Opinion
CV156009387
03-17-2016
The Catholic Mutual Relief Society of America v. John Canning & Co., LTD. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON MOTION TO STRIKE
John D. Boland, S.J.
" Where there's smoke, there's fire" is a time-worn adage, but the parties here are in sharp disagreement as to whether it has any bearing upon the facts of this case. Plaintiff, as subrogee for St. Mary's Roman Catholic Church in Willimantic, as well as for the Roman Catholic Diocese of Norwich, seeks damages from defendants following a serious fire which gutted the church. The essence of its claim is that defendant Mark Stoner, individually and as agent of John Canning & Co., Ltd., observed smoke while working in the church, did nothing about it, and thus allowed the conflagration to advance undetected. There is no claim that the actions of either defendant caused the fire. Before this court is defendants' motion to strike all nine counts of the revised complaint, arguing that 1) the adage is logically inapplicable to the facts of the case, since it does not speak to causation, a necessary element in determining liability; and 2) even assuming its pertinence, neither defendant owed plaintiff a duty to monitor conditions at the premises outside of the work described in the parties' contract.
I. Standard of Review
Practice Book § 10-39 permits a party to move to strike all or part of a pleading on the ground that the pleading is legally insufficient to state a claim upon which relief can be granted. Briefly stated, " [a] motion to strike attacks the legal sufficiency of the allegations in a pleading . . . In reviewing the sufficiency of the allegations in a complaint, courts are to assume the truth of the facts pleaded therein, and to determine whether those facts establish a valid cause of action . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder"; Kumah v. Brown, 307 Conn. 620, 626, 58 A.3d 247 (2013). But a motion to strike may properly be granted " if the complaint alleges mere conclusions of law that are unsupported by the facts alleged"; Fort Trumbull Conservancy, L.L.C. v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
The court must accept as true all well pleaded facts and construe them in the light most favorable to pleader. Lestorti v. DeLeo, 298 Conn. 466, 472, 4 A.3d 269 (2010). If facts provable in the complaint would support a cause of action, the motion to strike must be denied. Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002). The court cannot rely on facts outside of the pleading; Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 347-48, 576 A.2d 149 (1990); Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008); nor on grounds not specified in the motion; Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001).
II. Plaintiff's Allegations
According to the revised complaint, plaintiff has paid over four million dollars to provide repairs to the church following the fire which occurred on May 16, 2013. On that date, Canning & Co. was the general contractor on a substantial restoration project that had been underway for about six months. Defendant Stoner was the manager of its crew on that date and thus an agent, servant or employee of Canning, and acting on its behalf. Around 2:00 p.m., Stoner smelled smoke while working on the top deck of the sanctuary. Around 3:30, just as his work shift ended for the day, he observed a puff of smoke emanating from a recessed lighting fixture in the ceiling. Despite these observations, he left for the day without making any report of them. At approximately 6:30 p.m., the Willimantic Fire Department responded to a 911 call at the church, and came upon the scene of a fire that by then was too involved to prevent the collapse of the church roof and the infliction of extensive fire, smoke, and water damage throughout the structure.
The nine counts divide into three categories. Counts one, six, and seven, respectively, accuse Canning of 1) breach of contract; 6) negligence; and 7) recklessness. The first count describes the contractor's failure to report the incipient fire as a failure to perform its work in a professional and businesslike manner as the contract required, and its failure to furnish duly qualified and experienced employees as an additional breach. Count six claims that its failure to properly hire, train, and supervise its employees, and to monitor the church's condition and take necessary precautions to protect the church property, were instances of negligence. Count seven focuses particularly upon the connection between smoke and fire, and claims that Canning recklessly failed to train and supervise its employees, particularly Stoner, as to this specific hazard.
Counts two, four, and eight target Stoner individually. Count two alleges that his failure to report, investigate, draw reasonable conclusions, and take adequate precautions after detecting the presence and smell of smoke all constitute a failure to comply with the standard of care applicable to the work, and amount to negligence on his part. Count four characterizes that behavior as reckless, while count eight claims that his inaction amounts to a violation of provisions of the Uniform Fire Code and thus constitutes negligence per se.
Counts three, five, and nine respectively assert that Canning is liable to plaintiff on a theory of respondeat superior, since Stoner at the time of the behaviors described was acting within the scope of his employment and in furtherance of Canning's business.
III. Discussion
Defendants argue that they had no duty to plaintiff or its subrogors, either under contract or tort principles, to be on the alert for any fire at the facility. Furthermore, they contend, the presence of smoke early in the afternoon cannot be linked causally to the fire which was called in approximately three hours later.
A. Duty Pursuant to Contract (Count One)
As the parties see it, the central issue involving their written contract is its scope. The contract, dated November 8, 2012 (a copy of which has been filed as an exhibit to the complaint) defines " the work" defendants agreed to perform as " repair and paint[ing] plaster surfaces, remove loose paint and dust surfaces." The document is silent as to any general duty to inspect for or report fires or other calamities.
Resolving a dispute over the scope of a contract typically requires discernment of the intent of the parties, examined in the light of their situation and the circumstances connected with the transaction. " The intent of the parties is to be ascertained by a fair and reasonable construction of the written words . . . The language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the writing . . . Where the language of the writing is clear and unambiguous, the writing is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity . . . Similarly, any ambiguity in a written instrument must emanate from the language used in the writing rather than from one party's subjective perception of the terms"; Murdia v. City of Hartford, 303 Conn. 1, 7-8, 35 A.3d 177 (2011) (Citations and internal quotations omitted).
Citing Boland v. Catalano, 202 Conn. 333, 337, 521 A.2d 142 (1987), and other cases, defendants point out that " a contract is an agreement between parties whereby one of them acquires a right to an act by the other; and the other assumes an obligation to perform that act." They argue for a narrow construction of the terms of the contract. In their opinion, because the contract neither contemplated nor provided for an event like the conflagration which took down the church, that event cannot form the basis of an action against them for breach of contract.
Plaintiff counters that the contract contains express provisions defining the standard of workmanship which at least implicitly address the calamity which occurred. The four upon which it relies include Section A-2 which specifies, inter alia, that " all work shall be prosecuted regularly, diligently, uninterrupted, and in compliance with all applicable laws . . ." A-2, this court notes, defines the term " laws" by reference to Section C-10 of the contract. That subsection refers to laws which " limit access to the work and the site, " or require the contractor to " install barriers to limit exposure to any airborne materials that may be cause (sic) by performance of the work, " or to " implement all hot work, safety lockout and confined space entry procedures . . ." Because these tasks enumerated within C-10 are immaterial to the parties' present dispute, the court is inclined to agree with defendants' protest that plaintiff is reading Section A-2 more expansively than is warranted.
Plaintiff additionally relies upon discrete three provisions of section C. Section C, generally, lists a series of practices that Canning agreed to undertake in connection with its performance of " the work." Subsection C-1 provides that " the contractor shall perform the work and all its obligations and functions . . . in a professional and businesslike manner . . . consistent with the standards and quality prevailing [in the industry]." Section C-3 directs that the contractor and its employees shall " comply with all applicable laws, statutes, ordinances, codes, regulations . . . of all federal, state . . . local or other government, " and " Owner's security, safety, [and] fire safety . . . guidelines." Finally, Section C-7 requires that the contractor " take necessary precautions to protect the Owner, Site, Work, and personal property located on the site." None of these provisions expand the scope of the job, but each articulates a standard to which the contractor was expected to perform. Defendants urge that none of these provisions avail plaintiff because they create duties that are solely applicable to " the work" that was to be performed.
In contending that these standards apply to defendants' responsibility to the structure as a whole, plaintiff has the better argument about what the contract requires. When a person " is entrusted with the person or property of another . . . under such circumstances that, unless he uses proper care, that other will suffer injury . . . the law imposes or implies a duty to use such care. In other words, the particular facts which bring two persons into a relationship to each other are not necessarily controlling, but the true test is, speaking generally, being in that relationship, are the circumstances such that one, in the performance of some act within the scope of that relationship, unless he uses proper care, is likely to do injury to the person, property, or rights of the other"; Dean v. Hershowitz, 119 Conn. 398, 409, 177 A. 262 (1935).
By defendants' reasoning, a contractor who saw evidence of an active fire outside of the narrow circle of his job site, could take no action, walk across the street and watch the commotion, and later maintain that to report the fire was purely optional. That would be an absurd result. At this stage of this lawsuit, when evidence has yet to be adduced, the line of demarcation between " smoke" and " fire" is indistinct. Though they are discrete nouns, Webster's Third New International Dictionary defines the former as " a burned volatilized product resulting from incomplete combustion, " and the latter as " combustion as manifested in light, flame, and heat." In other words, they are two aspects of the same phenomenon, combustion. An observer seeing smoke is always on notice that the probability of the existence of fire is extremely high. At this stage of this lawsuit, there is no indication before the court of the volume of smoke observed, the amount of time Stoner observed it, whether anyone else in attendance observed it, whether there was any verbalization of their reactions and potential responses, whether there was any change in volume or appearance of the smoke between 2:00 p.m. and 3:30 p.m., what science says about the genesis and detectability of combustion, and so on. While failure to report a fire is lexically distinct from failure to report smoke, the substantive difference between the two may be described as a matter of degree, not kind. In their varied terminology, all three of the subsection C provisions required defendants to pay attention to the jobsite and take reasonable steps to prevent its destruction, whether by fire or by other casualty. The standards created by the three subsections create a reasonable expectation as to how " the work" was to be performed, and are not extraneous to its central purpose.
B. Duty Under Tort Principles (Counts Two Through Nine)
1. Negligence (Counts Two and Three)
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury; " RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). Proof of the essential element of duty is likewise required of a plaintiff who might caption a cause of action as " negligence per se; " Gore v. People's Sav. Bank, 235 Conn. 360, 665 A.2d 1341 (1995); or " recklessness; " Matthiessen v. Vanech, 266 Conn. 822, 836 A.2d 394 (2003).
" [T]here generally is no duty that obligates one party to aid or to protect another party; " Doe v. St. Francis Hospital & Medical Center, 309 Conn. 146, 175, 72 A.3d 929 (2013). In a colorful comment to § 314 of the Restatement (Second) of Torts, which is essentially on all fours with Doe's formulation, the authors indicate that the rule emerges from an aggregate of " older decisions to the effect that one human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other drown." That general rule is the basis of defendants' challenge to the eight counts in which plaintiff asserts its tort claims against them.
" A duty to use care may arise from a contract; " Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); and while Part A of this section focused upon the express terms of a formal, written contract between the parties, " whether a contract is styled express or implied involves no difference in legal effect, but lies merely in the mode of manifesting assent; " Janusauskas v. Fichman, 264 Conn. 796, 804, 826 A.2d 1066 (2003). As much of landlord/tenant or property law indicates, a contract creating a duty might arise from an exchange as simple as one party's transfer of possession of premises to another.
The complaint asserts that on the date of the fire Mark Stoner, as agent of Canning, was the " manager, occupant, and/or person in control of the Church" between the hours of 6:00 a.m. and 3:30 p.m. (Revised Complaint, ¶ 11). He and any other Canning employees were thus in possession of the premises for nine-plus hours each day, five days each week. This situation had endured for over six months before the fire. It is axiomatic that a party having control of premises, in contrast to its owner, is the party normally liable for transient defects therein; " [l]iability for injuries caused by defective premises . . . does not depend upon who holds legal title, but rather on who has possession and control of the property; " LaFlamme v. Dallessio, 261 Conn. 247, 251, 802 A.2d 63 (2002). Control may be found even when occupation is limited to a matter of hours; Merhi v. Becker, 164 Conn. 516, 325 A.2d 270 (1973). " In addition . . . control need not be exclusive; it is sufficient if it be shared with another." Van Nesse v. Tomaszewski, 265 Conn. 627, 631, 829 A.2d 836 (2003). Each of these cases arose from claims made by third parties without privity to the contract between owner and occupier, and each resulted in a ruling recognizing possession as the basis for liability attendant upon the condition of the premises.
The control that plaintiff has alleged sets the stage for the court to determine the existence of duty on the basis of its " legal conclusion about relationships between individuals, made after the fact; " Ryan Transportation, Inc. v. M& G. Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003). That opinion continues: " the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." The Court observed that " [t]he first part of the test invokes the question of foreseeability, and the second part invokes the question of policy, " citing Mendillo v. Board of Education, 246 Conn. 456, 483-4, 717 A.2d 1177 (1998). " The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised . . . 'Foreseeability' in this context is a flexible concept, and may be supported by reasonable reliance, impeding others who might seek to render aid, statutory duties, property ownership or other factors; Burns v. Board of Education of Stamford, 228 Conn. 640, 646, 638 A.2d 1 (1994).
As indicated, plaintiff has made no allegation that any act on the part of the defendants caused the fire. Defendants, however, cannot refute " the general rule . . . that every person has a duty to use reasonable care not to cause injury to those whom he reasonably could foresee to be injured by his negligent conduct, whether that conduct consists of acts of commission or omission; Gazo v. Stamford, supra, at 251 (2001) (emphasis added). Examining the behavior of defendant Stoner in light of the first of the Ryan tests, it is difficult to imagine an " ordinary person" who would fail to dial 911 after twice sensing smoke in a confined space under his dominion. An " ordinary person" would likely determine that the foreseeability of the harm that attends a fire warranted some attention to the phenomena he observed. Thus it is difficult to conclude that Stoner's behavior met the standard we expect of a person under the particular circumstances of this case, and so the first prong of the Ryan test weighs against him.
As to the policy question forming Ryan's second prong, the premise that an on-site manager who sees and smells smoke within the building he works in has no duty to shoulder the minimal burden of dialing 911, when the particular consequence of his failure to do so could be a loss measured in the millions of dollars, is strange and unacceptable. It fails each component of the four-part test outlined in Ruiz v. Victory Properties, LLC, 315 Conn. 320, 337, 107 A.3d 381 (2014), as follows:' '[I]n considering whether public policy suggests the imposition of a duty, we . . . consider the following four factors: (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." Simply put, one expects that a person who has twice sensed the potential for a fire (or other obvious disaster) will alert the authorities; " see something, say something" is a mantra of our age. Secondly, no public policy reason exists to deter a person from doing so. This is not a situation forcing Stoner into a raging river to rescue a drowning victim, for instance, which would cause concern for his personal safety; dialing 911 is painless and takes less than a minute. Thirdly, the risk of increased litigation clearly rises as a consequence of behavior such as that alleged against the defendants; containing or eliminating the consequences of fire diminishes that risk.
Regarding that fourth factor, the decisions of other jurisdictions, this court has found no case from another jurisdiction involving allegations similar to those under consideration. Defendants invoke the cases of McClendon v. T.L. James & Co., 231 F.2d 802 (5th Ed. 1956) (a Louisiana case), and Walker v. C& C Contractors, Inc., 1964- NMSC 171, 74 N.M. 391, 394 P.2d 151 (1964). Both involved suits against road contractors by persons injured at sites remote from the places where the contractor's work was actually underway; the road defects which plaintiffs encountered could not be attributed to the defendant in either case. Moreover, both involved suits by individuals not parties to the operative road repair contract. Here, the plaintiff is not a third party, but, as subrogee for the church and the diocese, an entity which stands in their shoes in pursuing the present claim; (when, as here, an insurer brings an equitable subrogation claim after paying a loss, it " step[s] into the shoes of the party it paid in order to recover the payments that it made"; Wasko v. Manella, 269 Conn. 527, 548, 849 A.2d 777 (2004)). Neither McClendon nor Walker is persuasive authority for a policy that would dictate striking plaintiff's present complaint.
Nor have defendants made a cogent argument for adopting the policy they argue protects them. They conjure up a quartet of hypothetical situations illustrating why policy considerations should excuse their behavior here, including the possibility of an asteroid hitting the church, or an altar boy mishandling a candle at Sunday Mass. two days after the Canning crew had left the job site. Suffice it to say that their examples are of a character so radically distinct from the details alleged in this complaint as to be of little value to their position.
Curiously, defendants did not cite Hollister v. Thomas, 110 Conn.App. 692, 955 A.2d 1212 (2008), a case with facts somewhat similar to those of the case at bar and which yielded the result that they now seek. Hollister was a volunteer fireman injured upon arriving at a raging fire. His claim was that various persons who had delayed in calling in the emergency caused a situation whereby the fire became more intensive, thus causing his injuries. The court upheld a trial court ruling striking his complaint, on the basis that the defendants did not owe him a duty to call at any particular moment. Hollister involves the spirit if not the letter of the firefighter rule, for one thing, which is not an issue here; (" the firefighter rule . . . gives a firefighter the status of a licensee in a personal injury action against a landowner for harm sustained during the course of duty . . .; 110 Conn.App. 692, n. 5, 955 A.2d 1212). More significantly, the specific omission involved--delaying (or, as here, omitting) a call to 911--is a superficial resemblance. The case turned upon the relationship among the parties, and what duties those relationships created. In that regard it is not the same case as this at all.
Likewise, other than by a passing reference in a string citation in defendants' brief to Cannizzaro v. Marinyak, 312 Conn. 361, 93 A.3d 584 (2014), neither party discussed the implication of the " special relationship" status analyzed in that decision. Cannizzaro is a case quite distinct from this one. Its plaintiff, seriously injured in a crash caused by a drunk driver, sued the driver's employer alleging that the employee had become inebriated at the job site and the employer ought to have prevented that from occurring. The Court afforded the employer the safe haven of the general rule, but with a clear emphasis upon the lack of any evidence that the employer knew of or condoned the drinking; in fact, the evidence indicated that she had affirmatively expressed her opposition to drinking on the job. That defendant's ignorance contrast sharply with Stoner's alleged awareness. The Restatement's authors, in comment (a) to § 314, noted that a general rule permitting one seeing another in peril to sit on the dock and smoke his cigar while the other drowns is a rule lacking moral authority, and renders it " inevitable that, sooner or later such extreme cases of morally outrageous and indefensible conduct will arise that there will be further inroads upon the older rule." Whether this case warrants such an extension of the common law is an interesting question, but given that neither party has raised or briefed the issue, this court declines to go there.
Count Three is dependent upon the allegations of Count two, and merely assigns blame to Canning for the negligence of its employee, on a respondeat superior basis. This count requires no separate discussion of duty on the employer's part.
2. Negligence Per Se (Counts Eight and Nine)
Statutes and other positive laws may provide a basis for duty in lieu of, or in addition to, a contract. When a plaintiff alleges that a defendant's act or omission runs directly contrary to such an enactment, his cause of action constitutes negligence per se which may be pled separately from a negligence count. " The doctrine of negligence per se serves to superimpose a legislatively prescribed standard of care on the general standard of care; " Staudinger v. Barrett, 208 Conn. 94, 101, 544 A.2d 164 (1988). " Under the doctrine of negligence per se, the elements of duty and breach in a negligence action are satisfied by proof that the defendant has violated a relevant statute or regulation and that the party injured is a party whom the statute or regulation was intended to protect; " Martin v. Shell Oil Co., 198 F.R.D. 580, fn. 6 (D.Conn. 2000).
Count Eight alleges that Stoner's omission violates the directives of relevant provisions of the National Fire Protection Association (NFPA) Regulations, adopted by the Department of Public Safety pursuant to Conn. Gen. Stat. § 29-291a as provisions of Connecticut law. Specifically, plaintiff points to § 10.7 of the Regulations, captioned " Reporting of Fire and Other Emergencies." " Agency regulations, appropriately issued, have the force and effect of a statute . . . [The courts] therefore construe agency regulations in accordance with accepted rules of statutory construction . . . Just as it is accepted that the legislature does not enact superfluous statutes . . . the same is true of administrative regulations; " Gianetti v. Norwalk Hospital, 211 Conn. 51, 60, 557 A.2d 1249 (1989). (Citations omitted; internal quotation marks omitted.)
NFPA Regulation Subsection 10.7.1 .1 provides that the person " discovering any unwarranted fire, regardless of magnitude, shall immediately notify the fire department." Subsection 10.7.1.3 continues: " The owner, manager, occupant, or any person in control of such building or premises, upon discovery of an unwanted fire . . . shall immediately cause the notice of the existence of such fire . . . to be given to the fire department." These provisions were in effect on May 16, 2013.
Defendants' brief is largely silent on the specific sufficiency of these counts. At oral argument, they contended that the incident described by plaintiff falls outside the scope of the regulations, and also that those regulations must be strictly construed since they can be characterized as penal and potentially expose a violator to criminal sanctions (see Conn. Gen. Stat. § 29-295).
By their express terms, the scope of the regulations is expansive. It " includes, but is not limited to" a series of circumstances enumerated in CSRA 29-291a-3, such as (3) " fire and life safety education of . . . responsible parties and the general public; " (4) " existing occupancies and conditions:" and (11) " conditions affecting fire fighter safety." It is clear that applying the regulations to a long-duration project in a significant building routinely open to the public does not run afoul of the regulatory scope.
The eighth count additionally adequately sets forth a duty on Stoner's part arising from this enactment. Subsection 10.7.1.1's use of the modifier " regardless of magnitude" in describing " fire" telegraphs that a strict adherence to the mandate is expected. As indicated under part IIIA, above, combustion is the culprit, and it is commonly known that both " fire" and " smoke" are its components. In State v. White, 204 Conn. 410, 528 A.2d 811 (1987), the Court reviewed an instance of the application of this code to alleged criminal behavior. Recognizing that due process demands that " the terms of a penal statute . . . must be sufficiently explicit to inform those who are subject to them what conduct on their part will render them liable its penalties, " the Court went on to counsel that " [i]t is not necessary . . . that a statute list the precise conduct prohibited or required." In this civil case, defendants cannot argue that a stricter interpretation of the code is required. At this stage of this case, when the evidence critical to a determination of the magnitude of the threat the smoke forewarned has not yet been developed, it appears that the provisions of § 10.7 of the regulations spell out with sufficient precision the requirement that Stoner report a fire, as what he observed might not otherwise be reasonably interpreted.
As Count Three did to Count Two, Count Nine extends that claim to Canning on respondeat superior principles.
3. Recklessness of Stoner (Counts Four and Five)
Count Four characterizes the behavior of Stoner as reckless, while Count Five extends that charge to Canning as his employer. " Recklessness is a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them; " Wagner v. Our Lady of Mount Caritas, O.S.B., Inc., 157 Conn.App. 788, 802, 118 A.3d 103 (2015).
Defendants attack these two counts on the same basis as their challenge to the negligence count, i.e., that they owed no duty to plaintiff. They outline no distinction between the measure and source of the duty required to support a negligence count, and the same to support a recklessness count. Such a difference is not obvious, and will not be assumed. The difference between the two counts instead inheres in the mental state of the defendant, which this motion does not address. Accordingly, there is no reason to reach a different result vis-a-vis these counts from that reached with respect to the negligence counts.
4. Direct, Negligence (Count Six) or Recklessness (Count Seven) of Canning
These two counts focus upon the duties attendant upon Canning's behavior as contractor, and allege that the company a) failed to properly hire, train, and supervise its employees, particularly Stoner; b) failed to monitor the Church on a regular basis; c) failed to take the necessary precautions to protect the personal property of the church; and d) failed to comply with the standard of care applicable to the work.
Defendants' motion does not isolate these counts for any special attention. Their general theme that they owed plaintiff no actionable duty is the sole basis for their inclusion of these counts within that motion. Plaintiffs reply memorandum likewise is silent as to any distinction to take into account with respect to these counts.
This decision has addressed that general theme at length. Unless the parties identify how the concept of duty uniquely applies to Canning's direct obligation to plaintiff, repeating what has already been said on this subject is unnecessary.
C. Causation
Causation, like duty, is an essential element of plaintiff's claims, whether arising from tort or contract principles. A different standard applies when adjudicating the existence of duty as opposed to causation. " The existence of a duty is a question of law"; Jarmie v. Troncale, 306 Conn. 578, 589, 50 A.3d 802 (2012), while " [t]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable person could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact; " Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 611, 662 A.2d 753 (1995) (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 578, 717 A.2d 215 (1998) cautioned that " [i]n every case in which a defendant's negligent conduct may be remotely related to a plaintiff's harm, the courts must draw a line, beyond which the law will not impose legal liability"; but, that case continued, " that line is often amorphous and difficult to discern."
" The essential element of causation has two components. The first component, causation in fact, requires us to determine whether the injury would have occurred but for the defendant's conduct. The second component, proximate causation, requires us to determine whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries. That is, there must be " an unbroken sequence of events that tied [the plaintiff's] injuries to the [defendant's conduct] . . . This causal connection must be based upon more than conjecture and surmise." Stuart v. Freiberg, 316 Conn. 809, 833, 116 A.3d 1195 (2015) (Citations and internal quotation marks omitted.)
Defendants' arguments contesting causation comprise these three strains: 1) they did nothing to cause the fire; 2) the mere observation of smoke does not portend the imminent or even eventual outbreak of fire; and 3) in any event, there is no proof that a 911 call would have led to a different result. Paige v. Saint Andrew's Roman Catholic Church Corp., 250 Conn. 14, 734 A.2d 85 (1999), is the principal legal authority underpinning their arguments.
As to the first of these, it is clear that plaintiff is not claiming that the defendants started the fire or created conditions from which it sprang forth. What defendants do not acknowledge, apparently, is that nonfeasance or omission may be as significant a detail in the occurrence of an event as would malfeasance or actively setting in motion the events producing that event. See Gazo, supra . The Paige decision reversed a plaintiff's verdict in a case wherein the jury had had to select from among various tortfeasors the one which had taken the negligent steps leading to plaintiff's loss. In the opinion of the Court, no evidence sufficed to link the appellant to that mishap. If one might call Paige a " who dun it?, " the present case, involving no mystery as to who failed to call the fire department, belongs to a distinct genre. Paige is inapposite to the present case
Defendants' second premise rests on the theory that smoke is not necessarily a precursor or indicator of latent fire. This is an assertion of fact, not cognizable upon the adjudication of a motion to strike. The relationship between smoke and fire is the subject of fire spread science, and what practitioners of that discipline would have to say about defendants' hypothesis is not now before this court. It is probable that a trial in this case will involve evidence detailing that science, and, of course, at that time the plaintiff has the burden of proof. Defendants will have the opportunity to confront that evidence and make their own submission, should they choose to do so, as to what other consequences than fire, if any, may follow upon the observation of smoke; it is the jury's function to determine whose evidence is more credible.
Lastly, the contention that a 911 call at 3:30 p.m. would have made no difference in mitigating the destructive force of a fire ultimately discovered after 6:00 p.m. is likewise a question of fact. The passage of two and one-half to three hours between Stoner's observations and the discovery of the fire is a circumstance, not a detail which so undeniably breaks the sequence of events tying defendants' behavior to plaintiff's loss as to require the denial of plaintiff's claim as a matter of law. " Circumstantial evidence is 'evidence of facts from which the trier is asked to infer the existence of, and, so, to find proven, another fact or [set of] facts . . . Circumstantial evidence 'need not be so conclusive as to exclude every other hypothesis . . . Rather, circumstantial evidence must only produce in the mind of the trier a reasonable belief in the probability of the existence of the material fact; " Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 777-78, 83 A.3d 576 (2014) (Citations omitted).
" Where the negligence of the actor creates the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct; " Merhi v. Becker, supra, at 522. Our Court's pronouncement is consistent with the Restatement (Second) of Torts § 435, which provides: " (1) If the actor's conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable. (2) The actor's conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm." Whatever Stoner intended when he left the church at 3:30 on May 16 without calling the fire department may never be known. But this case qualifies for an assessment similar to that made in Ruiz v. Victory Properties, LLC, 315 Conn. 320, 336, 107 A.3d 381 (2015), which concluded, in imposing liability upon a landlord whose failure to clean detritus from his building's backyard led to a tenant being injured when a child threw a piece of concrete at her from a height, that " [a]lthough, in some cases, the injury is so remotely or tenuously connected to the conduct of the defendant that it, must be deemed unforeseeable as a matter of law, this is not such a case."
IV. Conclusion
In light of the foregoing, the motion to strike is denied as to all counts.