MEMORANDUM OF DECISION ON MOTION TO STRIKE

JULIA L. AURIGEMMA, JUDGE.

The defendants have moved to strike counts two (trespass), four (reckless misconduct) and seven (CEPA violation) of the plaintiffs' complaint.

Allegations of the Complaint

In their first revised complaint, the plaintiffs, Ronald Borrelli and Stephanie Heinig-Borrelli, allege the following facts. The defendants, Edward Hills and Andrea Lee Hills, own and operate a commercial horse boarding stable and horse riding facility on property adjacent to and abutting the plaintiffs' property. The defendants' business operations produce a large amount of equine fecal material, which is stored by the defendants on their property. Such material contains high levels of nitrates, total coliform and B. coli, which are hazardous if consumed by humans. These hazardous materials leached into the groundwater and migrated to the plaintiffs' property, contaminating their well and surface water.

Count one sounds in nuisance. Count two incorporates paragraphs one through thirteen of count one and further alleges the defendants' actions constitute an unlawful trespass upon the plaintiffs' property. Count four also incorporates paragraphs one through thirteen of the first count and alleges the defendants "knew" that the fecal materials "were likely to contaminate the groundwater and surface water" of the plaintiffs and that the plaintiffs would consume such water. The plaintiffs further allege that in spite of this knowledge, the defendants continued to dispose of the materials into and onto the ground in and around the defendants' property.

Count seven alleges the defendants and the city of Middletown have filled and destroyed wetlands on the defendants' property in violation of the Connecticut Environmental Protection Act (CEPA), General Statutes § 22a-14 et seq. The plaintiffs also allege that the defendants' actions in filling and destroying the wetlands were done without appropriate permits.

Discussion of the Law and Ruling

A motion to strike challenges the legal sufficiency of the allegations of a complaint. Practice Book § 10-39; Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In determining the sufficiency of a complaint challenged by a defendant's motion to strike, "all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . [P]leadings must be construed broadly and realistically, rather than narrowly and technically." (Citation omitted; internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006). "[The court] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006).

Count Two: Trespass

The defendants move to strike count two on the ground that the plaintiffs fail to state a claim for trespass because the complaint does not allege an intentional act. In addition, the defendants move to strike the count on the ground that the plaintiffs have failed to plead that the alleged pollution occurred while the plaintiffs owned the property. In opposition, the plaintiffs argue that intent is not a required element of trespass. They further argue that because they allege an ongoing pollution they sufficiently allege acts done during their ownership of the subject property.

The question of whether the allegation of intentional conduct is necessary to prove trespass has not been directly addressed by any appellate court of this state. The question has been addressed in a number of recent Superior Court decisions.

The essential elements of a trespass are: (1) the plaintiff's ownership or possessory interest in the land; (2) an invasion by the defendant which affects the plaintiff's ownership or possessory interest; (3) that such invasion was "done intentionally"; and (4) damages. See Abington Ltd. P'ship v. Talcort Mountain Science Ctr. for Student Involvement, Inc., 43 Conn.Sup. 424, 427 (Super.Ct. 1994).

Here, plaintiffs fail to plead the intentionality element. "The intention required to make the actor liable for trespass is an intention to enter upon the particular piece of land in question. Ike's Auto Body, Inc. v. Martin, 1995 Conn.Super. LEXIS 3628 *13 (Conn.Super.Ct. Dec. 22, 1995) (Pickett, J.); see also Kramer v. Ordway, Conn.Super. LEXIS 3082, *3 (Conn.Super.Ct. Nov. 30, 1994) (Lewis, J.) ("[I]n order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land"); Caltabiano v. Jimmo, 1995 Conn.Super. LEXIS 1334, *19 (Conn.Super.Ct. May 5, 1995) (Higgins, J.) (intent to do that which causes the invasion is a required element of trespass).

An intrusion on the land of another as a result of negligence is not a trespass. Walsh v. Stonington Water Pollution Control Auth., 1996 Conn.Super. LEXIS 1461 (Conn.Super.Ct. June 5, 1996) (Hurley, J.) (granting summary judgment). Even where EPA and DEP are alleged to have issued notices of environmental violations to the defendant, a claim based on trespass may be stricken for failure to show the requisite intent. Mather v. Birken Mfg. Co., 1998 Conn.Super. LEXIS 3669 (Conn.Super.Ct. Dec. 8, 1998) (Hennessey, J.).

The Restatement (Second) of Torts § 158 provides in relevant part: "One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so . . ." The comments to § 158(a) state that the requisite intent to enter another's land may be established if the act in question is done "with knowledge that it will to a substantial certainty result in the entry of the foreign matter."

In Ahnert v. Getty, Superior Court, judicial district of New London, Docket No. 537008 (April 4, 1997, Handy, J.), the plaintiffs brought an action for trespass, inter alia, alleging the defendant's granite business caused excessive dust to enter the plaintiffs' property. The defendant moved to strike the trespass count on the ground that the plaintiffs had not sufficiently pled facts to satisfy the intent element of the cause of action. The court denied the motion, because the plaintiffs had alleged the defendant "knew of should have known that significant amounts of dust were settling" on the plaintiffs' property and that the defendant "intentionally invaded the plaintiffs' property by his placement of excessive dust thereon."

Conversely, in Mather v. Birken Manufacturing Co., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 96 0564862 (December 8, 1998, Hennessy, J.) ( 23 Conn. L. Rptr. 443), the court struck the plaintiffs' trespass claim because it did not properly allege intent of the part of the defendant. The plaintiffs in Mather alleged hazardous waste had leaked into the groundwater under the defendant's property causing pollution on the plaintiffs' surrounding properties. Although the plaintiffs had pled that the defendant knew of the contamination on its own land, the court struck the trespass claim because the plaintiffs did not sufficiently allege that the defendant knew with substantial certainty that the contaminants had migrated or would migrate to the plaintiffs' properties.

In the present case, the plaintiffs make no allegations in their trespass count that the defendants intended to direct the hazardous materials onto the plaintiffs' property, nor that the defendants knew with substantial certainty that the materials would enter the property. The plaintiffs have not, therefore, properly alleged a claim of trespass.

The defendants also argue that count two is legally insufficient because it fails to allege that the defendants' acts were done while the plaintiffs had ownership of the property. In paragraph one of count one, incorporated by reference in count two, the plaintiffs allege they are owners of the subject property. In paragraph thirteen of count one, also incorporated by reference in count two, the plaintiffs allege that the contamination of the plaintiffs' well and surface water "constitutes a continuing nuisance." Although the defendants are correct in stating the complaint contains neither a timeline nor explicit dates of ownership, construed in a manner most favorable to the plaintiffs, count two sufficiently alleges the plaintiffs' ownership interest at the time of the alleged contamination.

In order to state a claim for trespass, a plaintiff must allege intentional action on the part of a defendant. Because the plaintiffs here have failed to allege the defendants acted intentionally, the motion to strike count two is hereby granted.

Count Four: Reckless Misconduct

The defendants move to strike count four on the ground that it fails to state a claim for recklessness. They argue that the count contains only a conclusory allegation of recklessness, unsupported by facts. The plaintiffs counter that they have sufficiently pled recklessness because they allege within the count that the defendants knew their actions could pollute the plaintiffs' water and yet continued to store the hazardous materials, allowing the contamination to continue.

Reckless misconduct is "highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998). "Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent." (Internal quotation marks omitted.) Bishop v. Kelly, 206 Conn. 608, 614-15, 539 A.2d 108 (1988).

The gravamen of count four is that the defendants knew the hazardous materials generated by their commercial activities were likely to contaminate the groundwater and that the plaintiffs would consume this water. The revised complaint alleges that notwithstanding such knowledge, the defendants continued to store and dispose of the materials on their property in a manner which allowed the contamination to continue. When construed in a manner most favorable to the plaintiffs, count four has sufficiently alleged a cause of action for reckless misconduct. The motion to strike count four is hereby denied.

Count Seven: CEPA violation

The defendants move to strike count seven on the ground that CEPA does not provide a cause of action to challenge a lack of permitting. The plaintiffs argue in opposition that count seven alleges filling and subsequent pollution of wetlands on the defendants' property and does not merely allege that such actions were taken without permits. They claim, therefore, to have properly alleged a violation of CEPA pursuant to Connecticut General Statutes § 22a-16, which provides:

[A]ny person . . . may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business . . . for declaratory and equitable relief against . . . any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . .

The Supreme Court has held that "[A]ll that is required to invoke the jurisdiction of the Superior Court under § 22a-16 is a colorable claim, by any person [or entity] against any person [or entity], of conduct resulting in harm to one or more of the natural resources of this state . . . [T]he plaintiff . . . must articulate a colorable claim of unreasonable pollution, impairment or destruction of the environment." (Citation omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 432, 829 A.2d 801 (2003).

Paragraph five of count seven alleges the defendants and the city of Middletown have "filled and destroyed wetlands and regulated areas adjacent to and affecting wetlands with manure, sand, gravel, and other materials . . ." Paragraph six of the same count alleges that such filling is "unreasonable pollution, impairment or destruction" of the natural resources of the state. Although the plaintiffs do allege that the defendants filled the wetlands without proper permits, this allegation is not central to the count. The plaintiffs have articulated a colorable claim of pollution and destruction of the wetlands on the property. Therefore, the motion to strike count seven is denied.