2016 WL 589519 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
Nelson HAZARD, et al.
MASHANTUCKET PEQUOT TRIBAL NATION.
Feb. 3, 2016.
MEMORANDUM OF DECISION
THOMAS J. LONDREGAN, Judge.
I. SUMMARY OF FACTS
*1 The plaintiffs—Nelson Hazard and Kim Hazard, husband and wife, Nelson Hazard, Jr., Stephanie Wilcox, and Kimberly Hazard, their children, and Tyra Hazard, their granddaughter—filed suit against the defendant, Mashantucket Pequot Tribal Nation (“Tribe”), as a result of severe injuries to Nelson Hazard sustained in a propane explosion at Schemitzun 2008. The parties strongly dispute the events leading up to the gas explosion and the exact cause of the explosion. At a bench trial held on dates between September 30, 2015 and October 20, 2015, the plaintiffs presented the following scenario:
At Schemitzun 2008, plaintiffs Nelson and Kim Hazard operated “Kim’s Place,” a food vendor licensed and authorized by the Mashantucket Pequot Tribal Nation to sell foodstuffs to patrons of the festival. Food vendors, including Kim’s Place, were arranged in a horizontal row at the festival. Kim’s Place was situated somewhere near the middle of the row of vendors. The plaintiffs set up their operation on August 20, 2015. In the rectangular shaped space allotted to the plaintiffs for Kim’s Place, the plaintiffs parked their truck in the back portion of the space and set up fryolators, grills, preparation tables, and other cooking equipment in the front portion of the space. The truck was parked with the front of the truck facing the back portion of the space and the back of truck facing the front portion of the space. To one side of Kim’s Place (passenger’s side of the truck) was another vendor and immediately adjacent on the other side (driver’s side of the truck) was a vendor access way or walkway that contained a water buffalo pump and an electrical box. Vendors utilized the water buffalo pump and electrical box via waters hoses and electrical lines that ran from the water pump and electrical box in both directions along the row of vendors. Water hoses and electrical lines passed through Kim’s Place in the space between the back of the truck and cooking area. The plaintiffs positioned a 100 pound propane tank at the rear corner of the driver’s side of the truck and tied up and secured the tank at two spots. This propane tank provided gas to fryolators located closest to the rear of the truck. The electrical box was located only a few feet away from this 100 pound propane tank.
The plaintiffs were not happy with the site for Kim’s Place. The plaintiffs felt the site was too small, too crowded, and too close to the water supply and electrical box. The ground was muddy due to water leaking from the water pump and the hoses and lines were not covered with mats. On August 22, 2008, Kim Hazard alerted the MPTN Risk Management Department that she believed the close proximity of water from the water pump to the electrical lines and electrical box presented a hazardous condition. She also requested that mats be put down in the area to mitigate any tripping hazard presented by the various water hoses and electrical lines.
In response, the Risk Management Department requested a Mashantucket Pequot Fire Captain to inspect the area. Later on August 22, 2008, MP Fire Captain Mark Gilot inspected the area and determined that the overall set-up did not present any unsafe conditions: the electrical box was not too close to the water tank, all propane tanks were properly secured, and no danger was presented by the propane tank being next to the electrical box.
*2 On August 23, 2008, MPTN director of safety at Schemitzun 2008, Bruce Grant, went to Kim’s place to investigate the safety concerns. In the course of his inspection, Mr. Grant directed that a 100 pound propane tank be moved from its original position—driver’s side, rear corner of the truck—to a new position further away from the electrical box. The 100 pound tank was placed at the center of the rear of the truck and tied off at one spot. Mr. Hazard testified that he was unhappy with new location of the 100 pound tank because (1) the propane tank was now closer to an ignition source, the fryolators, and (2) the propane tank was tied off to the truck at one spot, rather than at two spots as it was when it was positioned at the corner of the truck.
On August 24, 2008, the festival was coming to an end and the plaintiffs were beginning to pack up. Handicapped family friend Ann Thomas arrived at Kim’s Place on her motorized scooter to say goodbye to the Hazard family. As Ms. Thomas began to travel through the access way to enter Kim’s Place and approach the rear of the truck, her motorized scooter became caught in water hoses and/or electrical lines. Ms. Thomas attempted to free her scooter by driving in a back and forth motion. In doing so, Ms. Thomas inadvertently pulled water hoses and/or electrical lines taut, causing the 100 pound propane tank positioned at the center rear of the truck to fall over and spray and leak propane gas. Mr. Hazard then jumped down from the rear of the truck, straddled the toppled 100 pound propane tank, and attempted to stop the release of propane gas. Propane reached an ignition source, presumably the activated pilot light on a nearby fryolator, and an explosion occurred. The explosion caused severe burn injuries to Mr. Hazard’s left arm and left leg and required extensive medical care.
The essential elements of a cause of action in negligence are well established. The plaintiff must show that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty of care; (3) the defendant’s negligent acts constituted both the factual and proximate cause of the plaintiff’s injuries; and (4) the plaintiff suffered actual damages. See Celentano v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 189, 192 (2014) (citing Mashantucket Pequot Tribal Nation v. Castellucci & Assoc., Inc., 4 Mash.Rep. 21, 5 Mash. 227 (2002)). The plaintiff has the burden of proving the elements of negligence by preponderance of the evidence. To do so, the plaintiff must satisfy the Court that his claims are more probable than not. See Neang v. Mashantucket Pequot Gaming Enterprise, 3 Mash.Rep. 253, 256, 4 Mash. 136 (2000).
The plaintiffs’ theory of the case includes claims that the defendant breached its duty of care in several ways: (1) by failing to provide an adequate space for the plaintiffs to operate Kim’s Place; (2) by failing to provide mats to cover water hoses and electrical lines that ran by and through Kim’s Place; and (3) by ordering the plaintiffs to reposition its 100 pound propane tank to the back center of the truck and by failing to properly secure it at the back of the truck.
*3 In the Court’s opinion, the major obstacle for the plaintiffs is that, even if they can establish a duty and a breach thereof, the plaintiffs cannot establish that such conduct by the Tribe was the proximate cause of the accident and the plaintiffs’ injuries. “A causal relation between the defendant’s wrongful conduct and the plaintiff’s injuries is a fundamental element without which a plaintiff has no case.” Teitelman v. Bloomstein, 155 Conn. 653, 657, 236 A.2d 900 (1967). The first component of legal causation is factual causation or “causation in fact.” Causation in fact “asks whether the defendant’s conduct ‘caused’ the plaintiff’s injury.” Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 605, 662 A.2d 753 (1995). “[I]f the plaintiff’s injury would not have occurred ‘but for’ the defendant’s conduct, then the defendant’s conduct is a cause in fact of the plaintiff’s injury.” Id. Causation in fact is not an issue in this case. The Court finds that but for the defendant’s conduct—placing water hoses and electrical lines through and next to Kim’s Place, failing to provide mats, or ordering the plaintiffs to reposition their 100 pound propane tank—the explosion would not have occurred. The defendant’s actions were a factual cause of the explosion.
The second component of legal causation is proximate causation. “[T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries.” Paige v. Saint Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 25, 734 A.2d 85 (1999). “A proximate cause is a direct cause. It is an act or failure to act, followed in its natural sequence by a result without the intervention of any other superseding cause. Where the sequence of events is unbroken by any intervening cause, an act or failure to act is a proximate cause of the result. Proximate cause is thus an act or failure to act which is a substantial factor in producing a result.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349, 493 A.2d 184 (1985).
Therefore, the ultimate issue in causation in this case is whether the defendant’s conduct was a substantial factor in bringing about the plaintiffs’ injuries. The burden rests on the plaintiffs to establish that their injury was caused by the negligence of the defendant and to remove this issue from the realm of surmise, guess, conjecture, and speculation. For the plaintiffs to recover and establish liability it was essential for them to prove that the defendant’s failure to provide adequate space for their equipment, failure to provide mats to cover the water hoses and electrical lines, and negligence in ordering the plaintiffs to reposition their propane tank to the back of the truck proximately caused the injuries for which damages are sought. See Pierce v. Albanese, 144 Conn. 241, 254, 129 A.2d 606 (1957).
The plaintiffs’ negligence claim depends on a long chain of events: plaintiffs were assigned an inadequate site for Kim’s Place; defendant failed to provide mats; defendant’s water hoses and electrical lines passed through Kim’s Place; defendant’s director of safety directed the plaintiffs’ 100 pound propane tank be moved from the corner of the truck to the back center of the truck; defendant moved and secured 100 pound tank to back center of truck; Ann Thomas’s scooter gets caught in water hoses and/or electrical lines; Ann Thomas’s scooter pulls the water hoses and/or electrical lines taut causing the 100 pound tank (which was ordered to be moved and secured by the defendant) to topple over and leak propane gas; and propane gas ignites from a pilot light too close to the rear of the truck, explodes, and severely injuries Nelson Hazard. It is the plaintiffs’ duty to establish by a preponderance of the evidence that the events leading up to the explosion occurred as they claim.
*4 Assuming, arguendo, that the defendant breached its duty of care, the plaintiffs fail to establish by a preponderance of the evidence that the defendant’s breach of duty proximately caused the propane tank to explode. In particular, the plaintiffs failed to establish that the 100 pound propane tank that the defendant ordered to be repositioned was in fact the tank that actually exploded.
The Tribe’s director of safety, Bruce Grant, took photographs of the 100 pound propane tank immediately after repositioning the tank to the back of the truck. The photographs unambiguously depict a 100 pound propane tank with a welded collar. Post-accident photographs clearly show that the 100 pound propane tank involved in the explosion had a threaded collar. Post-accident photographs also show a second 100 pound propane tank with a welded collar that was not involved in the explosion. The Court can only conclude that after the tank was repositioned and secured to the back of the truck by the defendant’s director of safety on August 23, 2008, it was replaced sometime during Schemitzun weekend before the explosion on August 24, 2008. Nelson Hazard testified that he never switched out the tanks in the back of the truck, but he candidly admitted that he did not know if anyone else switched it out.
This switch in tanks is fatal to the plaintiffs’ negligence claim. There was no evidence submitted that the Mashantucket Pequot Tribal Nation played any role in switching out the tanks at the back of the truck after Mr. Grant’s involvement on August 23, 2008. Importantly, both Mr. Grant and Nelson Hazard testified that the 100 pound tank felt secure after repositioning it to the back of the truck. The Court is left to surmise and conjecture as to whether the original 100 pound welded collar propane tank would have still toppled over under the same chain of events, whether the switched out tank was secured in the same manner as done by Mr. Grant, or whether the switched out tank was secured at all. The switching out of the welded collar propane tank to the threaded collar propane tank is an intervening act that cuts off the causal link between the Tribe’s alleged breaches of duty of care and the plaintiffs’ damages. The intervening act of a third party switching out the propane tanks and securing it in some unknown fashion is not reasonably foreseeable. Therefore, it cannot be said that the Tribe’s actions—whether negligent or not—proximately caused the plaintiffs’ injuries.
Notwithstanding the decision of the Court on the issue of causation and in the interest of judicial economy, the Court will address the other essential elements of negligence as it pertains to the plaintiffs’ claims regarding the Tribe’s duty of care and alleged breach of that duty as alleged herein.
The Court must decide if a duty of care existed under the facts of this case and then, if one is found, the scope of that duty. Every person must use reasonable care under the circumstances, that is, the care which a reasonably prudent person would use under the circumstances. Negligence is the failure to use such care and the engaging in conduct that creates an undue risk of harm.
*5 “The ultimate test of the existence of the legal duty to use care is found in the foreseeability that harm may result if it is not exercised.” Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 633, 749 A.2d 630 (2000). In other words, a duty of care exists when “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.” Gazo v. City of Stamford, 255 Conn. 245, 251, 765 A.2d 505 (2001) (citing Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982)).
The plaintiffs first claim that the Tribe acted negligently in its allocation of spaces for the vendors at Schemitzun 2008. The plaintiffs’ space, it is alleged, was too small and too close to the water supply and the electrical distribution block. The plaintiffs allege that their 100 pound propane tank was first tied up to the side of the plaintiffs’ truck, but then the Tribe’s director of safety required the plaintiffs to move the 100 pound tank to the back of the truck. The director of safety assisted the plaintiffs in securing the tank to the back of the truck. The plaintiffs allege that the tank was not properly secured and was not placed on a firm foundation, and subsequently with the events that unfolded the tank toppled over.
The Court finds that the allocation of an area for vendors to set up does not as a matter of law create a duty of care. Providing water and electricity via water hoses and electrical lines to the allocated area also does not as a matter of law create a duty of care. Vendors are responsible for setting up their equipment within the designated area. Vendors are solely responsible for their propane tanks. The plaintiffs used multiple propane tanks of varying capacity—20 pounds, 40 pounds, 60 pounds, and 100 pounds—for a number of burners on multiple pieces of equipment. The plaintiffs felt the area was too small for all of their equipment and was too close to the utility distributions of electrical lines and water hoses. The Tribe did not require a specific number of burners or specific equipment that had to be placed in any given area for the vendors. The plaintiffs had the responsibility to fit out the area as they saw fit. The plaintiffs could have reduced the number of burners and propane tanks for the site. The plaintiffs had the sole decision on the placement and arrangement of the space allocated to them with the knowledge that water hoses and electrical lines ran through the space provided by the defendant.
The plaintiffs next claim negligence by the defendant for failure to install mats or other coverings over the water hoses and electrical lines, thereby creating a risk that the hoses and lines would topple a propane tank. As stated above, the vendors are solely responsible for their propane tanks and lines. The Tribe supplied electricity and water to each vendor area.
For the plaintiffs to establish that the Tribe breached its duty of care by failing to provide mats over the hoses and lines, it was essential for them to prove that it was foreseeable that the lack of such mats would cause the injuries sustained. Even if the 100 pound tanks were not switched out, which the Court does not find to be the case, the Court finds that the Tribe could not foresee that a third party patron of Schemitzun would ride a motorized scooter to the back of a designated area where customers were not allowed, and get caught up in the water hoses and/or electrical lines so as to pull entangled propane lines taut and topple an improperly secured 100 pound propane tank that was in close proximity to an activated pilot light. This action by a third party could not have been anticipated or foreseen by the Tribe. The plaintiffs have not removed this chain of events from the realm of conjecture and speculation.