas explosion occurred. The plaintiffs then brought these actions against the defendants, alleging that their negligence caused the explosion, which resulted in the termination of the plaintiffs' gainful employment at the power plant site and economic losses in the form of past and future lost wages. Following the transfer of the cases from the judicial district of Middlesex to the Complex Litigation Docket in the judicial district of Hartford, the defendants moved to strike the economic loss counts of the operative complaints.4

The trial court, Bright, J.,5 granted the defendants' motions to strike, concluding that the plaintiffs had "failed to sufficiently allege that the defendants owed them a duty of care" necessary to sustain their negligence claims.6 Noting that it was undisputed that "foreseeability is not at issue" with respect to the duty analysis, the trial court turned to "whether recovery should be permitted as a matter of public policy" under the well established four factor test articulated in, for example, Jarmie v. Troncale, 306 Conn. 578, 603, 50 A.3d 802 (2012). Relying on, inter alia, this court's decisions in RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 650 A.2d 153 (1994), and Connecticut Mutual Life Ins. Co. v. New York & New Haven Railroad Co., 25 Conn. 265 (1856), and the Superior Court's decision in DeVillegas v. Quality Roofing, Inc., Superior Court, judicial district of Fairfield, Docket No. CV–92–0294190S, 1993 WL 515671 (November 30, 1993) (10 Conn. L. Rptr. 487 ) the trial court concluded: "For more than 150 years the law in Connecticut, and elsewhere, has limited tort liability to cases involving physical harm to person or property. Departing from this requirement would undermine reasonable expectations built on this long held understanding of the law, and would create an endless ripple of liabilities arising from the defendants' conduct. Public policy is not served by so expanding the defendants' liability to purely economic claims such as those asserted by the plaintiff[s]." Subsequently, the trial court, Sheridan, J., granted the plaintiffs' motions for judgment in accordance with Judge Bright's memoranda of decision granting the defendants' motions to strike. This consolidated appeal followed. See footnote 3 of this opinion.

On appeal, the plaintiffs claim that the trial court improperly concluded that the defendants did not owe them a duty of care. In particular, the plaintiffs argue that the trial court improperly determined that "public policy is not served by expanding the defendants' liability to purely economic claims such as those asserted by the plaintiffs." The plaintiffs rely on, inter alia, Ins. Co. of North America v. Manchester, 17 F.Supp.2d 81 (D.Conn.1998), and A.M. Rizzo Contractors, Inc. v. J. William Foley, Inc., Superior Court, judicial district of Stamford–Norwalk, Complex Litigation Docket, Docket No. X05–CV–05–106004577–S, 2011 WL 1105799 (January 13, 2011) (51 Conn. L. Rptr. 542 ) and contend that their losses were reasonably foreseeable and not remote, thus permitting them to move forward with negligence claims seeking purely economic damages despite the absence of privity of contract, physical injury, or property damage. The plaintiffs further argue that this court's decision in RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 381, 650 A.2d 153, is distinguishable, and contend that the Superior Court's decision in DeVillegas, which was followed by the trial court in the present case, is inconsistent with the greater weight of Superior Court authority rejecting the use of the economic loss doctrine to bar tort claims seeking purely economic damages. Instead, the plaintiffs urge us to follow the Superior Court's decision in Reiner & Reiner, P.C. v. Connecticut Natural Gas Corp., Superior Court, judicial district of Hartford–New Britain, Docket No. CV–95–0551260–S, 1995 WL 780933 (December 12, 1995), which denied a motion to strike tort claims brought by a law firm seeking purely economic damages caused by a gas leak near its office, despite the lack of physical injury, property damage, or privity of contract between the parties.

In response, the defendants rely on, inter alia, RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 381, 650 A.2d 153, and contend that the plaintiffs' arguments improperly fail to consider that, in addition to foreseeability, "a court should consider public policy before imposing a legal duty."7 Applying the four factor public policy test first articulated in Jaworski v. Kiernan, 241 Conn. 399, 404, 696 A.2d 332 (1997), and utilized by the trial court in the present case, the defendants then argue that they owed no duty to the plaintiffs, given the lack of privity of contract, physical injury, or property damage, because: (1) given existing Connecticut case law, such as DeVillegas, "there is no expectation that the defendants would be liable to any and all workers at the [power plant] who may have lost wages as a result of the temporary closing of the plant"; (2) the safety factor was not at issue because "gas blows are presumably a necessary function to properly operate this type of power plant and not an optional activity that the rule of law could either encourage or discourage"; (3) "recognizing a negligence cause of action in this case would lead to potentially limitless liability," and "require the [trial] court to draw arbitrary limitations between individuals or businesses who in fact suffered economically because construction temporarily stopped at the [power] plant"; and (4) the majority of state and federal courts addressing this issue "have held that absent physical injury to person or property, a plaintiff may not recover in tort for purely economic loss." We agree with the defendants, and conclude that public policy bars the imposition upon them of a duty of care to the plaintiffs in this case.8

"We begin by setting out the well established standard of review in an appeal from the granting of a motion to strike. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court's ruling ... is plenary.... We take the facts to be those alleged in the complaint that has been stricken and we construe 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, we note that [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.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).

"Our analysis of the [plaintiffs'] claim is governed by the following principles. 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...

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