Opinion
No. MMX-CV04-4001329 S
August 31, 2006
MEMORANDUM OF DECISION
PROCEDURAL BACKGROUND
The plaintiffs, Robert Blocker and Serena Blocker (respectively referred to as Mr. Blocker and Mrs. Blocker), commenced this action by service of process on November 2, 2004. In the two-count complaint, each plaintiff sets forth a cause of action sounding in strict liability against the defendant, Maine Drilling Blasting, Inc. The plaintiffs allege that the defendant was engaging in an ultrahazardous activity, i.e., blasting activities by use of explosives, on December 27, 2002. The plaintiffs further allege that the defendant's actions caused boulders, rocks and debris to strike the plaintiffs' home while the plaintiffs were inside. Finally, the plaintiffs allege that the defendant's activities caused the plaintiffs to suffer fear and emotional distress, for which the defendant is strictly liable.
All claims for property damage in this case have previously been settled between the parties. The present action is solely for the recovery of emotional distress damages.
On November 10, 2005, the plaintiffs moved for summary judgment as to liability only. The defendant did not oppose this motion, and the court (McWeeny, J.) granted summary judgment in favor of the plaintiffs on November 28, 2005. On May 10, 2006, a hearing in damages was held before this court.
FINDINGS OF FACT
On December 27, 2002, the plaintiffs were occupying their residence at 15 James Vincent Drive in Clinton, Connecticut. The defendant was engaging in the blasting of rock by use of explosives across the street from the plaintiffs' residence as part of the construction of a residential home. As testified to by Todd Barrett, the defendant's divisional manager, "something went wrong" with the blasting, which resulted in rocks and debris being hurled approximately 400 feet across the street and striking the plaintiffs' residence. The percussion of the blast, along with the rocks striking the front and top of the house, caused the house to shake and the ceiling to crack in at least one place. Some of the debris hit the house forcefully enough to lodge in sections of the siding and gutter. This was a frightful occurrence that caused Mrs. Blocker and her daughter, who was visiting her parents, to scream aloud. The impact reminded the plaintiffs of an earthquake they had experienced in California in 1994 that had a similar effect. This previous experience, which had resulted in a diagnosis of post-traumatic stress disorder for Mrs. Blocker, heightened the plaintiffs' sensitivity to the blasting incident at issue in this case.
Both plaintiffs suffered similar damages as a result of the present blasting incident in that they became fearful and anxious after the blast, suffered from a slight inability to focus, and had some difficulty sleeping. In addition, Mrs. Blocker experienced an exaggerated startle response to loud noises and sudden movement subsequent to the blasting incident. Although the plaintiffs testified to a minor effect on their work performance, the court finds that they were able to continue their employment relatively unhampered. In order to discuss the effect of the blasting incident, Mr. Blocker consulted a colleague, who Mr. Blocker described has having a "counseling license" and being an ordained minister, via telephone twice a month for six months. Mrs. Blocker also spoke with a therapist on multiple occasions via telephone in order to discuss the effects of the blasting incident. The plaintiffs' symptoms lasted for approximately one year although there appears to be a minor residual effect on them.
DISCUSSION
The court will address the effect of the summary judgment which is a matter of dispute between the parties as evidenced by post-hearing briefs submitted to the court. The plaintiffs contend that the only issue remaining for this court to decide is the amount of the damages. The defendant's position, however, is that the summary judgment did not settle the issue of imposing liability in this case. The defendant argues that the plaintiffs were required to allege and prove the elements of negligent infliction of emotional distress, including that the defendant's conduct involved an unreasonable risk of harm to the plaintiffs. The defendant also claims that the summary judgment did not determine the element of causation and, therefore, the plaintiffs still were required to prove proximate cause.
The defendant's contention that the plaintiffs had to plead and prove the elements of negligent infliction of emotional distress in order to recover for emotional distress damages is an issue that is no longer in dispute. This issue was mooted by the summary judgment. The court agrees that the plaintiffs may not recover at this point for emotional distress damages on a claim of negligent emotional distress because that is not what the plaintiffs pleaded. See Stohlts v. Gilkinson, 87 Conn.App. 634, 649-50, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005) ("a plaintiff may rely only upon what he has alleged [and] the right of a plaintiff to recover is limited to the allegations of his complaint"). From the inception of this case, it is clear that the plaintiffs plead emotional distress based not on negligence, but on strict liability.
The court's research yields no Connecticut case where the court has held that a plaintiff may or may not recover emotional distress damages under a theory of strict liability. Although, as discussed infra this issue is not presently before the court given the procedural background of this case, courts in other jurisdictions have allowed emotional distress damages to be recovered in an action predicated on a strict liability theory. See, e.g., Shepard v. Superior Court, 76 Cal.App.3d 16, 142 Cal.Rptr. 612 (1977) (strict products liability); Walker v. Clark Equipment Co., 320 N.W.2d 561 (Iowa 1982) (same); but see Pasquale v. Speed Products Engineering, 166 Ill.2d 337, 654 N.E.2d 1365 (1995). Also, in Capalbo v. Balf Company, Superior Court, judicial district of Hartford, Docket No. CV 90 0377507 (January 10, 1994) ( 9 C.S.C.R. 154), Judge Corradino recognized the potential of recovery of emotional distress damages as an element of damages in strict liability cases. In dicta, Judge Corradino explained:
There are no Connecticut cases on point as to the more general question concerning whether emotional distress should be an element of damages in strict liability cases. Certainly, in some blasting cases where debris is hurled willy-nilly across the landscape one can imagine a scenario where a claim for emotional distress would arise and should be compensated. It would be hard to reach any other result in light of seminal emotional distress cases like Orlo v. Connecticut Co., [ 128 Conn. 231, 21 A.2d 402 (1941),] or even Mutnik v. Whalen Bros., Inc., [ 115 Conn. 650, 163 A. 414 (1932)]. The court has much more difficulty where the alleged emotional distress results not from flying debris or stone or other violent physical impact in proximity to the plaintiff but is allegedly caused by vibration or concussion.
Id., 155
The plaintiffs' complaint makes clear that they seek emotional distress damages under a strict liability theory of recovery. This position was further clarified in their motion for summary judgment in which the plaintiffs likened their case to the hypothetical discussed in the dicta of Capalbo v. The Balf Company. The defendant did not seek to challenge the legal sufficiency of this claim by way of a motion to strike. Nor did the defendant oppose the plaintiffs' motion for summary judgment on the basis of a failure to meet the second prong of summary judgment, i.e., that the plaintiffs were not entitled to judgment as a matter of law. Instead, the defendant allowed summary judgment to enter against it without opposition.
Notwithstanding the defendant's recounting of communications between the parties regarding the summary judgment motion, this court agrees with the plaintiffs as to the effect of summary judgment on liability only. "Practice Book § [17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "A summary judgment, interlocutory in character, may be rendered on the issue of liability alone, although there is a genuine issue as to damages. In such case the judicial authority shall order an immediate hearing before a judge trial referee, before the court, or before a jury, whichever may be proper, to determine the amount of the damages . . . Upon the conclusion of these proceedings, the judicial authority shall forthwith render the appropriate summary judgment." Practice Book § 17-50.
The defendant stated in its post-trial brief dated July 3, 2006, that "defendant's counsel spoke with plaintiffs' counsel after the motion was filed to make sure that the purpose of the motion was to not have to litigate the issue of whether the defendant was conducting blasting and the motion had nothing to do with damages which would be litigated at a later time. Plaintiffs' counsel assured the undersigned that was the purpose." The defendant added that "the understanding with respect to the summary judgment motion was that it would apply to the issues underlying strict liability only and not to causation or damages. Defendant would certainly have contested it had that not been the case."
In Riccio v. Abate, 176 Conn. 415, 407 A.2d 1005 (1979), our Supreme Court addressed the effect of the entry of summary judgment as to liability only, which had been granted by the trial court. The court explained that, "[t]he issue of liability had been previously decided by the court when it granted the plaintiff's motion for summary judgment, and therefore, the jury had before them only a hearing in damages." Id., 418. Likewise, in Rubin v. Rios, 186 Conn. 754, 443 A.26 1273 (1982), a summary judgment was entered in favor of the plaintiff as to liability only, leaving the issue of damages to be tried before a jury. The jury failed to award any damages and instead returned a verdict in favor of the defendants. Id., 756. Our Supreme Court found error in the trial court's submission of two forms to the jury that allowed the jury to return either a defendants' verdict or a plaintiff's verdict. Id., 756. By doing this, the court explained that "the [trial] court in essence reopened the liability issue and submitted it to the jury. `The issue of liability [however] had been previously decided by the court when it granted the plaintiff's motion for summary judgment, and, therefore, the jury had before them only [the matter of] damages.'" Id., 757, citing Riccio v. Abate, supra, 176 Conn. 418.
The defendant's reliance on Right v. Breen, 277 Conn. 364, 890 A.2d 1287 (2006), is misplaced. Right v. Breen was a negligence action where the defendant admitted liability but denied causation. Id., 365. The trial was limited to the issue of causation and the amount of damages. Id., 371 n. 7. The fact finder concluded that the plaintiff failed to prove an injury resulting from the defendant's conduct. Id., 366. Our Supreme Court was called upon to answer the question of whether, under these circumstances, a plaintiff must be awarded nominal damages. The court overruled Keller v. Carone, 138 Conn. 405, 85 A.2d 489 (1951), and held that a plaintiff is not entitled to at least nominal damages absent proof of actual injury and causation. Id., 377. Right v. Breen is clearly distinguishable from Riccio v. Abate, and in turn the present case, as illustrated by our Appellate Court's discussion of the matter.
We believe that there is a distinction between this case and Riccio v. Abate, supra, 176 Conn. 415. In a negligence action, such as the present case, there are two parts to a trial, the trial as to liability and the trial as to damages. The liability portion is concerned with the question of whether the defendant is responsible for the injuries complained of, i.e., if the cause of action has been proven . . . If the defendant is found liable, the second part of the trial consists of determining the amount of damages recoverable from the defendant.
In Riccio v. Abate, supra, 176 Conn. 416, the court granted summary judgment as to liability . . . In granting summary judgment, the court necessarily determined that the plaintiff had proven all four elements of negligence, including actual injury and proximate cause, and was entitled to judgment as a matter of law. Therefore, it was not the jury's function to determine if the elements of negligence had been proven, but, rather, its function was to decide the amount of money the plaintiff would receive. The finding of a technical injury and the awarding of nominal damages was premised on the court's finding that the cause of action had been proven and its subsequent granting of the summary judgment motion.
The present case is distinguishable from Riccio. Confusion occurred during the trial because it repeatedly was stated that the defendant had "admitted liability." The [trial] court apparently believed that this admission by the defendant was equivalent to the granting of summary judgment as to liability in Riccio. That belief was incorrect. Although the defendant admitted that she caused the accident she denied that she was the cause of the plaintiff's alleged injuries. The court and both parties acknowledged that the elements of causation and actual injury had yet to be proven by the plaintiff and were issues to be presented to the jury for its determination. Thus, there still were genuine issues as to material facts, and the plaintiff should not have been entitled to a verdict in his favor until the jury had determined that he had sustained his burden of proof as to the elements of proximate cause and actual injury.
(Citations omitted.) Right v. Breen, 88 Conn.App. 583, 587-88, 870 A.2d 1131 (2005), rev'd on other grounds, supra, 277 Conn. 364.
In the present case, the court (McWeeny, J.) was presented with a motion for summary judgment as to liability only on strict liability claims seeking emotional distress damages. Certain factors must be met in order to impose liability without fault. These factors are: "an instrumentality capable of producing harm; circumstances and conditions in its use which, irrespective of a lawful purpose or due care, involve a risk of probable injury to such a degree that the activity fairly can be said to be intrinsically dangerous to the person or property of others; and a causal relation between the activity and the injury for which damages are claimed." Caporale v. C.W. Blakeslee Sons, Inc., 149 Conn. 79, 85, 175 A.2d 561 (1961); see also Green v. Ensign-Bickford Co., 25 Conn.App. 479, 482, 595 A.2d 1383, cert. denied, 220 Conn. 919, 517 A.2d 341 (1991). When summary judgment entered as to liability in this case, it was necessarily determined that all the factors required to impose liability, including actual injury and causation, were established. The only question left for this court was the amount of damages.
CONCLUSION
Judgment having previously been entered in favor of the plaintiffs as to liability, the court enters judgment in favor of Mr. Blocker in the amount of $5,000 and in favor of Mrs. Blocker in the amount of $7,500.