Opinion
No. X01 CV-94-0185567-S
January 18, 2006
Factual Background
On August 12, 1991, a fire started in the basement of a three-story apartment at 273 Caroline Street in Derby, Connecticut. George Jordan, Sr. lived there with his wife Adrienne and his five children — Alicia, Justin, George, Jr., James, and Jeremy. The plaintiff claims the fire occurred while George Sr. was working alone in the basement and a flammable liquid (later identified as gasoline) was spilled onto the floor near a hot water heater owned by Yankee Gas Services Company. Plaintiff further claims some of the gasoline ran under the hot water heater and that flames from the hot water heater ignited the gasoline, starting a fire which spread from the basement up the stairs to the first and second floor living spaces. Adrienne Jordan and two (2) children — Alicia and Justin — were on the second floor and died in the fire. The three (3) remaining children survived as did George Jordan, Sr. Plaintiff has asserted three (3) product liability wrongful death claims on behalf of the Estates of Adrienne, Alicia and Justin Jordan. In the Amended Complaint of August 17, 2004, it is claimed the water heater was defective in that: a) the pilot light was too close to the floor, b) the water heater was liable to ignite a fire; and c) Yankee Gas knew or should have known of these conditions but did not correct them. ¶ 15. The centerpiece of the plaintiff's product liability claims is that the water heater (a conventional center flue gas fueled water heater) was defective because not installed on an 18" stand. Yankee Gas has denied all liability and has asserted some thirteen (13) special defenses.
Yankee Energy Systems, Inc., though a defendant in this action (for reasons unknown), did not own the water heater. Yankee Gas Services Company concedes it owned the heater which it leased to the owner of the premises. All motions are filed by both Yankee Gas defendants.
George Jordan, Sr. died on or about September 26, 1994, for reasons unrelated to the fire.
This case was brought in 1994; it was transferred from the regular docket in the Ansonia/Milford judicial district to this CLD docket ten (10) years later in May of 2004 and will commence trial on July 18, 2006.
It would appear no party has addressed this negligence language though it is unlikely this language will survive. Additionally, the plaintiff has — on various occasions in response to the plethora of motions filed — referred to these claims as "strict liability" product claims. Also, though the plaintiff had alleged a failure to warn in sundry of her prior complaints, she now abandons that claim.
This case has been consolidated with a 1993 case (also transferred here in May of 2004) captioned Skirvin Admx. et al. v. Kastens. In that case, the city of Derby is sued in negligence and recklessness and the Derby Housing Authority is sued in negligence. The allegations therein are not relevant to the disposition of these motions.
While Richard Kastens, the landlord, appears as the lead defendant in the caption of the governing complaint (the Amended Complaint of March 22, 2005), Kastens is nowhere therein referenced and this court believes he is no longer a defendant.
Pertinent to many of the motions filed here is that, in addition to the subject gas fueled water heater, there were in the basement on the date of the fire, an oil fueled furnace located fifteen-twenty (15-20) feet from a 36" high workbench where Mr. Jordan was working in the northeast corner (where the water heater also was), two (2) kerosene heaters (found among burned debris below the workbench), at least one (1) overhead electrical light, and two (2) plastic containers (one red and one white, the red larger than the white, which containers held gasoline and/or a mixture of gasoline and oil). Mr. Jordan testified at deposition he knowingly stored gasoline in the basement. He was a smoker.
The discovery phase of this case has inexplicably spanned ten (10) years and trial of both cases will commence in July of 2006. Parties have fully briefed each of the six (6) captioned motions and have additionally provided the court well over a thousand (1,000) pages of exhibits consisting of deposition transcripts (in whole or in part), multi-paged affidavits and disclosures of experts, fire investigation reports, photographs and diagrams, selected texts from fire codes, statutes, regulations, and fire manuals, relevant cases, and the like. The court has examined each such exhibit in view of the significance of the issues and the resolution of the same. The parties have waived their right to oral argument of the motion for summary judgment and have consented to adjudication on the papers.
Motion In Limine to Preclude Statements of George Jordan, Sr. (#322) CT Page 603
After this fire of August 12, 1991, George Jordan, Sr. provided at least six (6) known statements in various forms. Specifically:
1) At the scene, he told James Butler, a firefighter, he had spilled gasoline that ran along the floor to the water heater and that the fire ignited before he had time to mop up all of the gasoline. Exhibits U and V.
2) Following his statement to Butler but while the fire was still in progress, Jordan spoke to Marcel Lajeunesse, a Derby police officer. Lajeunesse testified Jordan told him he was working on his workbench when he, while reaching for a roll of wire, knocked over a one-gallon plastic milk container containing a mixture of oil and gas and the "container fell and exploded, pretty much." Exhibit N, p. 50. Jordan said the fire ignited as he tried to soak up the spilled mixture which ran toward the water heater. The statement was made approximately thirty (30) minutes after the fire alarm sounded. Id., at 55-56.
Lajeunesse had two (2) conversations with Jordan — at the scene and again on the day following fire.
3) Within approximately two (2) hours of the fire, Jordan told one or more other police officers at the scene that the fire occurred when he "knocked over a can of gasoline that ran to the hot water heater and ignited." Exhibit U, (un-numbered) p. 7.
4) On the following day (August 13, 1991), Jordan told police on the scene he had been cleaning in the basement, had mixed oil and gas for a power tool in a one gallon milk container on a workbench against the wall when he "went to reach for something and the plastic milk container fell over onto the floor and broke opened (sic)." Id., at 14. See also Exhibit V.
5) In a deposition he gave in the Skirvin case, he testified the gasoline from the plastic milk container spilled onto the floor and ignited immediately, leaving him with no time to do anything. Exhibit L, pp. 39-40, 102.
6) Jordan told his landlord (Kastens) — perhaps as much as six (6) months after the fire — that the fire occurred when he (Jordan) wired a kerosene heater to the ceiling and lit it, causing the heater to fall to the floor and thus starting the fire. Exhibit M, pp. 83-85.
Jordan's deposition in the companion matter ( Skirvin) occurred on April 26, 1994. No action was filed against Yankee Gas until August of 1994. Yankee Gas first noticed Jordan's deposition on May 17, 1995, but didn't go forward because of "conflicts with Plaintiff's counsel's schedule" (Brief, at 10). It was re-noticed for September 19, 1995. By letter dated September 15, 1995, plaintiff's counsel advised Mr. Jordan was hospitalized and would not be released by the date of the deposition. Sometime thereafter, Yankee Gas was advised Mr. Jordan had died on September 18, 1995. Because it had never been alerted to the critical nature of Mr. Jordan's illness, Yankee Gas has moved to preclude all of Jordan's statements (to include his deposition testimony) and claims it was deprived of due process under the Fourteenth Amendment of the United States Constitution. Yankee Gas also argues the plaintiff, "having chosen to prevent examination of the competence and credibility of the witness, . . . has implicitly waived the right to introduce his statements at trial." Brief, at 18.
The relevant history is that Yankee Gas, in October of 2003 and again in January and February of 2004, deposed various members of Jordan's family and inquired about the circumstances of the "final illness and death of Jordan" ( Id. at 11.) which it claimed was for impeachment purposes since it believed "Jordan's health may have been impaired when he gave the statements and testimony at issue." Id. The plaintiff instructed the witnesses not to answer and Yankee Gas moved to compel responses. The plaintiff filed objections under seal, claiming those objections were protected by some unidentified statutory privilege. The motions were heard by Cremins, J. in Milford on 2/23/04. The court denied Yankee Gas the relief requested. Yankee Gas wants to relitigate those motions here; that relief is denied. The circumstances surrounding Jordan's final illness and death in September of 1995 is not relevant to his competence at the time of the fire in August of 1991 and this court concludes therefore such information is not reasonably calculated to lead to the discovery of admissible evidence. P.B. § 13-2. Admittedly, the plaintiff's refusal to permit such inquiry is curious and the reliance upon an unidentified statutory privilege — kept even from defense counsel — is a departure from the usual procedure that is not to be encouraged. Under these circumstances, however, where the information requested is with regard to a time four (4) years subsequent to the fire, this court concludes Yankee Gas had full opportunity to be heard (as it was by Judge Cremins) and there is no reason to afford Yankee Gas a second bite of the apple here.
It needs first be said that, though Yankee Gas implicitly urges this court to find plaintiff's actions in not bringing suit against this defendant until after Jordan had been deposed in Skirvin, in postponing the first noticed deposition of Jordan for reason of a scheduling conflict, and in not advising defense counsel of the critical nature of Jordan's illness until three (3) days prior to Jordan's death (one [1] day prior to a second date on which the deposition was to be) was a purposeful attempt to keep defense counsel from deposing Jordan and a deliberate attempt to hide the truth (presumably, of Mr. Jordan's inability to testify at trial) and thus to thwart discovery. In the absence of more, the court declines that invitation despite opposing counsel's obvious discourtesy. While Yankee Gas argues it was deprived of the opportunity to confront Jordan at deposition, two (2) factors are relevant:
1) Though Yankee Gas was in the case since August of 1994, it waited almost one full year to notice Jordan's deposition knowing Jordan was the only witness to the fire and, when plaintiff's counsel postponed the same, Yankee Gas did not again notice the deposition until September of 1995. It cannot be said the inability to depose Jordan was entirely the fault of the plaintiff. 2) Jordan, in April of 1994, gave a three-hour, one hundred fifty-four page deposition at which he was cross-examined by four (4) experienced defense lawyers whose interests, while different in kind from Yankee Gas' interests, were every bit as antagonistic to Jordan as is Yankee Gas here. Yankee Gas has provided this court the full transcript of Jordan's deposition and thus it has the benefit of the same.
"Waiver is the intentional relinquishment or abandonment of a known right or privilege . . . It involves the idea of assent, and assent is an act of understanding . . . The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct . . . In order to waive a claim of law it is not necessary . . . that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy." Dorchinshy v. Windsor Ins. Co., 90 Conn.App. 557, 564 (2005) (Citation omitted.). A waiver occurs, therefore, only if there is both knowledge of the existence of the right and intent to relinquish it. Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 777 (2005) (Citations omitted.). There is no evidence — by words or conduct — upon which to premise a finding plaintiff's counsel assented to the relinquishment of his right to offer Jordan's statements at trial when he, at worst, delaying bringing suit against Yankee Gas until after Jordan had been deposed and kept close to the vest his knowledge of Jordan's impending death. Those are assumptions unsupported by other than the suspicions of Yankee Gas. There is no finding of a waiver.
Connecticut permits the dead party "to speak from the grave." Graybill v. Plant, 138 Conn. 397, 405 (1951). C.G.S. § 52-172 provides that, in actions by or against the representatives of deceased persons, the "entries, memoranda and declarations of the deceased, relevant to the matter in issue, may be received as evidence." This so-called dead man's statute is an exception to the hearsay rule. See C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.47.2, p. 727. Although the statute is to be interpreted literally, every utterance of a deceased person is not automatically entitled to come into evidence solely because the speaker has died. Kalas v. Cook, 70 Conn.App. 477, 486 (2002). Under § 52-172, the action in which statements by Jordan are admitted must be by or against his representatives. Jordan, Sr. was brought into this case by Yankee Gas for apportionment purposes and, after his death, his administrator was substituted. His statements are relevant to issues in this matter. The statements are admissible under § 52-172 though that statute is not a carte blanche for the admission of statements which, for example, identify either the origin or cause of the fire notwithstanding his ability to describe his conduct or observations. The declaration is evidence of the facts stated; their weight is a jury determination. Joanis v. Engstrom, 135 Conn. 248, 251 (1948). The deposition of Jordan is also admissible under P.B. § 13-31(a)(4)(A). Finally, the statements made by Jordan while the fire was in progress and in the hours immediately thereafter are admissible as spontaneous utterances and are an exception to the hearsay rule. The requirements are that it: a) follow a startling event; b) relate to that event; c) be made by someone with an opportunity to observe the event; and d) be spoken under circumstances that indicate it is caused by the quick excitement of the declarant so as to negate an opportunity for deliberation and fabrication. Johnson v. Newell, 160 Conn. 269, 278-79 (1971). Clearly the time span between the occurrence and the utterance is key and our Supreme Court has concluded statements made an hour and a half later were not spontaneous but made after time for reasoned reflection. State v. Kelly, 256 Conn. 23, 42-43 (2001).
Whether the Estate of George Jordan, Sr. remains a defendant for apportionment purposes is not clear (The parties are encouraged to pursue that inquiry.) and, if so, whether, since a defendant for apportionment purposes only, it can be said this action is brought "against" his representatives.
The motion to preclude these statements for the reasons profferred is denied.
Motion In Limine to Preclude Testimony of McGurk and Butterworth (#323)
The plaintiff has disclosed James Butterworth and Kevin McGurk as expert witnesses regarding the origin and cause of the subject fire and Yankee Gas claims the testimony of each is "no more than speculation and conjecture." Brief, at 2. Yankee Gas argues the testimony: a) failed to follow the scientific method or any other valid or reliable technology, and b) reached conclusions not analytically related to any facts or empirical data. Its fundamental argument is that they failed to follow the now accepted reliable and valid methodology of fire origin and cause investigation as published in the National Fire Protection Association Guide, Section 921 (NFPA 921), 2004 Edition. Id., at 4. Both witnesses were, at the time of the fire, fire investigators with the Connecticut State Fire Marshal's office. McGurk was the lead investigator though Butterworth was his supervisor. Both concluded the fire was accidental in nature and occurred as a result of George Jordan, Sr. spilling a container of mixed gas and oil onto the floor of the dwelling's basement, his subsequent attempt to soak it up with cloths, the spreading of the liquid toward the gas piloted hot water heater in the northeast corner of the basement, and the igniting of the vapors. Butterworth and McGurk, both of whom had received fire investigation training and had conducted fire investigations prior to this fire, concede they relied — at least in part — on Jordan's description of events, which description they ultimately adopted. Relevant is that Jordan gave a number of statements, one written and the others oral. With the exception of one (1) oral statement he gave (weeks after the fire) to Kastens, his landlord, Jordan's statements are "generally" consistent in that, in each, he concedes the storage of gasoline in an obviously cluttered basement containing, inter alia, the subject water heater, two (2) kerosene heaters stored under the bench where he worked, and an oil fueled furnace. They are consistent (with one exception) in that Jordan concedes he knocked over (or spilled) a container housing the gas/oil mixture causing the spill onto the floor and that he attempted to wipe the mixture from the floor with rags. They are generally consistent in that they recite that the mixture fell toward the water heater and burst into flame. See e.g., Exhibit Z, Jordan's signed statement of 8/12/91 (the date of the fire) given to the Derby Police Department. The Kastens statement looms large in that, when deposed, Kastens asserted Jordan told him the fire occurred when he (Jordan) wired a kerosene heater to the ceiling and lit it so that he (Jordan) could use the heat it generated to dry out the kitchen floor in his apartment above and that the heater then fell to the floor and started the fire. Exhibit M, pp. 83-85. Neither McGurk nor Butterworth could have been aware of the Kastens statement at the time of their investigation — nor do their depositions (taken in late 2003 and 2004) suggest they were made aware of the same — if at all — until shortly before their depositions.
Yankee Gas refers to these five (5) statements — as recited on p. 9 of its brief in support of its motion to preclude — as consisting of "different stories" — apparently because not exact recitations (at least as reported by various fire and/or police personnel). That is to overstate the case given that the facts relevant to an origin and cause determination do not vary.
Yankee Gas urges the court to preclude the investigators' testimony in the exercise of her "gatekeeping" function under State v. Porter, 241 Conn. 57 (1997), cert. denied 523 U.S. 1058 (1998), and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). This court does not believe a Porter (or Daubert) analysis is here required because the evidence sought to be excluded is not the type of scientific evidence with the potential to mislead jurors that Porter was intended to address. This state's Supreme Court squarely addressed the matter in Hayes v. Decker, 263 Conn. 677 (2003). There, the expert doctor testified that, though the discontinuation of the plaintiff's blood pressure medication did not cause his heart attack, it did cause his blood pressure to rise and resulted in more tissue damage than would otherwise have occurred had the medication not been stopped. 263 Conn., at 677. Relevant is that the doctor testified he knew of no research or completed study documenting a link between the discontinuance of blood pressure medication and an increase in the severity of the subsequent heart attack. Id., at 680-81. Nor could he point to any scientific articles, studies, or treatises concluding that specific increases in blood pressure resulted in specific amounts of heart muscle damage. Id. at 681. The trial court, on the basis of the Porter standard and the absence of any corroborative scientific study, ruled that testimony inadmissible and denied a subsequent motion to set aside the verdict for the defendant. The plaintiff appealed, claiming mis-application of the Porter standard; the Appellate Court reversed the trial court and remanded and our Supreme Court affirmed.
Hayes concluded:
Expert testimony should be admitted when: (1) the expert has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.
Id., at 683 (Citation omitted.).
The Court went on to state there is a further hurdle to admissibility "when that testimony is based on innovative scientific techniques" ( Id., at 683-84) since, in those situations, the scientific evidence that forms the basis for the expert's opinion must undergo a validity assessment to ensure reliability. Id., at 684, citing to Porter, 241 Conn., at 68-69. There is no claim by Yankee Gas the methodology employed by Butterworth and McGurk was "innovative" so as to require a Daubert analysis; under the mantle of Daubert, the defendant instead presumes its applicability and then proceeds to argue that, because the methodology suggested by NFPA 921, was not employed (or was not employed in the manner and order there urged), the testimony of Butterworth and McGurk ought be precluded. That is to ignore the lesson of Hayes. Once qualified as experts, their testimony will "assist the jury in understanding the evidence or in determining a fact in issue." Id. at 686, citing to Conn. Code Evid. § 7-2. Both McGurk and Butterworth had special training in the conduct of origin and cause determinations prior to the subject investigation. Butterworth attended a two-day fire investigation seminar sponsored by the Connecticut chapter of the International Association of Fire Investigators in Hartford in 1990, and origin and cause determinations were there addressed. He attended an 80-hour program as part of this state's certification requirements in the spring of 1991. Conducted by the Office of the State Fire Marshal, it focused on "origin and cause, interpreting burn patterns, examination and elimination of ignition sources, causes, motives, interviewing." Exhibit E, p. 43. In June of 1991, he attended a two-week program at the National Fire Academy in Emmitsburg, Maryland; the same subjects were there covered. McGurk attended both the Connecticut fire marshal certification program in 1988 and the National Fire Academy in Emmitsburg, Md. (in 1989). Having trained and worked in the state fire marshal's office and having attended programs and seminars on such matters relevant here as origin and cause, burn patterns and their interpretation, examination and elimination of ignition sources, both bring a knowledge of fire investigation techniques beyond the ken of a lay person and, having conducted an examination of the fire scene on 8/13/91, they are qualified to render their opinions to the jury re the origin and cause of this fire. Specifically, they are entitled to tell their jury of their awareness of the statement of the only eyewitness (Jordan — who re-enacted his movements immediately prior and subsequent to the moment of ignition), their observation and interpretation of burn patterns in that area of the basement where Jordan was, their conducting of a "spill test" which they believed confirmed that the spill traveled from the workbench to the water heater, and their investigation to exclude other competent sources of ignition. That Yankee Gas believes their investigation was not thorough and that they did not do all that could or should have been done is a matter of cross-examination. Under the relevant case law and § 7-2 of the Conn. Code Evid., their opinions are admissible. It matters not at all that Yankee Gas — or even this court — may find more reliable other expert testimony. "Under Porter, a trial court does not have the discretion to exclude expert opinion because it believes there are better grounds for an alternative conclusion." 263 Conn., at 686 (Citation omitted.).
Porter followed the U.S. Supreme Court's decision in Daubert in that regard.
He did not complete the requirements and thus was not certified in October of 2004 when he was deposed.
Whether Porter, (or Daubert) applies to the grounds underlying these investigators' origin and cause conclusion is dependent upon whether those grounds "are the type of evidence contemplated by Porter." Id. "Not all premises are subject to the Porter validity assessment . . . [S]ome scientific principles may have become so well established that an explicit Daubert analysis is not necessary for admission of evidence thereunder . . ." Id., at 687. The contribution of such procedures as the interviewing of witnesses, examination of the scene following fire suppression efforts, observation of debris, the location of objects within the fire environment, the examination of debris, the consideration of other competent ignition sources, the study and location of burn patterns, and the spill flow test are established fire investigation techniques. The validity assessment "has either been ignored or rejected in cases in which the method used by the expert was a matter of physical comparison rather than scientific test or experiment . . ." Id., at 688. "[T]he jury is in a position to weigh the probative value of the testimony without abandoning common sense and sacrificing independent judgment to the expert's assertions based on his special skill or knowledge . . . Furthermore, where understanding of the method is accessible to the jury, and not dependent on familiarity with highly technical or obscure scientific theories' the expert's qualifications and the logical bases of his opinions and conclusions can be effectively challenged by cross-examination and rebuttal evidence." Id. (Emphasis added.). This is entirely consistent with Federal Rule of Evidence 702.
Rule 702 provides that "if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise."
Because the experts do not expect to testify concerning innovative scientific techniques, their testimony is admissible without undergoing a Porter analysis or being subjected to a Porter hearing. Additionally, here as in other motions to preclude here adjudicated, the defendant attaches too great an emphasis on NFPA 921. While the NFPA 921 sets out a method of fire origin and cause investigation endorsed not only by Butterworth and McGurk but by professional organizations as valid, reliable, and authoritative and while it is a comprehensive guide, its contribution to fire science ought not be over-stated. It may now be the preferred fire investigative method, but it was never intended to invalidate or supplant all other valid scientific methods. To suggest — as Yankee Gas does — that all origin and cause experts must follow the five (5) steps (described in Chapter 4) comprising the basic methodology of a fire investigation in a ritualistic lock-step approach ignores not only other authoritative sources (i.e., Kirk's Fire Investigation, the Fire Investigation Handbook, the Fire Protection Handbook, etc.) but also ignores the testimony of both investigators that they employed the same methodology but did not then identify it as "the scientific method." See Butterworth depo, Exhibit E, at 251 and McGurk depo, Exhibit P, p. 448. It is a jury question whether their investigation was based on valid and reliable methods of origin and cause fire investigation. All that counsel for Yankee Gas was able to elicit as steps not then taken and which the investigators would undertake today if conducting a similar investigation go to weight and not admissibility.
Those steps are 1) data collection; 2) data analysis (inductive reasoning); 3) development of hypothesis; 4) testing of hypothesis (deductive reasoning); and 5) avoidance of a presumption of cause.
The motion to preclude Butterworth's and McGurk's origin and cause opinions is denied.
Motion In Limine to Preclude Testimony of Hoffman and Fowler re Origin and Cause of Fire (#325)
Yankee Gas has moved to preclude the testimony of John Hoffman, Ph.D. and Joe Fowler, Ph.D. from offering their opinions at trial that the water heater was the point of origin and the cause of the subject fire (Their opinions that Yankee Gas had a duty to elevate the water heater by mounting it on an 18" stand is addressed separately by the defendant and, thus, this court.) because neither did an independent investigation and both "base their opinions on those of Butterworth and McGurk (which Yankee Gas moved — unsuccessfully — to preclude as unreliable). For the purposes of this motion, the only portions of these experts' affidavits considered are those portions which directly address their experience in determining the origin and cause of fires.
Hoffman is an engineer now employed by Safety Engineering Laboratories, Inc. (SEL), a company he founded in 1985 to provide consulting, technological, and testing services. He has investigated a number of major fires to include the Du Pont Plaza Hotel Fire in Puerto Rico, the Station Nightclub Fire in Rhode Island, and the MGM Grand Fire in Las Vegas. He has co-authored articles in the area of fire science. Hoffman's analysis of evidence here included "examination of the available photographic and other evidence, including depositions and witness statements." Affid., ¶ 28, p. 11. He also visited the fire scene in December of 2003, at which time he took some photographs. Exhibit J, p. 214. His affidavit states he has been qualified as an expert on the origin and cause of fires in thirty (30) states and three (3) foreign countries.
Fowler is a professional engineer now employed by Stress Engineering Services, Inc. (SES), which he co-founded in 1972 and of which he has been President since 1984. His CV identifies the areas of his "Specialized Professional Competence" as "mechanical design of process plant equipment, development of pipeline design criteria and operating procedures, fire safety of mechanical and consumer product equipment, fatigue design, finite element analysis, strain gauge testing, drilling/production equipment design and operation, failure analysis, and general mechanical engineering design and testing." The disclosure of him as an expert indicates he will testify to origin and cause. Exhibit GG.
Yankee Gas is correct in a number of assertions made. It is so that these experts' conclusions re origin and cause are to a very large extent reliant upon the work of Butterworth and McGurk. It is so that, to the extent a jury may determine to accord little weight to their opinions, the jury is likely to do the same re the origin and cause testimony of Hoffman and Fowler. It is also true that, if a jury concludes the empirical evidence and data considered by Butterworth and McGurk was insufficient to support their conclusions, a jury may well do the same re these experts' conclusions. This court is not, however, persuaded the jury "must" so find. While it is so that the only physical evidence available for Hoffman's and Fowler's consideration is that which was photographed or documented by the two (2) on-the-scene investigators (or others associated with them on the scene), Hoffman and Fowler had available to them an array of depositions and witness statements which, unless excluded for other evidentiary reasons, may be used by them as support for their conclusion that origin and cause as determined by Butterworth and McGurk was a reliable conclusion which they have adopted. It cannot be said their conclusion is "speculative" so long as there is offered empirical evidence to support that conclusion and the witness is, by training, skill, and expertise, qualified to render such opinion. Nor can this court preclude their testimony because she may feel other testimony is more reliable or because their testimony is saddled with — and/or diminished by — the claimed infirmities of the underlying investigation. This court is not the factfinder; her "gatekeeping" function is constrained in the ways earlier described. So long as their testimony is relevant to an issue to be resolved by the jury and they are qualified to render an opinion which has been properly disclosed, that opinion is admissible under Conn. Code of Evidence § 7-2. Again, Yankee Gas attempts to accomplish too much in its motion. That other hypotheses cannot be excluded by these experts or are "possible" because consistent with the available physical evidence does not render their opinion inadmissible or "speculative." It is a function of cross-examination to uncover for the jury all that was not done or not known or not collected or preserved or not considered and thereby to create for the jury such doubt as to the experts' conclusions as to reject them.
The motion to preclude Hoffman's and Fowler's expert opinions as to origin and cause is denied.
Motion In Limine to Preclude Joseph Fandey (# 324)
The plaintiff's expert disclosure of March 5, 2004, identifies the subject matter of Joseph Fandey's testimony as "water heater safety and dangers, and knowledge in the industry and among consumers concerning safety issues relating to water heaters." Based upon his "education, training, and experience, particularly information gained during his work at the Consumer Product and Safety Commission and literature, data, and test results disseminated throughout the gas industry, as well as his review of materials," he is expected to testify to the following: 1) Elevation of gas water heaters is a safety feature well-known in the gas industry at all relevant times; 2) The dangers of injury and/or death from the use of non-elevated heaters were also well-known; 3) Consumers often kept flammable substances in the same room as gas fueled water heaters and were not fully aware of the dangers of the same — also well-known to the gas industry; 4) Gas companies who owned and installed thousands of such heaters had ready access to a large body of information re the dangers of not elevating them — particularly in locations such as this basement — and of the foreseeability consumers might store flammables in the area of these heaters especially where, as here, there was no separate structure for the storage of the flammables; and 5) the subject water heater was defective as installed. See Exhibit GG.
Fandey, a solo practitioner of law, was first contacted by plaintiff's counsel in October of 2003. His background consists of nineteen (19) years with the U.S. Consumer Product Safety Commission (CPSC) coordinating the technical efforts of various federal agencies, managing research activities supporting the regulation and enforcement of consumer safety (primarily in the area of "Architectural Safety" which included gas fired appliances), serving as expert witness and training others to be expert witnesses, and providing litigation support. Among some ten (10) or so areas of "particular expertise" is "gas appliances (especially gas water heaters)." Exhibit GG. At present, he provides litigation support for Consumer Product Safety Associates, LLC. He has given deposition testimony in thirty to fifty (50) cases and testified at trial in cases alleging water heaters ignited flammable vapors.
Associated with him in his consulting practice is one individual who "does fire investigations" but has done no work on this case. Exhibit G, pp. 6-7.
Yankee Gas has moved to preclude his testimony on the grounds: 1) His testimony is not relevant because not temporally related to the critical events in this matter; 2) He is not qualified to render expert opinion testimony; 3) His testimony is not based on the scientific method and is therefore not reliable; and 4) Permitting his testimony regarding CPSC's position on the elevating of water heaters is violative of Yankee Gas' due process rights in that the CPSC never adopted his recommendations or ratified his opinions.
Fandey first became involved with the issue of the ignition of gas water heaters by flammable vapors in either 1990 or 1991. Id., at p. 37. As a result of a presentation by another in the late spring or summer of 1991 re the utility of putting water heaters on stands, the CPSC also considered the problem of persons storing flammable liquids in the same area as gas-fueled water heaters and concluded that problem was "a matter of human behavior in how to store flammable liquids." Id., at 42. In 1992, he became involved in test work attempting to identify at what level of elevation of the heater there was benefit to the consumer such that a later cost/benefit analysis could be done. Relevant is that the CPSC did not issue orders but did promulgate rules following recommendations by staff and a vote for implementation of a new rule. Fandey left the commission in July of 1994, by which time the commission had yet to make a rule re elevation of water heaters.
Fandey also testified that a water heater manufactured by A.O. Smith in the sixties or seventies (as this one) was certified to the standard promulgated by the American National Standards Institute (ANSI) — meaning it was designed to meet ANSI design criteria. He also offered at deposition testimony relevant to the need to warn of the danger of storing flammable liquids in the proximity of gas-fueled water heaters. That is no longer an issue in the case since plaintiff's counsel has agreed to withdraw the claim a failure to warn constituted a product defect.
The plaintiff has agreed to limit the testimony of Fandey to knowledge "known and available to industry and to the public." Opp. brief, at 1. She argues Fandey should be permitted to certify that Yankee Gas should have anticipated a consumer would store gasoline in the same location as a water heater "in 1984, in 1991, and at all other potentially relevant times." Id., at 2. The plaintiff then argues it is "highly significant that, unlike a manufacturer, Yankee exercised control over the water heater continuously right up until the day of the fire (e.g. by prohibiting the consumer from making any alternations or repairs to the heater)." Id. No other argument is advanced and the two-page memorandum is devoid of any citation or authority for its broad generalizations.
It is undisputed the subject water heater was manufactured by A.O. Smith and installed by Yankee Gas on the premises in 1984, at which time it was certified by ANSI and fully compliant with existing design requirements. Exhibit KK and Fandey's own testimony established that, in 1974, the CPSC hired Calspan Corporation to investigate safety standards for such appliances as this water heater and, as part of that study, Calspan considered the water heater/flammable vapor ignition issue. On that issue, the Calspan Report referenced two (2) courses of action: 1) reducing the possibility of flammable vapors reaching the flame; and 2) educating the public regarding the danger of using such materials as gasoline. Exhibit KK, at 35. It is undisputed — even by Fandey — that the CPSC opted to pursue the latter course. It is undisputed the Calspan Report did not recommend the CPSC or any other industry group establish a standard requiring elevation in all circumstances. It is also undisputed that Fandey did himself not even consider elevation of the heater as a solution until he met a lawyer (Downing) — in the spring of 1991 — who advocated for elevation of 18" nor does Fandey dispute Downing's presentation to the CPSC Committee was not until the spring of '91 and his presentation to the ANSI Z-21 Committee was not until November of 1991 (by which time this fire had occurred). See generally, Exhibit G, pp. 37-40. Additionally, the Gas Appliance Manufacturers of America (GAMA) commissioned a study re the effect of elevation in 1991 and Fandey agreed the testing done by that group was in the years '92, '93, and '94 ( Id., at 66-67). It is further undisputed that Fandey himself — in 1994 — recommended an advance notice of proposed rulemaking (re elevation) and that the CPSC rejected that recommendation and never attempted to make such a rule.
Fandey weakly attempts to argue the warning label on the water heater when installed was insufficient. That testimony is irrelevant in view of plaintiff's withdrawal of the failure to warn claim. Further, all Fandey testified was that he was "sure" a different — and allegedly — better warning label (re elevation of heaters) and prototypes of proposed owners' manuals were sent in the mid-late eighties (Exhibit G, p. 142) to CLP (not a defendant) and/or Yankee Gas. Yet, when pressed repeatedly for evidence that was true, he offered nothing except to say he knew such mailings were made to major manufacturers and gas distribution companies. Such testimony offers no value, provides the jury no assistance, and is sheer speculation.
It did reference elevation of water heaters in use in garages in limited circumstances (The plaintiff does not argue this heater was located in a garage and NFPA 54, § 1.3.1.6 [1970] specifically addressed the same and thus might have governed when this heater was installed — had it been installed in a garage.).
The only cause of action asserted by the plaintiff is a product liability cause of action. Her burden is to establish: 1) Yankee was engaged in the sale of water heaters; 2) This water heater was in a defective condition unreasonably dangerous to the user at the time of sale; 3) The heater was expected to and did reach the consumer without substantial change in condition; and 4) The defect caused the plaintiff's injury. Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 214 (1997); Giglio v. Conn. Light Power Co., 180 Conn. 230, 234 (1980). The plaintiff's assertion any other time period is relevant is wrong; the relevant time period is 1984 when this heater was installed and the plaintiff's vague and unsupported statement re "control" misses the mark.
This is entirely consistent with another provision of this state's product liability law C.G.S. § 52-572q(b)(2) which addresses claims of inadequate warnings or instructions (now withdrawn) proves the trier of fact may consider the ability of the product seller to anticipate at the time of manufacture that the user would be aware of the product risk and the nature of the potential harm.
Fandey's offering that Yankee Gas should have elevated the heater in 1984 is without any support other than his own spurned "belief." His knowledge of water heaters in general is limited and he has no firsthand knowledge any Yankee entity ever received information regarding the benefit(s) of mounting water heaters on 18" stands. His proffered testimony that this heater was defective because not elevated is contrary to the CPSC position (as he concedes), the position of water heater manufacturers (Exhibit K, pp. 32-33), and the natural gas industry (Exhibits, at 17-22). The heater is fully compliant with ANSI design criteria. No state or federal law or regulation then required all water heaters installed in this state be elevated. See Conn. Agencies Regs., § 29-62 (1980) (adopting NFPA 54 [1974]). Though the ANSI Z-21 standard for water heater manufacturers required warning labels as of 1989, it was not made retroactive. Exhibit G, pp. 45-49.
Though in an earlier motion, Yankee Gas asserted this water heater was manufactured in 1984, the court finds no direct support for that. Exhibit B to this motion is an affidavit of William Hoover, the Director of Thermal Materials Technology at the A.O. Smith Corporate Technology Center (A.O. Smith manufactured this water heater.). The affidavit of June 2005, states merely that this type heater has been manufactured "for more than thirty years." Paragraph 3.
No information Fandey purports to have obtained regarding either the natural gas industry, gas-fueled conventional flue water heaters, or consumers' awareness relevant to the water heater/flammable vapors ignition factor or their elevation is relevant under Conn. Code Evid. § 4-1. Before meeting with Downing in the spring of 1991, he himself considered the issue was one — not of product defect — but of consumer education. Exhibit G, p. 41. He has no empirical data to support his claim Yankee Gas was ever made aware of any benefit attributable to elevation — and, had he such information, by his own testimony, testing with regard to the same occurred in the period of '92-'93. Nor is he qualified by way of his experience, education, or formal training concerning any of the scientific or technical or other specialized areas of knowledge in any area in which he purports to testify. His broadside attack of the "gas industry" in general is not relevant to the issue whether, when this water heater was manufactured/sold/installed, it was defective. He conducted no tests and did no measurements re the design of the water heater nor does he offer any test results or measurements of others relevant to Yankee Gas' liability under C.G.S. § 52-572m. He speaks in free-ranging generalizations without offering specifics or corroboration. No relevant data or knowledge is offered by Fandey; he is but an advocate of personal views held by neither his former employer (CPSC) nor any other professional organization at the relevant time.
The motion to preclude his testimony in its entirety is granted.
Motion In Limine to Preclude Testimony of Hoffman, Fowler and Fandey re Absence of 18" Stand as Defect (#326)
Hoffman, Fowler, and Fandey were disclosed as experts who will testify the absence of an 18" stand under the water heater is a product defect.
At the outset, the court notes the disclosure of these three (3) experts indicates they will not only testify that the absence of the stand constituted a product defect but also to the "forseeability" (by gas companies) that consumers might store flammables in the same area as water heaters. Ex. GG. In fact, Fandey offered deposition testimony it was illegal to store gasoline in residential basements and the defendant should have foreseen Jordan would do so. Ex. G, at 80. Fandey's proposed testimony re the lack of elevation as a product defect has been stricken in its entirety for the reasons just above stated. The problem raised by the plaintiff's disclosure of experts is that it is a "wandering" disclosure in which careful reaching makes clear the experts are expected to "meander" into sundry other areas. Thus, this opinion addresses the ability of these (3) experts to testify to: a) the "foreseeability" of consumers storing flammables near heaters such as this one in basements; b) the "illegality" of storing gasoline in residential basements as here; and c) the lack of elevation of the heater as a product defect.
Yankee Gas incorrectly states the absence of the stand is the only defect to which Hoffman and Fowler will testify and that they offer no other criticism of the heater or its installation. Memo, at 3. Technically, that is incorrect since, given the wording of the disclosures, they will also testify with regard to placement of the heater in an area where it was foreseeable consumers would store flammables and Hoffman will testify to the standard of care installers should have applied.
"Foreseeability" as a legal concept is applicable to a negligence cause of action. All of this plaintiff's claims are brought under our product liability statute. C.G.S. § 52-572n(a) provides that a claim under that statute "shall be in lieu of all other claims against product sellers, including actions of negligence . . ., for harm caused by a product." Id. The assertion that this defendant should have "foreseen" it was likely consumers would store gasoline in a basement in which was located a gas-fueled water heater ventures inappropriately into the law of negligence. "[T]he test for the existence of a legal duty 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 thatharm of the general nature of that suffered was likely to result (Emphasis added.) . . ." Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 479 (2003). "The first part of the test invokes the question of foreseeability . . ." Id. "The existence of a legal duty is a question of law which necessarily involves a determination of foreseeability . . ." Id. To the extent any expert opines Yankee Gas should have foreseen consumers such as Jordan would store flammables in a basement containing this heater, it is invasive of the court's function to decide the law of the case and the jury's duty to decide the facts of the case by application of that law. No one of these experts is entitled to give his opinion of either the status of the law or the legal standard to be applied by the jury. These witnesses are, quite simply, incompetent to give legal opinions.
See e.g., Pepe Hazard v. Jones, 2002 Conn.Sup. LEXIS 2997 (Sheldon, J.) (September 11, 2002) ( 33 Conn. L. Rptr. 72, 77).
Additionally, such testimony is likely to elicit further testimony with regard to the legal interpretation of certain standards or regulations. Specifically, the National Fire Protection Association (NFPA) promulgates safety standards which are frequently adopted as laws, ordinances, or regulations by public authorities. Yankee Gas argues NFPA 30 (1987) and NFPA 54 (1974), which it states have been adopted and codified in Conn. Gen. Stat. § 29-62 (currently § 29-320). Hoffman and Fowler both rely upon the 1988 version of NFPA 54 (which was never adopted in Connecticut). See Ex. J, at 6, 17, and 269-71 re Hoffman and Ex. H, at 123, 222, 328-35 re Fowler. These experts opine that the '88 version of NFPA 54 requires all water heaters installed in basements required elevation because it was "likely" flammable liquids would be stored in basements. Ex. J, at 271; Ex. H, at 333-35. Both the 1988 version and the 1974 version employ the word "likely" with regard to where gas appliances shall be installed. Exs. EE and DD respectively. To the extent the word "likely" is within the common parlance of the jurors and is a word whose meaning is generally accepted, its interpretation requires no expert testimony. To the extent Hoffman or Fowler or Fandey (or any "expert" of Yankee Gas) expects to testify to the meaning of that word (specifically, that it means "foreseeable"), the testimony is precluded.
NFPA 30 regulated the storage of flammable liquids such as gasoline; NFPA 54 governed the installation of water heaters.
The only relevant time here is, as earlier stated, when the heater was sold/installed in 1984.
While the plaintiff states her experts shall not testify to legal conclusions (Opp. Memo, at 2), she nevertheless, argues they ought be permitted to testify whether it is, under NFPA 30 (the Flammable and Combustible Liquids Code), "legal" or "lawful" to store gasoline at the subject location. They will purportedly do so by profferring testimony regarding their interpretation, for example, of NFPA 30. Hoffman and Fowler are clearly free to testify to the way in which the NFPA defines "basement" and Fowler may testify to the measurements he took of this basement area (specifically, with regard to what percentage of that lower level is above or below ground level). What no expert can testify to is that, under NFPA 30, this lower level cannot be a "basement." The question whether a particular statute or regulation applies to a given set of facts is a question of statutory interpretation. Biller Associates v. Rte. 156 Realty Co., 52 Conn.App. 18, 26 (1999) citing and quoting to Rivera v. Fox, 20 Conn.App. 619, 621 (1990), cert denied 215 Conn. 808 (1990). "Statutory interpretation presents a question of law for the court." Id. No expert will testify whether, under NFPA 30, it was "lawful" or "legal" to store gasoline in the lower level of this apartment building. It is permissible for an expert to testify to what a "Class 1 liquid" is and whether gasoline is such a liquid. It is not permissible for an expert to testify whether the NFPA 30, § 4-5.6.5 should be interpreted to permit the storage of gasoline in this lower level or makes it "likely" that gasoline will be stored there. The applicability and meaning of a statute or regulation is a question of law for the court as the defendant correctly states.
It is anticipated they will testify that what Jordan repeatedly describes as a "basement" in her complaint is really not a "basement" under the terms of the NFPA 30. See pages 7-10 of Opp. Memo.
For similar reasons, Craddock (a Yankee Gas expert) may not testify Jordan "violated" the NFPA 30 by storing gasoline in the basement of his residence. That is the ultimate opinion properly rendered by a jury.
The remaining question is whether plaintiff's experts (Hoffman and Fowler) can testify that the absence of an 18" stand was a product defect. The defendant argues there was not at the relevant time any state or federal statute or regulation requiring this water heater be elevated on an 18" stand when it was installed. The Amended Complaint alleges the heater was dangerously defective in that the pilot light was too close to the floor and liable to ignite a fire. Amended Complaint, ¶ 15. Yankee Gas ignores that Fowler is a mechanical engineer who has worked with the American Gas Association for many years and that Hoffman is a chemical engineer who possesses knowledge of the chemical properties of flammables and explosives. "[I]n order to prevail in a design defect claim, the plaintiff must prove that the product is unreasonably dangerous." Wagner v. Clark Equipment Co., 243 Conn. 168, 189 (1997), citing to Giglio v. Connecticut Light Power Co., 180 Conn. 230, 234 (1980). The Wagner Court adopted the "consumer expectation" standard in strict products liability decisions; that standard was derived from comment i to 2 Restatement (Second) Torts, § 402A wherein "unreasonably dangerous" was defined as "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Id. This case is not unlike Wagner in that there was introduced in Wagner evidence the subject forklift complied with — and exceeded — the standard contained in the OSHA regulation which addressed safety requirements for industrial forklifts. The Court affirmed the trial court's giving of a charge on both the applicable industry standard (ASME/ANSI B56.1) and the federal regulation (OSHA). Yankee Gas is expected to offer similar evidence here and is entitled to the appropriate charge(s) with regard to the same. This court finds Wagner instructive in that it affirmed the trial court's admission of evidence of the employer's post-accident remedial modifications (not here an issue) pertinent to "the feasibility of a safer, alternative design." Id., at 200. The jury in the instant case is entitled to receive evidence of the use of an 18" stand because relevant to the availability in 1984 of alternative designs, the effect of which would be to raise the flame from the floor where vapors collected and, thus, to reduce the number of resulting fires.
The governing complaint also alleged a failure to warn; that claim is withdrawn. It asserts the defendants "knew or should have known of these conditions but did not correct them." For reasons herein earlier stated, that claim will not be sent to the jury because inconsistent with a product liability claim.
In Potter v. Chicago Pneumatic Tool Co., 241 Conn. 220, 221 (1997), our Supreme Court adopted a modified version of this test under which a consumer's expectations is viewed in light of certain factors that balance the utility of the product's design with the magnitude of its risks. It is a function of the trial court to determine on which formulation of this standard the jury should be charged in light of the evidence presented. Id. at 223.
This motion in limine is denied in that Hoffman and/or Fowler may testify to the absence of a stand (Their testimony is, however, restricted as above indicated.). Fandey's testimony is precluded in its entirety both on the basis of his qualifications and on the basis his opinion regarding elevation is merely cumulative.
Motion for Summary Judgment (#327)
Summary judgment shall be rendered if the pleadings, affidavits and any other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. P.B. § 17-49. The moving party has the burden of showing the absence of any genuine issue of material fact and therefore his/her entitlement to judgment as a matter of law. D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434 (1980). The non-moving party must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Appleton v. Board of Directors, 254 Conn. 205, 209 (2000). It must be demonstrated by counter-affidavits and concrete evidence. Pion v. Southern New England Telephone, 44 Conn.App. 657, 663 (1997). "A material fact . . . [is] a fact which will make a difference in the result of the case." H.O.R.S.E. of Connecticut, Inc. v. Washington, 258 Conn. 553, CT Page 621 560 (2001). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Barry v. Quality Steel Products, Inc., 263 Conn. 424, 450 (2003). The test is whether a party would be entitled to a directed verdict on the same facts. (Internal quotation marks omitted.) Cummings Lockwood v. Gray, 26 Conn.App. 293, 296-97 (1991). In ruling on this motion, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1998).
Yankee Gas has moved for summary judgment, claiming the plaintiff: 1) cannot establish the fire would not have occurred if the heater had been elevated on an 18" stand; 2) the water heater, as a matter of law, is not defective; 3) as a matter of law, the action is barred by the "doctrine of misuse"; and 4) the action is barred "by this state's public policy."
As to the first two (2) grounds, both of which have already been addressed herein, the court finds there is a material question of fact whether, at the time of installation, the subject heater was unreasonably dangerous for reason of the location of the pilot light in relation to the floor and whether the absence of an 18" stand constituted a product defect under C.G.S. § 52-572m et seq. The defendant argues the motion should be granted because Hoffman and Fowler "each admitted during their depositions that they cannot rule out at least two plausible scenarios where elevating the water heater would not have prevented the incident fire" (Memo, at 12) and, thus, they cannot establish causation. The court is not persuaded. A "risk of ignition" in the event gasoline vapor fell past the pilot or burner (an alternative scenario) ignores the entirety of Hoffman's and/or Fowler's testimony and Hoffman's "admission" it was "more likely than not" there would be such fire if the vapor fell within an inch or two of the side of the case of the heater is testimony that is inadmissible at trial in the absence of any evidence that occurred. However, Hoffman, in his affidavit (Ex. C ¶¶ 20-26), asserts it is "highly likely" elevation on a stand would have prevented the fire and that an elevated water heater would be "likely" to ignite a fire only under a "very limited and improbable set of circumstances." Fowler, in his affidavit (Ex. D), states the same. The trial court's function in deciding a motion for summary judgment is to view the evidence in the light most favorable to the nonmoving party. Barry, 263 Conn., at 450. Her function is not to decide issues of material fact but to determine instead if they exist.
The claim Jordan "misused" the product is also rejected in the absence of any evidence that what was misused was the "heater." This is circular reasoning which is additionally offensive for reason of its potential for confusing and/or misleading the jury. Further, Yankee Gas has argued throughout that it was "illegal" to store gasoline in this lower level because § 4-5.6.5 of NFPA 30 (which provides that Class I liquids [which gasoline is] "shall not be stored in a basement.") Putting aside the issue of whether this lower level was a "basement" for the purpose of that standard (about which there is also arguably a question of material fact), the parties (both) also ignore that: 1) C.G.S. § 29-320 is no more than mere enabling legislation which empowered this state's Commissioner of Public Safety to adopt by reference NFPA standards concerning flammable or combustible liquids . . . incident to the storage, use, transportation by any mode and transmission by pipeline of such liquids (Emphasis added.). There is some ambiguity whether that statute authorized the adoption of any regulation circumscribing consumers' rights to store gasoline in a private residence (where employee health and safety is not in issue); 2) The adoption of NFPA 30 (1987), assuming arguendo its application here, does not obviate the need to establish causation; and 3) By the terms of that statute, any regulations so adopted shall not apply to, inter alia, "gas companies."
In fact, Yankee Gas has frequently raised the issue whether this heater was "on" at the time of the fire in August and, though no evidence was preserved so as to permit an answer to that question, no misuse of the heater could in fact be established if it were not.
Finally, Yankee Gas urges the court to grant summary judgment as a matter of public policy because, it reasons, it was illegal under C.G.S. § 29-320 and applicable regulations to store gasoline in residential basements (Memo, at pp. 3-35) and because such regulations will lose their deterrent effect if utilities can be held responsible for others' illegal conduct. It also argues Yankee Gas had a right to rely upon such regulations when it made decisions regarding installation of hot water heaters. For all of the reasons above discussed, resolution of this claim necessarily requires determination of genuine issues of material facts concerning the application of any such regulations to the circumstances of this case and the requirement of causation. It cannot be decided as a matter of law or as a matter of public policy.
The motion for summary judgment is denied.