Poce v. O & G Industries, Inc. ( 2022 )

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APPENDIX
JULIAN POCE ET AL. v. O & G
INDUSTRIES, INC., ET AL.*
Superior Court, Judicial District of HartfordFile No. CV-XX-XXXXXXX-S
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 Con-
necticut, 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 respec-
tively, assert that the harms alleged in the plaintiffs’
complaint—the increased risk of contracting asbestos
related pulmonary disease and future medical monitor-
ing 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 repre-
sent 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, com-
menced this action on December 27, 2016, against O &
G and SMI. The thirty count complaint alleges the fol-
lowing 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 asbes-
tos.
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 haz-
ards 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 per-
formed 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 dis-
turbed in such a manner making it highly probable that
toxic substances would be breathed, thus repeatedly
exposing the plaintiffs to the asbestos without protec-
tive gear, hazard reduction training, or advance warn-
ing. 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 Con-
tractors, Inc., required O & G to observe safety proto-
cols and procedures so as to avoid injury and occupa-
tional 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 cor-
don 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 haz-
ardous 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 six-
teen 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 evalu-
ations 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 medi-
cal 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 dis-
tress 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 dis-
tress.
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 claims upon which relief can be granted. In its
view, the plaintiffs have failed to allege any facts suffi-
cient to support their claims of negligence, premises
liability, recklessness and emotional distress. In their
memorandum of law, O & G argues that the plaintiffs
have not alleged an actionable harm, because the plain-
tiffs fail to allege that they suffer from present injury.
Rather, the complaint merely alleges an increased risk
of future harm, which is insufficient under any of the
theories alleged, including the counts asserting a claim
for the negligent infliction of emotional distress. More-
over, the plaintiffs are not without remedy, as the stat-
ute of limitations in General Statutes § 52-577c, which
the legislature enacted specifically for asbestos related
illness, does not begin to run until injury is discovered,
providing the plaintiffs with a cause of action should
they manifest symptoms of asbestos related diseases
in the future.
On May 15, 2017, the plaintiffs filed their objection,
arguing that the harms they allege constitute actual
injuries as defined by Connecticut case law, and that
each respective claim alleges elements of damage and
actual harm required in order to recover under those
claims. In support, the plaintiffs cite to the recent matter
of R.T. Vanderbilt Co. v. Hartford Accident & Indem-
nity Co., 171 Conn. App. 61, 114–18, 156 A.3d 539 (2017),
which explicitly defines asbestos exposure as an injury
and a harm, and impliedly defines asbestos exposure
as an actionable harm. This, the plaintiffs argue, leaves
no doubt that a person is legally injured at the point of
exposure to asbestos, thus satisfying the element of
harm necessary to adequately plead the claims alleged.
On May 19, 2017, the plaintiff filed their first amended
complaint as to counts twenty-six through thirty. There-
after, on June 13, 2017, in a motion virtually identical
to that of O & G, SMI moved to strike counts twenty-
one through thirty of the plaintiffs’ complaint on the
ground that the plaintiffs, as a matter of law, fail to
state claims upon which relief can be granted. Like
O & G, SMI argues in its memorandum of law that
the plaintiffs’ claims do not allege actual harm, only
exposure to asbestos, which places the plaintiffs at
increased risk for contracting asbestos related diseases,
which will require future medical evaluations and moni-
toring.
The plaintiffs filed their objection to SMI’s motion
on July 5, 2017, arguing that the harms alleged constitute
actual injuries pursuant to Connecticut case law, and
their claims meet the legal elements required in order
to recover under theories of negligence and negligent
infliction of emotional distress.
On August 2, 2017, O & G replied to the plaintiffs’
objection by distinguishing R.T. Vanderbilt Co. from the
present matter. R.T. Vanderbilt Co. was a declaratory
judgment action, whereby the plaintiff sought a determi-
nation as to which of its general liability insurance
carriers were obligated to defend and indemnify the
claims against it in light of multiple lawsuits alleging
injuries from exposure to asbestos. Id., 75. The Appel-
late Court was asked to interpret the contractual lan-
guage of the various policies in order to determine when
insurance coverage was triggered for asbestos related
injuries. Id., 75–76. The Appellate Court did not define
asbestos exposure as a legally compensable injury, nor
did it consider that issue, as all underlying lawsuits
alleged that the plaintiffs suffered from asbestos related
diseases such as mesothelioma, other asbestos related
cancer, and asbestosis. See id. The Appellate Court only
determined when coverage was triggered and did not
make any determinations as to when asbestos exposure
becomes a legally compensable injury; rather, it inter-
preted contractual terms, specifically the meaning of
the word ‘‘injury,’’ contained in policies of insurance,
and found that there are physical consequences of
asbestos exposure which fall within the definition of
‘‘injury.’’ (Internal quotation marks omitted.) Id., 118–
23. O & G points out, moreover, that in the present
case, the plaintiffs are not alleging present physical
injuries or an asbestos related disease, only exposure
to asbestos, which is not an actionable harm.
LEGAL STANDARD
‘‘The purpose of a motion to strike is to contest . . .
the legal sufficiency of the allegations of any complaint
. . . to state a claim upon which relief can be granted.’’
(Internal quotation marks omitted.) Fort Trumbull Con-
servancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d
1188 (2003).
‘‘[A] motion to strike challenges the legal sufficiency
of a pleading and, consequently, requires no factual
findings by the trial court . . . . [The court] con-
strue[s] the complaint in the manner most favorable to
sustaining its legal sufficiency . . . . Thus, [i]f facts
provable in the complaint would support a cause of
action, the motion to strike must be denied . . . .
Moreover . . . [w]hat is necessarily implied [in an alle-
gation] need not be expressly alleged . . . . It is funda-
mental that in determining the sufficiency of a com-
plaint challenged by a defendant’s motion to strike, all
well-pleaded facts and those facts necessarily implied
from the allegations are taken as admitted . . . .
Indeed, pleadings must be construed broadly and realis-
tically, rather than narrowly and technically.’’ (Internal
quotation marks omitted.) Geysen v. Securitas Security
Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227(2016). ‘‘If any facts provable under the express and
implied allegations in the plaintiff’s complaint support
a cause of action . . . the complaint is not vulnerable
to a motion to strike.’’ Bouchard v. People’s Bank, 219
Conn. 465, 471, 594 A.2d 1 (1991). ‘‘In ruling on a motion
to strike the trial court is limited to considering the
grounds specified in the motion.’’ Meredith v. Police
Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
ANALYSIS
Negligence, Premises Liability and Recklessness
The negligence counts directed at both O & G and
SMI, as well as the premises liability and recklessness
counts directed solely against O & G, contain common
allegations of injury, essentially, an increased risk of
contracting asbestos related diseases and medical mon-
itoring. The complaint itself does not allege any express
physical manifestations of symptoms of any asbestos
related disease.
As an initial matter, it is necessary to review the
elements of a claim in negligence. The long-standing,
well accepted elements of a negligence action are ‘‘duty;
breach of that duty; causation; and actual injury.’’ Ruiz
v. Victory Properties, LLC, 315 Conn. 320, 328, 107
A.3d 381 (2015). The existence of an ‘‘actual injury,’’
contrasted with a legal technical injury or an invasion
of a legal right, is a sine qua non for a claim of negli-
gence. Right v. Breen, 277 Conn. 364, 377, 890 A.2d
1287 (2006). The Supreme Court in Right addressed the
question of whether a plaintiff in a negligence action
must be awarded nominal damages, thereby making the
defendant potentially liable for costs, when the defen-
dant admits liability but denies causing an injury and
the plaintiff fails to prove that he suffered an actual
injury. Id., 365–66. It concluded that an ‘‘actual injury’’
was required. Id. While the Right decision did not
expressly define ‘‘actual injury,’’ indeed the parties’
briefs or the court’s research has not revealed a defini-
tive definition by a Connecticut appellate court, it held
that ‘‘bruises, contusions and physical injuries consti-
tute actual damage . . . .’’ (Internal quotation marks
omitted.) Id., 375. The defendants argue that increased
risk of contracting asbestos related diseases and medi-
cal monitoring alleged by the plaintiffs is not an actual
injury or actionable harm. They cite to two Superior
Court decisions, Bowerman v. United Illuminating,
Superior Court, judicial district of New London, Docket
No. X04-CV-XX-XXXXXXX-S, 1998 WL 910271 (December
15, 1998) (23 Conn. L. Rptr. 589),, and Goodall v. United
Illuminating, Superior Court, judicial district of New
London, Docket No. X04-CV-XX-XXXXXXX-S, 1998 WL
914274 (December 15, 1998), which held that exposure
to asbestos, absent manifestation of symptoms of any
asbestos related disease, does not constitute actionable
harm.2 The dispositive question decided by Judge Kolet-
sky in those cases was whether ‘‘the scarring of lung
tissue and implantation of asbestos fibers in the lungs
due to asbestos exposure, as alleged in the plaintiffs’
amended complaint, are compensable injuries as a mat-
ter of law.’’ (Emphasis added.) Bowerman v. United
Illuminating, supra, 23 Conn. L. Rptr. 590; Goodall v.
United Illuminating, supra, 1998 WL 914274, *3.
The manner in which the answer was framed was
informed by this question. ‘‘To successfully maintain
an action in negligence, a plaintiff must demonstrate:
1) that the defendant has acted in a tortious manner;
2) that the plaintiff has sustained actual injury as a
result of the defendant’s actions; and 3) that the plaintiff
knows of the causal connection between the defen-
dant’s tortious conduct and the resulting injury to the
plaintiff. . . . Regardless of any breach of a standard
of care by a defendant, a compensable injury must occur
in order for an action in negligence to survive.’’ (Empha-
sis in original.) Bowerman v. United Illuminating,
supra, 23 Conn. L. Rptr. 590; Goodall v. United Illumi-
nating, supra, 1998 WL 914274, *3. Judge Koletsky con-
cluded that the asymptomatic scarring of lung tissue
and the implantation of fibers in the lungs due to asbes-
tos exposure did not constitute detrimental physical
harm that was actionable. In large part, his decision
was due to the inability of the plaintiffs to demonstrate
on summary judgment that they indeed suffered from
the conditions alleged in their complaint. Bowerman
v. United Illuminating, supra, 23 Conn. L. Rptr. 593;
Goodall v. United Illuminating, supra, 1998 WL
914274, *7.
More recently, the Superior Court has had the occa-
sion to revisit this issue in Dougan v. Sikorsky Aircraft
Corp., Superior Court, judicial district of Hartford,
Docket No. X03-CV-XX-XXXXXXX (March 28, 2017) and
concluded, in granting summary judgment, that Con-
necticut tort law does not permit recovery based on
asbestos exposure in the absence of any present clinical
injury or physical symptom of an asbestos related ill-
ness or disease. The court’s decision was based not
on whether the plaintiffs, who all alleged ‘‘subclinical’’
injuries—defined as not detectable or producing effects
that are not detectable by the usual clinical tests—
alleged an ‘‘actual injury’’ but whether Connecticut rec-
ognizes a duty to prevent such harm. Id. The court
applied the four factor test employed to determine
whether public policy supports the imposition of a duty
in cases alleging subclinical asbestos exposure claims
and determined that it did not.3 Id.The plaintiffs argue not that Connecticut law recog-
nizes claims for subclinical injuries not demonstrably
capable of proof but, rather, relying on R.T. Vanderbilt
Co., that exposure to asbestos has been conclusively
recognized as causative of a physical injury. Indeed,
the Appellate Court indicated that it ‘‘had no difficulty
concluding that asbestos exposure damages, harms,
hurts, weakens, and impairs the body, beginning at the
time of exposure and continuing throughout the latency
period until the development of malignancy and the
ultimate manifestation of cancer.’’ R.T. Vanderbilt Co.
v. Hartford Accident & Indemnity Co., supra, 171 Conn.
App. 117. This was in large part because it is universally
recognized that medical science confirms that some
injury to body tissue occurs on the inhalation of asbes-
tos fibers and that once lodged, the fibers pose an
increased likelihood of causing or contributing to dis-
ease. Id., citing Owens-Illinois, Inc. v. United Ins. Co.,
138 N.J. 437, 454, 650 A.2d 974 (1994). As noted pre-
viously, R.T. Vanderbilt Co. decided only whether the
physical effects of asbestos exposure fell within the
definition of the word ‘‘injury’’ as commonly used in a
policy of insurance. R.T. Vanderbilt Co. v. Hartford
Accident & Indemnity Co., supra, 118–23.
In the present case, whether the issue is framed as
one of duty or actionable harm, the court need not
decide whether Connecticut recognizes an absolute
duty to prevent the exposure to asbestos resulting in
the type of injury to the body found by the court in
R.T. Vanderbilt Co. to be medically inescapable, or
whether such presymptomatic and subclinical injury
constitutes actionable harm, for the simple reason that
the plaintiff has no allegations that any physical mani-
festation occurred as a result of the exposure. That is,
the complaint is devoid of any allegation of scarring to
the lungs, implantation of asbestos fiber, pleural thick-
ening or any other physical component following the
exposure.4 The court holds that ‘‘actual injury’’ as an
element of negligence requires the pleading and proof
of some physical component of injury. See Lawrence
v. O & G Industries, Inc., supra, 319 Conn. 646; Right
v. Breen, supra, 277 Conn. 375. The absence of such an
allegation renders the negligence, premises liability and
reckless claims legally insufficient even under the con-
clusions reached by the court in R.T. Vanderbilt Co.
The motions to strike these claims are granted.
Negligent Infliction of Emotional Distress
The defendants urge the court to strike the claims
for negligent infliction of emotional distress for the
identical reasons asserted against the other claims. The
court is not persuaded. The elements of a claim for
negligent infliction of emotional distress are well set-
tled. A plaintiff must allege an unreasonable risk of
causing the plaintiff emotional distress, the plaintiff’s
distress was foreseeable, the emotional distress was
severe enough that it might result in illness or bodily
harm, and, finally, that the defendant’s conduct was the
cause of the plaintiff’s distress. Olson v. Bristol–
Burlington Health District, 87 Conn. App. 1, 5, 863
A.2d 748 (2005), cert. granted, 273 Conn. 914, 870 A.2d
1083 (2005) (appeal withdrawn May 25, 2005). ‘‘In order
to state a claim for negligent infliction of emotional
distress, the plaintiff must plead that the actor should
have foreseen that her behavior would likely cause
harm of a specific nature, i.e., emotional distress likely
to lead to illness or bodily harm.’’ Id. Such a claim does
not require the allegation or proof of a present physical
injury. Rather, it requires only an emotional injury that
might result in bodily harm. The plaintiffs have alleged
exactly the requisite elements by their allegations that
the defendants ‘‘created an unreasonable risk of causing
emotional distress to the plaintiff severe enough that
it might result in illness or bodily harm. . . . It was
foreseeable that such distress might result from the
defendant’s conduct . . . [which] was the cause of the
[plaintiffs’] emotional distress.’’ Plaintiffs’ Complaint,
¶¶ 20–22, counts six through ten and twenty-six through
thirty. The defendants’ motions to strike these counts
are denied.
CONCLUSION
Based upon the foregoing the motions to strike are
granted as to counts one through five and eleven
through twenty-five but denied as to counts six through
ten and counts twenty-six through thirty.
* Affirmed. Poce v. O & G Industries, Inc., 210 Conn. App. , A.3d
(2022).
1
The complaint does not define ‘‘PCP’’ or the nature of a ‘‘PCP related dis-
ease.’’
2
Both cases were before the court on motions for summary judgment by
the defendants, rather than the motion to strike presently before this court.
3
The four factors are ‘‘(1) the normal expectations of the participants in
the activity under review; (2) the public policy of encouraging participation
in the activity, while weighing the safety of the participants; (3) the avoidance
of increased litigation; and (4) the decisions of other jurisdictions.’’ (Internal
quotation marks omitted.) Dougan v. Sikorsky Aircraft Corp., supra, Supe-
rior Court, Docket No. X03-CV-XX-XXXXXXX, quoting Lawrence v. O & G
Industries, Inc., supra, 319 Conn. 650.
4
Similarly, these motions do not require the court to answer whether all
exposures to asbestos result in clinical disease or illness.