Green v. Ensign-Bickford Co.

• Decision Date: 03 October 1991
• Docket Number: ENSIGN-BICKFORD,No. 7813,7813
• Citation: 595 A.2d 1383,25 Conn.App. 479
• Court: Connecticut Court of Appeals
• Parties: Alan S. GREEN v.COMPANY.

Page 1383

595 A.2d 1383

25 Conn.App. 479

Alan S. GREEN v. ENSIGN-BICKFORD COMPANY.

No. 7813.

Appellate Court of Connecticut.

Argued Dec. 10, 1990.

Decided Aug. 20, 1991.

Certification Denied Oct. 3, 1991.

A. Paul Spinella, Hartford, with whom, on the brief, was Susan V. Tirrell, Certified Legal Intern, for appellant (plaintiff).

[25 Conn.App. 480] James A. Wade, with whom were Linda L. Morkan and, on the brief, Kathleen C. Stone, Hartford, for appellee (defendant).

Before [25 Conn.App. 479] SPALLONE, EDWARD Y. O'CONNELL and LAVERY, JJ.

EDWARD Y. [25 Conn.App. 480] O'CONNELL, Judge.

This is an action to recover for injuries allegedly incurred as a result of an explosion at the defendant's facilities in Simsbury on August 15, 1984. The plaintiff's three count complaint alleged (1) an ultrahazardous activity, (2) the maintenance of an absolute nuisance, and (3) negligence. At the close of the plaintiff's case, the court granted the defendant's motion for a directed verdict as to the ultrahazardous activity and nuisance counts and reserved judgment on the negligence count. At the conclusion of the trial, the court directed a verdict against the plaintiff on the negligence On appeal, the plaintiff claims, inter alia, that the court improperly (1) found that the defendant's activity was not an ultrahazardous activity, (2) ruled that the defendant's activity did not constitute a nuisance and (3) declined to qualify the defendant's causation witness as an expert. These claims are dispositive of the appeal. We affirm the trial court's judgment in part and reverse it in part.

                count as well.   The plaintiff appeals from the direction of the verdicts
                

The following facts are necessary to the disposition of this appeal. The defendant corporation has been a manufacturer of explosives in Simsbury for more than 150 years. Ancillary to its manufacturing, the defendant conducts research and development of new explosives. Some of the research takes place in a frangible structure designed to allow its detached wooden roof to blow off and its cinder block walls to fall outward in the event of an explosion. The structure was situated on a concrete slab surrounded on three sides by twenty foot high earthen berm with the fourth side open towards a heavily wooded area known as the Powder Forest.

On the day of the explosion, three of the defendant's employees, all experienced professional chemists, were engaged in a research project in this building. The project entailed mixing chemicals in a reactor located twelve to fourteen feet above the floor. For reasons that will probably never be known, a colossal explosion took place, killing the researchers and completely destroying the building. At the time of the explosion, the plaintiff was in bed on the second story of his wood frame house located approximately seven eighths of a mile from the accident. Testimony as to the exact distance varied slightly at trial. The plaintiff testified that the explosion lifted him upward from his bed and threw him across the room causing him serious injuries.

I STANDARD OF REVIEW

As a threshold matter, we observe that the plaintiff did not file a motion to set the verdict aside, thereby limiting this court to review under the plain error standard. Practice Book § 4185; ¹ Dunham v. Dunham, 204 Conn. 303, 311-12, 528 A.2d 1123 (1987). "Review under the plain error doctrine 'is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.' " Williamson v. Commissioner, 209 Conn. 310, 317, 551 A.2d 704 (1988), quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

As a second threshold matter, we note that directed verdicts are not favored and may be directed only when the jury could not reach any other conclusion; Kelehear v. Larcon, Inc., 22 Conn.App. 384, 386, 577 A.2d 746 (1990); or where the decisive question is a matter of law. A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 206, 579 A.2d 69 (1990). In determining whether the trial court properly directed a defendant's verdict, we consider the evidence in the light most favorable to the plaintiff. Marron & Sipe Building & Contracting Corporation v. Flor, 22 Conn.App. 689, 699, 580 A.2d 508 (1990). We analyze the plaintiff's claims against this background of the law of plain error and directed verdicts.

II

ULTRAHAZARDOUS ACTIVITY COUNT

A STRICT LIABILITY

The first count is based on the doctrine of absolute or strict liability imposed on one who engages in an ultrahazardous activity. Under this doctrine, a plaintiff is not required to show that his loss was caused by the defendant's negligence. It is sufficient to show only that the defendant engaged in an ultrahazardous activity that caused the defendant's loss. The doctrine has traditionally been applied in cases involving blasting and explosives. See D. Wright & J. Fitzgerald, Connecticut Law of Torts (3d Ed.) § 122. Connecticut's sole extension beyond blasting cases is to damage from a concussion resulting from pile driving. Caporale v. C.W. Blakeslee & Sons, Inc., 149 Conn. 79, 85, 175 A.2d 561 (1961). Although liability was initially limited to damage directly caused by flying debris resulting from the explosion, this was in time expanded to include damage caused by concussion or vibration. Whitman Hotel Corporation v. Elliott & Watrous Engineering Co., 137 Conn. 562, 570, 79 A.2d 591 (1951). The Whitman court held that "[a] person who uses an intrinsically dangerous means to accomplish a lawful end, in such a way as will necessarily or obviously expose the person of another to the danger of probable injury, is liable if such injury results even though he uses all proper care." Id., at 565, 79 A.2d 591. Applying this standard to the present case, we conclude that the defendant's experiment with a highly explosive chemical created an unavoidable risk of damage, and that the risk was not alleviated by the fact that the research was conducted in a specially designed building.

The defendant argues that the blasting and pile driving cases are factually distinguishable because those cases all involve the intentional release of destructive energy. The defendant claims that in the present case the doctrine of strict liability for an ultrahazardous activity is not applicable because the explosion was unintentional. This distinction is specious because the underlying rationale for strict liability in blasting and pile driving cases is that one acts at his own peril when he creates an unavoidable risk of damage. Caporale v. C.W. Blakeslee & Sons, Inc., supra. There is no distinction between intentional and unintentional explosions where a person creates the conditions that give rise to an unavoidable risk of damage.

The plaintiff relies on Exner v. Sherman Power Construction Co., 54 F.2d 510 (2d Cir.1931), to support his position that all activity involving explosives is ultrahazardous per se. In Exner, the court determined that a Vermont blasting company was absolutely liable for the results of an explosion whether the dynamite explodes when stored or when employed in blasting operations. "To be sure there is a greater likelihood of damage from blasting than from storage, but in each case the explosion arises from an act connected with a business conducted for profit and fraught with substantial risk and possibility of the gravest consequences." Id., 514.

In short, the Exner court determined that the blasting company was the insurer of any accidents associated with its use of explosives. "When, as here, the defendant, though without fault, has engaged in the perilous activity of storing large quantities of a dangerous explosive for use in his business, we think there is no justification for relieving it of liability, and that the owner of the business, rather than a third person who has no relation to the explosion, other than that of injury, should bear the loss." Id.

Similarly, in the present case, the defendant was engaged in the perilous activity of conducting research with a highly volatile chemical for use in its explosive manufacturing business. The fact that the defendant did not intend to cause an explosion with this research does not justify relieving it of liability. Exner and its progeny ² provide a sufficient legal basis for The defendant also claims that this court cannot impose strict liability because the trial court concluded that "there is no evidence from which the jury could reasonably find that the nitration process that led to the explosion created an unavoidable risk of harm." The defendant argues that without a finding of unavoidable risk, its research cannot be legally labeled an ultrahazardous activity. The issue of whether an activity is abnormally dangerous, however, is a question of law for a court to decide. Caporale v. C.W. Blakeslee & Sons, Inc., supra, 149 Conn. at 86, 175 A.2d 561; Whitman Hotel Corporation v. Elliott & Watrous Engineering Co., supra, 137 Conn. at 565, 79 A.2d 591; D. Wright & J. Fitzgerald, supra; 3 Restatement (Second), Torts § 520, comment (l ). Thus, the trial court's conclusion that the jury would have inadequate evidence before it to decide whether the defendant's activity was ultrahazardous was erroneous.

this court to conclude that the defendant's research was an ultrahazardous activity.

Sections 519 and 520 of 3 Restatement (Second), Torts, address the doctrine of strict liability for ultrahazardous activities. Section 519 provides in pertinent part: "(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm." Comment (d) of the Restatement points out that the liability of § 519 is not based on any intent of the defendant to do harm to the plaintiff; rather,...