2007 Ct. Sup. 2136
No. HHD-X03-CV-03-4022300SConnecticut Superior Court Judicial District of Hartford, Complex Litigation Docket at Hartford
January 26, 2007
JOHN J. LANGENBACH, J.
MEMORANDUM OF DECISION ON BERG’S MOTION FOR SUMMARY JUDGMENT
The plaintiff, Latex Foam International Holdings, Inc. (“Latex Foam”), filed a four-count complaint against the defendants, Richard N. Goldman Co., Willis Group Holdings, Ltd., Goldman Insurance Services, Goldman Consulting Group (collectively referred to as “Goldman”) and Kenneth Berg. In the first and second counts, Latex Foam alleges causes of action for negligence and breach of contract against all defendants. In the third and fourth counts, Latex Foam alleges causes of action for negligence and breach of contract against Berg. Berg has filed a motion for summary judgment on all counts, based upon his claims that Latex Foam cannot, as a matter of law, show that Berg owed it a duty, or that Berg had a contract with Latex Foam. Latex Foam claims that material issues of fact remain regarding the scope of the duty owed by Berg, and the nature of the contract between Berg and Latex Foam.
“Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 30-31, 889 A.2d 785 (2006). Neither party submitted any affidavits, but both of them submitted documentary evidence and excerpts of deposition testimony in support of their respective positions.
The following facts are not disputed. Latex Foam engaged in the CT Page 2137 manufacture of latex rubber products in a plant located in Ansonia. Latex rubber is a combustible substance. At the plant, Latex Foam used a drying oven to dry its latex rubber products. The drying oven had no internal fire suppression system. On May 14, 2001, the Latex Foam plant burned to the ground as a result of a fire that originated in the drying oven.
Goldman procured property insurance, through Napco, LLC, for Latex Foam for the period from January 1, 2001 to January 1, 2002. Subsequent to the placement of the insurance, Latex Foam requested that Goldman send a representative to inspect the Ansonia facility. Goldman’s representatives understood the request to be focused on analyzing the fire suppression systems, including the sprinkler system, for the purpose of reducing Latex Foam’s insurance premiums. Berg is a registered fire protection engineer. At the request of Goldman, Berg conducted an inspection of Latex Foam’s Ansonia plant on February 9, 2001. Goldman paid Berg for his services in conducting the inspection. Berg spent between one and one-half and three hours at the plant. His inspection resulted in two reports, issued on February 14, 2001 and February 28, 2001. These reports were written on Goldman letterhead and addressed to Rick Merrill, the vice president of finance at Latex Foam, with copies to other Latex Foam employees and Goldman employees. In these reports, Berg made recommendations regarding the ceiling sprinklers at the plant, but did not recommend the installation of an internal sprinkler system in the drying oven.
Negligence claims
“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury . . . Duty is a legal conclusion about relationships between individuals, made after the fact and [is] imperative to a negligence cause of action . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care . . . The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] has ever been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant . . . Furthermore, [a] duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” (Citations omitted; internal quotation marks omitted.) Nazami v. Patrons Mutual Insurance Company, 280 Conn. 619, CT Page 2138 630-31, 910 A.2d 209 (2006).
“First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty . . . The issue of whether a duty exists is a question of law.” (Citations omitted; internal quotation marks omitted.) Baptiste v. Better Val-U Supermarket, Inc., 262 Conn. 135, 138, 811 A.2d 687 (2002). If the court determines, as a matter of law, that the defendant owes no duty to the plaintiff, the plaintiff cannot recover in negligence from the defendant. Id., 139.
“To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries . . . [L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct . . .
“Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant’s negligent conduct . . . In negligence cases such as the present one, in which a tortfeasor’s conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor’s duty to the plaintiff . . .
The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Essential to determining whether a legal duty exists is the fundamental policy of the law that a tortfeasor’s responsibility should not extend to the theoretically endless consequences of the wrong . . . Even where harm was foreseeable, [our Supreme Court] has found no duty when the nexus between a defendant’s negligence and the particular consequences to the plaintiff was too attenuated . . .
“[T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant’s conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of CT Page 2139 for the necessary causal connection . . . This causal connection must b based upon more than conjecture and surmise.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Weigold v. Patel, 81 Conn.App. 347, 354-55, 840 A.2d 19, cert. denied, 268 Conn. 918, 847 A.2d 314 (2004); see also Malloy v. Colchester, 85 Conn.App. 627, 633-34, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698
(2004). While proximate cause is ordinarily a question of fact, the issue of causation becomes one of law when the mind of a fair and reasonable person could reach only one conclusion, and summary judgment may be granted for a failure to establish causation. Abrahams v. Young Rubicam, Inc., 240 Conn. 300, 307, 692 A.2d 709 (1997).
In its complaint, Latex Foam alleges that Berg “had a duty to exercise reasonable care in his provision of insurance brokerage, insurance consulting, safety consulting, safety inspection, loss prevention consulting, loss prevention inspection, risk management consulting, risk management inspection, fire safety consulting, fire safety inspection, fire prevention consulting or fire prevention inspection services to Latex Foam.” (Complaint, third count ¶ 24.) Latex Foam further alleges that Berg knew or should have known that Latex Foam was engaged in the business of manufacturing latex rubber products, that Latex Foam used the drying oven to dry latex rubber products, that latex rubber is combustible, that the drying oven’s temperatures created a risk of latex rubber products igniting during the drying process, that various industry standards required that ovens processing combustible materials must contain internal sprinklers, and that using the drying oven without internal sprinklers to dry latex rubber products created an unreasonable risk of property damage, economic loss and other injury to Latex Foam and others, and that Berg failed to properly conduct the inspection, properly train and supervise his employees, failed to make appropriate recommendations to Latex Foam regarding necessary safety measures, including, but not limited to, failure to advise Latex Foam regarding the installation of an internal sprinkler system in the dryer, and the safety recommendations he made in the provision of the above-listed services to Latex Foam were insufficient, leaving the dryer in a condition which he knew or should have known created an unreasonable risk of property damage, economic loss and other injury to Latex Foam and others. (Complaint, third count, ¶ 25.) The first count contains the same allegations directed at all defendants.
Berg claims that he owed no duty to Latex Foam. He claims that the facts show that he was hired by Goldman to conduct an inspection for the purpose of determining whether Latex Foam’s insurance premiums could be reduced. He further claims that even if he did owe a duty, his breach of the duty was not the proximate cause of Latex Foam’s losses. CT Page 2140
Latex Foam claims that Berg’s deposition testimony establishes that he had a duty to communicate to Latex Foam the known fire hazards presented by the unprotected oven. Latex Foam further claims that the testimony of its experts establishes that Berg owed Latex Foam a duty to communicate fire hazards and this testimony raises a question of fact as to whether and to what extent Berg was obligated to make Latex Foam aware of fire risks he observed during his inspection. Latex Foam argues that it relied on the fact that Berg undertook to provide overall fire protection services, and he induced that reliance by addressing fire risks that he identified. Latex Foam claims that its reliance is evidenced by its action on certain recommendations made by Berg. Latex Foam claims that Berg’s deposition testimony and the content of his reports create a genuine dispute as to the scope of Berg’s undertaking and, in turn, the scope of his duty to Latex Foam. Latex Foam argues that, as to proximate cause, a genuine issue of fact remains as to whether Latex Foam would have acted on Berg’s recommendation to install a sprinkler system in the drying oven if he had made such a recommendation, because Latex Foam had acted on other recommendations made by Berg.
The evidence submitted by the parties shows that Latex Foam had expressed an interest in obtaining an inspection of its fire protection systems for the purpose of lowering its insurance premiums. (Berg’s exhibit C, pp. 102-04; Latex Foam’s exhibit B, p. 84.) As a result, Goldman requested that Berg inspect the facility. Berg conducted the inspection, for the stated purpose of evaluating the adequacy of Latex Foam’s installed fire protection systems. (See Berg’s exhibit D, Latex Foam’s exhibit H.) In his February 14, 2001 report, Berg stated: “Although the primary purpose of our visit was to gain familiarity with your facility and operations for the purposes of quantifying the automatic sprinkler protection, I did make several observations pertaining to property loss control that I would like to bring to your attention. These suggestions are being made for your internal consideration and are judged to represent cost-effective measures to achieve and/or maintain a reasonable level of protection against loss of life, profits and property.” In his February 28, 2001 report, Berg made additional recommendations. In an email to Rick Merrill dated March 1, 2001 that appears to have accompanied the February 28, 2001 report, Berg states: “The Attachment is our letter analyzing the existing fire sprinkler protection and suggesting a course of action. Unfortunately, the material is a bit technical, but it should give you an indication of the existing conditions and the risks that Latex Foam currently faces.” (Latex Foam’s exhibit R.)
CT Page 2141 While Berg may have made some gratuitous recommendations to Latex Foam regarding improvements to its sprinkler protection, the undisputed facts show that Berg conducted the inspection at the request of Goldman for the purpose of analyzing the existing sprinkler system to see if upgrades could be made that might lower Latex Foam’s insurance premiums. Any duty Berg had was to Goldman, who paid him to conduct the inspection. The court cannot find any relationship, contractual or otherwise, between Berg and Latex Foam from which a duty arises. The court cannot find that a genuine issue of material fact remains merely because Berg made some recommendations after inspecting Latex Foam’s facility, that Berg had undertaken a duty to make any and all fire safety recommendations to Latex Foam as part of his inspection of Latex Foam’s facility. Indeed, the email accompanying Berg’s February 28, 2001 report states that the report should give Latex Foam “an indication of the existing systems and the risks Latex Foam currently faces.” (Latex Foam’s exhibit R.) Furthermore, the foreseeable consequence of any negligence by Berg in the conduct of his inspection at the request of Goldman would be that Latex Foam would not be apprised of an opportunity to potentially lower its insurance premiums if the installation of a sprinkler system in the drying oven would have resulted in a premium reduction. The court cannot find that a foreseeable result of Berg’s failure to recommend to Latex Foam the installation of a sprinkler system in the drying oven as part of an inspection he conducted at the request of Goldman would be the destruction of Latex Foam’s facility due to a fire originating in the drying oven.
Latex Foam claims that by making his recommendations in the February 2001 reports, Berg undertook a duty to Latex Foam to provide fire loss prevention services and Latex Foam relied on Berg’s fire safety recommendations and had begun implementing several of the recommendations. Jim Morrell, Latex Foam’s safety director, testified, however, that some of Berg’s recommendations had been implemented or considered prior to the fire, but some had not. (Latex Foam’s exhibit J, pp. 96-100.) The court cannot find, as a matter of law, that Berg, by making some recommendations to Latex Foam in his February 2001 reports issued after his visit to the Latex Foam facility at the request of Goldman, induced reliance on his expertise on the part of Latex Foam. Latex Foam has not claimed that Berg owed it any duty beyond making a recommendation to install a sprinkler system in the drying oven, such as a duty to evaluate and recommend a particular type of sprinkler system based upon his assessment of the risks associated with the drying oven.[1]
The court’s conclusion that Berg did not owe Latex Foam a duty to make a recommendation is underscored by the undisputed fact that Jim Morrell, CT Page 2142 the safety director at Latex Foam, testified that the company was looking into installing a sprinkler system in the drying oven shortly before the fire occurred. (Latex Foam’s exhibit J, p. 44.) Latex Foam admits that at least one other employee in the engineering department “knew that ovens such as the mattress drying oven could be equipped or retrofitted with internal sprinkler systems.” (Berg’s exhibit G, Requests to Admit, nos. 78, 79.) John May, the president of Latex Foam also testified: “We all knew that [the drying ovens] were the most likely potential for a fire, so if there had been a solid engineering suggestion, we probably would have implemented it.” (Latex Foam exhibit T, p. 60.)[2] The court cannot find that Berg owed Latex Foam a duty to tell it what it already knew or should have known — that a sprinkler system in the drying oven would enhance safety at its facility. The court finds, as a matter of law, that Berg did not owe Latex Foam a duty to make recommendations regarding a hazard of which Latex Foam was already aware.
With respect to proximate cause, Latex Foam’s claims against Berg would require the fact finder to surmise that if Berg had recommended the sprinklers, Latex Foam would have installed them prior to the May fire, and that the sprinklers would have contained or extinguished the fire. The court finds that the connection between the injury suffered by Latex Foam and the conduct of Berg in failing to recommend the installation of a sprinkler system in the drying oven is too attenuated. Furthermore, as discussed above, Morell admitted that irrespective of Berg’s failure to recommend the installation of sprinklers in the drying oven, Latex Foam was considering the installation of sprinklers in the drying oven just before the time of the fire, indicating at least a general awareness on Latex Foam’s part that the installation of a sprinkler system in the drying oven, where heat was used to dry combustible latex rubber products, would be an enhancement to the facility’s fire protection system. Indeed, any reasonable person who knew that latex rubber was combustible should be able to see that installation of a sprinkler system in an oven used to dry combustible products would reduce the risk of a destructive fire. Latex Foam does not allege that it was unaware that the installation of such a system was possible or that it was unaware that the drying oven constituted a fire safety hazard. Indeed, the undisputed evidence shows that Latex Foam was aware of safety issues with respect to the drying oven.
Even if the court were to find a duty and that material issues of fact remained regarding the scope of that duty or breach of that duty, the court finds that Latex Foam cannot prove, as a matter of law, that Berg’s conduct was the proximate cause of its loss. The evidence submitted by the parties shows that Latex Foam knew that it did not have CT Page 2143 sprinklers in the drying oven, that the unprotected oven constituted a safety hazard, and it was considering installing sprinklers in the drying oven at the time of the fire. Even if Berg did have a duty to recommend installing a sprinkler system in the drying oven, Latex Foam still had the choice of whether to act on that recommendation. Too many variables enter into the picture to make a legal connection between any failure by Berg and the ultimate harm suffered by Latex Foam. For instance, even if Berg did make a recommendation to install a sprinkler system in the drying oven and Latex Foam did install a sprinkler system in the drying oven, the system it installed might not have contained the fire so as to save the building or reduce the damage.
For all of the foregoing reasons, the court finds that Berg did not owe a duty to Latex Foam. The court further finds that even if Latex Foam could establish a duty on the part of Berg to recommend the installation of a sprinkler system in the drying oven, any breach of that duty by Berg was not the proximate cause of the destruction of Latex Foam’s facility as a result of a fire in the drying oven.
Breach of Contract Claims
Berg argues that he did not have a contractual relationship with Latex Foam, and that Latex Foam’s breach of contract claim is essentially a negligence claim cloaked in contractual language. Latex Foam claims that it was a third-party beneficiary of the contract between Berg and Goldman, that a determination of the nature of the contractual relationship between Berg and Latex Foam involves issues of fact, and that Connecticut’s pleading rules allows it to plead both negligence and breach of contract claims arising out of the same transaction.
In the fourth count, Latex Foam alleges that Berg contracted to provide insurance brokerage, insurance consulting, safety consulting, safety inspection, loss prevention consulting, loss prevention inspection, risk management inspection, fire safety consulting, fire safety inspection, fire prevention consulting or fire prevention inspection services to Latex Foam. (Complaint, fourth count, ¶ 25.) Latex Foam further alleges that Berg was under a contractual obligation to provide the services in a skillful, competent and workmanlike manner, that he held himself out as an expert in providing the above-listed services, and that Latex Foam relied on his expertise in providing those services. (Complaint, fourth count, ¶¶ 26-28.) Latex Foam alleges that Berg breached his contract with Latex Foam in that he failed to perform the services in a skilled, competent and workmanlike manner, failed to properly train and supervise his employees, such that the inspection was not conducted in a skilled, competent and workmanlike manner, and he CT Page 2144 failed to make appropriate recommendations to prevent property damage and other loss. (Complaint, fourth count, ¶ 29.) The second count contains essentially the same allegations directed against all defendants.
It is undisputed that there was no written contract between Berg and Latex Foam. While Latex Foam claims that it was a third-party beneficiary of a contract between Berg and Goldman, it has not alleged that in its complaint, nor has it alleged facts from which such a relationship can be inferred. Latex Foam alleges in paragraph seven of the second and fourth counts that Berg was an affiliate, agent, employee or servant of Goldman, but the complaint is devoid of any allegation that Latex Foam was a third-party beneficiary of any contractual relationship between Berg and Goldman. Latex Foam alleges specifically in paragraph twenty-eight of the second count that the defendants “breached their contract with Latex Foam,” and in paragraph twenty-nine of the fourth count that “Kenneth Berg breached his contract with Latex Foam.” The court cannot find that genuine issues of material fact remain unresolved regarding whether Latex Foam was a third-party beneficiary of a contract between Berg and Goldman where Latex Foam’s complaint contains only allegations of a breach of a contract between Latex Foam and the defendants.
Although Latex Foam has alleged that Berg breached his contract with it, the court cannot find, after reviewing all of the evidence submitted by both parties in support of their respective positions, any indication that Latex Foam and Berg had a contractual relationship. The undisputed facts show that Berg conducted an inspection of Latex Foam’s facility at the request of Goldman. Rick Merrill, Latex Foam’s vice president of finance, testified that Latex Foam did not contract directly with Berg. (Berg’s exhibit F, p. 74.) To prevail on a claim of breach of contract, a plaintiff must show the formation of an agreement, performance by one party, breach of the agreement by the other party and damages McCann Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93 Conn.App. 486, 780-81, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d 798 (2006). Furthermore, the plaintiff must show that its damages were proximately caused by a defendant’s breach. Id. In this case, the court can find no indication of any agreement between Latex Foam and Berg. Even if the court could find that a genuine issue of material fact remained regarding the existence of an agreement, Latex Foam would be unable to prove any breach of that agreement was a proximate cause of Latex Foam’s damages for the same reason discussed above with respect to the negligence counts.
Finally, Berg claims that Latex Foam’s contract claims are really CT Page 2145 negligence claims couched in breach of contract language. “The interpretation of pleadings is always a question of law for the court.”Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985). As stated above, the court finds that the evidence submitted by the parties does not raise any genuine issue of material fact that would indicate that Berg and Latex Foam had a contractual relationship. Furthermore, the allegations in the breach of contract counts as described above merely mirror the claims raised in the negligence counts. Latex Foam’s allegation that Berg breached a contract in that he failed to provide services in a skilled, competent and workmanlike manner implicate negligence principles in that they essentially are allegations that he breached a duty to perform the services under the proper standard of care. See Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 871, 794 A.2d 997 (2002). Since the court has found no duty owed by Berg as a matter of law and no genuine issues of material fact regarding proximate cause, the court finds that the breach of contract counts, insofar as they allege the same conduct couched in contractual terms, must fail for the same reasons stated in the court’s discussion of the negligence counts.
For all the foregoing reasons, Berg’s motion for summary judgment is granted as to all counts of the complaint.
So ordered,
CT Page 2147