Lawrence v. O & G Indus., Inc., Nos. 19330

• Court: Supreme Court of Connecticut
• Writing for the Court: ROBINSON, J.
• Citation: 319 Conn. 641,126 A.3d 569
• 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.
• Decision Date: 24 November 2015
• Docket Number: 19331.,Nos. 19330

319 Conn. 641
126 A.3d 569

Robert LAWRENCE et al.
v.
O AND G INDUSTRIES, INC., et al.

Carolyn Beamer et al.
v.
O and G Industries, Inc., et al.

Nos. 19330
19331.

Supreme Court of Connecticut.

Argued Sept. 16, 2014.
Decided Nov. 24, 2015.

126 A.3d 570

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,

126 A.3d 571

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.

319 Conn. 643

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,

319 Conn. 644

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

126 A.3d 572

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

319 Conn. 645

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,

319 Conn. 646

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

126 A.3d 573

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

319 Conn. 647

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

319 Conn. 648

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

126 A.3d 574

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...