Natural Gas “Blows” Causing Explosion Were Not “Abnormally Dangerous Activity”
Almost twelve years ago, an explosion ripped through a power generation facility construction project in Middletown, Connecticut, known as Kleen Energy. Six workers were killed and many more were injured. The explosion was caused by a fuel line purge using natural gas, referred to in construction parlance as a “gas blow.”
The Connecticut Supreme Court, in a carefully-worded decision, has held that the process of gas blows is not an “abnormally dangerous activity,” and thus companies involved were not subject to strict liability for resulting injuries and damage.
The concept of “strict liability” is that one performing an abnormally dangerous activity may be liable for resulting injury even if all necessary precautions were taken and there was no negligence. Thus, a blasting contractor (to use a common example) will be liable for damage to nearby structures from blasting activities even if all necessary and appropriate precautions were taken, and the work was conducted without any negligence.
The Connecticut high court stated: “the imposition of strict liability represents a judicial policy determination, informed by the circumstances of the activity.” It noted that the Restatement (Second) of Torts § 520 lists six factors in making this determination: “(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.” (internal citations and quotation marks omitted)
Further, the analysis is not just one of tallying up the responses on each of the six factors. All factors are to be considered:
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 justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.
The court reviewed the history of gas blows in its analysis, and noted:
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 “thousands 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.
Thus, given the frequency of gas blows and the “rare instances” of combustion, the court stated that “the inherent risk that some harm will occur is low.”
On the second factor, resulting harm, the court acknowledged the plaintiffs’ arguments about the severity of accidents when things go awry. But the court concluded: “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.”
The court found that the fourth and sixth factors tipped in the direction of the plaintiffs. Thus, its analysis hinged significantly on the third factor (inability to eliminate the risk by the exercise of reasonable care). The court weighed into the details of common gas blow procedures, and how the particular procedure leading to the explosion in Middletown had varied from those standard procedures. This included failure to regulate the gas pressure, and horizontal orientation of the exhaust nozzle, such that exiting gas was directed at other structures and into an enclosed space, rather than being vertically oriented in a well-ventilated area.
The court concluded: “reasonable precautions would have materially reduced the risk of harm, the severity of any resulting harm, and the generally dangerous attributes of natural gas.” Thus, the court held that the gas blows were not an “abnormally dangerous activity,” and the defendants would not be held to a strict liability standard.
The decision is Gonzalez v. O&G Industries, Inc., 2021 Conn. LEXIS 372 (Dec. 30, 2021).