Opinion
No. CV08-5011175S
March 12, 2010
MEMORANDUM OF DECISION
This action is brought by the Oxford Board of Education (Board) and the Town of Oxford (Oxford) seeking damages and other relief from the defendants EnviroScience/EnviroConsult, Inc. and Enviroshield for costs Oxford incurred or will incur as a result of contamination of the subsurface soils and groundwater at its Quaker Farms School. In its eight-count complaint, Oxford alleges the following facts. As a result of the Board's concern that the underground storage tank (UST) at the school might be leaking fuel oil into the subsurface soil and onto groundwater around the tank, Oxford entered into a contract with EnviroScience for performance of certain services which would enable EnviroScience to advise the Board as to whether the UST was leaking fuel oil into the environment. EnviroScience retained Enviroshield to perform the services. While performing these services on November 17, 2006, Enviroshield damaged the UST which caused the release of 2,900 gallons of fuel oil into the environment. Having determined that the UST lost hundreds of gallons of fuel oil on November 18, 2006, Enviroshield left voice-mail messages concerning the loss of fuel oil with the Board's financial director and with EnviroScience's office on November 18. Because November 18, 2006 was a Saturday, neither the Board nor EnviroScience received the message until Monday, November 20, 2006.
According to the plaintiffs, EnviroScience changed its name to EnviroConsult, Inc. in 2008.
Counts five through eight, brought against Enviroshield, sound respectively in negligence, negligence per se (based on Connecticut General Statutes §§ 22a-427 and 22a-430), statutory cost recovery, and declaratory judgment.
Before the court is Enviroshield's motion to strike counts six (negligence per se) and eight (declaratory judgment).
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any [complaint] to state a claim upon which relief can be granted." (Emphasis added; internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). "[A] motion to strike does not admit legal conclusions or the truth or accuracy of opinions stated in the pleading at which the motion is directed." Fairfield Lease Corp. v. Romano's Auto Service, 4 Conn.App. 495, 497, 495 A.2d 286 (1985).
NEGLIGENCE PER SE
Enviroshield moves to strike count six on the grounds that negligence per se cannot be based upon General Statutes sections 22a-427 and 22a-430(a) because these statutes do not provide the basis for a private cause of action and the plaintiffs have failed to comply with Practice Book sections 17-56(b) and 17-55. Enviroshield argues that, unlike Connecticut General Statute § 22a-52, either § 22a-427 nor § 22a-430 provide for a private cause of action. They cite Innis Arden Golf Club v. Pitney Bowes, Inc., 514 F.Sup.2d 328, 336 (D.Conn. 2007) in which the court (Arterton, J.), held that the broad proscription contained in § 22a-427 may not be used by individuals for negligence per se actions.
Sec. 22a-427 provides: No person or municipality shall cause pollution of any of the waters of the state or maintain a discharge of any treated or untreated wastes in violation of any provision of this chapter.
Sec. 22a-430(a) provides, in relevant part: No person or municipality shall initiate, create, originate or maintain any discharge of water, substance or material into the waters of the state without a permit for such discharge issued by the commissioner.
Sec. 17-56(b) provides: All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof. If the proceeding involves the validity of a municipal ordinance, persons interested in the subject matter of the declaratory judgment shall include such municipality, and if the proceeding involves the validity of a state statute, such persons shall include the attorney general.
Sec. 17-55 of the Practice Book provides:
A declaratory judgment action may be maintained if all of the following conditions have been met:
(1) The party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations;
(2) There is an actual bona fide and substantial question or issue in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and
(3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure.
Sec. 22a-452 provides:
(a) Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or other actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby.
(b) No person, firm or corporation which renders assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened discharge of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous materials, other than a discharge of oil as defined in section 22a-457b, to the surface waters of the state, or which assists in preventing, cleaning-up or disposing of any such discharge shall be held liable, notwithstanding any other provision of law, for civil damages as a result of any act or omission by him in rendering such assistance or advice, except acts or omissions amounting to gross negligence or wilful or wanton misconduct, unless he is compensated for such assistance or advice for more than actual expenses. For the purpose of this subsection, "discharge" means spillage, uncontrolled loss, seepage or filtration and "hazardous materials" means any material or substance designated as such by any state or federal law or regulation.
(c) The immunity provided in this section shall not apply to (1) any person, firm or corporation responsible for such discharge, or under a duty to mitigate the effects of such discharge, (2) any agency or instrumentality of such person, firm or corporation or (3) negligence in the operation of a motor vehicle.
Oxford counters that §§ 22a-427 and 22a-430 of the General Statutes provide a clear identifiable standard for the purpose of guiding personal behavior with regard to the discharge of wastes to the waters of the State, that the General Assembly has demonstrated its intent that all persons owe all Connecticut inhabitants a duty of care to refrain from discharging wastes to the waters of the State without a permit from the Department of Environmental Protection ("DEP") Commissioner as manifested by the statutory language of §§ 22a-427 and 22a-430, and that the statutory allegations in paragraph six identify the standard of care that pertains to Enviroshield's actions and inactions.
The Appellate Courts have not ruled on whether a claim for negligence per se may be predicated on provisions of the WPCA, and there is a split of authority in the Superior Courts with some Courts declining to recognize a private cause of action pursuant to the statutes, holding that the legislature did not intend to allow negligence per se actions under the WPCA. They conclude that the WPCA does not provide a private cause of action. See Oink, Inc. v. Ann Street Limited Partnership, Superior Court, judicial district of Hartford, Docket No. CV 93 0532065 (October 18, 1994, Corradino, J.) ( 12 Conn. L. Rptr. 547); Michael v. Kenyon Oil Company, Inc., 4 C.S.C.R. 337 (March 22, 1989, O'Connor, J.); Bourbeau v. Alpha Q., Inc., Superior Court, judicial district of Hartford, Docket No. CV 054015076 (Jun. 15, 2007, Miller, J.); Cerretani v. Levco Tech, Inc. Superior Court, complex litigation docket at Stamford, Docket No. X08 CV 03 0193735 (April 22, 2004, Adams, J.); Augelli v. Matos, Superior Court, judicial district of Waterbury, CV 01 0163496 (July 29, 2003, Dubay, J.) ( 35 Conn. L. Rptr. 228); Connecticut Water Co. v. Thomaston, Superior Court, judicial district of Hartford, Docket No. CV 94 0535590 (March 4, 1996, Corradino, J.) ( 16 Conn. L. Rptr. 213, 213-15) (striking a negligence per se claim under General Statutes §§ 22a-427, 22a-430 and 22a-450); Chromium Process Co. v. Yankee Gas Service Co., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 92 038532 (June 23, 1995, Comerford, J.) (granting summary judgment on a count alleging negligence per se under General Statutes §§ 22a-422, 22a-427, 22a-430 and 22a-450).
In Connecticut Water Co. v. Thomaston, supra, 16 Conn. L. Rptr. 213, the court held that a claim for negligence per se could not be predicated on the WPCA. The court relied upon Superior Court decisions that found that no private action could be maintained under the WPCA. Acknowledging that the inquiry as to whether the statute provided a private cause of action was analytically distinct from the inquiry as to whether the statute could serve as a basis for a claim of negligence per se, the court nonetheless reasoned that "to permit a negligence per se rule adopting administrative regulations is tantamount to saying there is a private cause of action under the statute." Id., 214.
The courts recognizing a cause of action for negligence per se based on the WPCA rely on the test laid out in Gore v. People's Savings Bank, 235 Conn. 360, 381-82, 665 A.2d 1341 (1995). In Gore, the Supreme Court gave negligence per se treatment to statutory requirements regarding the presence of lead paint in apartments. "[U]nder general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action. It is well established that [i]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute . . . Second, the injury must be of the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Gore v. People's Savings Bank, supra, 235 Conn. 375-76. "Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law . . ." (Citation omitted; internal quotation marks omitted.) Id., 376.
Courts recognizing a cause of action for negligence per se under the standards established in the WPCA do so on the Gore rationale. See Putnam v. County Environmental Services, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 166445 (July 12, 2000, D'Andrea, J.) ( 27 Conn. L. Rptr. 684); Hamm v Laidlaw Transit, Superior Court, judicial district of Litchfield at Litchfield, Docket No. CV 07 5002427 (August 20, 2008, Pickard, J.) [ 46 Conn. L. Rptr. 153]; Accashian v. Danbury, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 97 0147228 (January 6, 1999, Hodgson, J.) ( 23 Conn. L. Rptr. 648); Walker v. Barrett, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 99 0169673 (November 8, 1999, D'Andrea, J.) ( 25 Conn. L. Rptr. 665); Goodrich v. Jennings, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 96 150074 (May 22, 1997, Mintz, J.) ( 19 Conn. L. Rptr. 544); Blackburn v. Miller-Stephenson Chemical Co., Superior Court, judicial district of Danbury, Docket No. 314089 (January 12, 1995, Stodolink, J.) ( 13 Conn. L. Rptr. 364); see also Sundaram v. Kenyon Oil Co., Superior Court, judicial district of Danbury, Docket No. CV 04 0352014 (November 4, 2004, Nadeau, J.) [ 38 Conn. L. Rptr. 204]; French Putnam, LLC v. County Environmental Systems, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV980166445 (July 21, 2000, D'Andrea, J.) ( 27 Conn. L. Rptr. 684).
In Goodrich v. Jennings, supra, 19 Conn. L. Rptr. 544-45, the court denied a motion to strike a negligence per se action based on General Statutes §§ 22a-427, 22a-430 and 22a-450 of the WPCA on the basis that the plaintiff was within the class of persons protected by these statutes and sustained the type of injury these statutes were intended to prevent. The court reasoned that "[t]he doctrine of negligence per se serves to superimpose a legislatively prescribed standard of care on the general standard of care." (Internal quotation marks omitted.) Goodrich v. Jennings, supra, 19 Conn. L. Rptr. 545. Moreover, our appellate courts have clearly stated that "[i]f a plaintiff alleges that a statute, ordinance or regulation has been violated, thereby relying on negligence per se, and also alleges that there is a causal connection between such negligence and the injuries sustained, a cause of action has been stated." Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987); Commercial Union Ins. v. Frank Perrotti Sons, 20 Conn.App. 253, 258, 566 A.2d 431 (1989).
The court is of the opinion that the better-reasoned decisions allow a cause of action in negligence per se. The motion to strike count six is therefore denied.
CT Page 6809
DECLARATORY JUDGMENT
Enviroshield seeks to strike count eight of the plaintiffs' amended complaint on two grounds: first, the plaintiffs failed to comply with Practice Book § 17-56(b) by not including a certificate stating that they have either joined as parties or given reasonable notice to all persons with an interest in the declaratory judgment claim; and, second, pursuant to Practice Book § 17-55(3), the court should determine that the plaintiffs have other avenues available to obtain immediate relief that they should pursue instead of a declaratory judgment claim. Because the court holds that count eight should be stricken pursuant to § 17-55(3), it will only analyze the second of Enviroshield's two grounds.Section 17-55 provides: "A declaratory judgment action may be maintained if all of the following conditions have been met: . . . (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure." The appropriate vehicle for seeking a determination as to whether a plaintiff's declaratory judgment claim is appropriate under § 17-55(3) is a motion to strike. England v. Coventry, 183 Conn. 362, 365, 439 A.2d 372 (1981). To prevail on its motion, the defendant must show that "the court could not in the exercise of sound discretion permit the action to proceed." Id.
Enviroshield argues that the present action, alleging negligence, provides an adequate remedy for the relief that the plaintiffs are seeking in count eight, namely compensation for the future costs that the plaintiffs will have to incur in order to clean up the contamination at the school. Thus, Enviroshield contends, the court should not allow the declaratory judgment claim to proceed. Conversely, the plaintiffs argue that to recover for costs that will be incurred in the future, absent declaratory relief, they would have to file another action in the future after the costs are incurred. Therefore, their current negligence claim against Enviroshield is inadequate to provide immediate relief.
The court holds that the plaintiffs have an adequate alternative remedy in the form of a negligence claim and that such remedy could provide immediate relief. In count eight, the plaintiffs seek a declaration that Enviroshield is responsible for any future costs incurred by the plaintiffs to remedy the contamination caused by Enviroshield's careless actions. In a negligence action, future economic damages are immediately recoverable, as long as they are "based on an estimate of reasonable probabilities, not possibilities." (Internal quotation marks omitted.) See CT Page 6810 Hamernick v. Bach, 64 Conn.App. 160, 169-70, 779 A.2d 806 (2001). Therefore, the plaintiffs may, through a negligence claim, immediately recover the amount of cleanup expenses that they will, to a reasonable degree of probability, incur in the future.
Accordingly, the court declines, pursuant to § 17-55(3), to allow the plaintiffs' declaratory judgment action to proceed. Count eight of the plaintiffs' amended complaint is therefore stricken.
CONCLUSION
For the reasons stated above, the motion to strike count six is denied and the motion to strike count eight is granted.
GALLAGHER, J.