Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 19 Pantley v. Shop-Rite Supermarkets, Inc. 2000 WL 960934 , Conn.Super., Jun 20, 2000 Not Reported in A.2d Conn.Super.,2000. June 20, 2000. MEMORANDUM OF DECISION RE: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT DOHERTY *1 This is an action for monetary damages brought by the plaintiff, Julia M. Pantley against Shop-Rite Supermarkets, Inc. (Shop-Rite) for personal injuries which she allegedly sustained after being struck by an automatic door which was owned by Shop-Rite and which had been manufactured and installed by the defendant The Stanley Works (Stanley). The defendant Stanley has filed a motion for summary judgment as to counts three and four of the plaintiff's Second Revised Complaint dated November 24, 1998. In the first and second counts of the second revised complaint, the plaintiff alleges that she was injured due to the negligence of Shop-Rite and Door Control when electronic doors, which are located on Shop-Rite's premises, closed on the plaintiff as she was exiting the supermarket. In the third count, the plaintiff alleges that The Stanley Works, the manufacturer of the electronic doors, is legally responsible to the plaintiff for her losses caused by the electronic doors due to product liability, pursuant to General Statutes § 52-572m, because The Stanley Works failed to properly and safely repair and maintain the electronic doors, knew or should have discovered that a defect in the electronic doors was present and dangerous, failed to maintain or provide a safe area for patrons, failed to make a reasonable and timely inspection of the electronic doors, and failed to take any steps to repair the dangerous condition of the electronic doors. In the fourth count, the plaintiff alleges that she was injured due to The Stanley Works' negligence in that The Stanley Works allowed a defect in the electronic doors to exist so that they would close on the plaintiff, knew or should have known about the defect, manufactured doors that were insufficient for the uses and purposes intended, and failed to post warning signs to indicate that the area around the electronic doors was dangerous. On February 4, 2000, The Stanley Works moved for summary judgment on counts three and four of the plaintiff's second revised complaint. Pursuant to Practice Book § 11-10, The Stanley Works filed a memorandum of law in support of its motion for summary judgment. The plaintiff did not file an objection to this motion for summary judgment. "Practice Book § 384 [now § 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 ... The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a issue of motion must provide an evidentiary foundation to demonstrate the existence of a genuine material fact. Practice Book § 381 [now § 17-46]...." (Citations omitted; internal quotation marks omitted.) Witt v. St. Vincent's Medical Center, 252 Conn. 363, 368, 746

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A.2d 753 (2000). "While a party opposing a motion for summary judgment is well advised to file appropriate documentary proof in support of his objection, the failure to do so does not bar him from attacking the sufficiency of the movant's affidavit and other proof. Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 514-18, 391 A.2d 157 (1978). Moreover, the opposing party has no obligation to establish by counter-affidavit the truth of any allegations the movant has not challenged in its motion for summary judgment. Plouffe v. New York, N.H. & H.R, Co., 160 Conn. 482, 491, 280 A.2d 359 (1971)." McGillicuddy v. Giga Plus, Inc., Superior Court, judicial district Hartford-New Britain at Hartford, Docket No. 384266 (January 29, 1992) (Wagner, J.) (6 CONN.L.RPTR. 613, 7 CSCR 323). AS TO THE THIRD COUNT *2 The Stanley Works argues that the plaintiff cannot establish that the defect existed in the electronic doors at the time of sale because the plaintiff did not respond to The Stanley Works' request for admissions, dated November 16, 1999. General Statutes § 52-572m(b) defines a product liability claim as including "all claims or actions brought for personal injury ... caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product." "To maintain a product liability action under 52- 572m et seq., the plaintiff must establish and prove, inter alia, that ... the defendant was engaged in the business of selling the product ... [and] the defect existed at the time of the sale ..." (Citations omitted.) Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 403, 528 A.2d 805 (1987). "If a request for admission is ignored it is deemed admitted. Conn. Practice Book Sec. 13-23 ... The Connecticut Supreme and Appellate Courts have consistently affirmed the granting of summary judgment based on admissions of a party who did not respond to requests for admissions." (Citations omitted.) Tavares v. Mcnamee, No. CV 97 0141683 (Jan. 15, 1999), citing Oernstein v. Old Buckingham Corporation, 205 Conn. 572, 575-77, 534 A.2d 1172 (1987), Allied Grocers Cooperative, Inc. v. Caplan, 30 Conn.App. 274, 279-80, 620 A.2d 165 (1993). The Stanley Works' request for admissions included the following requests: "1. You are not aware of any evidence that the subject doors were defective at the time of sale; 2. You have not disclosed an expert who will testify that the subject doors were defective at the time of sale; 3). You are not prepared to offer any evidence at trial that the subject doors were defective at the time of sale." (The Stanley Works Motion for Summary Judgment, Exhibit E). Because The Stanley Works' request for admissions are deemed admitted, the plaintiff cannot show that a defect in the electronic doors existed at the time of sale. Consequently, the plaintiff does not have an action in product liability under Connecticut Statutes § 52-572m. For the foregoing reasons, The Stanley Works' motion for summary judgment as to the third count of the second revised complaint is hereby granted. AS TO THE FOURTH COUNT The Stanley Works further argues that it did not owe a duty to the plaintiff at the time of the accident, and therefore, The Stanley Works cannot be held liable in negligence in the fourth count of the plaintiff's complaint. "There can be no actionable negligence ... unless there exists a cognizable duty of care." Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996). "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ... Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry has

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always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? ... Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 632-34 (2000). *3 The plaintiff alleges that the "doors through which the plaintiff passed failed to remain open, and instead closed on the plaintiff, and hence, were in a defective condition," and that the "defendant caused and allowed said defect to exist in the electronic doors through which the plaintiff passed." (Second Revised Complaint, p. 10.) The fourth count of the second revised complaint sufficiently alleges that The Stanley Works could owe a duty of care to the plaintiff. It is further submitted that even though the plaintiff admits through her failure to respond to The Stanley Works' request for admissions that "The Stanley Works had no duty to maintain or otherwise service the subject doors," (The Stanley Works Motion for Summary Judgment, Exhibit E), the plaintiff has sufficiently alleged that The Stanley Works owed a duty of care. This admission only refers to the period after The Stanley Works ceased to service the electronic doors because The Stanley Works admits that it installed the electronic doors in May 1992 and serviced them per warranty through December 1992. (The Stanley Works Memorandum of Law in Support of Summary Judgment, p. 10.) The Stanley Works lastly argues that its conduct was not the proximate cause of the plaintiff's injuries, and therefore, it cannot be held liable in negligence in the fourth count of the second revised complaint. "[I]f such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand? ..." (Citations omitted, internal quotation marks omitted.) Santopietro v. City of New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996). "Proximate cause is a question of fact to be decided by the trier of fact, but it becomes a question of law when the mind of a fair and reasonable person could reach only one conclusion ... Lines must be drawn determining how far down the causal continuum individuals will be held liable for the consequences of their actions ... This line is labeled proximate cause ..." (Citations omitted; internal quotation marks omitted.) Medcalf v. Washington Heights Condominium Assn., 57 Conn.App. 12, 17, 747 A.2d 532 (2000). "Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner." (Internal quotations omitted.) Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984); Amendola v. Germia, 21 Conn.App. 35, 37, 571 A.2d 131, cert. denied, 215 Conn. 803, 574 A.2d 217 (1990). "[S]ummary judgment procedure is especially ill-adapted to negligence cases, where, as here, the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ..." (Citations omitted; internal quotation marks omitted.) Michaud v.. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). The Stanley Works does not show that there is no possibility for a reasonable disagreement regarding the cause of the plaintiff's injuries and resulting damages, The Stanley Works fails to show that no genuine issue exists as to any material fact, and that it is, therefore, entitled to judgment as a matter of law. 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

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of law." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 368, 746 A.2d 753 (2000). For the foregoing reasons The Stanley Works' motion for summary judgment is hereby denied as to count four of the second revised complaint. Conn.Super.,2000. Pantley v. Shop-Rite Supermarkets, Inc. 2000 WL 960934 (Conn.Super.) END OF DOCUMENT CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 20 Savelli v. Town of Windsor 1999 WL 1063405, 25 Conn. L. Rptr. 600 , Conn.Super., Nov 03, 1999 Not Reported in A.2d Conn.Super.,1999. Nov. 3, 1999. Memorandum of Decision On Motion for Summary Judgment BOOTH. FACTUAL BACKGROUND *1 This matter was initiated by complaint dated July 15, 1997 and a six count amended complaint dated March 18, 1998. The plaintiff seeks recovery for personal injuries, death and loss of consortium arising out of an incident occurring at the Town of Windsor Sanitary Landfill Transfer Station located at 500 Huckleberry Road, Windsor, Connecticut. The plaintiff's decedent sustained serious injuries on July 22, 1995 which ultimately led to his death in August of 1995. These injuries occurred when decedent was on the premises during operational hours and was struck by an automobile on the premises. The plaintiff alleges that the injuries were caused by the defendants through their negligence and careless design, construction, maintenance and supervision of the site. In addition to the Town, the plaintiff names as defendants two town employees generally concerned with the operation of the landfill. The defendants have moved for summary judgment as to the entire complaint claiming that as a matter of law a landfill transfer station represents governmental duties protected by governmental immunity. STANDARD Summary judgment should be rendered if the pleadings, affidavits and other proof submitted show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Orkney v. Hanover, Inc. Comp. , 248 Conn. 195, 727 A.2d 700 (1999) Connecticut Practice Book Sec. 17-49. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the non-moving party. Orkney, supra at p. 201, 727 A.2d 700. DISCUSSION Connecticut case law on municipal immunity deals extensively with the distinction between "proprietary functions" and "governmental acts." Our cases also analyze immunity in terms of "discretionary acts" and "ministerial acts." At times, the concepts appear to be used interchangeably. In the instant case, the municipal defendants assert that even if the conduct is proprietary,

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municipal immunity bars the claims if the acts complained of are discretionary in nature. This argument is inconsistent with Section 52- 557n(a)(B) which provides: "[e]xcept as otherwise provided by law, a political subdivision of the state shall be liable for damages to persons or property caused by ... (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit." The defendants have cited no statute which provides immunity from liability for negligence in the performance of proprietary functions. See Accashian v. Danbury, 23 Conn.L.Rptr. 648, 1999 WL 27223 (Conn.Sup.) (Hodgson, J.). Defendants have filed the affidavit of Dr. Charles Petrillo, Jr., the Director of Public Health for the Town and one of the named defendants. In that affidavit, Dr. Petrillo states in part: *2 6. That the Town of Windsor Landfill/Transfer Station is operated for the public benefit and the promotion of public health ... 10. That the manner of design, construction and maintenance of the landfill/transfer station were and are discretionary acts. The distinction between governmental and proprietary acts is not drawn on the basis of whether the activity serves the public. Accashian, supra. Operation or maintenance of public facilities has been ruled governmental rather than proprietary on numerous occasions. Storm sewers, Spitzer v. Waterbury, 113 Conn. 84, 154 A. 157 (1931): public parks, Stradmore Development Corp. v. Commissioners, 164 Conn. 548, 324 A.2d 919 (1973); swimming facilities, Carter v. City of Norwalk, 108 Conn. 697, 145 A. 158 (1929); fire departments, O'Donnell v. Groton, 108 Conn. 622, 144 A. 468 (1929); police services, Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185; and maintenance of fire hydrants, Williams v. City of New Haven, 243 Conn. 763, 707 A.2d 1251 (1998). Provisions for utilities for profit such as the operation of water works have been ruled proprietary. Abbott v. Bristol, 167 Conn. 143, 355 A.2d 68 (1974); Richmond v. Norwalk, 96 Conn. 582, 115 A. 11. Whether the operation and maintenance of the landfill transfer station is an exercise of a governmental or proprietary function involves several questions of fact. Among those questions are whether fees are charged, whether the town covers all or part of the costs or whether the landfill generates a profit, whether the landfill is operated for the comfort and convenience of the citizens thereby providing a corporate benefit or conversely whether it is the fulfillment of a governmental function related to the health, safety and welfare of the public at large. See McDermott v. Calvary Baptist Church, 1999 WL 73981 (Conn.Sup.) (Flynn, J.). The court holds, even assuming for the sake of argument that the duties alleged to be breached are discretionary, that the court does not reach the question of discretion unless and until the landfill transfer station is found not to be proprietary. In the present case, the affidavit submitted is largely conclusionary and is not conclusive as to the nature of the landfill. If evidence at trial shows that maintaining and operating the landfill transfer station is a proprietary function of the municipality, then the defendant would have the same duties as would a private possessor of property and would have the duty to inspect the property and warn invitees of possible danger. It is the defendant's obligation in a motion for summary judgment to show that there is no dispute of material fact. The court holds that there is presently a dispute of material fact as to whether the landfill transfer station as operated is a proprietary or municipal function. Conn.Super.,1999. Savelli v. Town of Windsor 1999 WL 1063405 (Conn.Super.), 25 Conn. L. Rptr. 600

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END OF DOCUMENT CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 21 Skelton v. Chemical Leaman Tank Lines, Inc. 1996 WL 278343, 17 Conn. L. Rptr. 56 , Conn.Super., May 13, 1996 Not Reported in A.2d Conn.Super.,1996. May 13, 1996. MEMORANDUM OF DECISION ON CHEMICAL LEAMAN'S MOTION TO STRIKE CORRADINO. *1 The defendant Chemical Leaman has brought a motion to strike against the plaintiffs' claims for (1) loss of filial consortium and the plaintiff parents claim for medical expenses for treatment of their minor child, (2) counts III, X, and XII (negligent infliction of emotional distress), (3) Count IV (strict liability), (4) count V (nuisance), (5) Count VI (CUPTA claim), (6) Counts IX, X, XI, XII (failure to state cause of action because they are brought against corporate officials or agents in their individual capacity). This suit arises out of an explosion that occurred at the defendant's facility. The allegation is made that as a result of the explosion certain toxic materials and contaminants were spread onto an adjacent property known as Rose Orchards. The day after the explosion the plaintiff mother had occasion to visit the orchard and allegedly come in contact with these contaminants. At the time she was pregnant. The claim is made that as a result of the plaintiff mother's exposure to these toxic materials her child suffered severe injury and was born with a variety of medical problems. The suit alleges various theories of relief and the motion to strike is aimed at several of them. The allegations of the third revised complaint will be discussed further as they become relevant. The rule on a motion to strike is that the complaint must be given that reading which is most favorable to the plaintiff, Amodio v. Cunningham, 182 Conn. 80 (1982), but such a motion cannot be resisted by conclusory assertions. A plaintiff must plead facts. I. The defendant Chemical Leaman construes certain paragraphs of the First Count of the plaintiff's complaint as alleging parental claims of interference with their relationship with their child as a result of injuries purportedly suffered by the child due to the defendant's negligence. The defendant argues that Connecticut Appellate Courts have held that loss of consortium claims do not include filial consortium claims between a parent and child or between a child and his siblings. My understanding is that the siblings are not plaintiffs in this litigation and as far as claims of loss of filial consortium are concerned no Appellate Court has held such claim may be made. Hobson v. St. Mary's Hospital, 176 Conn. 485 (1979), held that an action for loss of spousal consortium may be made there was no claim for loss of filial consortium in the case. The court in Maloney v. Lesniak, 17 Conn.App. 130, 141 (1988), in dicta said "the right to consortium is said to arise out of the civil contract of marriage and as such does not extend to the parent-child relationship." However, in footnote 7 on page 141 the court made clear it was not deciding the issue and the issue had not been decided by the Appellate Courts. There are Superior Court cases taking opposing views on this question. I will deny the motion to strike this

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claim by resting on a decision I wrote in Joseph Scalise, et al. v. Bristol Hospital, et al., 14 C ONN. L. R PTR. 534 (1995), where I discussed the matter. 2. *2 I agree with the defendant that the claims for medical expenses are at least ambiguous in that they certainly can be read to ask for medical expenses on behalf of the child and for recovery of medical expenses made by the parents for the child. Pursuant to § 52-204 both the child and the parents cannot make a claim to recover such medical expenses. I believe the plaintiff recognizes this but maintains that the jury instructions would preclude the possibility of any double recovery. The defendant, however, has a right to move to strike these pleadings based on their ambiguity on this issue. The plaintiffs merely have to plead over as they have a right to do. The defendant seeks to strike the third, tenth, and twelfth counts. It claims that although the plaintiffs have labeled these counts as sounding in negligent infliction of emotional distress "they have, in reality, alleged a claim for bystander emotional distress," (page 7 of defendant's brief). The characterization made by the defendant is that in a negligent infliction of emotional distress claim an injury is directly caused to the plaintiff whereas in a bystander recovery claim the allegation is that a defendant's negligence has injured a third party. The distinction becomes somewhat confused when the injury is to the child during the birthing process and the mother makes the claim, cf Joseph Scalise, et al. v. Bristol Hospital, et al., at p. 537. I am not sure that cases recognizing an action for negligent infliction of emotional distress in these birthing process injury cases would extend the reach of that doctrine to provide a recovery for the mother for observed injuries to the child apparent after the birthing process. I will regard this then as an action for recovery for bystander emotional distress. Several cases have recognized that doctrine. I did so in Corchesne v. Dickou Bus Co., 11 C ONN. L. RPTR. 463 (1994). Since there is a virtue in consistency and I at least tried to analyze the competing considerations in Corchesne, I still conclude there should be a cause of action for bystander emotional distress in our state. I have serious doubt whether an action for what in effect appears to be an action for bystander emotional distress should be allowed on the facts of this case. The California courts have created this doctrine and I believe have intelligently limited it, see Thing v. La Chusa, 771 P.2d 814, 829-30 (1989, Cal.). I am not sure the allegations here meet the requirements of Thing v. La Chusa, supra. However, neither side really argued this question or addressed it in their briefs so I am reluctant to grant the motion without giving counsel the chance for further argument. If the defendant wishes to press this motion on these three counts it should so inform the plaintiff and both sides can contact my clerk to set a date for further argument. 4. In the Fourth Count the plaintiff makes a claim for strict liability in tort for engaging in abnormally dangerous activities by virtue of the storage and use of hazardous materials on its property. *3 A claim such as this raises very technical issues as to whether it should be tested by a motion to strike or by way of summary judgment, Connecticut Water Co. v. Town of Thomaston, et al., 16 CONN. L. RPTR. 213, 215- 18 (1996). In this regard the facts alleged in a complaint are to be construed in a manner that is most favorable to the plaintiff when the complaint is attacked by a motion to strike, Amodio v. Cunningham, 182 Conn. 80 (1980). On the other hand claims must be supported by factual allegations otherwise a motion to strike is appropriate. Pepper v. The American Way Homes, Inc., 6 Conn. L. Trib. # 26, p. 17 (1980).

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Adopting the reasoning of Connecticut Water Co. v. Town of Thomaston, supra, I have to regard the strict liability claim asserted here as merely conclusory. For the reasons stated in that opinion I do not believe the mere storage of hazardous or toxic material as such permits a strict liability claim unless perhaps there is some factual allegation that due to the corrosive properties of the substance or its gaseous nature it cannot be stored without leaking or escaping into the environment. If the claim is that the use and/or disposal of the material is the basis of the claim I do not believe a strict liability claim can be based on what in fact is a leak or escape of hazardous material due to negligent activity. Arlington Forest Associates v. Exxon Corporation, 774 F.Supp. 387, 392 (E.D.Va, 1991). In paragraph 15 of the Fourth Count it is stated the materials the defendant handled are intrinsically dangerous to people and property "in the event of an accident, spill, or release like that which occurred on September 8, 1991." Paragraph 16 states as a result of the defendant's choice to engage and do business in an intrinsically and abnormally dangerous activity on the date mentioned there was a release of toxic material which caused the plaintiff's damage. All of this is conclusory and doesn't supply the essential factual allegations to make out a strict liability claim. In other words the mere fact that a business or person stores toxic substances or even uses or disposes of such material does not establish a strict liability claim even if on occasion such material is spilled or released. The nature of the material must be such that its storage, use, or disposal in the ordinary course despite any safety standards that are adopted will and does result in such release or spillage. Even given these pleadings their most favorable reading I cannot conclude that sufficient factual allegations are set forth to support this theory. In fact the "like that which occurred on September 8, 1991" language makes the claim of strict liability somewhat legally suspect since the first three counts are based on variations of a negligence claim concerning the release of toxic material which occurred on the date in question. I will grant the motion to strike as to the Fourth Count. 5. *4 The defendant has also filed a motion directed toward the Fifth Count and alleges in the 13th paragraph a "private nuisance." The plaintiff now argues that in any event they have set forth sufficient factual allegations to support a "public nuisance" theory of liability. Factual allegations of the first count are incorporated into this count and those allegations state that an explosion occurred at the defendant's facility releasing pollutants into the air which "came to rest in part the entire property and orchard farm ... owned by David S. Rose and maintained and operated as Rose Orchards," par. 22 of First Count and 16 of Fifth Count. The plaintiff later entered the Orchard and alleges she was subjected to contamination which caused her injury. Paragraph 26 of the First Count and thus paragraph 20 of the Fifth Count says that soon after her involuntary exposure to the contaminants the plaintiff mother "left the Rose Orchards Farm property and the surrounding area, to return home." That is the only place in the Fifth Count where the words "surrounding area" are used. As noted in paragraph 16 of the Fifth Count (22 of First Count) the plaintiffs claim the pollutants fell "in part" on the Rose Orchard. Where the other "parts" may have come to rest is not alleged-they could have come to rest on non-Rose Orchard and nondefendant property, they could have come to rest on the defendant's own property. Dahlstrom v. Roosevelt Mills, Inc., 27 Conn.Supp. 355, 357 (1967) referred to by both parties states: Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights that is the rights by citizens as part of the public. (Citations omitted.)

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In Higgins v. Connecticut Light & Power Co., 129 Conn. 600, 611 (1943) the court said: ... if the annoyance is one that is common to the public generally then it is a public nuisance ... The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence. (Citations omitted.) The Restatement (2d) Torts at § 821 comment (g) gives some factual examples that make the notion of a "public nuisance" somewhat clearer. Speaking of that interference with a public right that creates a public nuisance the Restatement says at page 92-93 citing factual examples. Thus the pollution of a stream that merely deprives fifty or a hundred lower riparian owners of the use of the water for purposes connected with their land does not for that reason alone become a public nuisance. If, however, the pollution prevents the use of a public bathing beach or kills the fish in a navigable stream and so deprives all members of the community of the right to fish, it becomes a public nuisance ... It is not, however, necessary that the entire community be affected by a public nuisance, so long as the nuisance will interfere with those who come in contact with it in the exercise of a public right or it otherwise affects the interests of the community at large. The obstruction of a public highway is a public nuisance, although no one is travelling upon the highway or wishes to travel on it at the time ... In any case in which a private nuisance affects a large number of persons in their use and enjoyment of land it will normally be accompanied by some interference with the rights of the public as well. Thus the spread of smoke, dust or fumes over a considerable area filled with private residences may interfere also with the use of the public streets or affect the health of so many persons as to involve the interests of the public at large. *5 Based on the factual allegations of this Fifth Count all I can deduce with certainty that "in part" contaminants fell on to the Rose Orchard property. Also the plaintiff mother came to be on that particular property where she came into contact with contaminants. This seems to be the exact situation faced by the court in Dahlstrom v. Roosevelt Mills, Inc., supra where the court sustained a demurrer on a complaint of public nuisance. The plaintiff there said he entered a store and was injured claiming the condition of a soft drink vending machine on the premises constituted a public nuisance. In granting the demurrer the court said at 27 Conn.Sup. at p. 357: As a patron, the plaintiff was an invitee while in the defendant's establishment. While members of the general public were unquestionably welcome to enter the store, and even solicited to do so, nevertheless they were not entitled to do so by virtue of any public right enjoyed by citizens as part of the public. The public was invited to enter, but there was no public right to do so, and the defendant's establishment was not a public place where the public had a right to be. The plaintiff was not in the exercise of any public right while on the defendant's premises, and he cannot base his right to recover upon the existence of a public nuisance. It might be that if in fact contaminants are spread over a large area including public streets giving access to private residences or businesses a public nuisance claim can be made by an individual under circumstances where that person suffers injury while going to those premises as the Restatement perhaps suggests but no such allegations are made here. The motion to strike the Fifth Count is, however, granted for the reasons stated. Finally for possible future reference, although I will grant the motion to strike, I will not grant it on the additional ground that is suggested in the defendant's brief. At page 11 it states or implies a public nuisance claim cannot be made because the plaintiffs "claim to have received personal and monetary 'injuries' resulting from the actions of defendant Chemical Leamon." Under the

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Restatement (§ 821 C) to recover in an individual action for a public nuisance one must have suffered a harm of a kind or type different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference. As the Restatement indicates in comments (d) and (h) where a public nuisance causes personal injury to the plaintiff or pecuniary loss that is certainly a harm normally different in kind from that suffered by the general public. 6. In the Sixth Count the plaintiff alleges a violation of the Connecticut Unfair Trade Practices Act, § 42-110b et seq. The following factual allegations are made in this count: the defendant Chemical Leaman at times relevant to this complaint was engaged in trade or commerce in our state, the defendant failed to maintain properly placarded tankers when storing loads at its Branford facility and failed to maintain and control substances stored at its facility so as not to damage neighboring persons or property and their invitees. The latter two factual allegations support the plaintiffs' claim of a deceptive or unfair trade practice under the act. These factual allegations are used to also support a claim that the actions of the defendant in this regard were "immoral, unethical, oppressive or unscrupulous" and thus violative of our Unfair Trade Practices Act. These acts are then alleged to have caused injury to the plaintiff mother and as a result to her unborn child because it is further alleged the plaintiff mother entered on property adjacent to the defendant's facility the day after there was an explosion at the facility. This explosion resulted in the plaintiff being exposed to contaminants when she entered the neighboring property. As a result of her exposure to contact with and ingestion of the contaminants the plaintiff mother suffered from harmful physical and medical reactions and the claim is made that the condition and the health of her unborn child was also affected all of which led to severe injury and damages. *6 The just recited facts, if proven, would entitle the plaintiffs to recovery under one or more theories of liability. The question is whether they provide the basis for a CUTPA claim. The defendant says they do not and has filed a motion to strike this claim. Section 42-110b states that the legislative intent of CUTPA was that no person should engage in unfair methods of competition and unfair and deceptive acts or practices in the conduct of any trade or commerce. Subsection (b) indicates that in interpreting our act the legislature intended that our courts be guided by interpretations given by the Federal Trade Commission and the federal courts to Section 5(a)(1) of the Federal Trade Commission Act, 15 USC 45(a)(1). The Federal Trade Commission Act when originally enacted in 1914 was designed to supplement and bolster the Sherman and Clayton Act. It forbade only "unfair methods of competition in commerce." In 1938 the Act was amended to outlaw also "unfair acts or deceptive acts or practices in commerce." This amendment as noted in Trade Commission v. APW Paper Co., 328 U.S. 193, 199, ftn. 4, was designed to make the consumer who may be injured by an unfair trade practice of equal concern with a merchant or business person engaged in competition with an alleged wrongdoer. The plaintiff mother in this case of course is not a "competitor" of the defendant so that she or the other plaintiffs in this case can only proceed under CUTPA if she or they can be categorized as "consumers." Larsen Chelsy Realty Co. v. Larsen, 232 Conn. 480, 495-96 (1995) limited the reach of dicta in Jackson v. RG Whipple, Inc., 225 Conn. 705, 725-26 (1993) insofar as it implied that the act was limited to consumer relationships. As the Larsen case noted a competitor or other business person can maintain a CUTPA claim without showing a consumer injury. Id. p. 496. Keeping that limitation in mind, however, the Jackson dicta is still instructive in trying to

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arrive at a definition of what a "consumer" is in light of the purposes of the federal act and our act. The court in Jackson at 225 Conn. pages 725-27. ... it strains credulity to conclude that CUTPA is so formless as to provide redress to any person, for any actionable harm caused by any person in the conduct of any 'trade' or 'commerce' ... a claimant under CUTPA must possess at least some type of consumer relationship with the party who allegedly caused harm to him or her. In other words the defendant company stored and managed these toxic materials as part of its business, the business qua business is involved in trade or commerce. But the injuries allegedly suffered by the plaintiffs did not result from the activities of the defendant as a result of its "conduct" in trade or commerce with the plaintiff as consumers. In other words our act, modeled as it is on the federal act gives protection to wronged competitors and consumers but not to the world at large or any individual who might be injured by the activities of a business entity no matter what relationship the individual had with that business, even no relationship at all. The federal law and ours were aimed at regulating and sanitizing commerce and practices in commercial markets. *7 Admittedly the "unfair methods of competition referred to in Section 5(a)(1) of the federal act have been described as "flexible," and are not confined to those that were illegal at common law or condemned in the Sherman Act but still they are "to be defined with particularity by the myriad of cases from the field of business," FTC v. Motion Picture Advertising Service Co., 344 U.S. 392, 394 (1953) (emphasis added). The plaintiff mother here alleged to have been contaminated when she entered a piece of property adjacent to the defendant's facility a day after an explosion at that facility. She had no consumer relationship let alone a business relationship with the defendant at the time of her injury, she did not suffer injury as a result of a business or consumer relationship with the defendant and her injuries or that of any other plaintiff did not arise out of any such relationship. Therefore no action on this state of alleged facts may be brought under CUTPA against the defendant cf Watson et al. v. Northeast Utilities, 11 CONN. L. RPTR. 200 (1994) injuries allegedly caused by electromagnetic radiation from an electrical substation are not injuries received in plaintiff's capacity as a consumer and these are not covered by CUTPA, also see Edelwich v. 33 Summer Associates, 9 CSCR 620 (1994). I will grant the motion to strike only on the above stated ground, however I will not address the claim raised by the defendant that CUTPA does not apply to personal injuries. Count Six is stricken. 7. The defendants St. Jean and Latham are employees of the defendant corporation and have been sued by the plaintiffs for negligence and negligent infliction of emotional distress, Counts Nine, Ten, Eleven and Twelve. These individual defendants have now moved to strike the counts against them based on Scribner v. O'Brien, 169 Conn. 389 (1975). They also cite Amortek Indus., Inc. v. Freedman, 790 F.Supp. 383 (D.Conn.1992) and Lailhenque v. Mobil Oil Corp., 775 JF.Supp. 908 (E.D.La, 1991). In Scribner at 169 Conn. page 404 the court said: It is also true that an officer of a corporation does not incur personal liability for its torts merely because of his (sic) official position. Where, however, an agent or officer commits or participates in the commission of a tort whether or not he acts on behalf of his principal or corporation, he (sic) is liable to third persons injured thereby. Cf First National Bank & Trust Co. v. Manning, 116 Conn. 335, 340 (1933), Sample v. Morgenstern, 97 Conn. 402, 404 (1922), Bennett v. Ives, 30 Conn. 329, 334 (1862). Fletcher Cyclopedia Corporations, Vol. 3A § 1135, § 1137 also takes the view that personal participation

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in the tort by a corporate officer is essential if he or she is to be held liable. The defendants have also cited Amortek Industries, Inc. v. Freedman, 790 F.Supp. 383, 394 (D.Conn.1992) which adopts the view that individual liability of corporate officer does not depend on his or her status as such "but depends on the specific activities of a party, including the level of involvement in day to day business operations and participation in decisions regarding disposal of hazardous waste." *8 From this general reference to the law which is, as the defendants note, widely accepted, the defendants make a further argument which is not so "black letter." The defendants at page 17 of their brief say "plaintiffs' assertions of alleged omission/failures by the Chemical Leaman employees fails to validate the Common Law claims-corporate employees cannot be held liable for mere omissions or 'nonfeasance.' " In other words the defendants argue the plaintiffs have failed to plead that the individual defendants actively participated in the tortious activity. They allege nothing more than a failure to act, Lailhengue v. Mobil Oil Corp., 775 F.Supp. 908, 910 (E.D.La, 1991) (this case cites Louisiana Law). The distinctions between malfeasance, nonfeasance and misfeasance, which is apparently a concept between mal and nonfeasance but heading towards malfeasance are more easily put on paper than explained. I agree with the opinion of an Ohio case, Schaefer v. D & J Produce Inc., 403 N.E.2d 1015, 1019-20 (1978). There the court said: Early Ohio cases drew a distinction between an agent's acts of misfeasance or positive wrongs, and an agent's nonfeasance or omissions of duty. The agent was held personally liable to third parties for his positive wrongs and misfeasances but, in general, the agent was not held liable to third persons for his nonfeasance and omissions of duty therein. See 2 Ohio Jurisprudence 2d 208, Agency, Section 144 and cases cited therein. Later Ohio decisions, particularly Richards v. Stratton, (1925), 112 Ohio St. 476, 147 N.E. 645, and Employers' Fire Ins. Co. v. U.P. Service, Inc., (1950), 89 Ohio App. 447, 99 N.E.E.2d 794, indicate a departure from reliance on distinctions between misfeasance and nonfeasance as the measure of an agent's liability. These cases are in line with the modern trend of authority summarized in 2 Ohio Jurisprudence 2d 208, Agency, Section 144, as follows: The modern tendency of the courts is to repudiate, in cases where the agent has actually undertaken the work, any distinction as to the liability of agent to third persons in tort, based on the fact that the cause of the injury may be an omission to perform some act-a nonfeasance-rather than a positive misfeasance, and to hold the agent liable equally for his nonfeasance or negligent omissions of duty (in the sense of omitting to do some part of the work he has actually undertaken to do) as for his positive misfeasances ... As observed in Employers' Fire Ins. Co., supra, at 452, 99 N.E.2d at 797, the difficulty with using the terms "misfeasance" and "nonfeasance" as a criterion of the agent's liability "is that the terms themselves require definition to determine when nonfeasance ceases and misfeasance or malfeasance begins." This method of determining an agent's liability has been severely criticized. Also see Restatement of Torts 2d § 324a page 142, Restatement of Agency 2d § 354, p. 142. The defendants raise a specter-"If mere omissions could be the basis for corporate employee liability, there would be no logical limitation on the number of corporate employees who might be sued" (p. 16 of brief). Of course there would be a limitation on what corporate officers could be sued-it would depend on their responsibility for and participation in the acts or failures to act comprising the corporate activity and causing injury. In other words the limitation would be based on the concept of duty not scholastic disputes about whether in a particular case we had malfeasance, misfeasance, or nonfeasance. After all ... it seems that the true basis of liability should be the violation by the officer or servant of some duty owed to the third person by reasons

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whereof injury results to such third person. Certainly the managing officer of a corporation would not be liable to a third person for any injury resulting from a neglect of duty unless that duty was one he (sic) owed to such third person, Darling & Co. v. Fry, 24 S.W.2d 722, 724 (Mo.1930). *9 In fact if Scribner v. O'Brien, Inc., supra closely examined and the basis for the suit is is looked at it could be categorized as a case of nonfeasance. There a claim was made against individual corporate employees for failure to put in a drainage system 169 Conn. at p. 396 and the trial court concluded that the resulting water problem was caused by defendant's excavation of the property and failure to provide for drainage-that sounds like nonfeasance, or at least misfeasance. In any event the Scribner court made the question of individual liability turn on the question of the actual participation of the corporate officers in the construction project. Id. pp. 403-04. As to both defendants the plaintiffs allege that they had responsibility over certain equipment, substances, and personnel who worked with these substances and equipment and their failure to take certain steps regarding the supervisory role resulted in the discharge of contaminants which caused injury to the plaintiffs. That is enough to get by a motion to strike as to the counts against these individual defendantswhether they could be sued in their individual capacities was the only ground raised against counts Nine and Eleven and I will not grant the motion to strike on this particular ground as to Counts Nine, Ten, Eleven and Twelve. The motion to strike is granted as to the following matters: Motion to strike as it relates to certain medical expenses; Count Four (strict liability), Count Five (nuisance), Count Six (CUTPA claim). Conn.Super.,1996. Skelton v. Chemical Leaman Tank Lines, Inc. 1996 WL 278343 (Conn.Super.), 17 Conn. L. Rptr. 56 END OF DOCUMENT CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 22 State v. Lead Ind. Assn., Inc. 2001 WL 345830 , R.I.Super., Apr 02, 2001 Not Reported in A.2d R.I.Super.,2001. April 2, 2001. DECISION SILVERSTEIN, J. *1 Before the Court, pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure, are defendants' motions to dismiss and the plaintiff's objection thereto. Facts/Travel On October 12, 1999, the Attorney General of the State of Rhode Island (the Attorney General or the State) filed a complaint against several lead pigment manufacturers and their trade association, specifically nine named defendants [FN1] and John Doe Corporations collectively identified herein as the lead [FN2] industry. In its complaint, the State alleges an extensive

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history of defendants' conduct consisting of misrepresentations and concealment of evidence regarding the hazards of lead. The State claims that it has been damaged because it has incurred, and continues to incur, substantial costs related to discovering and abating lead, detecting lead poisoning, and providing (i) medical and/or other care for lead-poisoned residents of this state, (ii) education programs for children suffering injuries as a result of lead exposure and (iii) education programs for state residents. [FN3] In seeking compensatory and punitive damages, injunctive and other equitable relief, the State pled ten causes of action: (i) public nuisance, (ii) violation of the Rhode Island Unfair Trade Practice and Consumer Protection Act, G.L.1956 § 613.1-1 et seq. (UTPA), (iii) strict liability, (iv) negligence, (v) negligent misrepresentations and omissions, (vi) fraudulent misrepresentations and omissions, (vii) civil conspiracy, (viii) unjust enrichment, (ix) indemnity and (x) equitable relief to protect children. FN1. The named defendants include Lead Industries Association, Inc., American Cyanamid Company, Atlantic Richfield Company, E.I. DuPont De Nemours and Company, The O'Brien Company, the Glidden Company, NL Industries, Inc., SCM Chemicals, and The Sherwin-Williams Company, some being successors-in-interest to other entities.

FN2. The State avers that "American Cyanamid, Atlantic Richfield, DuPont, O'Brien, Glidden, NL Industries, SCM Chemicals and Sherwin-Williams and their agents, servants, aiders and/or abettors and co-conspirators ( [ ] Manufacturing Defendants) manufactured, processed, marketed, promoted, supplied, distributed and/or sold all or substantially all lead products contained in paint and coatings ( [ ] Lead) during the relevant time period." A. Compl., ¶ 13.

FN3. "As a direct and proximate result of these and other wrongful actions by the defendants, the State has suffered substantial damages, including but not limited to, the costs of discovering and abating Lead, the expenditure of State funds to detect lead poisoning and provide medical and/or other care of lead poisoned residents of the State, the costs of education programs for children suffering injuries as a result of Lead exposure and the costs of education programs for residents of the State due to the dangers present as a result of Lead in the State. These costs continue to mount as residents of the State continue to be exposed to Defendants' Lead." Am. Compl., ¶ 42.

Certain defendants filed their motion to dismiss on January 31, 2000. On the same date, defendant The Sherwin-Williams Company (Sherwin-Williams) filed a motion to dismiss the complaint on constitutional grounds. On May 31, 2000, defendant Lead Industries Association (LIA) filed a motion to dismiss wherein it joined Sherwin-Williams' argument to dismiss based on constitutional grounds. In early June, the State filed briefs in opposition to the defendants' motions filed on January 31, 2000, to which Sherwin-Williams, the LIA and certain defendants

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filed reply briefs on August 15, 2000. On July 21, 2000, the State filed its first amended complaint wherein it merely added ConAgra as a defendant. [FN4] Defendant ConAgra filed its motion to dismiss on September 15, 2000. On October 12, 2000, the Court heard extensive oral argument on the motions to dismiss and the State's objection thereto. Subsequent to the availability of a transcript of the hearing, the parties simultaneously filed post-hearing briefs on or about December 14, 2000. FN4. The named defendants are collectively referred to hereinafter as the defendants.

Relying on various theories and over the State's objection, the defendants move this Court pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure to dismiss for failure to state any cause of action cognizable under Rhode Island law. Motion to Dismiss It is well-settled that the sole function of a motion to dismiss is to test the sufficiency of the complaint. Rhode Island Affiliate, American Civil Liberties Union, Inc. v. Bernasconi, 557 A.2d 1232, 1232 (R.I.1989). "When ruling on a Rule 12(b)(6) motion, the trial justice must look no further than the complaint, assume that all allegations in the complaint are true, and resolve any doubts in a plaintiff's favor." Estate of Sherman v. Almeida, 747 A.2d 470, 473 (R.I.2000) (quoting Rhode Island Affiliate, American Civil Liberties Union, Inc., 557 A.2d at 1232). "When it appears clear beyond a reasonable doubt that plaintiff would not be entitled to relief under any set of facts, a motion made pursuant to Rule 12(b)(6) should be granted." Solomon v. Progressive Casualty Insurance Co., 685 A.2d 1073, 1074 (R.I.1996) (order) (citing Ellis v. Rhode Island Public Transit Authority, 586 A.2d 1055, 1057 (R.I.1991)). Attorney General's Capacity to Bring this Suit *2 At the outset, the defendants challenge the Attorney General's authority in bringing this suit on behalf of the State. The Attorney General counters that his authority derives from the following three distinct capacities: (1) proprietary, as the State's corporate attorney; (2) statutory, as provided for in the Rhode Island General Laws; and (3) sovereign, as founded in the common law and established in the Rhode Island Constitution. The State contends that this suit differs in kind from other suits commenced by private individual plaintiffs. Regarding the Attorney General's authority to bring this action, the defendants primarily challenge the extent of his sovereign capacity to pursue certain claims on behalf of the Rhode Island citizenry. In this state it is well-settled that "[s]uits for the public should be placed in public and responsible hands." McCarthy v. McAloon, 79 R.I. 55, 62, 83 A.2d 75, 78 (1951) (quoting O'Brien v. Board of Aldermen, R.I. 113, 116, 25 A. 914, 915 (1892)). The public officer 18 vested with that authority is the Attorney General of the state. Id.; see also Stearns v. Newport Hospital, 27 R.I. 309, 316, 62 A. 132, 135 (1905) (Recognizing that the Attorney General is the proper person to represent the public in any judicial inquiry regarding the conduct of the trustee in administering a public trust, our Supreme Court quoted Burbank v. Burbank, 152 Mass. 254, 25 N.E. 427 (1890), " 'This duty of maintaining the rights of the public is vested in the Commonwealth, and it is exercised here, as in England, by the attorney-general." ') Although exclusive, the Attorney General's authority to redress a purely public wrong excepts "those

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instances where one of the public who is injured has a distinct personal legal interest different from that of the public at large." McCarthy, 79 R.I. at 62, 83 A.2d at 78. The significant powers of the office of Attorney General derive from common and statutory law. " 'The office of Attorney General is an ancient one. It came into being as a necessary adjunct in the administration of the common law of England and was transported to America in the early days of the establishment of government in the colonies as part of their English derived common law." ' Suitor v. Nugent, 98 R.I. 56, 58, 199 A.2d 722 (R.I.1964) (quoting Commonwealth ex re. Minerd v. Margiotti, 325 Pa. 17, 21, 188 A. 524 (1936)). Our Supreme Court recognized, as the Pennsylvania court had noted, that with the office of Attorney General "came the common-law powers and duties thereof to the extent that they were not abridged by constitutional provision." Id. Our constitution "did not purport to create such an office but recognized it as existing and provided for continuance of the powers and duties exercised by its occupant prior to the adoption of the constitution." Id. Specifically, Article IX, section 12 of our constitution provides, "The duties and powers of the ... attorney-general ... shall be the same under this constitution as are now established, or as from time to time may be prescribed by law." Accordingly, the common law powers of the Attorney General are not abridged by the Rhode Island Constitution. Further, the Legislature may not "infringe [ ] upon the fundamental powers of the Attorney General." In Re House of Representatives, 575 A.2d 176, 180 (R.I.1990) (construing Murphy v. Yates, 276 Md. 475, 492, 494, 348 A.2d 837, 846-47 (1975)) ("the General Assembly may not abrogate the common law powers of the Attorney General ... having been stated as those 'prescribed by law'.... If an Office is created by the Constitution ... the position can neither be abolished by statute nor reduced to impotence by the transfer of duties characteristic of the office to another office created by the legislature"). *3 Additionally, the powers of the Attorney General derive from certain statutory authority, including G.L.1956 §§ 42-9-2, 42-9-5, and 6-13.1- 5 (infra ). Specifically, in relevant part, G.L.1956 § 42-9-2 provides that, "The attorney general ... shall exercise the powers and duties prescribed in and shall enforce the provisions of this chapter and of §§ 12-1-4--12-1-12 [Title 12 Criminal Procedure], and in all other provisions of the general laws and public laws insofar as they relate to the powers and duties of the attorney general." Further, G.L.1956 § 42-9-5 provides, "The attorney general shall commence and prosecute to final judgment and execution those other legal or equitable processes, and shall perform those other duties which are or may be required of him or her by law." Accordingly, the Attorney General's authority in bringing this action is comprised of that which existed at common law, as well as that allowed by statute. The Doctrine of Parens Patriae A state's authority to vindicate certain interests of the state and its citizens is often referred to as a parens patriae action. "Parens patriae means literally 'parent of the country." Estados Unidos ' Mexicanos v. DeCoster, 229 F.3d 332, 335 (1st Cir. Me 2000) (quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 600, 102 S.Ct. 3260, 73 L.Ed.2d 995 (1982)). The doctrine "creates an exception to normal rules of standing applied to private citizens in recognition of the special role that a State plays in pursuing its quasi-sovereign interests in 'the well-being of its populace." ' (citing Snapp, 458 U.S. at 602); see also Georgia v. Tennessee Copper Co., 206 Id. U.S. 230, 237, 27 S.Ct. 618, 51 L.Ed. 1038 (1907) (a state "has an interest independent of and behind all titles of its citizens, in all the earth and air within its domain"). A state's "quasisovereign interest is thus distinct from, for example, its sovereign interest in protecting and maintaining its boundaries and its proprietary interest in owning land or conducting a business venture." Id. at n. 3 (citing Snapp, 458 U.S. at 601-02). It is a "judicially created exception that

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has been narrowly construed." Id. In DeCoster, the First Circuit Court of Appeals recognized that the "most complete explanation of the parens patriae doctrine in its modern incarnation, as applied to the States of this country," appears in the United States Supreme Court's opinion in Snapp: "In order to maintain [a parens patriae] action, the State must articulate an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party. The State must express a quasi- sovereign interest. Although the articulation of such interests is a matter for case-by-case development--neither an exhaustive formal definition nor a definitive list of qualifying interests can be presented in the abstract-- certain characteristics of such interests are so far evident. These characteristics fall into two general categories. First, a State has a quasisovereign interest in the health and well-being--both physical and economic--of its residents in general. Second, a State has a quasi-sovereign interest in not being discriminatorily denied its rightful status within the federal system." Id. at 336 (quoting Snapp, 458 U.S. at 607). *4 Finally, a quasi-sovereign interest "must be sufficiently concrete to create an actual controversy between the State and the defendant." Snapp, 458 U.S. at 602. Sufficient quasisovereign interests include a state's interests in its citizens' health, safety, and welfare as well as in a healthful environment. Id. at 603-07. Rhode Island recognizes the parens patriae doctrine. [FN5] Further, if the Attorney General could not bring such actions, it appears that wrongs to the public interest would not be able to be vindicated by the State. FN5. General Laws 1956 §§ 6-36-12 (Rhode Island Antitrust Act); 40-8 .2-6 (Medical Assistance Fraud); 42-9.1-1 (Office of Health Care Advocate); and 46-12.3-5 (Environmental Injury Compensation Act).

Separation of Powers The defendants characterize the instant action as an attempt by the State to have the judiciary exercise legislative function by setting the State's fiscal and regulatory policy in violation of separation of powers principles. Without citing controlling caselaw, they contend that, absent legislative authorization, the State cannot by this action recover costs for lead inspections and abatement, public health education, medical care and special education of lead-affected children. Specifically, the defendants contend that besides not imposing any obligation or responsibility on lead pigment manufacturers, the Lead Poisoning Prevention Act, G.L.1956 § 23-24.6-1 et seq., enacted in 1991 (LPPA), as a comprehensive enactment, does not provide any right of action which allows the state to recover its costs. The defendants contend that the Rhode Island Constitution "entrusts the powers for setting fiscal and regulatory policy to the legislature, not the judiciary acting at the behest of the Attorney General." [FN6] Accordingly, the defendants contend, this Court should dismiss the entire action. FN6. Sherwin-Williams Mem. at 3.

The Attorney General, relying on a liberal interpretation clause within the statute, counters that the LPPA does not contain any language suggesting that the General Assembly intended the

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statute to provide the exclusive mechanism to remedy Rhode Island's environmental health problem caused by lead. Specifically, section 25 of the LPPA, entitled "Interpretation and severability," provides in relevant part that "[t]he provisions of this chapter shall be liberally construed and shall be held to be in addition to, and not in substitution for or a limitation of, the provisions of any other law." G.L. § 23-24.6-25. It is well-settled that it is "the province and duty of the judicial department to say what the law is." City of Pawtucket v. Sundlun, 662 A.2d 40, 59 (R.I.1995) (citing Marbury v. Madison, 5 U.S. 137, 177 2 L.Ed 60, 73 (1803)). Accordingly, "when the language of a legislative enactment is clear and unambiguous, th[e][c]ourt will interpret the statute literally and accord the words of the statute their plain and ordinary meanings." Seddon v. Bonner, 755 A.2d 823, 826 (R.I.2000) (citing Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I.1996)). Furthermore, in examining an unambiguous statute, "there is no room for statutory construction"; it must be applied as written. Id. (citing In re Denisewich, 643 A.2d 1194, 1197 (R.I.1994)). The General Assembly's inclusion of the liberal-interpretation clause supports the state's argument. Further, subsection 6 of the legislative findings codified in § 23-24.6-2 of the LPPA provides: *5 "The enactment and enforcement of this chapter is essential to the public interest. It is intended that the provisions of this chapter be liberally construed to effectuate its purposes." Moreover, the express purpose of the LPPA is "to protect the public health and the public interest by establishing a comprehensive program to reduce exposure to environmental lead and thereby prevent childhood lead poisoning, the most severe environmental health problem in Rhode Island." G.L.1956 § 23-24.6.3. Accordingly, t