Gonzalez v. O & G Industries, Inc.

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 ELVIRA R. GONZALEZ ET AL. v. O & G
INDUSTRIES, INC., ET AL.
(SC 20422)
Robinson, C. J., and McDonald, D’Auria,
Mullins and Kahn, Js.

Syllabus

The plaintiffs sought to recover damages for personal injuries sustained in
an explosion that occurred at a natural gas fueled power plant as a
result of the defendants’ alleged negligence. Prior to construction of the
power plant, the defendant K Co., which received approval to build and
operate the power plant, entered into an agreement with the defendant
O Co., pursuant to which O Co. agreed to serve as the general contractor
for the construction project. K Co. also entered into a contract for
management and administrative services with the defendant P Co. Prior
to completion of the construction project, and before the power generat-
ing equipment could be started, the natural gas fuel supply pipelines
had to be cleared of construction debris. O Co. and its subcontractors
chose to perform ‘‘gas blow’’ procedures over the course of two days
in order to clear the debris. The procedure involves the flow of natural
gas through the pipes at a higher pressure than during normal operation,
whereby the force of the gas propels the debris through the pipes until
it is ejected through a nozzle. On the second day of the gas blow proce-
dures, two procedures were conducted with certain irregularities. Most
significantly, and unlike with the prior gas blow procedures, the dis-
charge nozzle was oriented horizontally, rather than vertically. Because
of this, by the time the second gas blow procedure began, natural gas
remained trapped and mixed with air in a partially enclosed area into
which the nozzle discharged the gas. During the second gas blow proce-
dure, the natural gas also flowed through the pipes at an unusually high
pressure, and, as a result, heated debris ignited the accumulated natural
gas and oxygen, causing the explosion. The plaintiffs, two injured individ-
uals and one of their spouses, alleged that the defendants were strictly
liable insofar as they engaged in an ultrahazardous activity that caused
the plaintiffs’ injuries. The plaintiffs also alleged that their injuries were
caused by the defendants’ negligence. The plaintiffs’ claims were
resolved in O Co.’s favor, after which the plaintiffs sought relief only
from K Co. and P Co. Following an evidentiary hearing, the trial court
rendered judgment for K Co. and P Co. on the plaintiffs’ strict liability
claims, reasoning that the plaintiffs had failed to satisfy their burden of
establishing that the gas blow procedure was abnormally dangerous.
Thereafter, K Co. and P Co. filed motions for summary judgment with
respect to the plaintiffs’ negligence claims, which the trial court granted.
In granting those motions, the trial court concluded, inter alia, that no
reasonable jury could find that K Co. and P Co. exercised sufficient
control over O Co.’s performance of the gas blow procedures, and,
therefore, they were not vicariously liable for O Co.’s alleged negligence.
The plaintiffs thereafter appealed from the trial court’s judgment in
favor of K Co. and P Co. Held:
1. The plaintiffs could not prevail on their claim that the trial court incorrectly
concluded that the gas blow procedure was not an abnormally dangerous
activity in rendering judgment for K Co. and P Co. on the plaintiffs’
strict liability claims, as this court, relying on prior case law and the
factors set forth in § 520 of the Restatement (Second) of Torts for
determining whether an activity is abnormally dangerous, determined
that the gas blow procedure at issue was not abnormally dangerous:
even though the harm resulting from a gas blow procedure is likely to
be severe, the inherent risk that any harm will occur from conducting
the procedure is generally low, and the gas blow procedures in the
present case were not a regular and ongoing part of the power plant’s
operation but were conducted only during a specific phase of the con-
struction process and in a relatively uninhabited area; moreover,
although the gas blow procedure, which entails the flow of natural gas
at higher than normal pressure in large quantities, is not a procedure
 that is used commonly and added little value to the construction of the
power plant given the availability of alternative methods to clear the
fuel supply pipelines, the risk and severity of potential harm from the
procedure would have been materially reduced if the procedures had
been performed utilizing certain precautions that are widely known and
generally employed in the construction of natural gas fueled power
plants, namely, proper orientation and positioning of the discharge noz-
zle and careful control of the pressure and volume of gas; furthermore,
the plaintiffs’ reliance on the dangerous nature of natural gas, by itself,
was unavailing, as the dangerous nature of an instrumentality must be
considered alongside the circumstances and conditions of its use.
2. The plaintiffs could not prevail on their claim that the trial court had
improperly granted K Co.’s and P Co.’s motions for summary judgment
with respect to the plaintiffs’ negligence claims, as that court correctly
concluded that K Co. and P Co. did not exercise sufficient control over
the performance of O Co. or its subcontractors in conducting the gas
blow procedures so as to overcome the general rule that an employer
is not vicariously liable for the torts of its independent contractor:
a. K Co. and P Co. did not exercise sufficient contractual control over
the gas blow procedures to establish the existence of a legal duty, as O
Co. had exclusive contractual control over the construction of the power
plant and the performance of the gas blow procedures: the agreement
between K Co. and O Co. specified that the construction of the power
plant was a ‘‘turnkey’’ project, the term ‘‘turnkey’’ was a well-defined
type of contract in the construction industry that indicated the parties’
intention that O Co. would have full contractual control over the construc-
tion of the power plant up to the point of substantial completion, and
there was no evidence to indicate that the project had been substantially
completed prior to the performance of the gas blow procedures and
resulting explosion; moreover, certain other provisions of the agreement
between K Co. and O Co. that acknowledged K Co.’s general right to
suspend performance of the work and that imposed certain duties on P
Co. did not establish that K Co. and P Co. effectively retained control
over the construction project, as those provisions could not be construed
to create a right of K Co. and P Co. to control the means and methods
of O Co.’s performance of its work.
b. The plaintiffs could not prevail on their claim that, even in the absence
of any contractual control, K Co. and P Co. exercised control over the
gas blow procedures by assuming control of or interfering with O Co.’s
performance of those procedures: there was no merit to the plaintiffs’
claim that H, who was an employee of P Co. representing K Co. on the
construction site, exercised control over the gas blow procedures on
behalf of K Co. and P Co., as H did no more than exercise K Co.’s
contractual right to monitor, inspect, and coordinate the various con-
struction tasks performed by O Co., its subcontractors, and K Co., and
supervision of a construction task to ensure that it is ultimately com-
pleted according to an employer’s requirements does not demonstrate
control for purposes of imposing vicarious liability; moreover, contrary
to the plaintiffs’ claims, K Co. and P Co. did not exercise control over the
gas blow procedures on the basis of a conversation that Y, an employee
of a company that contracted with K Co. to take responsibility of the
power plant once it was constructed, had with B, the supervisor of the
gas pipeline safety unit of the Department of Public Utility Control, the
failure of K Co. and P Co. to take the precautions that were discussed
in that conversation, and the refusal of K Co. and P Co. to follow B’s
recommendation that O Co. clean the fuel supply pipelines with a non-
combustible substance, as Y had no contractual authority regarding the
power plant until its completion and had no authority over O Co., and,
to the extent that the plaintiffs claimed that Y’s actions could be attribut-
able to K Co. and construed as instructing O Co. to reject B’s recommen-
dation, such actions would not inform the determination of control given
that the Department of Public Utility Control had no jurisdiction over
the power plant.
3. This court declined to review the plaintiffs’ claims that K Co. and P Co.
were vicariously liable for O Co.’s negligence on the ground that O Co.
was engaged in an intrinsically dangerous activity and that K Co. and
P Co. were directly negligent, as those claims was inadequately briefed;
the plaintiffs’ analysis of the first claim was minimal and conclusory
given the complexity of that claim, and the plaintiffs’ treatment of the
issue presented by their second claim was conclusory, lacking meaning-
 ful analysis of the limited legal authority cited.
Argued January 13—officially released December 30, 2021*

Procedural History

Action to recover damages for, inter alia, personal
injuries sustained as a result of the defendants’ alleged
negligence, brought to the Superior Court in the judicial
district of Hartford, and transferred to the Complex
Litigation Docket, where the named plaintiff et al. was
removed from the case, James McVay was added as a
plaintiff, and the plaintiff James L. Thompson II et al.
filed a revised complaint; thereafter, the case was tried
to the court, Sheridan, J.; judgment in part for the
defendant Kleen Energy Systems, LLC, et al.; subse-
quently, the court, Moukawsher, J., granted the motions
for summary judgment filed by the defendant Kleen
Energy Systems, LLC, et al., and rendered judgment
thereon, from which the plaintiff James L. Thompson
II et al. appealed. Affirmed.
James J. Healy, with whom were Joel T. Faxon, Eric
P. Smith, and Timothy P. Pothin, for the appellants
(plaintiff James L. Thompson II et al.).
Thomas A. Plotkin, with whom were John W. Brad-
ley, Jr., and, on the brief, Joseph B. Burns, for the
appellee (defendant Kleen Energy Systems, LLC).
William J. Scully, with whom were Lorinda S. Coon
and, on the brief, Jessica M. Scully, for the appellee
(defendant Power Plant Management Services, LLC).
 Opinion

McDONALD, J. Almost twelve years ago, an explo-
sion occurred at a natural gas fueled, power generating
facility under construction in Middletown. The devasta-
ting blast and ensuing fire took the lives of six construc-
tion employees and injured nearly thirty more. Several
of the victims and their families brought this tort action
against the owner of the power plant, the owner’s admin-
istrative agent, the general contractor, and others. The
plaintiffs claimed that the general contractor’s oversight
during construction caused the tragedy, and that the
owner and administrative agent were liable for that
oversight under theories of strict liability for abnormally
dangerous activities and negligence. After their claims
against the general contractor were resolved in the con-
tractor’s favor, the plaintiffs sought relief from the
defendant owner and administrative agent. The plain-
tiffs’ two theories of tort liability were bifurcated. With
respect to the plaintiffs’ strict liability claims, the defen-
dants asserted that they were not strictly liable because
the procedure that caused the explosion was not abnor-
mally dangerous. Following an evidentiary hearing, the
trial court agreed and rendered judgment for the defen-
dants with respect to the strict liability claims. Then,
the defendants sought summary judgment with respect
to the plaintiffs’ negligence claims, asserting that they
were not liable in negligence because it was the general
contractor, not the owner or administrative agent,
which exercised control over the procedure that caused
the explosion. The court agreed, granting the defen-
dants’ motions for summary judgment with respect to
the negligence claims. The plaintiffs appealed, and we
must decide whether tort remedies are available to the
plaintiffs following this tragic event.
The record reveals the following facts, which the
trial court reasonably could have found, and procedural
history relevant to our resolution of this appeal. In 2002,
the defendant Kleen Energy Systems, LLC, received
approval to build and operate a natural gas fueled, elec-
trical power generating facility (power plant) in Middle-
town. In 2007, Kleen Energy entered into an ‘‘Engi-
neering, Procurement and Construction Agreement’’
with the named defendant, O & G Industries, Inc., under
which O & G agreed to serve as the general contractor
for the construction of the power plant. Kleen Energy
also entered into a ‘‘Contract for Project Management
and Administrative Services,’’ which was subsequently
amended and restated, with the defendant Power Plant
Management Services, LLC (PPMS). Because Kleen
Energy had no employees of its own, it hired PPMS ‘‘to
provide management, administrative and other support
services required to manage and administer the [power
plant] and [Kleen Energy’s] business on a day to day
basis, and to perform certain other tasks and duties
relating to the [power plant] and [Kleen Energy’s] busi-
ness . . . .’’1
By early 2010, the construction of the power plant
was nearing completion. At this point, before the power
generating equipment could start up, the manufacturer
of the gas turbines required that the natural gas fuel
supply pipelines be cleared of construction debris. This
was required because foreign material, such as welding
slag, rust, and dirt, which is often introduced into the
piping during the earlier phases of construction, could
damage the gas turbines.
To clear this debris from the natural gas fuel supply
pipelines, O & G and its subcontractors performed a
procedure commonly referred to as a ‘‘gas blow.’’2 In
connection with this procedure, natural gas flows
through the piping at a higher pressure than during
normal operation, and the force of the gas then propels
the debris through the pipe until it is ejected through
an open-ended pipe called a ‘‘nozzle.’’ The gas blow
procedure has been a common practice in the construc-
tion of power plants since before World War II.
Although there are other procedures that can be used
to clear construction debris from natural gas fuel supply
pipelines, it has been estimated that gas blows have
been employed in the construction of 60 to 70 percent
of the natural gas fueled power plants that have been
constructed in the last twenty-five years.
For Kleen Energy’s power plant, about 2000 feet of
natural gas fuel supply pipeline needed to be cleared
over two days. The pipelines were cleared in segments
corresponding with discharge nozzles located in eight
places throughout the length of the piping. On January
30, 2010, O & G and several subcontractors conducted
the first series of gas blow procedures, which cleared
approximately three-quarters of the piping without inci-
dent. Early in the morning, on February 7, 2010, several
gas blow procedures were conducted, again without
incident. For all these gas blow procedures, the dis-
charge nozzles had been oriented vertically, so that the
natural gas vented upward into the atmosphere without
obstruction.
Later that morning, two gas blow procedures were
conducted with certain irregularities. Most signifi-
cantly, and unlike with the prior gas blow procedures,
the discharge nozzle was oriented horizontally during
these gas blow procedures. As a result, when these gas
blow procedures began, the natural gas discharged from
the nozzle across a courtyard into an area partially
enclosed between two large structures and surrounded
by other power generation equipment, including pro-
pane heaters. In addition, four small metal pipes were
located in the path of the exhaust from the discharge
nozzle.
The first gas blow lasted for two minutes, the longest
one that morning. The natural gas used for this gas
blow traveled out of the discharge nozzle and into the
partially enclosed area, where it was trapped, unable
to dissipate quickly. In addition, the weather conditions
at the time—the temperature outside was approxi-
mately 26 degrees Fahrenheit—likely further slowed
the dissipation of the natural gas. As a result, by the
time the second gas blow began, approximately five
minutes after the conclusion of the first gas blow, natu-
ral gas remained trapped and mixed with air in the
partially enclosed area into which the nozzle dis-
charged.
The second gas blow lasted for approximately forty-
five seconds. The natural gas flowed through the piping
at an unusually high pressure—five times the pressure
recommended for the procedure by the gas turbine
manufacturer. Given this high pressure, the solid debris
was expelled from the discharge nozzle at a high veloc-
ity. After the debris was expelled from the discharge
nozzle, it struck the small metal pipes located in the
courtyard, acquiring heat from the glancing blow. The
heated debris was then carried by the discharge exhaust
into the partially enclosed area, where natural gas had
been trapped from the prior gas blow. The heated debris
ignited the accumulated natural gas and oxygen. As a
result, an explosion occurred, killing six employees and
injuring twenty-seven others.
In 2013, the plaintiffs—two employees who were on
the construction site engaged in work unrelated to the
gas blow procedure when they were injured by the
explosion, and one of their spouses3—filed the opera-
tive complaint in the present action against the defen-
dants Kleen Energy and PPMS, as well as O & G.4 Specifi-
cally, the plaintiffs alleged that (1) the defendants were
strictly liable because the injuries of the plaintiff employ-
ees were caused by the defendants’ engaging in an
‘‘ultrahazardous activity,’’ and (2) those injuries were
caused by the defendants’ negligence related to the gas
blow procedure. The trial court subsequently granted
O & G’s motions for summary judgment and rendered
judgment thereon in its favor. See Gonzalez v. O & G
Industries, Inc., 322 Conn. 291, 300, 140 A.3d 950 (2016).
On appeal, we affirmed the trial court’s judgment, con-
cluding that O & G was entitled to immunity as a ‘‘ ‘prin-
cipal employer’ ’’ under General Statutes § 31-291
because it had paid workers’ compensation benefits to
the two plaintiff employees. Id., 293–95, 319.
In 2015, following an evidentiary hearing, the trial
court rendered judgment for the remaining defendants
regarding the plaintiffs’ strict liability claims. After con-
sidering our decision in Caporale v. C. W. Blakeslee &
Sons, Inc., 149 Conn. 79, 85, 175 A.2d 561 (1961), as well
as the six factor test set forth in § 520 of the Restatement
(Second) of Torts, the trial court reasoned that the
plaintiffs failed to satisfy their burden of establishing
that the gas blow procedure was ‘‘abnormally danger-
ous.’’ Thus, the trial court concluded, the gas blow pro-
cedure did not support a claim of strict liability.
In 2019, the defendants moved for summary judgment
with respect to the plaintiffs’ negligence claims. The
defendants contended that no reasonable jury could
find that they exercised sufficient control over the gas
blow procedure to support the existence of a duty of
care owed to the plaintiffs, and, as a result, they were
not vicariously liable for O & G’s negligence during the
gas blow procedure. The trial court agreed and granted
the defendants’ separately filed motions, reasoning that
Kleen Energy ceded total control over the project to
O & G in the contract between them. The court further
reasoned that no reasonable jury could conclude that
the defendants exercised control over O & G’s perfor-
mance of the gas blow procedure. The plaintiffs ap-
pealed to the Appellate Court from the trial court’s
judgment on the strict liability claims and its granting
of the defendants’ motions for summary judgment on
the negligence claims, and the appeal was transferred
to this court.
The plaintiffs raise three issues on appeal. First, the
plaintiffs contend that the trial court improperly ren-
dered judgment in favor of the defendants on the plain-
tiffs’ strict liability claims. Specifically, the plaintiffs
claim that the gas blow procedure is an abnormally
dangerous activity and that, as a result, strict liability
should apply pursuant to Caporale and § 520 of the
Restatement (Second). The defendants disagree and
contend that the court correctly concluded that the gas
blow procedure is not abnormally dangerous.
Second, the plaintiffs contend that the trial court
improperly granted the defendants’ motions for sum-
mary judgment with respect to the plaintiffs’ negligence
claims. Specifically, the plaintiffs claim that the record
supports a claim of negligence under a theory of vicari-
ous liability because a reasonable jury could find that
the defendants exercised control over the gas blow
procedure. The defendants disagree, contending that
the court correctly concluded that no reasonable jury
could find that they exercised control over the gas blow
procedure.
Third, the plaintiffs raise two additional arguments to
support their contention that the trial court improperly
granted the defendants’ motions for summary judgment
with respect to the plaintiffs’ negligence claims. Specifi-
cally, the plaintiffs assert that their negligence claims
survive under a theory of vicarious liability, regardless
of the control issue, because an employer is liable for
the torts that result from its independent contractor’s
engaging in an ‘‘intrinsically dangerous’’ activity. In addi-
tion, the plaintiffs assert that their negligence claims
survive under a theory that the defendants were directly
negligent. The defendants disagree. Kleen Energy con-
tends that Connecticut law does not recognize the
‘‘intrinsically dangerous’’ exception to the general rule
that an employer is not vicariously liable for the torts
of its independent contractor. The defendants assert
that the record does not support a claim of direct negli-
gence.
We agree with the defendants with respect to the
first issue and conclude that the gas blow procedure
is not an abnormally dangerous activity and that the
plaintiffs cannot maintain a strict liability claim. We
also agree with the defendants with respect to the sec-
ond issue and conclude that no reasonable jury could
find that the defendants exercised control over the gas
blow procedure. Finally, we decline to review the plain-
tiffs’ two additional negligence arguments because we
conclude that those arguments are inadequately
briefed.
I
We first consider the plaintiffs’ contention that the
trial court improperly rendered judgment with respect
to the strict liability claims by concluding that the gas
blow procedure was not an abnormally dangerous activ-
ity. The plaintiffs assert that the gas blow procedure is
analogous to activities that Connecticut courts have
previously held to be abnormally dangerous, namely,
conducting research with explosive chemicals, blasting,
and pile driving. In addition, the plaintiffs assert that
all six factors in § 520 of the Restatement (Second)
support their contention that the gas blow procedure
is abnormally dangerous. See 3 Restatement (Second),
Torts § 520, p. 36 (1977). The defendants disagree, assert-
ing that the court correctly concluded that the totality
of the six factors established that the gas blow proce-
dure was not abnormally dangerous.
We begin by setting forth the standard applicable to
our review of the trial court’s judgment with respect
to the plaintiffs’ strict liability claims. ‘‘[T]he scope of
our appellate review depends [on] the proper character-
ization of the rulings made by the trial court. To the
extent that the trial court has made findings of fact,
our review is limited to deciding whether such findings
were clearly erroneous. When, however, the trial court
draws conclusions of law, our review is plenary and
we must decide whether its conclusions are legally and
logically correct and find support in the facts that
appear in the record.’’ (Internal quotation marks omit-
ted.) FirstLight Hydro Generating Co. v. Stewart, 328
Conn. 668, 677–78, 182 A.3d 67 (2018).
The plaintiffs’ strict liability claim turns on whether
the gas blow procedure is abnormally dangerous. ‘‘The
issue of whether an activity is abnormally dangerous
. . . is a question of law’’; accordingly, our review of
this issue is plenary. Green v. Ensign-Bickford Co., 25
Conn. App. 479, 485, 595 A.2d 1383, cert. denied, 220
Conn. 919, 597 A.2d 341 (1991); see, e.g., 3 Restatement
(Second), supra, § 520, comment (l), pp. 42–43 (‘‘[w]hether
the activity is an abnormally dangerous one is to be
determined by the court . . . [because] [t]he imposi-
tion of strict liability . . . involves a characterization
of the defendant’s activity or enterprise itself, and a
decision as to whether he is free to conduct it at all
without becoming subject to liability for the harm that
ensues even though he has used all reasonable care’’).
However, the trial court’s judgment involved the resolu-
tion of disputed issues of fact because, as the court
correctly noted, the determination of whether the gas
blow procedure was abnormally dangerous was particu-
larly fact intensive in this case. Accordingly, to the
extent that such a determination relies on the court’s
findings of fact with respect to the gas blow procedure,
our review of those factual findings ‘‘is limited to decid-
ing whether such findings were clearly erroneous.’’
(Internal quotation marks omitted.) FirstLight Hydro
Generating Co. v. Stewart, supra, 328 Conn. 678.
In Connecticut, strict liability is imposed on a defen-
dant who engages in an intrinsically dangerous, ultra-
hazardous, or abnormally dangerous activity.5 ‘‘Under
this doctrine, 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 [plaintiff’s]
loss.’’ Green v. Ensign-Bickford Co., supra, 25 Conn.
App. 482; see, e.g., Whitman Hotel Corp. v. Elliott &
Watrous Engineering Co., 137 Conn. 562, 566, 79 A.2d
591 (1951) (strict liability ‘‘does not make the failure
to use reasonable care a condition of liability’’).
This court has had only two occasions to articulate
these principles and to consider whether a particular
activity is abnormally dangerous so as to support the
imposition of strict liability, both of which predate the
Restatement (Second). In Whitman Hotel Corp., the
defendant contractor and the defendant subcontractor
employed blasts of dynamite to enlarge a river, and the
concussive force of the explosions caused damage to
the plaintiffs’ nearby building. Whitman Hotel Corp. v.
Elliott & Watrous Engineering Co., supra, 137 Conn.
563–64. We held that the defendants were strictly liable,
noting that exploding dynamite was a prototypical
example of an ‘‘intrinsically dangerous’’ activity. Id.,
565, 572–73. This was our first articulation of the rule
for strict liability: ‘‘A person who uses an intrinsically
dangerous means to accomplish a lawful end, in such a
way as will necessarily or obviously expose the person
of another to the danger of probable injury, is liable if
such injury results, even though he uses all proper care.’’
Id., 565. We also noted that the imposition of strict liability
represents a judicial policy determination, informed by
the circumstances of the activity. See id., 566–67. Under
the doctrine of strict liability, the defendant ‘‘is not
regarded as engaging in blameworthy conduct. . . .
But common notions of fairness require that the defen-
dant make good any harm that results even though his
conduct is free from fault.’’ (Internal quotation marks
omitted.) Id., 567; see, e.g., 3 Restatement (Second),
supra, § 519, comment (d), p. 35 (‘‘[Strict liability] is
founded [on] a policy of the law that imposes [on]
anyone who for his own purposes creates an abnormal
risk of harm to his neighbors, the responsibility of
relieving against that harm when it does in fact occur.
The defendant’s enterprise, in other words, is required
to pay its way by compensating for the harm it causes,
because of its special, abnormal and dangerous charac-
ter.’’).
We next considered the doctrine of strict liability for
an abnormally dangerous activity in Caporale. In that
case, the defendant subcontractor was engaged in pile
driving operations for the construction of a highway,
and the resulting vibrations damaged the plaintiffs’
nearby cement buildings. Caporale v. C. W. Blakeslee &
Sons, Inc., supra, 149 Conn. 80. We held that the defen-
dant was strictly liable because the particular circum-
stances and conditions of the pile driving operations
involved a risk of probable injury, ‘‘even when due care
was used,’’ and because the risk was ‘‘actually antici-
pated’’ by the defendant before it commenced work.
Id., 85–86. We refined the rule from Whitman Hotel
Corp.: ‘‘To impose liability without fault, certain factors
must be present: an instrumentality capable of produc-
ing harm; circumstances and conditions in its use
which, irrespective of a lawful purpose or due care,
involve a risk of probable injury to such a degree that the
activity fairly can be said to be intrinsically dangerous
to the person or property of others; and a causal relation
between the activity and the injury for which damages
are claimed. The defendant actor, even when [using]
due care, takes a calculated risk which [the defendant],
and not the innocent injured party, should bear.’’ Id., 85.
Since we last addressed the issue of strict liability
for abnormally dangerous activities in Caporale sixty
years ago, other Connecticut courts, including the trial
court in this case, have applied the rule for strict liability
and abnormally dangerous activities articulated in
§§ 519 and 520 of the Restatement (Second) of Torts.
Section 519 (1) provides: ‘‘One who carries on an abnor-
mally 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.’’6 3 Restatement (Second), supra,
§ 519 (1), p. 34. Section 520 lists six factors for the court
to consider when determining whether an activity is
abnormally dangerous: ‘‘(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
community is outweighed by its dangerous attributes.’’
Id., § 520, p. 36.
Comment (f) to § 520 of the Restatement (Second)
elaborates on the nature of an abnormally dangerous
activity in light of these factors: ‘‘In general, abnormal
dangers arise from activities that are in themselves
unusual, or from unusual risks created by more usual
activities under particular circumstances. In determin-
ing whether the danger is abnormal, the factors listed
in [c]lauses (a) to (f) of this [s]ection are all to be
considered, and are all of importance. Any one of them
is not necessarily sufficient of itself in a particular case,
and ordinarily several of them will be required for strict
liability. On the other hand, it is not necessary that each
of them be present, especially if others weigh heavily.
. . . 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 jus-
tify 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
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.’’
Id., § 520, comment (f), pp. 37–38.
Although Whitman Hotel Corp. and Caporale are the
only two cases from this court to consider the doctrine
of strict liability for an abnormally dangerous activity,
the Appellate Court has applied the rule from those
cases, along with the rule articulated in the Restatement
(Second), more recently. In Green, three chemists
employed by the defendant, a manufacturer of explo-
sives, were researching volatile chemicals for the devel-
opment of a new product when an explosion occurred.
See Green v. Ensign-Bickford Co., supra, 25 Conn. App.
480–81. The explosion injured the plaintiff, who was
located in his house nearly one mile away from the
accident at the time. Id., 481. The court applied Whit-
man Hotel Corp., Caporale, and the six factors in § 520
of the Restatement (Second); see id., 483, 486–87; and
concluded that ‘‘the defendant’s experiment with a
highly explosive chemical created an unavoidable risk
of damage . . . .’’ Id., 483. Specifically, the court noted
that at least five of the six factors were satisfied: the
use of highly volatile chemicals involved a great degree
of risk and severe resulting harm, such risk was inherent
to the research and experimentation with the chemi-
cals, the activity was not a matter of common usage,
and the activity was inappropriate for the surrounding
residential area. See id., 486–87. Accordingly, the court
held that the chemical experimentation was abnormally
dangerous and that the defendant was strictly liable.
See id., 487.
 Numerous Connecticut trial courts also have consid-
ered the rule for strict liability and abnormally danger-
ous activities articulated in Whitman Hotel Corp.,
Caporale, and the Restatement (Second). See, e.g.,
Ramsay v. Och-Ziff Capital Management Group, LLC,
Superior Court, judicial district of New Haven, Docket
No. CV-XX-XXXXXXX-S (September 8, 2010) (50 Conn. L.
Rptr. 537). These courts have recognized that ‘‘Connect-
icut’s appellate courts have applied the doctrine of strict
liability for engaging in ultrahazardous or abnormally
dangerous activities sparingly.’’ Id., 538; see, e.g., Lev-
enstein v. Yale University, 40 Conn. Supp. 123, 126,
482 A.2d 724 (1984) (‘‘The courts in Connecticut and
other jurisdictions [that] recognize the doctrine of strict
liability for dangerous activities, impose it only in nar-
row circumstances. Typically, it has been found applica-
ble when an activity, not regularly engaged in by the
general public, is conducted in or near a heavily popu-
lated area, such that it necessarily subjects vast num-
bers of persons to potentially serious injury in the event
of a mishap.’’).
We have not expressly adopted §§ 519 and 520 of the
Restatement (Second) for the rule of strict liability for
abnormally dangerous activities. Neither party, how-
ever, disputes that these sections govern the resolution
of this issue. In addition, these provisions of the Restate-
ment (Second) have been adopted by a growing major-
ity of jurisdictions in the United States. See, e.g., Arling-
ton Forest Associates v. Exxon Corp., 774 F. Supp. 387,
389 (E.D. Va. 1991); see also, e.g., id., 389 n.3 (citing
cases). Most important, the Restatement (Second) fac-
tors and comments are consistent with the principles
this court articulated in Whitman Hotel Corp. and
Caporale, which have long governed the imposition of
strict liability for abnormally dangerous activities in
Connecticut. See, e.g., Ramsay v. Och-Ziff Capital
Management Group, LLC, supra, 50 Conn. L. Rptr. 538
(‘‘[t]he Restatement [Second] is consistent with Con-
necticut’s [long-standing] law which focuses on the
nature of the specific operation or activity involving
a dangerous instrumentality, material or substance’’).
Accordingly, we evaluate the plaintiffs’ claim that the
gas blow procedure is abnormally dangerous pursuant
to the principles articulated in Whitman Hotel Corp.
and Caporale, alongside the six factors in § 520 of the
Restatement (Second).7
We begin with the first and second factors in § 520
of the Restatement (Second). These factors consider
the ‘‘existence of a high degree of risk of some harm
to the person, land or chattels of others’’ and the ‘‘likeli-
hood that the harm that results from it will be great
. . . .’’ 3 Restatement (Second), supra, § 520 (a) and
(b), p. 36. In other words, these factors concern the
potential frequency and severity of harm resulting from
the activity. Although all six factors must be weighed
in relation to the others, these first two factors exist
in a particularly close orbit. ‘‘It is not enough that there
is a recognizable risk of some relatively slight harm
. . . . If the potential harm is sufficiently great, how-
ever, as in the case of a nuclear explosion, the likelihood
that it will take place may be comparatively slight and
yet the activity be regarded as abnormally dangerous.’’
Id., § 520, comment (g), p. 38. Moreover, these two factors
concern danger that is either actually anticipated or
foreseeable. See, e.g., Caporale v. C. W. Blakeslee Sons,
Inc., supra, 149 Conn. 86 (noting that risk was ‘‘actually
anticipated by the defendant’’); Whitman Hotel Corp.
v. Elliott & Watrous Engineering Co., supra, 137 Conn.
567 (strict liability relates to ‘‘danger [that] may be
foreseen by reasonable [people], as possible if not prob-
able’’ (internal quotation marks omitted)); 1
Restatement (Third), Torts, Liability for Physical and
Emotional Harm § 20 (b) (1), p. 229 (2010) (requiring
risk to be ‘‘foreseeable’’); 3 Restatement (Second),
supra, § 519 (2), p. 34 (requiring ‘‘the kind of harm,
the possibility of which makes the activity abnormally
dangerous’’).
We agree with the defendants that the first factor,
regarding the inherent risk of some harm, weighs in
their favor. According to the trial court’s findings,
approximately 60 to 70 percent of the natural gas fueled,
electrical power plants constructed in the United States
in the last twenty-five years have employed gas blow
procedures to clear the fuel supply pipelines. Given that
there are more than 700 gas fueled power plants in the
United States, and that dozens of gas blows are often
needed to clear the total length of piping for each power
plant, the trial court reasonably inferred that ‘‘thou-
sands of separate gas blows have been conducted over
the years.’’ Against this history, only two instances of
combustions had occurred during a gas blow procedure
prior to the Kleen Energy explosion. Similar to the pres-
ent case, in 2001, a gas blow was performed during the
construction of a power generation station in Ohio, and
the natural gas ignited when materials emitted from the
discharge nozzle struck an obstruction. In 2003, a gas
blow was performed during the construction of a power
plant in California, and the natural gas ignited because
the discharge nozzle was not properly grounded, resulting
in the buildup of static electricity within the pipe. As
the trial court noted, in both cases ‘‘deviations from
generally accepted procedures for safely conducting a
gas blow led to’’ the combustions. Accordingly, given
the rare instances of combustion relative to the fre-
quency with which the gas blow procedures have been
employed, the inherent risk that some harm will occur
is low.
The second factor, regarding the severity of the resulting
harm, requires a more nuanced analysis. In general,
when any harm occurs during a gas blow procedure,
that harm is likely to be severe. Natural gas will burn
rather than explode at relatively low pressures and
quantities, which is why it is used in residential settings
for cooking food and heating water. The gas blow proce-
dure at issue in this case, however, necessarily involves
pressures and quantities of natural gas that are so high
that, if any harm occurs, it is likely to occur in the form
of an explosion or a massive combustion. As the trial
court noted, when natural gas ignites during a gas blow
procedure, ‘‘[a]n intense, high temperature explosion
results, producing a blast wave that can have dramatic
effects in terms of damage to property and injury to
persons.’’ In this case, an individual located approxi-
mately 1500 feet from the power plant testified that the
force of the explosion shook the building he was in,
dislodged hanging light fixtures, knocked small items
off shelves, and knocked picture frames off the walls.
This is analogous to the plaintiff in Green, who was
‘‘lifted . . . upward from his bed and [thrown] . . .
across the room’’ following an explosion nearly one
mile away. Green v. Ensign-Bickford Co., supra, 25
Conn. App. 481. At first glance, the inherent severity of
any resulting harm appears to weigh in favor of the
plaintiffs.
The plaintiffs also contend that the second factor
weighs heavily in their favor because the rule regarding
abnormally dangerous activities expressly contem-
plates a situation when the risk of harm may be rela-
tively low, yet the severity of the resulting harm tips
the balance in favor of imposing strict liability. Specifi-
cally, the plaintiffs point to comment (g) to § 520 of the
Restatement (Second), which provides in relevant part:
‘‘If the potential harm is sufficiently great, however . . .
the likelihood that it will take place may be compara-
tively slight and yet the activity be regarded as abnor-
mally dangerous. . . .’’ 3 Restatement (Second), supra,
§ 520, comment (g), p. 38.
Similarly, the plaintiffs point to McLane v. Northwest
Natural Gas Co., 255 Or. 324, 327–28, 467 P.2d 635
(1970), for the proposition that the inherent volatility
of natural gas renders its use abnormally dangerous.
In that case, natural gas escaped from a storage unit
on the defendant’s property, causing an explosion that
killed the decedent. Id., 326–27. Applying state common
law, as well as the six factor test from § 520 of the
Restatement (Second), the Supreme Court of Oregon
concluded that the storage of large amounts of natural
gas was an abnormally dangerous activity that sup-
ported the imposition of strict liability. See id., 328–29,
331. The court ‘‘view[ed] natural gas as of the same
nature as an explosive’’ because natural gas is ‘‘suffi-
ciently volatile to be capable of great harm and
[because] . . . the danger of explosion and/or fire from
its storage in large quantities cannot be completely elim-
inated by the use of reasonable care.’’ Id., 328. The court
acknowledged that the risk of an explosion or a fire is
low when care is used and agreed ‘‘that miscarriage
is not frequent’’; however, the court reasoned, ‘‘when
miscarriage does occur, it can be lethal.’’ Id., 329; see,
e.g., Siegler v. Kuhlman, 81 Wn. 2d 448, 454, 502 P.2d
1181 (1972) (‘‘[g]asoline is always dangerous whether
kept in large or small quantities because of its volatility,
inflammability and explosiveness’’), cert. denied, 411
U.S. 983, 93 S. Ct. 2275, 36 L. Ed. 2d 959 (1973). The
plaintiffs contend that McLane supports their claim that
the gas blow procedure involves such severe resulting
harm that it is an abnormally dangerous activity.
Comment (g) to § 520 of the Restatement (Second),
however, instructs courts to consider the risk and sever-
ity of harm in close relation to the fifth factor, which
concerns the ‘‘inappropriateness of the activity to the
place where it is carried on’’; 3 Restatement (Second),
supra, § 520 (e), p. 36; because ‘‘[s]ome activities . . .
necessarily involve major risks unless they are con-
ducted in a remote place or to a very limited extent.’’
Id., § 520, comment (g), p. 38. Similarly, the court in
McLane expressly agreed with the Restatement (Sec-
ond) that the ‘‘character of the locality’’ is material to the
imposition of strict liability, overruling its prior ruling
to the contrary. McLane v. Northwest Natural Gas Co.,
supra, 255 Or. 328–29.
Turning to this factor, the trial court in the present
case found that the power plant was constructed in a
rural area zoned for industrial use. The property was
bordered by the Connecticut River on one side and
surrounded by mostly vacant, wooded land for approxi-
mately one-half mile on the other three sides. Within
this radius was a cluster of fewer than ten homes and
another electrical generating station. Within a one mile
radius of the power plant was the Connecticut Valley
Hospital and approximately seventy dwellings. In light
of these factual findings, the court concluded that the
‘‘relatively uninhabited and rural surroundings’’ were an
appropriate location for the construction of the power
plant and the associated gas blow procedure.
The plaintiffs assert that, contrary to the trial court’s
factual findings, the one mile radius surrounding the
power plant contained at least 214 dwellings and almost
3000 people, rendering it ‘‘[p]redominantly residential,’’
‘‘mixed-use,’’ and inappropriate for the gas blow proce-
dure. (Internal quotation marks omitted.) On the basis
of this record, however, we cannot conclude that the
industrial and rural location was wholly inappropriate
for the power plant or the attendant gas blow proce-
dure. Moreover, these facts are distinguishable from
the facts in Green, in which the Appellate Court relied
on the fact that the chemical experimentation occurred
‘‘in a residential area.’’ Green v. Ensign-Bickford Co.,
supra, 25 Conn. App. 487. As the trial court here noted,
the fact that the gas blow procedure was conducted in
a rural and industrial area ‘‘significantly diminish[ed]
the ‘degree of risk’ to a point where the likelihood of
serious harm to large numbers of persons or widespread
damage to property [was] not present.’’ In addition, unlike
the chemical experimentation in Green v. Ensign-Bick-
ford Co., supra, 480, gas blow procedures are not a
regular or ongoing part of the power plant’s operation;
rather, they are conducted ‘‘to a very limited extent’’;
3 Restatement (Second), supra, § 520, comment (g), p.
38; only during a specific phase of the construction
process.
Considered together, although the second factor,
regarding the inherent severity of the resulting harm,
weighs in favor of imposing strict liability, this factor
must be informed by the first factor, regarding the fairly
low risk that any harm will occur, as well as the fifth
factor, regarding the appropriateness of the location.
We conclude that the totality of these three factors
weighs in favor of the defendants’ argument that the
gas blow procedure is not abnormally dangerous.
We next consider the fourth and sixth factors, both
of which weigh in favor of the plaintiffs’ claim. The
fourth factor concerns the ‘‘extent to which the activity
is not a matter of common usage . . . .’’ Id., § 520 (d),
p. 36. Comment (i) to § 520 of the Restatement (Second)
explains that ‘‘[a]n 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.’’ Id.,
§ 520, comment (i), p. 39. The comment further explains
that, although blasting or using explosives may be
employed regularly for excavation or construction,
these activities are ‘‘not carried on by any large percent-
age of the population, and therefore [they are] not a
matter of common usage.’’ Id., p. 40. As the trial court
correctly noted, the general public does not typically
use natural gas at such high pressures, in such large
quantities, or for such an industrial purpose as the gas
blow procedure entails. Accordingly, this factor clearly
weighs in favor of the plaintiffs’ assertion that the gas
blow procedure is abnormally dangerous.
The sixth factor concerns the ‘‘extent to which [the
activity’s] value to the community is outweighed by its
dangerous attributes.’’ Id., § 520 (f), p. 36. As the trial
court correctly noted, ‘‘the activity to be valued is not
the construction of the [power plant], but the gas blow
procedure conducted during the construction of the
[power plant].’’ Although the natural gas fuel supply
pipelines needed to be cleared as part of the construc-
tion of the power plant, the gas blow procedure pro-
vided relatively little value given that it was only one
of several methods available to clear the piping. For
example, Karl Baker, the supervisor of the gas pipeline
safety unit within the Department of Public Utility Con-
trol,8 reported and subsequently testified that the power
plants within the department’s jurisdiction typically use
inert substances with no potential to combust, such as
nitrogen, compressed air, or water, to clear fuel supply
pipelines.9 We agree with the trial court’s conclusion
that the gas blow procedure added little value to the
construction of the power plant given the availability
of alternative methods to clear the fuel supply pipelines,
and that any such value did not outweigh the small but
severe risk of harm inherent to the procedure. This
factor weighs in favor of the plaintiffs’ assertion that
the gas blow procedure is abnormally dangerous.
The third factor, however, carries particular signifi-
cance in the six factor balancing test, and it weighs
heavily in favor of the defendants’ assertion that the
gas blow procedure is not abnormally dangerous. This
factor concerns the ‘‘inability to eliminate the risk by
the exercise of reasonable care . . . .’’ 3 Restatement
(Second), supra, § 520 (c), p. 36. Comment (h) to § 520
of the Restatement (Second) explains: ‘‘It is not neces-
sary . . . that the risk be one that no conceivable pre-
cautions or care could eliminate. What is referred to
here is the unavoidable risk remaining in the activity,
even though the actor has taken all reasonable precau-
tions in advance and has exercised all reasonable care
in his operation, so that [the actor] is not negligent.’’
(Emphasis added.) Id., § 520, comment (h), p. 39; see,
e.g., Arlington Forest Associates v. Exxon Corp., supra,
774 F. Supp. 390 (‘‘Absolute safety is not required [under
§ 520 of the Restatement (Second)]. Rather, the risk
must be reducible by due care to a point where the
likelihood of harm is no longer high.’’); New Meadows
Holding Co. v. Washington Water Power Co., 102 Wn.
2d 495, 501, 687 P.2d 212 (1984) (third factor ‘‘addresses
itself to the question of whether, through the exercise
of ordinary care, the risk inherent in an activity can
be reduced to the point where it can no longer be
characterized as a ‘high degree of risk’ ’’). In other
words, this factor requires the court to consider: After
reasonable care and precautions are employed, is there
some lingering, unavoidable feature of the activity—
perhaps a high risk of harm, an inherent severity of
any resulting harm, or a dangerous character of the
instrumentality—that justifies the imposition of strict
liability?
Although all six factors in § 520 of the Restatement
(Second) are important to the determination of whether
an activity is abnormally dangerous, the third factor
is particularly significant because it captures the key
difference between strict liability and ordinary negli-
gence. A negligence claim succeeds if, among other
things, the actor failed to exercise reasonable care. The
distinguishing feature of a strict liability claim is that the
actor is liable regardless of whether the actor exercised
reasonable care. Accordingly, when determining whether
a claim is well suited to the strict liability framework,
it is crucial to inquire whether the exercise of reason-
able care would have materially reduced the risk of
harm, the severity of any resulting harm, or the other-
wise dangerous attributes of the activity or instrumen-
tality. If so, then the claim is better suited to the negli-
gence framework so that liability hinges on whether
the actor actually employed reasonable care. If not,
then the claim is better suited to the strict liability
framework because ‘‘there is reason to regard the dan-
ger as an abnormal one’’ when ‘‘safety cannot be
attained by the exercise of due care . . . .’’ 3 Restate-
ment (Second), supra, § 520, comment (h), p. 38; see,
e.g., Caporale v. C. W. Blakeslee & Sons, Inc., supra,
149 Conn. 84 (explaining that dangerous instrumentality
and circumstances ‘‘create, in combination, an intrinsi-
cally dangerous operation or activity . . . [and] [i]n
bringing them together, albeit for a lawful purpose and
with due care, one acts at his peril’’); Whitman Hotel
Corp. v. Elliott & Watrous Engineering Co., supra, 137
Conn. 566 (explaining that ‘‘the failure to use reasonable
care’’ is not ‘‘a condition of liability’’).
Our emphasis of this factor is consistent with other
courts’ application of the six factor balancing test. See,
e.g., Arlington Forest Associates v. Exxon Corp., supra,
774 F. Supp. 390 (‘‘Central to the determination of
whether an activity is abnormally dangerous is whether
it could be made safe through the exercise of reasonable
care. . . . If an activity can be performed safely with
ordinary care, negligence serves both as an adequate
remedy for injury and a sufficient deterrent to care-
lessness. Strict liability is reserved for selected uncom-
mon and extraordinarily dangerous activities for which
negligence is an inadequate deterrent or remedy.’’ (Cita-
tions omitted; footnote omitted.)); Philip Morris, Inc.
v. Emerson, 235 Va. 380, 406, 368 S.E.2d 268 (1988)
(strict liability was inappropriate when defendants ‘‘had
the ability to eliminate the risk of injury by exercising
reasonable care’’); see also, e.g., Liss v. Milford Part-
ners, Inc., Superior Court, judicial district of Hartford,
Complex Litigation Docket, Docket No. X07-CV-04-
4025123-S (September 29, 2008) (46 Conn. L. Rptr. 439,
442) (‘‘the exercise of due care would have perhaps
prevented any [harm]; an intrinsically dangerous activ-
ity would have . . . resulted in such [harm] notwith-
standing the exercise of due care’’).
Here, the trial court found that, ‘‘if certain well-known
precautions are taken, it is very unlikely that natural
gas combustion or explosion will occur during a gas
blow procedure.’’ Specifically, the court found that two
precautions, either together or independently, would
have significantly reduced the likelihood of ignition or
combustion of the natural gas during the gas blow pro-
cedure, namely, properly orienting the discharge nozzle
and carefully controlling the pressure and volume of
natural gas employed during the procedure. The court
found that these precautions were widely known and
generally employed in the construction of natural gas
fueled power plants prior to the Kleen Energy explo-
sion.
 First, properly orienting and positioning the dis-
charge nozzle would have significantly and materially
reduced the risk of harm. The trial court found that
‘‘[t]he discharge pipe should be oriented vertically, it
should terminate outdoors, in an open, well ventilated
area, at least ten feet above any nearby structure, it
should discharge into an area that is free from any
obstructions, it should discharge [into] an area that is
free from any sources of sparks (such as electrical
equipment), and it should be grounded to prevent the
buildup of any static electricity.’’ In the three instances
in which explosions or combustions have resulted from
a gas blow procedure, some combination of these pre-
cautions was not taken. In the 2001 incident in Ohio,
the area into which the natural gas was discharged
contained an obstruction. In the 2003 incident in Califor-
nia, the discharge nozzle was not properly grounded,
allowing static electricity to accumulate. In the present
case, although the discharge nozzle was properly ground-
ed, it was improperly positioned horizontally so that
the natural gas discharged into a partially enclosed area
containing numerous obstructions, including metal
pipes, electrical equipment, and large nearby structures.
Indeed, this was distinguishable from the gas blow pro-
cedures previously employed at the power plant, which
had occurred without incident.
Second, carefully controlling the pressure and vol-
ume of natural gas employed during the procedure
would have minimized the velocity of the discharged
debris and the amount of dispersed natural gas, which,
in turn, would have materially reduced the risk of harm,
the severity of any resulting harm, and the generally
dangerous attributes of the natural gas. The trial court
found that the manufacturer of the gas turbines typically
specifies the pressure of natural gas required to conduct
the gas blow procedure to ensure that no debris would
remain in the piping. Such pressure is measured by the
‘‘cleaning force ratio,’’ which is a comparison to normal
operational pressure. In this case, the manufacturer of
the gas turbines recommended a cleaning force ratio
of 2.0, meaning that the force of the natural gas used
to expel the debris from the piping should be twice the
force that would be generated by the natural gas flowing
through the piping under normal operating conditions.
The court also found that ‘‘[t]he manufacturer’s recom-
mended . . . ‘cleaning force ratio’ should not be
exceeded. An unnecessarily high [cleaning force ratio]
increases the velocity of the debris in the gas discharge
and increases the likelihood that the discharged debris
will, as a result of friction, generate and retain sufficient
thermal energy to initiate combustion within the cloud
of dispersing gas.’’
It was calculated that the cleaning force ratio at the
discharge nozzle during the gas blow procedure that
caused the explosion was 10.0. This means that the
natural gas flowed through the piping at ten times the
force that it would flow through the piping during nor-
mal operation, which was five times higher than the
manufacturer’s recommendation for the gas blow pro-
cedure. Because of this unusually high pressure of natu-
ral gas, the solid debris was propelled from the dis-
charge nozzle at a correspondingly high velocity, approx-
imately 1400 feet per second. In turn, this unusually
high velocity increased the likelihood that the debris
would acquire enough thermal energy to ignite the natu-
ral gas, which was what caused the explosion in this
case. Accordingly, the trial court found that limiting the
pressure of natural gas to correspond with the cleaning
force ratio would have better controlled the velocity of
the discharged debris and reduced the likelihood of
combustion.
In addition, the trial court noted that the volume
of natural gas can be minimized further by carefully
choosing between two variations of the gas blow proce-
dure. The variation of the procedure employed in this
case was a ‘‘continuous’’ blow, meaning that the dis-
charge nozzle remained completely open to allow the
natural gas to flow freely through it. Another variation
of the procedure, known as a ‘‘puff blow,’’ involves
pressurizing the length of pipe with natural gas while
the discharge nozzle is closed, then closing the valve
supplying the natural gas, and then opening the dis-
charge nozzle quickly, allowing the gas to vent from
the discharge nozzle in a short burst. This variation
requires less natural gas per blow and, accordingly,
requires less time and space for the discharged natural
gas to disperse to a safe concentration. Because the
continuous blow requires a greater volume of natural
gas to accomplish the same result, the court found that
this method ‘‘increases the time and area required for
the gas to fully disperse and reach concentrations where
combustion will not occur.’’
The trial court relied on expert testimony regarding
the ‘‘basic science’’ of combustion and ‘‘the physical
characteristics of natural gas’’ in reaching these conclu-
sions. The court also credited the testimony of six wit-
nesses who had experience conducting gas blow proce-
dures and found that each witness testified ‘‘that gas
blows can be done safely if reasonable care is exercised
and certain precautions are observed. . . . No witness
with experience conducting gas blows testified that the
procedure involved a ‘high degree’ of risk of harm when
reasonable safety precautions are put in place.’’ (Empha-
sis added.) Thus, we agree with the trial court’s factual
finding that the exercise of reasonable care would have
materially reduced the risk of harm to the point where
the gas blow procedure could have been conducted
safely.
Our conclusion, as well as our particular emphasis
on this factor, is supported by Whitman Hotel Corp.
and Caporale. In Whitman Hotel Corp., we reasoned
that, even in the prototypical strict liability context of
exploding dynamite, ‘‘it is essential that it appear that
the dynamite was discharged under such circumstances
that it, in fact, necessarily or obviously exposed the
person or property of another to the danger of probable
injury.’’ Whitman Hotel Corp. v. Elliott & Watrous
Engineering Co., supra, 137 Conn. 566. We then
expanded on this language in Caporale: ‘‘The words
‘necessarily,’ ‘obviously’ and ‘probable’ imply that, even
if due care is employed, there is an unavoidable risk of
damage.’’ (Emphasis added.) Caporale v. C. W. Blakeslee
& Sons, Inc., supra, 149 Conn. 84. However, dynamite
and pile driving, in their respective circumstances, are
distinguishable from the gas blow procedure that we
are considering because the exercise of reasonable care
would have materially reduced the risk of harm and
the potentially dangerous nature of the natural gas.
We find further support for our conclusion in CNG
Producing Co. v. Columbia Gulf Transmission Corp.,
709 F.2d 959 (5th Cir. 1983). In that case, the plaintiffs’
offshore oil platform required repairs, which entailed
a blowdown operation to vent natural gas from the
platform’s metering station. Id., 960–61. The natural gas
was released through two pipes, one of which was
pointed up toward an overhanging heliport so that the
discharged natural gas accumulated in the partially
enclosed area. See id., 961. A spark from an exhaust
fan ignited the accumulated natural gas, resulting in an
explosion and fire. Id. The plaintiffs brought an action
against the defendants, the companies that maintained
the metering station, one of which was also a purchaser
of the platform’s natural gas. See id., 960–61. On appeal,
the Fifth Circuit, applying Louisiana state law and a
standard very similar to that of the Restatement (Sec-
ond), held that the blowdown procedure was not ultra-
hazardous, reasoning that, ‘‘if the gas had been vented
away from the platform, where the gas would have had
no place to accumulate and where no possible ignition
source existed, these venting operations would have
been performed without any risk.’’ Id., 962. In other
words, the court emphasized that ‘‘the activity of vent-
ing gas is likely to cause damage only when there is
substandard conduct on someone’s part.’’ (Emphasis
in original.) Id.
Although the blowdown procedure in CNG Produc-
ing Co. is not identical to the gas blow procedure
employed here, both procedures involved the high-pres-
sure discharge of natural gas, a flammable and poten-
tially dangerous substance. In both procedures, natural
gas was improperly allowed to accumulate in partially
enclosed areas that were littered with obstructions and
potential ignition sources. Finally, as to both proce-
dures, reasonable precautions from prevailing industry
practices and the basic science of combustion would
have minimized the risk of gas accumulation and igni-
tion, which, in turn, would have significantly reduced
the risk of harm. As both the Fifth Circuit and the trial
court in the present case concluded, the explosions did
not result from any substantial and unavoidable risk
attendant to the procedures; rather, the explosions
resulted from the failure to employ reasonable, industry
standard precautions when handling a potentially dan-
gerous gas.
The plaintiffs nonetheless contend that a significant
risk remains even after the precautions noted by the
trial court are employed, emphasizing the inherently
dangerous attributes of natural gas. Specifically, the
plaintiffs point to expert testimony that ‘‘the presence
of three elements can cause a fire or explosion—a fuel
source, an ignition, and air’’—and that, ‘‘even with utmost
caution, the natural gas still will ‘continuously [mix]
with air on the way out’ of the [discharge nozzle], and
that expelled gas will at some point reach the level of
air-gas mixture that could spark an explosion.’’
We are not persuaded, however, because Caporale
foreclosed the plaintiffs’ reliance on the dangerous
nature of natural gas alone. In that case, we explained
that strict liability requires more than just a ‘‘dangerous
instrumentality’’; rather, strict liability applies when a
potentially dangerous instrumentality ‘‘was used under
such circumstances and conditions as necessarily and
obviously to expose the person or property of another
to probable injury even [when] due care [is] taken.’’
Caporale v. C. W. Blakeslee & Sons, Inc., supra, 149
Conn. 83–84. In other words, we reasoned that the dan-
gerous nature of the instrumentality must be considered
alongside the circumstances and conditions of its use.
See id., 83–85. This reasoning is consistent with the six
factors in § 520 of the Restatement (Second). The first
two factors, concerning risk of harm and severity of
potential harm, together measure the dangerous nature
of the instrumentality. The other four factors measure
the various circumstances and conditions that must
inform the danger, including the location of the activity,
the common usage of the activity, and the effect of
reasonable care. Accordingly, in this case, the poten-
tially dangerous nature of natural gas is not dispositive.
We must consider what danger natural gas presents in
the circumstances of the gas blow procedure when
reasonable care is used.
As the trial court noted, the ‘‘cause of the explosion
. . . was not a hazard intrinsic to the procedure itself
or outside the control of those persons conducting the
procedure; it was a failure to use proper care in conduct-
ing the procedure.’’ Positioning the discharge nozzle
vertically into a well ventilated area would have materi-
ally reduced the risk of harm by removing obstructions
that the expelled debris could have struck to trigger
ignition. Minimizing the pressure and volume of natural
gas used during the procedure would have materially
reduced the risk and severity of harm by decreasing
the velocity of the expelled debris and, as a result, the
likelihood that the debris would ignite the natural gas.
Each precaution would have further reduced the risk
and severity of harm by preventing the dangerous accu-
mulation of natural gas to fuel any fire that might have
ignited. In other words, reasonable precautions would
have materially reduced the risk of harm, the severity
of any resulting harm, and the generally dangerous attri-
butes of natural gas.
Given that the activity involved a flammable sub-
stance, we recognize that some small risk of harm inher-
ently remained. However, the significant reduction in
the risk and severity of harm as a result of reasonable,
industry standard precautions, paired with the appro-
priateness of the location, decisively outweigh the small
remaining risk, the uncommon nature of the activity,
and the small value to the community. Accordingly, we
conclude that the gas blow procedure was not abnor-
mally dangerous and that the plaintiffs cannot maintain
a strict liability claim against the defendants.
II
We next consider the plaintiffs’ contention that the
trial court improperly granted the defendants’ motions
for summary judgment with respect to the plaintiffs’
negligence claims. Specifically, the plaintiffs assert that
the court incorrectly concluded that the defendants
were not vicariously liable for O & G’s negligence
because no reasonable jury could find that the defen-
dants exercised control over O & G’s and its subcontrac-
tors’ performance of the gas blow procedure. The defen-
dants contend that the court correctly concluded that
they did not exercise sufficient control over O & G or
its subcontractors to overcome the general rule that an
employer is not vicariously liable for the torts of its
independent contractor.
Because this issue presents a different procedural
posture than the prior issue, we begin with the standard
of review. ‘‘The standard of review of a trial court’s
decision granting summary judgment is well estab-
lished. 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. . . . Our review of the trial
court’s decision to grant the defendant’s motion for
summary judgment is plenary. . . . On appeal, we
must determine whether the legal conclusions reached
by the trial court are legally and logically correct and
whether they find support in the facts set out in the
memorandum of decision of the trial court.’’ (Citations
omitted; internal quotation marks omitted.) Lucenti v.
Laviero, 327 Conn. 764, 772–73, 176 A.3d 1 (2018).
Furthermore, ‘‘[t]he essential elements of a cause of
action in negligence are well established: duty; breach
of that duty; causation; and actual injury.’’ (Internal
quotation marks omitted.) Pelletier v. Sordoni/Skanska
Construction Co., 286 Conn. 563, 593, 945 A.2d 388
(2008). The plaintiffs’ claim concerns the duty element,
specifically, whether the defendants owed any duty to
the plaintiffs given the employer and independent con-
tractor relationship between Kleen Energy and O & G.
‘‘If a court determines, as a matter of law, that a defen-
dant owes no duty to a plaintiff, the plaintiff cannot
recover in negligence from the defendant.’’ (Internal
quotation marks omitted.) Maffucci v. Royal Park Ltd.
Partnership, 243 Conn. 552, 567, 707 A.2d 15 (1998).
‘‘The issue of whether a defendant owes a duty of care
is an appropriate matter for summary judgment because
the question is one of law.’’ Pion v. Southern New
England Telephone Co., 44 Conn. App. 657, 660, 691
A.2d 1107 (1997). Accordingly, ‘‘[t]he existence of a
legal duty is a question of law over which we exercise
plenary review.’’ Pelletier v. Sordoni/Skanska Con-
struction Co., supra, 578.
The record, viewed in the light most favorable to
the plaintiffs, establishes that O & G and two of its
subcontractors performed the gas blow procedure. See
footnote 2 of this opinion. The question of whether the
defendants are nevertheless vicariously liable for any
negligence that occurred during the procedure on the
part of O & G or its subcontractors turns on the nature
of the relationship between the defendants and O & G.
‘‘Vicarious liability is based on a relationship between
the parties . . . under which it has been determined
as a matter of policy that one person should be liable
for the act of the other. Its true basis is largely one of
public or social policy under which it has been deter-
mined that, irrespective of fault, a party should be held
to respond for the acts of another.’’ (Internal quotation
marks omitted.) Alvarez v. New Haven Register, Inc.,
249 Conn. 709, 720, 735 A.2d 306 (1999).
Connecticut law has recognized two distinct types
of agents: employees and independent contractors. We
have ‘‘adopted the definition that [a]n independent con-
tractor is one who, exercising an independent employ-
ment, contracts to do a piece of work according to his
own methods and without being subject to the control
of his employer, except as to the result of his work.’’
(Internal quotation marks omitted.) Darling v. Burrone
Bros., Inc., 162 Conn. 187, 195, 292 A.2d 912 (1972). In
other words, an ‘‘independent contractor contracts to
produce a given result by methods under his own con-
trol.’’ Aisenberg v. C. F. Adams Co., 95 Conn. 419, 421,
111 A. 591 (1920). In contrast, an ‘‘employee contracts
to produce a given result, subject to the lawful orders
and control of his employer in the means and methods
used in that employment.’’ Id. ‘‘The fundamental distinc-
tion between an employee and an independent contrac-
tor depends [on] the existence or nonexistence of the
right to control the means and methods of work.’’ (Inter-
nal quotation marks omitted.) Darling v. Burrone Bros.,
Inc., supra, 195–96. Accordingly, ‘‘[i]f the contract pro-
vides that the employer retains no control over the
details of the work, but leaves to the other party the
determination of the manner of doing it, without sub-
jecting [the other party] to the control of the employer,
the party undertaking the work is a contractor and not
a mere employee.’’ Id., 195.
The legal principles governing the liability of an
employer for the torts of its agents are well established.
An employer is vicariously liable ‘‘for the wilful torts
of his [employee] committed within the scope of . . .
employment and in furtherance of [the employer’s] busi-
ness.’’ Pelletier v. Bilbiles, 154 Conn. 544, 547, 227 A.2d
251 (1967). This is because ‘‘a fundamental premise
underlying the theory of vicarious liability is that an
employer exerts control, fictional or not, over an
employee acting within the scope of employment, and
therefore may be held responsible for the wrongs of
that employee. . . . It is as a result of this control that
the theory of vicarious liability allows employers to be
subject to liability for the physical harm caused by the
negligent conduct of their employees acting within the
scope of employment.’’ (Citations omitted.) Jagger v.
Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 693
n.16, 849 A.2d 813 (2004). In contrast, ‘‘[a]s a general
rule, an employer is not [vicariously] liable for the negli-
gence of its independent contractors. . . . The expla-
nation for [this rule] most commonly given is that,
[because] the employer has no power of control over
the manner in which the work is to be done by the
[independent] contractor, it is to be regarded as the
contractor’s own enterprise, and [the contractor],
rather than the employer, is the proper party to be
charged with the responsibility of preventing the risk,
and bearing and distributing it.’’ (Citations omitted;
internal quotation marks omitted.) Pelletier v. Sordoni/
Skanska Construction Co., 264 Conn. 509, 517–18, 825
A.2d 72 (2003).
Although the plaintiffs refer to O & G as an indepen-
dent contractor, this characterization is not dispositive
of the question of whether the defendants are vicari-
ously liable. Despite the general rule that an employer
is not vicariously liable for the negligence of its indepen-
dent contractor, we have often explained that there are
exceptions to that rule. ‘‘If the work contracted for
[is] unlawful, or such as may cause a nuisance, or is
intrinsically dangerous, or in its nature is calculated to
cause injury to others, or if the [employer] negligently
employ[s] an incompetent or untrustworthy contractor,
or if [the employer] reserve[s] in [the] contract general
control over the contractor or his servants, or over the
manner of doing the work, or if [the employer] in the
progress of the work assume[s] control or interfere[s]
with the work, or if [the employer] is under a legal duty
to see that the work is properly performed, [then] the
[employer] will be responsible for [the] resultant injury.
. . . So, too, the [employer] . . . will be liable for
injury [that] results from his own negligence.’’ (Cita-
tions omitted; emphasis altered; internal quotation
marks omitted.) Id., 518. The plaintiffs’ claim of vicari-
ous liability relies on this control exception, which pro-
vides that an employer will be vicariously liable for the
negligence of its independent contractor if the employer
(1) retains contractual control over the means or meth-
ods of the work, or (2) exercises actual control over the
means or methods of the contractor’s performance.10
See id.
Thus, the defendants’ liability for the tortious conduct
committed during the gas blow procedure hinges on
the degree of control the defendants exercised over
O & G’s performance of the procedure. ‘‘The word ‘con-
trol’ has no legal or technical meaning distinct from
that given in its popular acceptation . . . and refers to
the power or authority to manage, superintend, direct
or oversee.’’ (Internal quotation marks omitted.) Mozel-
eski v. Thomas, 76 Conn. App. 287, 294, 818 A.2d 893,
cert. denied, 264 Conn. 904, 823 A.2d 1221 (2003). An
employer’s partial control over the work may be enough
to establish the existence of a duty. See, e.g., Pelletier
v. Sordoni/Skanska Construction Co., supra, 286 Conn.
599; Van Nesse v. Tomaszewski, 265 Conn. 627, 631, 829
A.2d 836 (2003). However, the employer ‘‘may exercise
a limited degree of control or give the [independent]
contractor instructions on minor details without destroy-
ing the independent character of the contractor.’’ Mozel-
eski v. Thomas, supra, 293. ‘‘[When] the evidence on
the question as to who had control of the area or instru-
mentality causing the injury is such that the mind of
a fair and reasonable [person] could reach but one
conclusion as to the identity of the person exercising
control, the question is one for the court, but, if honest
and reasonable [people] could fairly reach different con-
clusions on the question, the issue should properly go
to the jury.’’ (Internal quotation marks omitted.) Van
Nesse v. Tomaszewski, supra, 631.
A
We first consider whether Kleen Energy or PPMS
retained contractual control over O & G’s performance
of the gas blow procedures. See, e.g., Pelletier v. Sor-
doni/Skanska Construction Co., supra, 264 Conn. 518
(employer is vicariously liable ‘‘if [the employer] reserve[s]
in [the] contract general control over the contractor or
his servants, or over the manner of doing the work’’
(internal quotation marks omitted)). The express terms
of the ‘‘Engineering, Procurement and Construction
Agreement’’ between Kleen Energy and O & G substan-
tially inform this analysis. At various points in the agree-
ment, Kleen Energy and O & G agreed that O & G would
maintain full care and responsibility for the power plant
until ‘‘substantial completion,’’ a construction mile-
stone triggered by certain conditions defined in the
agreement, at which point care and responsibility for
the power plant would revert to Kleen Energy. Most
instructive is § 2.1 of the agreement, regarding the scope
of O & G’s performance, which provides: ‘‘[O & G] shall
fully perform all the [w]ork . . . all on a lump sum,
fixed price, turnkey basis . . . .’’ (Emphasis added.) The
article in the agreement defining the various stages of
completion provides in relevant part: ‘‘Upon [s]ubstan-
tial [c]ompletion, [Kleen Energy] shall have care, cus-
tody and control of the [f]acility. . . .’’ Section 16.1 of
the agreement, within the article concerning risk of
loss, provides: ‘‘[O & G] shall have the full responsibility
for care, custody and control of the [f]acility, the [f]acil-
ity [s]ite and the [w]ork . . . and shall bear the risk of
loss of the [f]acility and the [w]ork in each case until
[s]ubstantial [c]ompletion, at which time risk of loss
shall pass to [Kleen Energy].’’ Consistent with these
provisions, the agreement also specifies that ‘‘[Kleen
Energy] shall furnish to [O & G] full and unrestricted
access to the [f]acility [s]ite and all necessary rights of
way and easements . . . .’’ Likewise, the parties agreed
that O & G will be ‘‘fully and solely responsible to
[Kleen Energy] for the acts and omissions of [O & G’s]
subcontractors, vendors, and [p]ersons either directly
or indirectly employed by any of them . . . .’’
The turnkey nature of the agreement between Kleen
Energy and O & G carries particular significance because,
as the trial court explained, it indicates the parties’
intention that ‘‘O & G would handle all construction
of the power plant and would hand [Kleen Energy] a
completed and operational power plant.’’ Other courts
have noted that ‘‘[a turnkey] contract has a certain well-
defined meaning in law and in fact.’’ (Internal quotation
marks omitted.) Chapman & Cole v. Itel Container
International B.V., 865 F.2d 676, 681 (5th Cir.), cert.
denied sub nom. Urquhart & Hassell v. Chapman &
Cole, 493 U.S. 872, 110 S. Ct. 201, 107 L. Ed. 2d 155
(1989). Black’s Law Dictionary defines an ‘‘engineering,
procurement, and construction contract,’’ also termed
a ‘‘turnkey contract,’’ as ‘‘[a] [fixed price], schedule-
intensive construction contract—typical in the con-
struction of single-purpose projects, such as energy
plants—in which the contractor agrees to a wide variety
of responsibilities, including the duties to provide for
the design, engineering, procurement, and construction
of the facility; to prepare start-up procedures; to con-
duct performance tests; to create operating manuals;
and to train people to operate the facility.’’ Black’s Law
Dictionary (11th Ed. 2019) p. 406. In a turnkey agree-
ment, ‘‘the contractor agrees to complete the work of
the building and installation to the point of readiness
for operation or occupancy.’’ (Internal quotation marks
omitted.) Chapman & Cole v. Itel Container Interna-
tional B.V., supra, 681. Upon completion, the owner
can simply ‘‘turn the key’’ to use the newly constructed
facility; (internal quotation marks omitted) Zenergy,
Inc. v. Performance Drilling Co., LLC, 603 Fed. Appx.
289, 293 n.7 (5th Cir. 2015); but, until that point, the
contractor generally ‘‘assumes all risks incident to the
creation of [the] fully completed facility . . . and must
bear the risk for all loss . . . .’’ (Citation omitted; inter-
nal quotation marks omitted.) Chapman & Cole v. Itel
Container International B.V., supra, 681; see, e.g.,
Hawaiian Independent Refinery, Inc. v. United States,
697 F.2d 1063, 1065 n.4 (Fed. Cir.) (‘‘A [turnkey] job is
defined as a job or contract in which the contractor
agrees to complete the work of building and installation
to the point of readiness for operation or occupancy.
. . . Up to that point, the contractor assumes all risks.’’
(Citation omitted; internal quotation marks omitted.)),
cert. denied, 464 U.S. 816, 104 S. Ct. 73, 78 L. Ed. 2d
86 (1983).
Here, the agreement specified that it was a ‘‘turnkey’’
project. Although the agreement did not define the term
‘‘turnkey,’’ it is a well-defined type of contract in the
construction industry, particularly in the construction
of power plants. Moreover, other substantive provisions
of the agreement reinforce the turnkey nature of the
agreement. For example, as we previously discussed,
certain provisions in the agreement specified that O &
G would have ‘‘the full responsibility for care, custody
and control of the [f]acility . . . until [s]ubstantial
[c]ompletion, at which time risk of loss shall pass to
[Kleen Energy],’’ and that, ‘‘[u]pon [s]ubstantial [c]om-
pletion, [Kleen Energy] shall have care, custody and
control of the [f]acility.’’ Thus, there is no genuine dis-
pute that O & G had full contractual control over and
responsibility for the construction of the power plant
up to the point of substantial completion.
The plaintiffs point to no evidence that would raise
a genuine dispute that substantial completion had not
been reached at the time of the gas blow procedure
and resulting explosion. Accordingly, and consistent
with the express provisions of the agreement, we con-
clude that O & G, and not Kleen Energy, had contractual
control over and responsibility for the performance of
the activities attendant to the construction of the power
plant, including the gas blow procedures. This falls
squarely within the circumstance in which ‘‘the contract
provides that the employer retains no control over the
details of the work, but leaves to the other party the
determination of the manner of doing it, without sub-
jecting [the other party] to the control of the employer
. . . .’’ Darling v. Burrone Bros., Inc., supra, 162 Conn.
195. Accordingly, the trial court correctly emphasized
that, because of the unambiguous, turnkey nature of
the agreement, there was no genuine issue of material
fact regarding whether O & G had contractual control
of the gas blow procedure. Our review of the record
likewise persuades us that fair and reasonable minds
could reach only one conclusion: Given O & G’s exclu-
sive contractual control over the construction of the
power plant, the defendants did not exercise sufficient
control over the gas blow procedure to establish the
existence of a legal duty.
Despite these contractual provisions, the plaintiffs
nevertheless claim that other provisions of the agree-
ment between Kleen Energy and O & G establish that
Kleen Energy effectively retained control over the con-
struction of the power plant. Specifically, the plaintiffs
point to § 14.1 of that agreement, which provides in
relevant part that ‘‘[Kleen Energy] may at any time . . .
suspend performance of the [w]ork . . . by giving writ-
ten notice to [O & G].’’ The plaintiffs also claim that
certain provisions of the agreement between Kleen
Energy and PPMS establish that PPMS had contractual
control over the gas blow procedures. Specifically, the
plaintiffs point to exhibit C of that agreement, which
articulates the services PPMS would provide and lists
one responsibility as ‘‘[a]udit [O & G’s] key processes—
[s]afety, [q]uality, [m]aterial [r]eceiving, etc.’’
We are not persuaded that these provisions destroy
the independent nature of O & G’s work. Kleen Energy’s
general right to suspend, pursuant to its agreement with
O & G, cannot be construed to create a right for Kleen
Energy ‘‘to control the means and methods’’ of O & G’s
performance of the work. (Internal quotation marks
omitted.) Darling v. Burrone Bros., Inc., supra, 162
Conn. 196. Likewise, any contractual duty imposed on
PPMS by that provision of its agreement with Kleen
Energy is too general to entail control over the ‘‘means
and methods’’ of O & G’s performance of the gas blow
procedures. (Internal quotation marks omitted.) Id.
B
The plaintiffs also contend that, notwithstanding the
terms of the agreements between Kleen Energy, O &
G, and PPMS, the defendants in fact exercised control
over the gas blow procedures, which satisfies the con-
trol exception. See, e.g., Pelletier v. Sordoni/Skanska
Construction Co., supra, 264 Conn. 518 (employers are
vicariously liable if they ‘‘assume control or interfere
with the work’’ (internal quotation marks omitted)).
To support this argument, the plaintiffs identify two
essential facts: the various activities of Gordon Holk,
a PPMS employee representing Kleen Energy on the
construction site, and the interactions between the
defendants and Baker. The defendants contend that
none of these facts creates a genuine issue of material
fact as to whether Kleen Energy or PPMS exercised
control over the gas blow procedures.
We first consider the plaintiffs’ argument with respect
to Holk. The following additional facts are relevant to
this argument. Four key individuals were involved in
communications surrounding the gas blow procedures:
Holk, the lead PPMS employee on the site, who repre-
sented Kleen Energy; Andrew Pike, a member of the
board of members of Kleen Energy; Lou Kesselman, a
senior O & G employee and the O & G manager of the
project; and C.J. Meeske, a contact with the supplier
of natural gas used to conduct the gas blow procedure.
In December, 2009, approximately six weeks before the
first day of gas blow procedures, Pike e-mailed various
O & G and subcontractor employees with instructions
to include Holk ‘‘on all issues (regardless of materiality)
as soon as such arise. As [Kleen Energy’s] representa-
tive, [Holk] is the principal contact for all third-party
activity associated with Kleen Energy.’’ (Emphasis in
original.) The e-mail concluded: ‘‘Effectively, [Holk]
should be considered the gatekeeper of all Kleen [Energy]
related activity.’’
The same day, Holk e-mailed various Kleen Energy
and O & G employees, requesting ‘‘some details’’ about
the gas blow procedures and explaining that he ‘‘need[ed]
to approximate the amount of gas [O & G] will need
and when.’’ Subsequently, at the end of December, 2009,
an O & G employee e-mailed Holk a document titled
‘‘Gas Blow Procedure,’’ and Holk responded that he
would ‘‘look [it] over’’ because it ‘‘may be the first time
your boys may be turning valves.’’
At the same time, Kesselman e-mailed Holk, requesting
that PPMS and Kleen Energy order the specific quantity
of natural gas O & G would need for the gas blow
procedure. Holk forwarded the e-mail to Pike, who,
copying Holk, forwarded the e-mail to Meeske, the con-
tact with the supplier of natural gas, and those three
individuals exchanged a series of e-mails in January,
2010, discussing the issue. Specifically, Meeske sent a
reply e-mail, questioning whether the specified quantity
of natural gas requested would be sufficient to clear
the debris given the dimensions of the pipes. Holk
responded to Meeske: ‘‘We discussed this internally and
all of us non-O & G folks believe this was way too low.
But the smart one at O & G think[s] this is enough.
. . . I would like to do exactly what O & G wants
and let them live and learn.’’ Around the same time, a
document titled ‘‘Responsibility Matrix for Meeting
Date 1/19/10’’ identified Holk as the ‘‘[r]esponsible
[i]ndividual’’ for, among other activities, the gas blow
procedures.
Soon thereafter, around the end of January, 2010, and
a few days before the first day of gas blow procedures,
Holk e-mailed Kesselman to inform O & G that ‘‘[w]e
have gas nominated for Saturday [January 30, 2010].
Blow baby blow.’’ In early February, 2010, after the first
day of gas blow procedures but before the second day,
Kesselman, copying Pike, e-mailed Holk again to request
that he order natural gas for the second set of gas blow
procedures. Holk e-mailed Meeske to order the natural
gas, then subsequently confirmed to Kesselman: ‘‘We
have gas for [the designated days]. [You’re] clear to
blow.’’ This second set of gas blow procedures took
place on February 7, 2010, and caused the explosion.
The plaintiffs point to these details to support their
contention that Holk exercised control over the gas
blow procedures on behalf of Kleen Energy and PPMS.
Specifically, they note that Holk was designated as the
‘‘ ‘gatekeeper’ ’’ for the project by Kleen Energy, as well
as the ‘‘ ‘[r]esponsible [i]ndividual’ ’’ on the ‘‘ ‘Responsi-
bility Matrix,’ ’’ he stated that he had to ‘‘ ‘look . . .
over’ ’’ the procedure before ordering the natural gas,
he then communicated O & G’s order of natural gas to
the supplier and was skeptical that it would be sufficient
to complete the procedure, he provided ‘‘formal clear-
ance’’ for O & G to conduct the gas blow procedures,
and he ‘‘cheer[ed], ‘[b]low baby blow.’ ’’ (Emphasis
omitted.) The plaintiffs contend that these facts estab-
lish that Holk was ‘‘an essential actor in the process.’’
We disagree. Even if we view these facts in the light
most favorable to the plaintiffs, Holk’s involvement in
the gas blow procedure is entirely consistent with Kleen
Energy’s contractual right to oversee O & G’s work.
Specifically, § 2.14.1 of the agreement between Kleen
Energy and O & G provides in relevant part: ‘‘The [w]ork
may be monitored and inspected at any time during
working hours by [Kleen Energy], its duly authorized
agents, servants, and employees. Such right to monitor
and inspect, however . . . shall not create the right to
stop or otherwise materially impede the [w]ork or
relieve [O & G] of any of its responsibilities hereun-
der . . . .’’
We have previously held that the presence of an
employer representative at a construction site does not
demonstrate sufficient control to overcome the general
rule that an employer is not liable for the torts of its
independent contractor. In Darling, the president of a
corporation hired the defendant independent contrac-
tor to excavate a ditch to accommodate a storm drain.
See Darling v. Burrone Bros., Inc., supra, 162 Conn.
189. The president of the corporation was present at the
job site and instructed an employee of the independent
contractor regarding the placement and depth of the
ditch, and he periodically inspected the work to ensure
satisfactory performance. Id., 193. We reasoned that
the president’s involvement ‘‘signifie[d] no more than
the furnishing of specifications for the job. It [did] not
demonstrate control of the manner and means of
accomplishing the digging. It [was] apparent that [the
employer’s president] did no more than exercise his
right to supervise the general result and also the imme-
diate results, from time to time, as the work pro-
gressed.’’ Id. We derived a generally applicable rule from
this case: ‘‘[When a representative of the employer] has
no authority to interfere with the manner of operation,
he has no effect on the determination of the one in
control.’’ Id., 194; see, e.g., Archambault v. Soneco/
Northeastern, Inc., 287 Conn. 20, 56, 946 A.2d 839 (2008)
(noting that employer’s representative ‘‘had overall
responsibility for safety on the work site’’ but reasoning
that he did not ‘‘[retain] direct control over’’ indepen-
dent contractor’s work).
This rule is consistent with Holk’s involvement in the
gas blow procedure. Holk did no more than exercise
Kleen Energy’s contractual right to monitor, inspect,
and coordinate the various construction tasks per-
formed by O & G, its subcontractors, and Kleen Energy.
Specifically, Pike’s e-mail instructing the representa-
tives of all the entities to include Holk in communica-
tions involving Kleen Energy cannot be construed to
create a right for Holk to control the means and methods
of O & G’s performance of the gas blow procedures.
Rather, this reasonably demonstrates only that the proj-
ect involved many different actors, performing a variety
of functions, and that Kleen Energy wanted to establish
clear lines of communication to ensure smooth collabo-
ration. In addition, the plaintiffs contend that the
‘‘ ‘Responsibility Matrix’ ’’ memorialized Holk’s respon-
sibility for the gas blow procedures. However, even if
we accept the plaintiffs’ characterization of this docu-
ment, this does not rise to the level of control required
to establish vicarious liability as a matter of law. As
we explained in Darling, supervision of a construction
task to ensure that it is ultimately completed according
to the employer’s requirements is not enough to estab-
lish control over the means and methods of the contrac-
tor’s performance of that task.11 See Darling v. Burrone
Bros., Inc., supra, 162 Conn. 193; see also, e.g., Archam-
bault v. Soneco/Northeastern, Inc., supra, 287 Conn. 56.
Furthermore, Holk’s skepticism about O & G’s requested
quantity of natural gas and his e-mails ‘‘clear[ing]’’
O & G to conduct the gas blow procedures do not
demonstrate sufficient control over the procedure as a
matter of law. Even if we construe Holk’s conduct in
the light most favorable to the plaintiffs, these facts
certainly do not demonstrate greater control than the
conduct of the employer’s representative in Darling,
who provided precise instructions to the contractor
during excavation of a ditch, which we held did not
establish sufficient control as a matter of law to support
vicarious liability. Darling v. Burrone Bros., Inc., supra,
193; see footnote 11 of this opinion.
All of these activities are consistent with the principle
that an employer ‘‘may exercise a limited degree of
control or give the [independent] contractor instruc-
tions on minor details without destroying the indepen-
dent character of the contractor.’’ Mozeleski v. Thomas,
supra, 76 Conn. App. 293. There is no genuine issue of
material fact with respect to Holk’s involvement in the
gas blow procedures. We agree with the trial court
that no reasonable jury could conclude that Holk had
substantive control over the means or methods involved
in O & G’s performance of the gas blow procedures.
We next consider the plaintiffs’ argument with
respect to Baker, the supervisor of the gas pipeline
safety unit of the department. See footnote 8 of this
opinion. The following additional facts are relevant to
this argument. At the time of the explosion, the depart-
ment generally regulated the rates, performance, and
safety of public service companies. In addition, the gas
pipeline safety unit ‘‘exercise[d] regulatory safety author-
ity over interstate natural gas transmission companies
and intrastate natural gas distribution companies in
Connecticut.’’ In late January, 2010, Baker requested a
phone call from Kleen Energy after he became aware
that Kleen Energy planned to introduce natural gas into
its pipelines for the gas blow procedures without first
introducing nitrogen, contrary to the customary prac-
tice of the gas industry. Robert Haley, a senior employee
of the NAES Corporation, which had contracted with
Kleen Energy to take responsibility for the operation
of the power plant upon completion, spoke with Baker
about the planned gas blow procedures.
Baker recalled the substance of his conversation with
Haley in a report he prepared for the department soon
after the explosion, as well as in subsequent testimony.
During his conversation with Haley, Baker expressed
concern about the planned gas blow procedure and
explained that cleaning operations ‘‘are normally con-
ducted using [nitrogen, compressed air, or water] to
avoid creating a combustible natural gas/air mixture
. . . .’’ Baker testified that he and Haley spoke ‘‘about
how [the department does] things in the gas industry.
[Haley] explained how they do things in the power
industry. They didn’t . . . line up.’’ Baker further testi-
fied that the ‘‘gas industry’’ does not employ natural
gas to clear fuel supply pipelines because ‘‘using a flam-
mable substance to clean pipe versus an inert substance
adds some additional danger to the operation.’’ Baker
testified that Haley explained that ‘‘this is how they do
it in the power business; they do it all over the world
this way. They’ve done tons of power plants, and this
is just the way it’s done, and they’ve done it safely.’’
Baker and Haley spoke about various precautions,
including minimizing personnel on the construction
site, removing ignition sources, and introducing nitro-
gen into the piping beforehand. Haley then sent an
e-mail to various PPMS and O & G individuals to inform
them that he had spoken with Baker. Subsequently,
Baker and Haley held a similar conversation after the
first day of gas blow procedures but before the second
day. For his part, Haley testified that he could not recall
the identity of the department employee with whom he
spoke or the substance of their conversation, and that
he did not convey Baker’s guidance to Kleen Energy,
PPMS, or O & G.
The plaintiffs contend that Kleen Energy and PPMS
exercised control over the gas blow procedures because
of Haley’s conversation with Baker, the failure of Kleen
Energy and PPMS to take the precautions that Haley
and Baker discussed, and their refusal to follow Baker’s
recommendation that O & G clean the fuel supply pipe-
lines with a noncombustible substance. We are not per-
suaded, however, because Haley was not an employee
of Kleen Energy or PPMS. He was an employee of the
NAES Corporation, an entity that is not a party to this
appeal, had no contractual authority regarding the
power plant until its completion, and had no authority
whatsoever over O & G. The plaintiffs assert, in a cur-
sory fashion, that Haley acted on Kleen Energy’s behalf
during construction because his e-mail address and sig-
nature referenced Kleen Energy, but these facts are
insufficient to render Haley’s actions legally attributable
to Kleen Energy.
Moreover, to the extent that the plaintiffs contend
that Haley’s actions could be attributable to Kleen
Energy and construed as instructing O & G to defy
Baker’s warnings, we are not persuaded that such
actions would inform the determination of control given
that the department had no jurisdiction over the power
plant. The gas pipeline safety unit’s ‘‘jurisdiction over
natural gas end[ed] at the connection to an [end user]
of natural gas because, at this point, the gas is no longer
involved in transportation.’’ Consequently, and as the
plaintiffs concede, the department’s gas pipeline safety
unit had no jurisdiction over the transmission of natural
gas through the power plant’s fuel supply pipelines. In
addition, Kleen Energy was not subject to the depart-
ment’s ratemaking, performance, and safety regulatory
authority because it is a federally designated wholesale
generator, which is specifically exempt from the statu-
tory definition of a ‘‘public service company’’ within the
department’s jurisdiction. The plaintiffs contend that
‘‘[j]urisdiction, or lack thereof, does not change the fact
that Kleen [Energy] was warned that its plans were
unsafe but chose to [execute them] anyway.’’ (Internal
quotation marks omitted.) We fail to see how this
informs the control determination. It was not within
Kleen Energy’s contractual power to interfere with the
means or methods of O & G’s performance of construc-
tion activities. As the trial court reasoned, Baker’s warn-
ings did not put ‘‘[Kleen Energy] or [PPMS] in charge
of the gas blow. There is simply no genuine dispute
that O & G was building the plant.’’ Accordingly, we
conclude that the trial court properly granted the defen-
dants’ motions for summary judgment.
III
Finally, the plaintiffs make two additional arguments
to support their contention that summary judgment
with respect to their negligence claims was improper.
First, the plaintiffs contend that, regardless of our deter-
mination of the control question, the defendants are
nevertheless vicariously liable for O & G’s negligence
because O & G was engaged in an intrinsically danger-
ous activity, which satisfies a distinct exception to the
general rule that an employer is not liable for the torts
of its independent contractor. Second, the plaintiffs
contend that, notwithstanding the level of control the
defendants exercised over O & G, their negligence
claims survive because the defendants were directly
negligent. The defendants disagree. Kleen Energy
asserts that Connecticut law does not recognize the
intrinsically dangerous exception articulated in the
Restatement (Second) of Torts, and both defendants
assert that the record does not support a claim of direct
negligence. For the following reasons, we decline to
review both arguments as inadequately briefed.
‘‘We repeatedly have stated that [w]e are not required
to review issues that have been improperly presented
to this court through an inadequate brief. . . . Analy-
sis, rather than mere abstract assertion, is required in
order to avoid abandoning an issue by failure to brief
the issue properly. . . . [F]or this court judiciously and
efficiently to consider claims of error raised on appeal
. . . the parties must clearly and fully set forth their
arguments in their briefs. . . . The parties may not
merely cite a legal principle without analyzing the rela-
tionship between the facts of the case and the law
cited.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Buhl, 321 Conn. 688, 724, 138 A.3d 868
(2016).
We first consider the plaintiffs’ argument that sum-
mary judgment with respect to their negligence claims
was improper because the gas blow procedure satisfies
the ‘‘intrinsically dangerous’’ exception to the general
rule that an employer is not vicariously liable for the
negligence of its independent contractor. As we noted,
there are several exceptions to that general rule, includ-
ing when the employer retains contractual control or
exercises actual control over the contractor’s perfor-
mance of the work; see part II of this opinion; and when
the work contracted for ‘‘is intrinsically dangerous
. . . .’’ (Internal quotation marks omitted.) Pelletier v.
Sordoni/Skanska Construction Co., supra, 264 Conn.
518; see, e.g., Taylor v. Conti, 149 Conn. 174, 178, 177
A.2d 670 (1962) (‘‘[when an employer] contracts for
work to be done of such a character that, even if the
work is duly performed, it would naturally, if not neces-
sarily, expose others to probable injury unless preven-
tive measures are taken by [the employer], [then the
employer] is liable for that injury if, while chargeable
with knowledge that the work is of such a character,
[the employer] negligently fails to take preventive mea-
sures’’). We have also noted that the latter exception
is similarly expressed in § 413 of the Restatement (Sec-
ond) of Torts.12 See, e.g., Pelletier v. Sordoni/Skanska
Construction Co., supra, 286 Conn. 597–98. The plain-
tiffs contend that, pursuant to our case law and § 413
of the Restatement (Second), the gas blow procedure
was intrinsically dangerous and, therefore, the defen-
dants are vicariously liable for O & G’s negligence.13
Thus, the plaintiffs contend, rendering summary judg-
ment as to their negligence claims on a theory of vicari-
ous liability was improper.
We decline to review this issue on the ground that
it is inadequately briefed. The plaintiffs’ analysis of the
issue is minimal and conclusory given the complexity
of the claim raised. Section 413 of the Restatement
(Second), on which the plaintiffs rely, is only one sec-
tion out of a series concerning the issue of employer
liability in an independent contractor relationship. Spe-
cifically, comment (a) to § 413 cross-references § 416 of
the Restatement (Second). See 2 Restatement (Second),
Torts § 413, comment (a), p. 385 (1965). Comment (a) to
§ 416, in turn, emphasizes that that section is informed
by § 427, which restates the same essential rule but
applies in contexts when ‘‘the danger involved in the
work calls for a number of precautions, or involves a
number of possible hazards, as in the case of blasting
. . . .’’ Id., § 416, comment (a), p. 395; see id., § 427, p.
415. In addition, comment (d) to § 427 emphasizes that
that section must be read alongside § 426 of the
Restatement (Second). See id., § 427, comment (d), p.
417. Comment (a) to § 426 explains that an employer
is protected from vicarious liability if the independent
contractor committed ‘‘ ‘collateral negligence,’ ’’ or
‘‘negligence in the operative detail of the work . . . .’’
Id., § 426, comment (a), p. 414.
The plaintiffs do not discuss the nuanced applicability
of these various provisions. Their references to §§ 413,
416 and 427, and to comment (c) to §§ 413 and 427,
are conclusory and lack meaningful analysis. See, e.g.,
MacDermid, Inc. v. Leonetti, 328 Conn. 726, 748, 183
A.3d 611 (2018). This issue accounts for only one page
of their thirty-five page brief. See, e.g., Connecticut
Light & Power Co. v. Gilmore, 289 Conn. 88, 124, 956
A.2d 1145 (2008) (litigant ‘‘devote[d] little more than
[one] page of her [total briefing] to the discussion of her
claim, limiting her argument to . . . bare assertion’’).
Furthermore, even if we were to agree with the plaintiffs
that the gas blow procedure is intrinsically dangerous
in satisfaction of that exception to the general rule
precluding employer liability, such a conclusion would
establish only the duty element of the negligence claims.
The plaintiffs’ brief does not discuss any impropriety
in the trial court’s conclusion that, regardless of the
duty element, the plaintiffs failed to raise a genuine
issue of material fact with respect to the causation
element of their negligence claims. Accordingly, we
cannot fully and fairly evaluate the merits of the plain-
tiffs’ argument, and we decline to consider it.
 The plaintiffs’ second additional argument is that
their negligence claims survive summary judgment, not-
withstanding the employment relationship between the
defendants and O & G, because the defendants were
directly negligent. The plaintiffs point to three facts in
support of their direct negligence claim: (1) the defen-
dants ordered the natural gas required for the gas blow
procedure; (2) PPMS did not conduct ‘‘safety audits’’
as required; and (3) the defendants ignored warnings
about the danger of the gas blow procedure from Baker,
the supervisor of the gas pipeline safety unit. See part
II of this opinion. The plaintiffs contend that ‘‘[t]he
unsafe gas blows never would have happened without’’
the defendants’ commission of those three acts.
As with the first additional argument, the plaintiffs’
treatment of this issue is conclusory, lacking meaning-
ful analysis of the limited legal authority cited. The
plaintiffs assert only that the defendants were negligent
in ordering the natural gas and permitting O & G to
employ the gas blow procedure. The plaintiffs do not
connect those actions to the foreseeability of the harm
or the policy considerations that inform the duty inquiry.
See, e.g., Pelletier v. Sordoni/Skanska Construction
Co., supra, 286 Conn. 593–94 (‘‘Duty is . . . imperative
to a negligence cause of action. . . . [O]ur threshold
inquiry has always been whether the specific harm
alleged by the plaintiff was foreseeable to the defen-
dant. . . . The final step in the duty inquiry . . . is to
make a determination of the fundamental policy of the
law, as to whether the defendant’s responsibility should
extend to such results.’’ (Internal quotation marks omit-
ted.)). Likewise, the plaintiffs do not provide any
authority or analysis to raise a genuine issue of material
fact with respect to the causation element. Accordingly,
we cannot fully and fairly evaluate the merits of this
issue, and we decline to consider it.
The judgment is affirmed.
In this opinion the other justices concurred.
* December 30, 2021, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Specifically, the trial court found that ‘‘PPMS was required to conduct
all of [Kleen Energy’s] accounting and bookkeeping functions, [to] monitor
the performance of third parties who were under contract with [Kleen
Energy], and to support [Kleen Energy] in the completion of certain construc-
tion phase requirements. The construction phase requirements included
assisting with efforts to secure permits, coordinating the delivery of oil and
chemicals to support operational testing, performing construction walk-
downs and providing assessments to [Kleen Energy], and auditing O & G’s
progress, quality, and safety on the construction site.’’
2
Specifically, Richard Audette, the project director for the Kleen Energy
project at O & G and the most senior O & G employee on-site at the
time of the gas blow procedures, testified that the subcontractor Keystone
Construction & Maintenance Services, Inc., managed the gas blow proce-
dures, while the subcontractor Bluewater Energy Solutions, Inc., exercised
oversight. Audette further testified that his understanding of the collabora-
tion involved in the procedure was that O & G was ‘‘prepared’’ to start the
gas blow procedure ‘‘with the assistance of’’ the two subcontractors but
that O & G had ‘‘the responsibility, basically, at the end of the day, to
make sure this activity occur[ed] . . . .’’ (Internal quotation marks omitted.)
Furthermore, e-mail communications between O & G and Kleen Energy
employees reflect that O & G requested Kleen Energy to order the natural
gas that two of its subcontractors would need for the procedures. As the
owner, Kleen Energy was contractually responsible for placing the order
for natural gas.
3
Specifically, James L. Thompson II alleged that he suffered a head injury,
multiple sprains, strains, and contusions, tinnitus, sleep insomnia, and post-
traumatic stress disorder. Carol M. Thompson, his wife, alleged loss of
consortium. James McVay alleged that he suffered lacerations on his face,
loss of hearing, injury to his right knee, lumbar strain, cervical spondylosis,
whiplash, and post-traumatic stress disorder. Nine plaintiffs—injured
employees and their spouses—have been removed since the original 2010
complaint was filed.
4
Several other parties have been named as defendants in the present
case, including O & G’s subcontractors and the manufacturer of the gas
turbines. However, none of these additional defendants is involved in the
present appeal. We hereinafter refer to Kleen Energy and PPMS as the
defendants.
5
In the context of strict liability, these terms are effectively identical.
Having not previously adopted the rule from the Restatement (Second), we
have typically framed the inquiry by considering whether the activity is
‘‘intrinsically dangerous . . . .’’ Caporale v. C. W. Blakeslee & Sons, Inc.,
supra, 149 Conn. 85; accord Whitman Hotel Corp. v. Elliott & Watrous
Engineering Co., 137 Conn. 562, 565, 79 A.2d 591 (1951). The first
Restatement of Torts employed the term ‘‘ultrahazardous activity,’’ which
many courts still use. 3 Restatement, Torts § 520, p. 42 (1938); see id., §§ 519
through 524, pp. 41–53. The Restatement (Second) of Torts replaced this
term with ‘‘[a]bnormally [d]angerous [a]ctivities.’’ 3 Restatement (Second),
supra, § 520, p. 36; see 4 Restatement (Second), Torts app. § 520, reporter’s
note, p. 65 (1981). As the trial court noted, ‘‘courts and litigants commonly
use [these] terms all but interchangeably.’’ For consistency, we employ the
term ‘‘abnormally dangerous activity’’ in this context, except in instances
of quoted material.
6
PPMS contends that ‘‘the doctrine of strict liability for an ultrahazardous
activity cannot apply to a party who had no control over the activity.’’ Thus,
PPMS maintains, the control question is a threshold issue to the strict liability
claim, as well as the dispositive issue to the negligence claim. The plaintiffs
and Kleen Energy do not address whether the control question is a threshold
question to the strict liability claim. The only express guidance provided by
the Restatement (Second) on this question is to state that strict liability
attaches to the party that ‘‘carries on’’ the abnormally dangerous activity.
3 Restatement (Second), supra, § 519 (1), p. 34. Because we conclude that
the gas blow procedure is not abnormally dangerous, we need not decide
whether the plaintiffs’ strict liability claim could survive irrespective of our
resolution of the control question.
7
Section 20 of the Restatement (Third) of Torts, Liability for Physical and
Emotional Harm, reframes the rule for strict liability in the context of
abnormally dangerous activities. Specifically, it provides: ‘‘(a) An actor who
carries on an abnormally dangerous activity is subject to strict liability for
physical harm resulting from the activity.
‘‘(b) An activity is abnormally dangerous if:
‘‘(1) the activity creates a foreseeable and highly significant risk of physical
harm even when reasonable care is exercised by all actors; and
‘‘(2) the activity is not one of common usage.’’ 1 Restatement (Third),
Torts, Liability for Physical and Emotional Harm § 20, p. 229 (2010). The
trial court, however, evaluated the plaintiffs’ strict liability claim according
to the six factor test articulated in § 520 of the Restatement (Second),
and all parties to the present appeal agree that this is the applicable test.
Accordingly, we evaluate the plaintiffs’ strict liability claim pursuant to
the Restatement (Second). Moreover, we note that the principal difference
between the two Restatement revisions is the framework of the inquiry.
The Restatement (Third) captures the same core substantive concerns as
the Restatement (Second), as well as our decisions in Whitman Hotel Corp.
and Caporale. As a result, the outcome of our analysis would be the same
under the Restatement (Third) and the Restatement (Second).
8
‘‘The legislature . . . designated the [Public Utilities Regulatory Author-
ity within the Department of Energy and Environmental Protection] as the
replacement for the Department of Public Utility Control, effective July 1,
2011.’’ Kleen Energy Systems, LLC v. Commissioner of Energy & Environ-
mental Protection, 319 Conn. 367, 370 n.1, 125 A.3d 905 (2015). However,
at all relevant times, Baker’s position as the supervisor of the gas pipeline
safety unit did not change. For convenience, we hereafter refer to both the
Public Utilities Regulatory Authority and the Department of Public Utility
Control as the department.
9
The plaintiffs contend that the availability of alternative procedures to
clear the fuel supply pipelines involving inert substances is ‘‘vital’’ to the
entirety of the abnormally dangerous activity determination. We disagree.
Throughout the briefing, all parties characterize the ‘‘activity’’ in question
as the gas blow procedure, the procedure that was employed in this case.
The availability of alternative procedures involving inert substances would
be relevant only if the activity were characterized as the defendants’ clearing
the fuel supply piping generally. The plaintiffs, however, do not articulate
the inquiry in those terms. Accordingly, like the trial court, we consider
these alternative procedures only with respect to the sixth factor, regarding
the gas blow procedure’s value to the community, and not with respect to
the other five factors.
10
We note that the control exception appears to be definitional in this
case: If the defendants retained sufficient control over O & G to satisfy this
exception, then, by definition, O & G would be properly classified as an
employee, not an independent contractor. Compare Aisenberg v. C. F.
Adams Co., supra, 95 Conn. 421 (employee is ‘‘subject to the lawful orders
and control of his employer,’’ whereas independent contractor employs
‘‘methods under his own control’’), with Pelletier v. Sordoni/Skanska Con-
struction Co., supra, 264 Conn. 518 (employer is liable for negligence of
independent contractor if employer had contractual or actual control over
independent contractor). In other words, the classification of an agent as
either an independent contractor or an employee for the purposes of vicari-
ous liability requires us to consider the same core issue as the control
exception: whether the employer had control over the agent’s means or
methods to complete the work. Because the plaintiffs refer to O & G as an
independent contractor, we focus our inquiry on the control exception.
11
We note that Archambault and Darling both involved appeals following
jury verdicts, not the granting of summary judgment motions. Archambault
v. Soneco/Northeastern, Inc., supra, 287 Conn. 29; Darling v. Burrone Bros.,
Inc., supra, 162 Conn. 189. However, the existence of a duty of care is
always a question of law. See, e.g., Pion v. Southern New England Telephone
Co., supra, 44 Conn. App. 660. In addition, with respect to vicarious liability,
‘‘the question as to who had control of the area or instrumentality causing
the injury’’ is one of law for the court to determine when ‘‘the mind of a
fair and reasonable [person] could reach but one conclusion . . . .’’ (Inter-
nal quotation marks omitted.) Van Nesse v. Tomaszewski, supra, 265 Conn.
631. Those cases reveal that, outside the context of summary judgment, the
court must consider the record in order to determine how to instruct the
jury with respect to the legal questions of duty and control. Id. Because
those cases involve challenges to the court’s determination of the same
legal questions at issue in this case, they are applicable here.
12
Section 413 of the Restatement (Second) of Torts provides: ‘‘One who
employs an independent contractor to do work which the employer should
recognize as likely to create, during its progress, a peculiar unreasonable
risk of physical harm to others unless special precautions are taken, is
subject to liability for physical harm caused to them by the absence of such
precautions if the employer
‘‘(a) fails to provide in the contract that the contractor shall take such
precautions, or
‘‘(b) fails to exercise reasonable care to provide in some other manner
for the taking of such precautions.’’ 2 Restatement (Second), Torts § 413,
pp. 384–85 (1965).
13
Comment (b) to § 427 of the Restatement (Second) notes that this rule
‘‘is commonly expressed by the courts in terms of liability of the employer
for negligence of the contractor in doing work which is ‘inherently’ or
‘intrinsically’ dangerous.’’ 2 Restatement (Second), Torts § 427, comment
(b), p. 416 (1965). We use the term ‘‘intrinsically dangerous activity’’ in part
III of this opinion to refer to an activity that supports the exception to the
general rule that an employer is not vicariously liable for the negligence of
its independent contractor. We briefly note that the parties do not address,
and therefore we do not consider, the substantive interplay between the
‘‘abnormally dangerous’’ activities that support a claim of strict liability
pursuant to § 520 of the Restatement (Second), which we have previously
termed ‘‘intrinsically dangerous’’; see footnote 5 of this opinion; and the
‘‘intrinsically dangerous’’ activities that give rise to employer liability in
negligence pursuant to §§ 413 and 427 of the Restatement (Second).