Gray v. Derderian
| Citation | 472 F.Supp.2d 172 |
| Decision Date | 06 February 2007 |
| Docket Number | C.A. No. 04-312L.,C.A. No. 03-483L. |
| Parties | Albert L. GRAY, Administrator, et al., Plaintiffs, v. Jeffrey DERDERIAN, et al., Defendants. Estate of Jude B. Henault, et al., Plaintiffs, v. American Foam Corporation, et al., Defendants. In re Motions to Dismiss of Defendants Polar Industries, Inc. and Home Depot U.S.A., Inc. |
| Court | U.S. District Court — District of Rhode Island |
Patrick T. Jones, Cooley Manion Jones LLP, Boston, MA, Mark S. Mandell, Mandell, Schwartz & Boisclair, Ltd., Max Wistow, Wistow & Barylick Incorporated, Providence, RI, for Plaintiffs.
Anthony F. Demarco, Anthony F. Demarco, Reynolds, Demarco & Boland, Ltd., James T. Murphy, Kelly N. Michels, Hanson Curran LLP, Donald J. Maroney, James H. Reilly, III, Kelly, Kelleher, Reilly & Simpson, Joseph V. Cavanagh, Jr., Kristin E. Rodgers, Blish & Cavanagh, LLP, Howard A. Merten, Partridge, Snow & Hahn LLP, Stephen J. MacGillivray, Stephen M. Prignano, Edwards Angell Palmer & Dodge LLP, Marc Desisto, Desisto Law, James R. Lee, Attorney General's Office, Richard W. MacAdams, MacAdams Wieck Deluca & Gemma Incorporated, Ronald P. Langlois, Smith & Brink, P.C., Mark T. Nugent Morrison Mahoney LLP, Thomas C. Angelone, Hodosh, Spinella & Angelone PC, Thomas W. Lyons, III, Strauss, Factor, Laing & Lyons, Gerald C. Demaria, James A. Ruggieri, Higgins, Cavanagh & Cooney, Providence, RI, Christopher C. Fallon, Jr., Josh M. Greenbaum, Cozen O'Connor, Andrew J. Trevelise, James J. Restivo, Reed Smith LLP, Philadelphia, PA, Edwin F. McPherson, McPherson & Kalmansohn, Los Angeles, CA, Fred A. Kelly, Jr., Kim M. Clarke, Steven M. Richard, Nixon Peabody LLP, Curtis R. Diedrich, Robert T. Norton, Sloane & Walsh, LLP, Boston, MA, Deborah G. Solmor, Edward M. Crane, Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, W. Thomas Mcgough, Jr., Reedsmith LLP, Pittsburg, PA, Charles L. Babcock, Earl H. Walker, Nancy W. Hamilton, Jackson Walker L.L.P., Houston, TX, George Wolf, John F. Murphy, Ann M. Songer, Shook, Hardy & Bacon LLP, Kansas City, MO, Carl A. Henlein, John R. Crockett, Susan S. Wettle, Frost Brown Todd LLC, Louisville, KY, for Defendants.
Howard Julian, Exeter, RI, pro se.
DECISION AND ORDER
This matter is before the Court on Motions to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by Defendants Polar Industries, Inc. ("Polar") and Home Depot U.S.A., Inc. ("Home Depot"). Plaintiffs assert that Polar manufactured PolarGuard brand polystyrene foam insulation which was installed in the Station nightclub in early 2000. Home Depot is alleged to have sold both PolarGuard insulation to Howard Julian (a former owner of the nightclub and a defendant in this case) and Celotex SoundStop board to the Derderians (the owners of the nightclub at the time of the fire), each of whom then installed the products in the nightclub. For the reasons detailed below, the Court denies the Motions to Dismiss proffered by these two Defendants.
On February 20, 2003, a deadly fire in West Warwick, Rhode Island, destroyed a nightclub known as the Station. The fire started as the featured rock band, Great White, began its live performance and the club was crowded with spectators, staff and performers. The concert featured stage fireworks, ignited by the band's tour manager as the band took the stage.
According to eyewitnesses, the fireworks created sparks behind the stage which ignited foam insulation materials on the club's ceiling and walls. In minutes, the entire building was on fire and over 400 people were struggling to escape the crowded, dark and smoky space. One hundred people died and over 200 others were injured as a result of the fire.
Numerous lawsuits, both criminal and civil, were filed throughout southern New England in both state and federal courts. The civil lawsuits have been consolidated in this Court, which asserted its original federal jurisdiction based on the Multiparty, Multiforum Trial Jurisdiction Act of 2002, 28 U.S.C. § 1369. See Passa v. Derderian, 308 F.Supp.2d 43 (D.R.I.2004). Since that time, this Court has ruled on several motions to dismiss. Those decisions may be found under the caption Gray v. Derderian at 365 F.Supp.2d 218 (D.R.I.2005), 371 F.Supp.2d 98 (D.R.I. 2005), 389 F.Supp.2d 308 (D.R.I.2005), 400 F.Supp.2d 415 (D.R.I.2005), 404 F.Supp.2d 418 (D.R.I.2005), 448 F.Supp.2d 351 (D.R.I.2005), and 464 F.Supp.2d 105 (D.R.I.2006).
In February 2006, Plaintiffs amended their master complaint to add more plaintiffs, and to join additional defendants, including Home Depot and Polar. All claims are now incorporated in a Third Amended Master Complaint ("the Complaint"), which includes claims of over 260 plaintiffs against 97 defendants.
Defendants move to dismiss the claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief may be granted. In considering a Rule 12(b)(6) motion, a court must accept as true all allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996).
Under Rule 8 of the Federal Rules of Civil Procedure, a plaintiff is required simply to make "a short and plain statement of the claim showing that the pleader is entitled to relief...." Fed.R.Civ.P. 8(a)(2). A complaint sufficiently raises a claim as long as relief is possible under any set of facts that could be established consistent with the allegations. See, e.g., Morales-Vallellanes v. Potter, 339 F.3d 9, 14 (1st Cir.2003). Rule 8 is meant to ensure that a defendant will have fair notice of the plaintiff's claim and the grounds upon which it rests. LaLonde v. Textron, Inc., 369 F.3d 1, 6-7 (1st Cir.2004)(citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
Despite the fact that the parties make reference in their Motions to materials beyond the Complaint, as has occurred earlier in this case, the Court will focus on the Complaint alone in determining whether the allegations are sufficient to state a claim. See Gray v. Derderian, 365 F.Supp.2d 218, 223 (D.R.I.2005).
I. The allegations in the Complaint
In counts 88-90, Plaintiffs assert three causes of action against Polar in connection with its manufacture and sale of PolarGuard brand polystyrene insulation: negligence, strict liability, and breach of warranty. This PolarGuard insulation, Plaintiffs allege, was installed on the ceiling of the drummer's alcove and elsewhere in the Station nightclub in early 2000.
In attempting to make out a claim for negligence, Plaintiffs attribute the following negligent acts to Polar:
a. failure to use due care in the manufacture, sale or distribution of the insulation;
b. failure to make or cause to be made reasonable research and/or testing as to the effects of the insulation;
c. failure to otherwise adequately test the insulation before providing it, distributing it or selling it;
d. failure to warn potential and actual users of the product of its potential hazards, including but not limited to its unsuitability for use as an exposed interior surface without proper thermal barrier susceptible to exposure to heat or flame;
e. failure to properly and adequately educate users about the use and hazards of the insulation;
f. failing to provide adequate protection for persons coming into contact with the insulation, such as plaintiffs, from suffering the injuries which plaintiffs suffered; and
g. otherwise failing to use due care in the design, manufacture, testing, inspecting, marketing[,] advertising, labeling, packaging, provision, distribution and/or sale of the insulation ...
(Compl.¶ 744.) These negligent acts, Plaintiffs allege, "constituted a proximate cause of Plaintiff's [sic] injuries and death." (Id.)
With regard to the strict liability count, Plaintiffs incorporate the negligence count allegations and further allege that the PolarGuard insulation was "unreasonably dangerous and otherwise defective ..." (Id. at ¶ 746.) Moreover, "Plaintiffs had no knowledge of the defective condition of the insulation." (Id. at ¶ 747.) Finally, Plaintiffs claim that the insulation was in substantially the same condition when used as when it left Polar's control, and that it was a proximate cause of Plaintiffs' injuries and deaths.
In alleging breach of warranty, Plaintiffs incorporate the negligence and strict liability allegations, and then simply assert that "Polar breached express and implied warranties of merchantibility and fitness in the manufacture, sale and distribution of said insulation[,]" and that "[a]s a direct and proximate result of said breach, Plaintiffs suffered death or injuries." (Id. at ¶¶ 751, 752.)
In counts 91-93, Plaintiffs make the same three charges against Home Depot. It is alleged that PolarGuard brand polystyrene insulation and Celotex SoundStop board were purchased at Home Depot sometime in 2000. Plaintiffs then allege that both of these products were installed on the ceiling of the drummer's alcove and elsewhere in the Station nightclub.
Plaintiffs posit that Home Depot "owed a duty to ultimate users of, or persons exposed to, said insulation, and/or board including Plaintiffs, in testing, inspecting, marketing, producing, selling or distributing the insulation and/or board." (Compl.¶ 756.) Aside from the inclusion of the Celotex SoundBoard, the allegations concerning Home Depot's negligence, as well as those charging strict liability and breach of warranty, are exact duplicates of the allegations against Polar.
2. Analysis
As this Court has previously noted, to establish negligence in Rhode Island, Plaintiffs must show that 1) Defendants owed them a legal duty to refrain from negligent activities; 2) Defendants breached that duty; 3) the breach proximately caused Plaintiffs' injuries; and 4) actual...
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