March 14, 2018
Recently in Poce v. O&G Industries, Inc., et al. the Superior Court, Nobel, J., granted a motion to strike the negligence, recklessness, and premises liability counts of a thirty-count complaint because the plaintiffs failed to allege any “actual injury” which is an element of these causes of action in Connecticut.
In Poce, the plaintiffs, Julian Ponce, Skerdinand Xhelaj, Michael Meredith, Erjon Goxhaj, and Fatjon Rapo, were mason laborers who worked for Connecticut Mason Contractors. During the course their employment with Connecticut Mason Contractors, the plaintiffs allege in their complaint that they were “repeatedly exposed to asbestos” while “working on a project at Wethersfield High School” in Wethersfield, Connecticut. O&G Industries, Inc. (“O&G”) was the project manager.
In its memorandum of decision, the Court noted that “each count contains an allegation that the respective plaintiffs were repeatedly exposed to known carcinogens requiring medical evaluations and lifetime medical monitoring; an increased risk of contracting asbestos-related pulmonary disease and/or cancer and will be required in the future to spend sums of money for medical evaluation and medical monitoring in the event that ‘asbestos and/or PCP-related disease becomes active and will be the course of continuing pain, mental and emotional distress.”
In granting the motion to strike, the Court held that the plaintiffs failed to allege an “actual injury” that resulted from asbestos exposure. In doing so, that Court reasoned that “the plaintiff has no allegations that any physical manifestation occurred as a result of the exposure. That is, the complaint is devoid of any allegation of scarring to the lungs, implantation of asbestos fiber, pleural thickening or any other physical component following the exposure. The court holds that ‘actual injury’ as an element of negligence requires the pleading and proof of some physical component of injury.”
Poce reaffirms the established principle that tort liability in Connecticut, as well as many jurisdictions, is limited to Cases involving physical harm to person or property.” Lawrence v. O&G Industries, Inc. 319 Conn. 641, 646 (2015). This principle is an important check on tort litigation. If mere exposure to asbestos containing products rather than “actual injury” were sufficient to properly allege a cause of action sounding in negligence, recklessness, and premises liability, unbridled asbestos litigation would likely ensue and swiftly consume the courts. Fortunately, allegations of this nature remain legally insufficient – hopefully forever.