RAMSAY v. OCH-ZIFF CAPITAL MANA. GROUP, No. CV-10-6007285S (Sep. 8, 2010)

LINDA K. LAGER, Judge.

In this case, the four plaintiffs allege that they were patrons of the Fairfield Inn by Marriott in Wallingford, Connecticut (the Inn) and resided there on various dates in 2007 and 2008 at which time they were exposed to black mold and suffered personal injuries as a result. The plaintiffs' complaint alleges causes of action sounding in negligence, strict liability based on an ultrahazardous activity and violations of the Connecticut Unfair Trade Practice Act (CUTPA). The defendants include Wallingford FFI, LLC and Prospera Management, LLC, which the complaint alleges "were involved in and exercised control over the renovation, operation and management of said Inn, including the remediation, abatement and disposal of black toxic mold on said premises," (Complaint, Preliminary Allegations, ¶ 2) and Marriott International, Inc., which the complaint alleges "was involved in the renovation of said Inn in 2007 and knew or should have known of the condition of the building housing the Wallingford Fairfield Inn by Marriott, including the pervasive black mold infestation that existed in said building" (Complaint, Preliminary Allegations, ¶ 3). These defendants have moved to strike all the counts alleging a cause of action premised on the strict liability theory of ultrahazardous activity.

Defendants Wallingford FFI, LLC and Prospera Management, LLC have moved to strike counts nine through twelve (#126). Defendant Marriott International, Inc. has moved to strike counts thirteen through sixteen of the plaintiffs' complaint (#132) and also moved to strike count thirteen of the intervening complaint of William J. Walsh Associates (#135). The court heard argument on all these motions to strike on August 2, 2010.

"[A] motion to strike challenges the legal sufficiency of a pleading . . ." (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 667, 748 A.2d 834 (2000); see also Practice Book § 10-39. "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001). The court must "assume the truth of both the specific factual allegations and any facts fairly CT Page 17663 provable thereunder. In doing so, moreover, [the court must] read the allegations broadly, rather than narrowly. (Citation omitted.)" Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629, 804 A.2d 180 (2002). The court must deny the motion to strike if the facts fairly provable under the allegations of the complaint support a cause of action, but must grant it if they do not. See Doe v. Yale University, supra, 252 Conn. 667; Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

The defendants maintain that the plantiffs' factual allegations are insufficient to set forth a cause of action for strict liability for conducting an ultrahazardous or abnormally dangerous activity. Whether an activity is ultrahazardous or abnormally dangerous is a question of law for the court. Caporale v. C.W. Blakeslee Sons, Inc., 149 Conn. 79, 86, 175 A.2d 61 (1961). In the context of a motion to strike, the court is limited to determining the legal sufficiency of this cause of action. See Connecticut Water Co. v. Thomaston, Superior Court, Judicial District of Hartford, Docket No. 940535590 (March 4, 1996, Corradino, J.) [ 16 Conn. L. Rptr. 213]. The court must view the allegations, and all reasonable inferences that may be drawn from them, in the light most favorable to sustaining the legal sufficiency of the plaintiffs' claims. Bohan v. Last, 236 Conn. 670, 674, 674 A.2d 839 (1996).

The relevant factual allegations are as follows: During the periods of time that each plaintiff resided at the Inn, in 2007 and 2008, it was infested with toxic black mold which both "exposed the plaintiff and other patrons to a risk of serious illness" and in fact caused each plaintiff to suffer from serious illnesses. (Counts 1-4, ¶¶ 2-6 incorporated into counts 9-16 ¶ 2.) The moving defendants were involved in renovation of the Inn. (Preliminary Allegations, ¶¶ 2, 3.) Beginning in 2007, the defendants "carried on the remediation, abatement and disposal of materials contained in the building housing the Fairfield Inn . . . These materials were infested with hazardous materials such as mold and fungi, and the remediation of the same was and is an abnormally dangerous activity in that failure to contain and quarantine mold and fungi spores during abatement, remediation and disposal will and did result in the proliferation of disease causing microbes and mycotoxins . . ." (Counts 9-16, ¶ 3.) The defendant's activities in remediating, abating and disposing of the black mold infestation took place in a public hotel, while the Inn was in operation and CT Page 17664 when patrons and members of the public were on or about the premises. (Counts 9-16, ¶ 4.) The relevant counts then recite certain legal conclusions regarding the defendants' alleged activities specifically that the activities involved: "a high degree of risk of harm to patrons and members of the public on or about the premises; the likelihood that the resulting harm will be serious and great; the remediation . . . while the . . . Inn . . . was still in operation was and is not a matter of common usage; and . . . remediation . . . in a public hotel was and is inappropriate and had little value to the community compared to the dangerous effects" of engaging in the activities. (Counts 9-16, ¶ 4.)

Connecticut's appellate courts have applied the doctrine of strict liability for engaging in ultrahazardous or abnormally dangerous activities sparingly. "Under this doctrine, a plaintiff is not required to show that his loss was caused by the defendant's negligence. It is sufficient to show only that the defendant engaged in an ultrahazardous activity . . ." Green v. Ensign-Bickford Co., 25 Conn.App. 479, 482, 595 A.2d 1381, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991). The few activities which have been classified as abnormally dangerous are pile driving, Caporale v. C.W. Blakeslee Sons, Inc., 149 Conn. 79, 86, 175 A.2d 61 (1961); blasting, Whitman Hotel Corp. v. Elliot Watrous Engineering Co., 137 Conn. 562, 570, 79 A.2d 591 (1951); Worth v. Dunn, 98 Conn. 51, 118 A. 467 (1922); and conducting research with highly volatile chemicals in a residential neighborhood. Green v. Ensign-Bickford Co., supra, 25 Conn.App. 487.

The elements of this cause of action are derived from two sources. First, Caporale v. C.W. Blakeslee Sons, Inc., supra, 149 Conn. 85, sets forth the following test: "To impose liability without fault certain factors must be present: an instrumentality capable of producing harm; circumstances and conditions in its use which, irrespective of a lawful purpose or due care, involve a risk of probable injury to such a degree that the activity fairly can be said to be intrinsically dangerous to the person or property of others; and a causal relation between the activity and the injury for which damages are claimed." Moreover, the mere use of a "dangerous instrumentality" is not sufficient to impose strict liability; the circumstances and conditions of its use must be considered. Id., 83-84.

Second, in Green v. Ensign-Bickford Co., supra, 25 Conn.App. 485-87, the Court relied on §§ 519 and 520 of the CT Page 17665 Restatement (Second) of Torts (1977) and specifically the six factors set forth in § 520a(a)-(f). The parties here focus their analysis exclusively on these six factors. However, the Restatement's general principle for the imposition of strict liability is set forth in § 519 and requires both that the defendant carry on "an abnormally dangerous activity" and be held responsible only for the harm that "arises out of the abnormal danger of the activity itself, and the risk that it creates, of harm to those in the vicinity." Restatement § 519(1) and comment d. Moreover, "abnormal dangers arise from activities that are in themselves unusual, or from unusual risks created by more usual activities under particular circumstances." (Emphasis supplied.) Id., § 520, comment f.

The six factors are: "(a) existence of a high degree of risk of some harm to the person . . . of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes." 3 Restatement (Second) Torts, § 520.

The Restatement is consistent with Connecticut's longstanding law which focuses on the nature of the specific operation or activity involving a dangerous instrumentality, material or substance and recognizes that if the activity is conducted "under such circumstances that it will not expose the person or property of another to the danger of probable injury" then the activity is not abnormally dangerous, but if the circumstances "necessarily or obviously exposed the person or property of another to the danger of probable injury" then the activity is abnormally dangerous. Whitman Hotel Corp. v. Elliot Watrous Engineering Co., supra, 137 Conn. 566. See Splendorio v. Bilray Demolition Co., Inc., 682 A.2d 461, 465-66 (R.I. 1996) ("Absolute liability attaches only to ultrahazardous or abnormally dangerous activities and not to ultrahazardous or abnormally dangerous materials"). This analytical approach makes sense. [I]f the rule were otherwise, virtually any commercial activity involving substances which are dangerous in the abstract automatically would be deemed as abnormally dangerous. This result would be intolerable." G.J. Leasing Co. v. Union Electric Co., 854 F.Sup.539, 568, (S.D.Ill. 1994), aff'd 54 F.3d 379 (7th Cir. 1995) quoting Bloomington v. Westinghouse Electric Corp., 891 F.2d 611, 615-17 (7th Cir. 1989).

The parties agree that it is appropriate to engage in an individualized analysis of claims of abnormally dangerous activity and they do not seek a blanket or categorical rule applicable to all cases involving the presence of, remediation of or disposal of mold. Thus, in analyzing the factual allegations here, the first determination must be the nature of the activity involved and the second determination must be whether the allegations are sufficient to state a cause of action in strict liability for conducting an CT Page 17666 abnormally dangerous activity.

The plaintiffs maintain, and the complaint can be fairly read to allege, that the nature of the specific activity here is the remediation, abatement and disposal of toxic black mold undertaken in an occupied hotel open to the public without containing or quarantining the dispersal of mold and fungi spores resulting in the proliferation of disease-causing microbes and mycotoxins which exposed the plaintiffs to actual injury and others patrons of the hotel to probable harm. Under these specific factual circumstances, the plaintiffs maintain the activity qualifies as abnormally dangerous.

The moving defendants maintain, however, that because the plaintiffs have alleged "a failure to contain and quarantine mold and fungi spores" (counts nine through sixteen, ¶ 3) they have tacitly acknowledged that the risks of harm from the remediation, abatement and disposal activities at the Inn could have been eliminated through the exercise of reasonable care. The defendants maintain that this allegation must be viewed as a concession that the dispersal of harmful substances was avoidable and, as such, is fatal to the sufficiency of a cause of action in strict liability. At the pleading stage, however, the court cannot equate the alleged "failure to contain and quarantine" with an allegation of negligence or failure to exercise due care. See Mather v. Birken Manufacturing Co., Superior Court, Judicial District of Hartford, Docket No. CV 960564862 (Dec. 8, 1998, Hennessey, J.) [ 23 Conn. L. Rptr. 443]. Rather, in context and viewed favorably to the plaintiffs, these allegations can be read merely to describe the manner in which disease causing substances were released and dispersed. Cf. Abbatiello v Monsanto Co., 522 F.Sup.2d 524, 532-33 (S.D.N.Y. 2007) (the release and dispersal of dangerous substances into the environment may be an abnormally dangerous activity).

The factual allegations suffice to satisfy the Caporale/Whitman test for stating a cause of action in that they narrowly describe a very specific activity conducted under unique circumstances involving a dangerous substance that both exposed the plaintiffs to harm and resulted in specified injuries. Moreover, the allegations satisfy five of the six factors set forth in Restatement § 520. See n. 2, supra. It is settled that "all of the factors need not be present for an activity to be considered abnormally dangerous." Green v. Ensign-Bickford Co., supra, 25 Conn.App. 486. "The essential question is CT Page 17667 whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care. In other words, are its dangers and inappropriateness for the locality so great . . . despite any usefulness it may have for the community . . ." Restatement (Second) Torts § 520, comment f.

Certain Restatement § 520 factors are particularly compelling here. Clauses (a) and (b) address the risk of harm the activity poses. Dispersal of disease-causing microbes and mycotoxins while undertaking abatement or remediation of toxic black mold involves a high risk of serious harm to people. The plaintiffs have alleged that they suffered serious injuries including allergic, cognitive and respiratory symptoms as well as lung damage, fatigue, loss of appetite, insomnia, depression, coughing, bronchitis and chest pain. (First Count ¶ 9, Second Count ¶ 9, Third Count ¶ 9, Fourth Count ¶ 9.)

In considering the degree of risk that the alleged abatement, remediation and disposal posed, the fact that it occurred while the Inn was open to the public and in operation as a hotel is critical. See Restatement § 520, comment g. ("In determining whether there is such a major risk, it may therefore be necessary to take into account the place where the activity is conducted . . ."). Location is also an independent factor under § 520(e), which allows the court to consider the "inappropriateness of the activity to the place where it is carried on." Recognizing the utility of removing toxic black mold and the necessity of doing so on these premises does not negate that the fact that undertaking this activity in premises that were occupied twenty-four hours a day, seven days a week, is analogous to experimenting with explosives in a residential area. Green v. Ensign-Bickford Co., supra, 25 Conn.App. 487. Under the facts as alleged, the risks posed to the plaintiffs and members of the general public outweighed the utility of removing the toxic black mold. Restatement § 520(f).

Finally, the dangers incident to remediation, abatement and disposal of toxic black mold are characteristic to that activity. Restatement § 520(d). "The remediation of mold is not a manner of common usage." Slauson v. Board of Education, Superior Court, Judicial District of Waterbury, Docket No. X02, CV055001311 (Dec. 27, 2006, Eveleigh, J.) [ 42 Conn. L. Rptr. 608]. See General Statutes § 19a-111l.

General Statutes § 19a-111l provides that: "On or before October 1, 2006, the Department of Public Health shall publish guidelines establishing mold abatement protocols that include acceptable methods for performing mold remediation or abatement work. Such guidelines shall not be deemed to be regulations, as defined in section 4-166." A common activity would not require the promulgation of guidelines. Pursuant to this CT Page 17669 statute, the Department of Public Health has published guidelines, found at: www.ct.gov/dph/lib/dph/environmental_health/eoha/ pdf/CT_Guidelines_for_Mold_Remediation _Contractors_Final.pdf. Although these guidelines are "intended to provide guidance to contractors performing mold abatement" (page 1), they are simply recommendations with respect to such issues as training, third-party oversight and environmental assessments. With respect to remediation, the document states that "the intent . . . is not to write a technical procedures and practices document, but rather, to refer readers to documents containing this technical information . . ." (page 7). Referenced documents include guidelines from New York City, the EPA, Canada and private groups and associations.
The guidelines and recommendations, however, are not regulations and do not mandate the manner in which mold remediation or abatement must occur. Thus, the abatement or remediation of toxic mold cannot be compared to activities which are highly regulated, such as the storage or disposal of hazardous materials or the abatement of lead paint, in assessing the applicability of strict liability. See e.g., East Greyrock, LLC v. OBC Associates, Inc., Superior Court, Judicial District of Stamford, Docket No. X08 CV044002173 (Feb. 7, 2006, Adams, J.) [ 40 Conn. L. Rptr. 859]; Sanchez v. General Urban Corp., Superior Court, Judicial District of New Haven, Docket No. LPL-CV-950378774 (Feb. 6, 1997, Lager, J.) [ 19 Conn. L. Rptr. 97].

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The court is mindful that it is improper to impose strict liability for conducting an activity whose risk can be eliminated by the exercise of reasonable care. Restatement § 520(c). However, at the pleading stage where the court must construe the factual allegations broadly and in a light that is favorable to the plaintiffs, the court is prepared to infer from the facts alleged that the remediation, abatement and disposal of toxic black mold in an occupied hotel open to the public in a manner that results in the dispersal of spores and fungi may be abnormally dangerous even if done with the utmost care. If evidence is developed that this specific activity can be conducted with due care to eliminate the risks posed by the dispersal of disease-causing microbes and mycotoxins, then clearly there would be no basis for imposing strict liability on these defendants and the cause of action for conducting an abnormally dangerous activity would fail. However, the complaint and intervening complaint suffice to withstand a motion to strike.

Based on the foregoing, the motions to strike (##126, 132 and 135) are denied.