Gonzalez v. O&G Indus., Inc.

• Decision Date: 30 December 2021
• Docket Number: SC 20422
• Parties: Elvira R. GONZALEZ et al. v. O & G INDUSTRIES, INC., et al.
• Court: Connecticut Supreme Court

341 Conn. 644

267 A.3d 766

Elvira R. GONZALEZ et al.

v.O & G INDUSTRIES, INC., et al.

SC 20422

Supreme Court of Connecticut.

Argued January 13, 2021

Officially released December 30, 2021^*

James J. Healy, Hartford, with whom were Joel T. Faxon, Eric P. Smith, and Timothy P. Pothin, New Haven, for the appellants (plaintiff James L. Thompson II et al.).

Thomas A. Plotkin, Hartford, with whom were John W. Bradley, Jr., and, on the brief, Joseph B. Burns, for the appellee (defendant Kleen Energy Systems, LLC).

William J. Scully, with whom were Lorinda S. Coon, Hartford, and, on the brief, Jessica M. Scully, for the appellee (defendant Power Plant Management Services, LLC).

Robinson, C. J., and McDonald, D'Auria, Mullins and Kahn, Js.

McDONALD, J.

Almost twelve years ago, an explosion occurred at a natural gas fueled, power generating facility under construction in Middletown. The devastating blast and ensuing fire took the lives of six construction employees and injured nearly thirty more. Several of the victims and their families brought this tort action against the owner of the power plant, the owner's administrative agent, the general contractor, and others. The plaintiffs claimed that the general contractor's oversight during construction caused the tragedy, and that the owner and administrative agent were liable for that oversight under theories of strict liability for abnormally dangerous activities and negligence. After their claims against the general contractor were resolved in the contractor's favor, the plaintiffs sought relief from the defendant owner and administrative agent. The plaintiffs’ two theories of tort liability were bifurcated. With respect to the plaintiffs’ strict liability claims, the defendants asserted that they were not strictly liable because the procedure that caused the explosion was not abnormally dangerous. Following an evidentiary hearing, the trial court agreed and rendered judgment for the defendants with respect to the strict liability claims. Then, the defendants sought summary judgment with respect to the plaintiffs’ negligence claims, asserting that they were not liable in negligence because it was the general contractor, not the owner or administrative agent, which exercised control over the procedure that caused the explosion. The court agreed, granting the defendants’ motions for summary judgment with respect to the negligence claims.

The plaintiffs appealed, and we must decide whether tort remedies are available to the plaintiffs following this tragic event.

The record reveals the following facts, which the trial court reasonably could have found, and procedural history relevant to our resolution of this appeal. In 2002, the defendant Kleen Energy Systems, LLC, received approval to build and operate a natural gas fueled, electrical power generating facility (power plant) in Middletown. In 2007, Kleen Energy entered into an "Engineering, Procurement and Construction Agreement" with the named defendant, O & G Industries, Inc., under which O & G agreed to serve as the general contractor for the construction of the power plant. Kleen Energy also entered into a "Contract for Project Management and Administrative Services," which was subsequently amended and restated, with the defendant Power Plant Management Services, LLC (PPMS). Because Kleen Energy had no employees of its own, it hired PPMS "to provide management, administrative and other support services required to manage and administer the [power plant] and [Kleen Energy's] business on a day to day basis, and to perform certain other tasks and duties relating to the [power plant] and [Kleen Energy's] business ...."¹

By early 2010, the construction of the power plant was nearing completion. At this point, before the power generating equipment could start up, the manufacturer of the gas turbines required that the natural gas fuel supply pipelines be cleared of construction debris. This was required because foreign material, such as welding slag, rust, and dirt, which is often introduced into the piping during the earlier phases of construction, could damage the gas turbines.

To clear this debris from the natural gas fuel supply pipelines, O & G and its subcontractors performed a procedure commonly referred to as a "gas blow."² In connection with this procedure, natural gas flows through the piping at a higher pressure than during normal operation, and the force of the gas then propels the debris through the pipe until it is ejected through an open-ended pipe called a "nozzle." The gas blow procedure has been a common practice in the construction of power plants since before World War II. Although there are other procedures that can be used to clear construction debris from natural gas fuel supply pipelines, it has been estimated that gas blows have been employed in the construction of 60 to 70 percent of the natural gas fueled power plants that have been constructed in the last twenty-five years.

For Kleen Energy's power plant, about 2000 feet of natural gas fuel supply pipeline needed to be cleared over two days. The pipelines were cleared in segments corresponding with discharge nozzles located in eight places throughout the length of the piping. On January 30, 2010, O & G and several subcontractors conducted the first series of gas blow procedures, which cleared approximately three-quarters of the piping without incident. Early in the morning, on February 7, 2010, several gas blow procedures were conducted, again without incident. For all these gas blow procedures, the discharge nozzles had been oriented vertically, so that the natural gas vented upward into the atmosphere without obstruction.

Later that morning, two gas blow procedures were conducted with certain irregularities. Most significantly, and unlike with the prior gas blow procedures, the discharge nozzle was oriented horizontally during these gas blow procedures. As a result, when these gas blow procedures began, the natural gas discharged from the nozzle across a courtyard into an area partially enclosed between two large structures and surrounded by other power generation equipment, including propane heaters. In addition, four small metal pipes were located in the path of the exhaust from the discharge nozzle.

The first gas blow lasted for two minutes, the longest one that morning. The natural gas used for this gas blow traveled out of the discharge nozzle and into the partially enclosed area, where it was trapped, unable to dissipate quickly. In addition, the weather conditions at the time—the temperature outside was approximately 26 degrees Fahrenheit—likely further slowed the dissipation of the natural gas. As a result, by the time the second gas blow began, approximately five minutes after the conclusion of the first gas blow, natural gas remained trapped and mixed with air in the partially enclosed area into which the nozzle discharged.

The second gas blow lasted for approximately forty-five seconds. The natural gas flowed through the piping at an unusually high pressure—five times the pressure recommended for the procedure by the gas turbine manufacturer. Given this high pressure, the solid debris was expelled from the discharge nozzle at a high velocity. After the debris was expelled from the discharge nozzle, it struck the small metal pipes located in the courtyard, acquiring heat from the glancing blow. The heated debris was then carried by the discharge exhaust into the partially enclosed area, where natural gas had been trapped from the prior gas blow. The heated debris ignited the accumulated natural gas and oxygen. As a result, an explosion occurred, killing six employees and injuring twenty-seven others.

In 2013, the plaintiffs—two employees who were on the construction site engaged in work unrelated to the gas blow procedure when they were injured by the explosion, and one of their spouses³ —filed the operative complaint in the present action against the defendants Kleen Energy and PPMS, as well as O & G.⁴ Specifically, the plaintiffs alleged that (1) the defendants were strictly liable because the injuries of the plaintiff employees were caused by the defendants’ engaging in an "ultrahazardous activity," and (2) those injuries were caused by the defendants’ negligence related to the gas blow procedure. The trial court subsequently granted O & G's motions for summary judgment and rendered judgment thereon in its favor. See Gonzalez v. O & G Industries, Inc. , 322 Conn. 291, 300, 140 A.3d 950 (2016). On appeal, we affirmed the trial court's judgment, concluding that O & G was entitled to immunity as a " ‘principal employer’ " under General Statutes § 31-291 because it had paid workers’ compensation benefits to the two plaintiff employees. Id., at 293–95, 319, 140 A.3d 950.

In 2015, following an evidentiary hearing, the trial court rendered judgment for the remaining defendants regarding the plaintiffs’ strict liability claims. After considering our decision in Caporale v. C. W. Blakeslee & Sons, Inc. , 149 Conn. 79, 85, 175 A.2d 561 (1961), as well as the six factor test set forth in § 520 of the Restatement (Second) of Torts, the trial court reasoned that the plaintiffs failed to satisfy their burden of establishing that the gas blow procedure was "abnormally dangerous." Thus, the trial court concluded, the gas blow procedure did not support a claim of strict liability.

In 2019, the defendants moved for summary judgment with respect to the plaintiffs’ negligence claims. The defendants contended that no reasonable jury could find that they exercised sufficient control over the gas blow procedure to support the existence of a duty of care owed to the plaintiffs, and, as a result, they were not vicariously liable for O & G's negligence during the gas blow procedure. The trial court agreed and granted the defendants’ separately filed motions, reasoning that Kleen Energy ceded total control over the project to O & G in the contract between them....