Most construction claims arise out of the contractual relationship between the parties. Some arise out of claims of negligence. There are other situations where a contractor may be held liable for damages that stem from nothing more than having engaged in certain activities. Such claims are based upon the idea that “strict liability” applies to “ultra-hazardous activities.” In both situations, i.e. claims based upon negligence and claims based upon strict liability, the first party performs an act or omission that results in damage to the life or property of the second party. With a negligence claim, in order to be held liable, the first party must owe the second party a duty that is breached by the first party’s act or omission. For example, if a contractor is working on scaffolding above a sidewalk, the contractor must use reasonable care to make sure that nothing falls on the people below and, in that situation, the contractor would only be held liable if something fell due to the failure to exercise reasonable care and not solely because something fell. With a strict liability claim, however, all that is required is for the contractor to be held liable is for the contractor to be engaged in the activity that caused the harm.
“[T]the doctrine of strict liability for ultra-hazardous activities provides in pertinent part [that] one who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.” Lawrence v. O&G Indus., 2013 Conn. Super. LEXIS 1523, 5-6 (Conn. Super. Ct. July 10, 2013). In such cases, “[l]iability is not based on any intent of the defendant to do harm to the plaintiff, rather, it arises out of the abnormal danger of the activity itself, and the risk that it creates of harm to those in the vicinity.” Id. “The doctrine [of strict liability for ultra-hazardous activities] has traditionally been applied in cases involving blasting and explosives. Connecticut’s sole extension beyond blasting cases is to damage from a concussion resulting from pile driving.” Green v. Ensign-Bickford Co., 25 Conn. App. 479, 482-483 (Conn. App. Ct. 1991).
Nonetheless, Contractors should not assume that blasting and pile driving are the only activities that may result in the application of strict liability. “[O]ur Supreme Court has endorsed a test that considers activities on a case-by-case basis, taking into account the nature of the activity and whether it would expose others to probable injury even if properly performed.” Atelier Constantin Popescu, LLC v. JC Corp., 134 Conn. App. 731, 748 (Conn. App. Ct. 2012). Thus, Contractors and their insurers should be aware that any construction activity may be deemed subject to strict liability. However, a recent court decision has shed some light on how those determinations shall be made.
In Lawrence v. O&G Industries, Inc., the plaintiffs claimed that a “gas blow” – the process of cleaning gas fuel lines during the commissioning of a power plant – constituted an abnormally dangerous activity. Lawrence v. O&G Industries, Inc., supra. In that case, the plaintiffs failed to establish that the defendants owed the plaintiffs a duty of care and, therefore, the plaintiffs could not maintain cause of action for negligence but – somewhat surprisingly – the court also found that the plaintiffs had not sufficiently alleged a cause of action for strict liability.
The Court held that “the same public policy considerations that the court found persuasive in concluding that the defendants owed no duty to the plaintiffs under the facts as alleged in the negligence claims also lead it to conclude that the plaintiffs have failed to allege sufficient facts that would create a duty in their ultra-hazardous activity claims.” Lawrence v. O&G Indus., 2013 Conn. Super. LEXIS 1523, 8-9 (Conn. Super. Ct. July 10, 2013). The Court further explained that, “[t]o find the defendants strictly liable to the plaintiffs under the facts as alleged here would greatly increase potential future litigation of similar claims. Even in the context of abnormally dangerous activities performed by a party, the court still must set some reasonable limits on the legal consequences for said activity.” Id. Thus, the decision in Lawrence v. O&G Industries, Inc. potentially stands for the proposition that there are limits to claims arising from dangerous activities. Therefore, if you are confronted with a claim arising from a dangerous activity, careful consideration must be given to both the presentation of the claim as well its defense because public policies considerations can both broaden or limit the potential liabilities.
If you or your insured engage in what might be considered abnormally dangerous activities, please give me a call.
Scott Orenstein (860) 760-3317