Peoples Gas System v. Posen Construction, Inc.
Filing
37
OPINION AND ORDER granting 27 Motion to dismiss Count III of the Amended Counterclaim and Count III of the Amended Counterclaim is dismissed with prejudice. The Clerk shall withhold the entry of judgment until the conclusion of the case. Signed by Judge John E. Steele on 6/20/2012. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PEOPLES GAS SYSTEM, a division of
Tampa Electric Company, a Florida
corporation.,
vs.
Case No.
2:11-cv-231-FtM-29SPC
POSEN CONSTRUCTION, INC., a Michigan
corporation,
Defendant.
___________________________________
OPINION AND ORDER
This matter comes before the Court on Peoples Gas System’s
Motion to Dismiss Count III of Defendant Posen Construction, Inc.’s
Amended Counterclaim With Prejudice (Doc. #27) filed on January 4,
2012.
Defendant filed a Response (Doc. #30) on February 13, 2012.
Plaintiff seeks to dismiss Count III (strict liability for an
ultra-hazardous activity) of defendant’s Amended Counterclaim (doc.
#24).
I.
On November 14, 2011, the Court issued an Opinion and Order
(Doc. #23) dismissing Count IV of defendant’s Counterclaim (Doc.
#8) and finding that “Posen may be able to state a claim for strict
liability which is plausible, but it has not done so on the theory
it now asserts.”
Opinion and Order,
(Doc. #23, pp. 6-8.)
As summarized in the
Posen Construction, Inc. (Posen) is a heavy
construction contractor that was awarded a construction
contract from Lee County to widen Colonial Boulevard in
Fort Myers, Florida.
Peoples Gas System (PGS), a
division of Tampa Electric Company, owns, operates,
maintains
and
controls
natural
gas
distribution
facilities throughout Florida, including an 8" gas main
on the northern side of the Colonial Boulevard
construction project.
On November 11, 2010, a Posen
employee operating heavy machinery struck a natural gas
pipeline owned and operated by PGS, resulting in an
ignition of natural gas. PGS filed suit against Posen,
which has responded with a counterclaim.
(Doc. #23, p. 3.)
Taking all the allegations in the Amended
Counterclaim as true, Erickson v. Pardus, 551 U.S. 89 (2007);
Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011):
As part
of the maintenance, PGS is often required to move, relocate, and/or
divert gas lines, and PGS moved the line at issue in this case
without notice to Posen of the new location.
62.)
(Doc. #24, ¶¶ 61,
PGS relocated the gas line at issue directly under the area
for roadway expansion and a depth directly in the area of work
Posen planned for the construction project.
PGS allowed the line
to be raised from its original depth to a level only inches below
the surface of the ground making it all but certain that it would
be struck during construction.
(Id., ¶ 63.)
The manner in which
PGS relocated the gas line increased the risk of harm to Posen and
others, and it is abnormal and unusual, and uncommon, for the owner
of a gas line to intentionally and knowingly move and/or relocate
a line to a location and depth directly in the zone of construction
work and in conflict with construction plans.
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(Id., ¶¶ 64, 65.)
Moving, relocating and/or diverting gas distribution facilities can
be a dangerous activity, and doing so at a depth directly within a
zone of planned construction and excavation without notice is an
abnormally dangerous activity and poses a high risk of serious harm
due to the combustible nature of natural gas.
(Id., ¶¶ 68, 69.)
Posen sustained property and financial damage from the activity,
and the damages are the kind that would arise from the negligent
and/or improper moving, relocating, and/or diverting of natural gas
distribution facilities.
(Id., ¶¶ 70, 71.)
II.
“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. [ ] This strict liability is
limited to the kind of harm, the possibility of which makes the
activity abnormally dangerous.”
Restatement (Second) of Torts §
519 (1977). The term “care” includes “care in preparation, care in
operation and skill both in operation and preparation.”
c.
Id. cmt.
“The liability arises out of the abnormal danger of the
activity itself, and the risk that it creates, of harm to those in
the vicinity.”
Id. ctm. d.
The essential question is 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
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inappropriateness for the locality so great that, despite
any usefulness it may have for the community, it should
be required as a matter of law to pay for any harm it
causes, without the need of a finding of negligence.
Restatement (Second) of Torts § 520 cmt. f (1977).
It is undisputed that Florida courts have not found the
distribution of gas to be an “abnormally dangerous activity” for
purposes of strict liability.
In the negligence context however,
Florida courts have found that the installation of natural gas
lines is an inherently dangerous activity. Noack v. B. L. Watters,
Inc., 410 So. 2d 1375, 1376 n.1 (Fla. 5th DCA 1982)(citing cases).
Under the amended allegations, defendant asserts that it is the
relocation of the gas line that is the “abnormally dangerous
activity”
subject to
strict
liability.
To
determine
if
the
relocation of the gas line is an “abnormally dangerous activity”,
thereby
triggering
strict
liability,
the
Court
considers
following factors:
(a) existence of a high degree of risk of some harm to
the person, land or chattels 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
outweighed by its dangerous attributes.
-4-
community
is
the
Restatement (Second) of Torts § 520 (1977).
To be an “abnormally
dangerous activity”, “not only must it create a danger of physical
harm to others but the danger must be an abnormal one.
In general,
abnormal dangers arise from activities that are in themselves
unusual, or from unusual risks created by more usual activities
under particular circumstances.”
Id. at cmt. f.
There is no one
definition, not all factors must be present, and the risk must be
so unusual as to justify the imposition of strict liability.
A.
Id.
High Degree of Risk and Likelihood of Harm:
“The harm threatened must be major in degree, and sufficiently
serious
in
its
possible
consequences
to
justify
holding
the
defendant strictly responsible for subjecting others to an unusual
risk.
It is not enough that there is a recognizable risk of some
relatively slight harm. . . .”
cmt. g (1977).
Restatement (Second) of Torts § 520
In determining whether there is a major risk, it
may be necessary to take into account the locality.
Id.
The Court
finds that, even when considering the risk of harm associated with
relocating gas lines near populated areas, the risk of harm is not
so abnormally high such that strict liability is appropriate.
The
absence of case law involving the relocation of pipelines is a
clear indicator. Also, due consideration must be given to the fact
that the lines have to be located in populated areas, usually along
major roadways, so that natural gas is made available without
significant interruption to the community.
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In Henke, the court refused to accept the differentiation
between maintaining the pipeline and operation of a pipeline, which
the court had previously found as a matter of law was not an
abnormally dangerous activity.
Henke v. ARCO Midcon, LLC, 750 F.
Supp. 2d 1052, 1059 (E.D. Mo. 2010)(citing Fletcher v. Conoco Pipe
Line Co., 129 F. Supp. 2d 1255 (W.D. Mo. 2001)).
Therefore, this
factor weighs against defendant.
B.
Exercise of Reasonable Care:
“Most ordinary activities can be made entirely safe by the
taking of all reasonable precautions; and when safety cannot be
attained by the exercise of due care there is reason to regard the
danger as an abnormal one.”
cmt. h (1977).
an
ordinary
Restatement (Second) of Torts § 520
The relocation of gas lines due to construction is
enough
activity
that
it
can
be
made
safe
with
precautions and the exercise of reasonable care.
C.
Common Usage:
“An activity is a matter of common usage if it is customarily
carried on by the great mass of mankind or by many people in the
community. It does not cease to be so because it is carried on for
a
purpose
peculiar
to
the
individual
who
engages
Restatement (Second) of Torts § 520 cmt. i (1977).
in
it.”
Gas and
electricity in household pipes and wires is a matter of common
usage
and
therefore
not
abnormal.
Id.
“The
difference
is
sometimes not so much one of the activity itself as of the manner
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in which it is carried on.”
Id.
The relocation of gas lines due
to construction in the area is common enough that The Underground
Facility Damage Prevention and Safety Act was enacted to “provide
a single toll-free telephone number for excavating contractors and
the general public to call for notification of their intent to
engage in excavation or demolition.” Fla. Stat. § 556.101(2). One
purpose of the Act is to prevent injury and interruption of
services for the public.
Fla. Stat. § 556.101(3)(a).
The Court
finds that this factor also weighs against defendant.
D.
Locality:
“There are some highly dangerous activities, that necessarily
involve a risk of serious harm in spite of all possible care, that
can be carried on only in a particular place. Coal mining must be
done where there is coal; oil wells can be located only where there
is oil; and a dam impounding water in a stream can be situated only
in the bed of the stream. If these activities are of sufficient
value to the community (see Comment k), they may not be regarded as
abnormally dangerous when they are so located, since the only place
where the activity can be carried on must necessarily be regarded
as an appropriate one.”
j (1977).
Restatement (Second) of Torts § 520 cmt.
Obviously, gas lines are located in many major cities
and in populated areas so that the natural gas can be distributed
to communities in those cities. See, e.g., Fletcher v. Conoco Pipe
Line Co., 129 F. Supp. 2d 1255, 1261 (W.D. Mo. 2001)(transmission
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of natural gas by pipeline is a common activity in “highlyindustrialized society”)(collecting cases). By the same token, the
relocation of gas lines to accommodate growth and new construction
is inevitably going to occur along highways. See Foster v. City of
Keyser, 501 S.E. 2d 165, 175-76 (W. Va. 1997)(“Gas transmission
lines are often buried, sometimes quite deeply. . .so inspection,
maintenance and repair is not simple. Escaping gas can flow easily
and quickly though a path of least resistance, which in populated
areas is often along or through other utility pipes or drains into
buildings.”). Therefore, the Court finds that the location was not
inappropriate.
E.
Value to Community:
“Even though the activity involves a serious risk of harm that
cannot be eliminated with reasonable care and it is not a matter of
common usage, its value to the community may be such that the
danger will not be regarded as an abnormal one. This is true
particularly when the community is largely devoted to the dangerous
enterprise
and
its
prosperity
largely
depends
Restatement (Second) of Torts § 520 cmt. k (1977).
upon
it.”
For example, in
Texas, “a properly conducted oil or gas well” is not regarded as
abnormally dangerous.
Id.
“It is no part of the province of the
jury to decide whether an industrial enterprise upon which the
community’s prosperity might depend is located in the wrong place
or whether such an activity as blasting is to be permitted without
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liability in the center of a large city.”
Id. at cmt. l.
Even if
the actual relocation of the gas lines was not common, the value to
the community and the ability to access natural gas clearly would
weigh in favor of plaintiff.
Considering all the factors together, the Court finds that the
relocation of a gas line in response to construction does not
constitute an abnormally dangerous activity subject to strict
liability.
Accordingly, it is now
ORDERED:
Peoples Gas System’s Motion to Dismiss Count III of Defendant
Posen Construction, Inc.’s Amended Counterclaim With Prejudice
(Doc. #27) is GRANTED and Count III of the Amended Counterclaim is
dismissed with prejudice.
The Clerk shall withhold the entry of
judgment until the conclusion of the case.
DONE AND ORDERED at Fort Myers, Florida, this
June, 2012.
Copies:
Counsel of record
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20th
day of
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