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Anchundia v. Northeast Utilities Service Co.

March 31, 2010

MARLYN L. ANCHUNDIA, AS ADMINISTRATIX OF THE ESTATE OF ELIAS JOSEPH ANCHUNDIA, DECEASED, AND MARLYN L. ANCHUNDIA, INDIVIDUALLY PLAINTIFFS,
v.
NORTHEAST UTILITIES SERVICE COMPANY, AND THE CONNECTICUT LIGHT AND POWER COMPANY, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge

MEMORANDUM AND ORDER

Plaintiff Marlyn L. Anchundia, as administratix of the estate of Elias Joseph Anchundia, and individually (referred to collectively as "Plaintiffs"), filed an Amended Complaint in this action adding a claim for strict liability and negligence per se (Count Four). Count Four of the Amended Complaint alleges that Northeast Utilities Service Company and The Connecticut Light and Power Company ("Defendants") should be held strictly liable for the injury, pain and suffering and death of Elias Joseph Anchundia (the "Decedent"). Defendants have moved to dismiss Count Four of the Amended Complaint, with prejudice, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The parties in this action have consented to my jurisdiction for all purposes. See DE 36. For the reasons set forth below, the motion to dismiss Count Four of the Amended Complaint is GRANTED.

I. ALLEGATIONS SET FORTH IN THE COMPLAINT*fn1

In the Amended Complaint, Plaintiff asserts claims for personal injury and wrongful death (Count 1), wrongful death (Count 2), Loss of Services (Count 3), and Strict Liability and Negligence per se (Count 4). Am. Comp. ¶¶ 15-62. Each of these claims arises out of an accident which occurred on February 21, 2007, when the Decedent was fatally injured while on the job. Id., ¶ 24.

According to the Amended Complaint, American Electrical Testing Company, the Decedent's employer, entered into a contract with Defendants "to perform certain electrical inspecting, testing, maintenance and repair, inclusive of underground submersible transformer vault and its components, including a high voltage primary switch compartment and network protector (the "Electric Project"), located at . . . the intersection of East Main Street and Phoenix Avenue, Waterbury Connecticut." Id., ¶ 16. Plaintiff alleges that Defendants directed the work, supervised the work, controlled and/or managed the work and had a presence on the job site at all relevant times. Id., ¶¶ 25 - 28.

On February 21, 2007, the Decedent sustained fatal injuries when an explosion occurred while he was working in an underground electrical transformer vault. Id., ¶ 24. The Decedent was performing maintenance in the vault, including sampling of fluid from an energized, high voltage primary switch compartment, and switching or splicing activities. Id., ¶ 59. Defendants, in their motion to dismiss, explain that the vault and the electrical equipment inside it are part of Connecticut Light and Power Company's underground electrical distribution network that serves downtown Waterbury. According to Plaintiffs, the work conditions in the electric vault were ultrahazardous and a standard of strict liability should apply. Id., ¶¶ 58-60. Additionally, Plaintiffs allege that Defendants "violated applicable laws of the State of Connecticut, as well as the Occupational Safety and Health Administration Regulations, the Industrial Code, the Code Ordinances for the City of Waterbury, Connecticut, and the applicable codes, ordinances, rules and regulations of other local municipalities that may apply." Id., ¶ 56. Plaintiffs allege that the violation of these statutes gives rise to a claim of negligence per se.

II. DISCUSSION

A. Standard Of Review

A court may grant a motion to dismiss for failure to state a claim under Rule 12(b)(6) only when "it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Levitt v. Bear Stearns & Co., 340 F.3d 94, 101 (2d Cir. 2003) (internal quotations and citations omitted).Under the two most recent pronouncements by the United States Supreme Court, namely Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, -- U.S. --, 129 S.Ct. 1937 (2009), the Court must consider two requirements when adjudicating a motion to dismiss. "First, although the Court must still accept factual allegations as true, it should not credit 'mere conclusory statements' or 'threadbare recitals of the elements of a cause of action.'" Stephenson v. Citco Group Ltd., No. 09 CV 00716, 2010 WL 1244007, at *16 (S.D.N.Y. Apr. 1, 2010) (quoting Iqbal, 129 S.Ct. at 1949). A plaintiff's burden to set forth the grounds of his "entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. at 555.

Second, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.; see Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. See also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); Austen v. Catterton Partners V, LP., No. 3:09 CV 1257, 2010 WL 625389, at *2 (D. Conn. Feb. 17, 2010).

B. Strict Liability

This Court's jurisdiction is premised on diversity and since the incident giving rise to this action occurred in Connecticut, the substantive law of that state governs. See Erie R.R. v. Tompkins, 304 U.S. 64 (1938) ; Ocean Ships, Inc. v. Stiles, 315 F.3d 111, 116 n. 4 (2d Cir. 2002). The parties do not dispute that Connecticut law applies. Pursuant to Connecticut law,

[u]nder the doctrine of absolute or strict liability for an ultrahazardous activity, "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 that caused the defendant's loss. The doctrine 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"

Liss v. Milford Partners, Inc., No. X07CV044025123S, 2008 WL 4635981, at *4 (Conn. Super. Sept. 29, 2008) (quoting Green v. Ensign-Bickford Co., 595 A.2d 1383 (Conn. App.), cert. denied, 597 A.2d 341 (Conn. 1991)); see also Curtis v. Northeast Utilities, No. ...


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