Poce v. O & G Industries, Inc.
| Decision Date | 18 January 2022 |
| Docket Number | AC 43511 |
| Citation | 269 A.3d 899,210 Conn.App. 82 |
| Parties | Julian POCE et al. v. O & G INDUSTRIES, INC., et al. |
| Court | Connecticut Court of Appeals |
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.
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.1 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 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.2 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).
The judgment is affirmed.
APPENDIX
JULIAN POCE ET AL. v. O & G INDUSTRIES, INC., ET AL.*
Superior Court, Judicial District of Hartford
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 PCP1 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.
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...
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