Opinion
No. CV09 5026011 S
August 22, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (Motion #126) and SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (Motion #133)
I FACTS
On June 22, 2009, the plaintiff, Great Food Corporation, commenced the present action against the defendant, the town of New Canaan, for a violation of General Statutes § 13a-138, nuisance, and negligence. The plaintiff filed a revised complaint on October 22, 2009, in which he alleges the following facts.
The plaintiff is a corporation located at the premises at 87 Main Street in New Canaan. The plaintiff leased a portion of 87 Main Street, including the basement and first floor, for a restaurant business and for the storage and sale of goods and merchandise in connection with that business. The defendant owns, maintains, controls and operates property located at 77 Main Street, adjacent to the plaintiff's leased property. The defendant installed roadways, parking areas, walkways and sidewalks at its property, all of which is open to public travel. The defendant received complaints from other landowners and tenants in that area about surface runoff from its property into the plaintiff's premises and other adjacent property. The defendant assured them that the problem would be fixed. On October 11, 2007, a rainstorm led to water from the defendant's property running off and flooding the plaintiff's leasehold causing significant damage for which the plaintiff is responsible to repair. The first count of the revised complaint claims that because of the defendant's violation of § 13a-138, the plaintiff has suffered and continues to suffer damages. In count two, a nuisance claim, the plaintiff incorporates paragraphs one through eleven of count one and further alleges that the runoff from the surface water was due to an affirmative act by the defendant in designing, grading, constructing and maintaining its property. Count two further alleges that this water has a natural tendency to create and inflict damage to private property in close proximity to its property, and that the danger is continuous and interferes with the right of adjacent landowners and occupiers to enjoy their property, including the plaintiff. In count three, a negligence claim, the plaintiff incorporates paragraphs one through eleven of count one and further alleges that the defendant has a duty to maintain its property in such a manner as to prevent excess runoff of surface water onto adjoining property.
On March 15, 2011, the defendant filed a motion for summary judgment on the grounds that as to count one, the plaintiff cannot establish a cause of action under § 13a-138, and, as to counts two and three, the defendant is entitled to governmental immunity under General Statutes § 52-557n(a)(2)(B) as the plaintiff cannot establish that the imminent harm exception applies to it. The defendant submitted a memorandum of law in support of its motion and excerpts of the deposition of Prasad Chirnomula, the plaintiff's president and sole shareholder. In response, the plaintiff filed an objection on April 7, 2011, with a number of exhibits, including the affidavit of Kevin Coles, the plaintiff's attorney. On April 8, 2011, the defendant filed the affidavit of Michael Pastore, the Director of Public Works and previous town engineer for the defendant. Subsequently, the defendant filed a supplemental motion for summary judgment on the ground that counts two and three are barred by statutes of limitation. The defendant submitted a memorandum of law in support along with another affidavit of Pastore and additional exhibits. The plaintiff filed a supplemental objection on May 5, 2011. This court heard argument on the matter on May 9, 2011.
The attached exhibits include: (1) Exhibit 1, April 6, 2011 Affidavit of Kevin Coles, the plaintiff's attorney; (2) Exhibit A, Defendant's August 18, 2010 Response to Interrogatories submitted by Michael Pastore, the defendant's Director of Public Works, with various reports and proposals; (3) Exhibit B, August 30, 1999 storm water detention analysis for teen center; (4) Exhibit C, Defendant's November 17, 2010 Response to Interrogatories submitted by Michael Pastore, (5) Exhibit D, September 7, 1999 memorandum regarding change order proposal for 48" pipe instead of 15" pipe; (6) Exhibit F, November 1, 2000 memorandum regarding revised quote project using 48" pipe instead of 15" pipe; (7) Exhibit F, November 6, 2000 letter from town choosing 15" pipe that "will not necessitate additional charges"; (8) Exhibits G1-G3, pictures dated April 17, 2007; (9) Exhibit H, August 25, 1999 drainage report for Vine Cottage property.
II DISCUSSION A
"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." Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010). "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." Wilton Meadows Ltd. Partnership v. Coratolo, 299 Conn. 819, 823, 14 A.3d 982 (2011).
"[T]he `genuine issue' aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Citation omitted; internal quotation marks omitted.) Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).
"In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue . . . Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
B Count 1: General Statutes § 13a-138
The defendant moves for summary judgment as to count one on the ground that the plaintiff cannot establish a cause of action under § 13a-138. Specifically, the defendant argues that: (1) surface water runoff from the defendant's property during and after a rain storm is insufficient to establish a violation of § 13a-138 because the statute only applies to situations in which a drain or watercourse has been artificially created and is inapplicable where surface water naturally flows from the highway; (2) the defendant did not make or clear any water course or any place for the draining of water into or through the plaintiff's property; and (3) the applicable statute of limitation, General Statutes § 13a-138a, when read together with § 13a-138, only allows landowners to assert claims under § 13a-138.
Section 13a-138 provides: "Highways may be drained into private lands. (a) Persons authorized to construct or to repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person's land so far as necessary to drain off such water and, when it is necessary to make any drain upon or through any person's land for the purpose named in this section, it shall be done in such way as to do the least damage to such land.
"(b) Nothing in this section shall be so construed as to allow the drainage of water from such highways into, upon, through or under the yard of any dwelling house, or into or upon yards and enclosures used exclusively for the storage and sale of goods and merchandise."
General Statutes § 13a-138a provides: "Limitation on actions for drainage damage. No action shall be brought by the owner of land adjoining a public highway, or of any interest in such land, for recovery of damage to such property or interest by reason of any draining of water into or through such land by any town, city, borough or other political subdivision of the state pursuant to subsection (a) of section 13a-138, but within fifteen years next after the first occurrence of such drainage, except that if such drainage first occurred prior to October 1, 1981, no such action shall be brought after October 1, 1986."
In response, the plaintiff counters that the defendant's motion should be denied because the plaintiff has alleged a cause of action based on the elements of § 13a-138. Specifically, the plaintiff argues that: (1) the affidavit of Coles demonstrates that the town had plans to create a drainage system to handle, retain and manage water from its Teen Center and slowly disperse the water into the existing drainage system but failed to install this detention system; (2) the defendant was aware of the water running from its property and evidence depicted erosion on its property running off the town parking lot and out of its drainage system onto the plaintiff's leasehold; and (3) the plain language of the statute provides for relief for those who have any interest in the damaged property, which includes the plaintiff.
The plaintiff, with the agreement of opposing counsel, presented the court with a drainage map of the vicinity to which counsel for both parties referred during oral argument. Using this map as a reference, the plaintiff argued that: (1) all of the defendant's property, including an adjacent property known as "the Vine Property," drained into a drainage system that delivered runoff to a double catch basin, from which the runoff was supposed to "take a sharp left" and "another right" and then go out into the street through an eight-inch pipe; (2) instead, all of the water would go to the double catch basin and then "come out of it instead of go in it"; (3) exhibit G-1, a photograph, depicts sand bags and berms over which water overflowed from the double catch basin and into the plaintiff's basement on October 11, 2007; (4) the drainage system was "miserably designed" and "inadequately designed" and the defendant had "done a lot to direct all their drainage to a particular outlet in Main Street, right in front of the town hall [and the plaintiff's leasehold];" (5) on three separate occasions, water has come out and cascaded onto the property where the leasehold is located; (6) the defendant did not make or clear a water course into or through the property where the leasehold is located, but, under the statute, controlling water to a point where it goes onto another's property is sufficient to impose liability.
As a preliminary matter, the plaintiff makes a procedural challenge to the defendant's motion as to count one. The plaintiff argues that the defendant's motion is inappropriate and should be denied because it is employed as a mechanism to challenge the legal sufficiency of each of the counts, yet the proper method for doing so is by motion to strike. The plaintiff further argues that because the defendant has filed an answer, it is precluded from filing a motion to strike.
The defendant's motion for summary judgment challenges the legal sufficiency only as to count one. In its motion, the defendant moves as to count one on the ground that the plaintiff "cannot establish sufficient facts that would show that the defendant violated [§ 13a-138]." In the support memorandum of law, however, the defendant argues repeatedly that the plaintiff has not set forth sufficient allegations in the complaint to support a claim under § 13a-138.
As to the subsequent counts of nuisance and negligence, the defendant moves on the ground that it is entitled to governmental immunity, and not on the ground of legal sufficiency.
The normal procedural vehicle for challenging the legal sufficiency of a complaint is a motion to strike. Practice Book § 10-39. Nevertheless, in Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005), our Supreme Court held that "the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate when the complaint fails to set forth a cause of action and the defendant can establish that the defect could not be cured by repleading." To prevail on its motion, the defendant must therefore show that the existence of any defect in the complaint cannot be cured by repleading.
"Decisions involving the scope of the [municipal highway drainage] statute have strictly limited its operation . . . [T]he statute [is] inapplicable to a culvert designed to drain water from private land . . . It has been held applicable only to situations in which a drain or watercourse has been artificially created and inapplicable where surface water flows naturally from the highway . . . [I]t permits drains to be built only when necessary, and if there is a reasonable alternative course open, that course must be taken." (Citations omitted.) Postemski v. Watrous, 151 Conn. 183, 188, 195 A.2d 425 (1963). Black's Law Dictionary (9th Ed. 2009) defines "watercourse" as "[a] body of water, [usually] of natural origin, flowing in a reasonably definite channel with bed and banks." Black's dictionary defines "natural watercourse" as "[a] watercourse with its origin in the forces of nature" and provides that "[a] natural watercourse does not include surface water, which often flows intermittently and in an indefinite channel." (Emphasis in original.) Id. Our Appellate Court, relying on Postemski, has stated: "In applying the least damage aspect of the statute, we are also mindful that statutes in derogation of private rights should be strictly construed . . . The common-law rule provides that a person cannot gather surface water on his or her own land in an artificial volume and turn it onto a neighbor's land in an increased volume to the neighbor's injury. This rule also applies to governmental agencies engaged in highway maintenance. Section [13a-138(a)] limits the liability for such water diversion only where the party charged with maintaining the highway complies with the statute by draining the water in a manner that causes the least damage to the affected land." (Internal quotation marks omitted.) Hutchinson v. Andover, 49 Conn.App. 781, 786, 715 A.2d 831 (1998).
There appears to be a typographical error in the bound volume. Section "14a-138(a)" should read § "13a-138(a)."
The defendant relies on the holding of Downs v. Ansonia, 73 Conn. 33, 46 A. 243 (1900) to support its argument that the plaintiff's claim must fail because surface water runoff is insufficient to establish a violation of the statute. The holding of Downs, while properly characterized by the defendant, does not support this conclusion. In Downs, the Supreme Court held that a defendant municipality had not violated General Statutes § 2683, an early enactment of the municipal highway drainage statute, by constructing, grading and repairing streets in a manner that caused discharge onto the plaintiff's property. The court stated, "§ 2683 does not apply to cases where the only act by which surface water is made to flow upon private property is the necessary construction of a street at a grade higher than that of the adjoining land, or a change in the grade of a street, or the sloping of the surface of a street in order to carry off surface water from the road bed." Id., 37. The court determined that "[t]he defendant [had] not made or cleared any watercourse" and explained "[t]hat term usually denotes a stream, running within defined banks. As used in § 2683 it does not mean the flow of surface water from a highway in times of heavy rain fall, and without any definite channel." Id., 35, 36. In reaching its determination, the court noted that "[n]o attempt [was] made by the defendant to construct any drain, place or gutter of any kind by which to drain the water from either street upon the plaintiffs' premises." Id., 36.
General Statutes (Rev. 1888) § 2683 provides: "Persons authorized to construct or repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person's land so far as necessary to drain off such water; and when it shall be necessary to make any drain upon or through any person's land for the purpose named in this section it shall be done in such a way as to do the least damage to such land; provided, that nothing in this section shall be so construed as to allow the drainage of water from such highways into or upon any door-yard in front of any dwelling-house, or into or upon yards and enclosures used exclusively for the storage and sale of goods and merchandise."
The facts alleged by the plaintiff are consistent with the watercourse requirement explained in Downs. Although the plaintiff does not specifically allege that water drained from the defendant's land through a "watercourse," such as a "drain," "gutter" or "drainage system" in the operative complaint, it has referenced evidence supporting these allegations in both its written objections and at oral argument. The plaintiff argues in its April 6, 2011 objection that the flooding at issue resulted from water running out of the defendant's drainage system and it has provided the court with extensive evidence of the existence and design of this drainage system, including detailed engineering and construction plans obtained from the defendant through discovery. Thus, the defendant has failed to meet its burden to establish that this defect cannot be cured by repleading. Accordingly, the defendant's motion for summary judgment as to this ground is denied.
To support its argument that the plaintiff's claim must fail because "the defendant's alleged activities [occurred] on the defendant's own property," and the plaintiff cannot show "that the defendant did anything into or through the plaintiff's property," the defendant relies on the facts of Anderson v. Argraves, 20 Conn.Sup. 138, 142, 127 A.2d 620 (1956), aff'd, 146 Conn. 316, 150 A.2d 295 (1959). The holding of Anderson does not support this conclusion. In Anderson, the court was presented with a claim under the municipal highway drainage statute, then codified in General Statutes § 2134. There, the plaintiffs alleged that millions of pounds of water flowing down the Shepaug River were dammed by a clogged culvert under a highway bridge. When the dam broke, rushing water washed away a section of highway and a wall of water, trees, rocks and debris burst loose, flowing down the river through several towns and onto the plaintiffs' property several miles away, causing damage. The court held that "the complaint [lacked] any recital which could conceivably bring [the highway drainage statute] into play," observing that "[i]t is not alleged that the defendant has drained any water into, nor that he has opened or cleared any water course on, plaintiffs' land." Id., 142. The facts alleged in the present case are markedly different. Here, the plaintiff expressly argues that water ran out of the defendant's "inadequately designed" drainage system and into the plaintiff's neighboring basement, causing damage.
General Statutes (Rev. 1949) § 2134 provides: "Highways may be drained into private lands. Persons authorized to construct or to repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person's land so far as necessary to drain off such water; and, when it shall be necessary to make any drain upon or through any person's land for the purpose named in this section, it shall be done in such way as to do the least damage to such land; provided nothing in this section shall be so constructed as to allow the drainage of water from such highways into, upon, through or under the yard of any dwelling house, or into or upon yards and enclosures used exclusively for the storage and sale of goods and merchandise."
On appeal, the Supreme Court noted that the plaintiffs' property was "five to seven miles south of the culvert and embankment." Anderson v. Argraves, supra, 146 Conn. 318.
Contrary to the defendant's contention, a municipality does not need to clear or build a watercourse or drain outside of its own parcel to be liable under the statute. In Rudnyai v. Harwinton, 79 Conn. 91, 63 A. 948 (1906), the Supreme Court considered a scenario wherein surface water along a road collected in a ditch and was then guided over the road and onto the plaintiffs' land by sluice. The trial court rendered judgment for the plaintiff and enjoined the defendant town "from continuing to so conduct said water upon the plaintiffs' premises." Id., 93. The Supreme Court upheld this judgment, observing that the defendant town had "[turned] the water upon the plaintiffs' land [and that] no effort [had] been made to do so `in such way as to do the least damage to such land.'" Id., 97.
In Hutchinson v. Andover, supra, 49 Conn.App. 781, the Appellate Court affirmed a decision of the trial court based on the following facts. "[T]he [defendant] town created six drainage sites on Bunker Hill Road that . . . caused surface water on Bunker Hill Road to drain onto the plaintiffs' property. The velocity and volume of this flow . . . caused the removal of topsoil, and further soil erosion by scouring and channeling the land. In addition, portions of the road surface, chip seal and road sediment [were] carried by this surface flow more than 400 feet into the plaintiffs' property." Id., 783. In affirming the trial court's judgment for the plaintiff, the Appellate Court stated: "The language of § 13a-138(a) is clear and unambiguous. It provides that the drainage shall be done in such way as to do the least damage to such land. [Moreover] [t]he statute does not provide for a balancing test that weighs the least damage against the least expense . . . [T]he only issue is which system will cause the least damage to the land." Id., 785.
In Glasson v. Portland, 6 Conn.App. 229, 504 A.2d 550 (1986), the Appellate Court reviewed a case wherein the defendant town and a land developer installed new drainage mechanisms along the Old Marlborough Turnpike, which was uphill from the plaintiff landowner. The installations were meant to accommodate a new subdivision. Catch basins were installed on the side of the turnpike opposite the plaintiff's property together with a new culvert "to carry water from a third catch basin to the slope leading down to the plaintiffs' land." (Emphasis added.) Id., 232. The system caused extensive damage to the plaintiffs' property and the trial court rendered judgment for the plaintiff, finding that the defendant had violated § 13a-138 and enjoining it from "discharging surface water onto the plaintiffs' land through a drainage pipe." Id., 233. The Appellate Court upheld this decision, noting the trial court's conclusions that "the continued discharge of water on the slope was not unavoidable but rather was a result of poor engineering and . . . there was no indication that any effort [had] been made to stabilize the slope." Id., 235.
The Appellate Court did, however, remand "for a hearing on the nature and scope of the injunction to be issued" after finding that the defendant had not been afforded proper notice. Id., 237.
Finally, in Kost v. Litchfield, Superior Court, judicial district of Litchfield, Docket No. 052385 (December 4, 1991, Pickett, J.) [ 5 Conn. L. Rptr. 711], a trial court considered the following allegations following a motion to strike the complaint. In the complaint, the plaintiff alleged that the defendant town maintained a highway drainage pipe and ditch on a road immediately south of the plaintiffs' property. This structure channeled water across a neighboring property until "surface water drainage and sediment from the drainage pipe" began to flow across the plaintiffs' property, causing damage. (Emphasis added.) The plaintiffs claimed that the defendant violated § 13a-138 by "[failing] to provide for disposal of surface water in a manner least damaging to the plaintiffs' land, despite the fact that such restoration [was] reasonable and feasible." The trial court held that the claim was legally sufficient because the plaintiffs had alleged that "the defendant failed to discharge its highway surface drainage in a manner least damaging to the plaintiffs' land," and that the drainage was "unnecessary in that alternative means, specifically, those employed prior to the 1984-1985 alteration, [existed]." Id., citing Corentin v. Columbia, 29 Conn.Sup. 499, 501, 294 A.2d 80 (1972, Wright, J.) and Anderson v. Argraves, supra, 20 Conn.Sup. 142.
The holdings of Rudnyai, Hutchison, Glasson and Kost indicate that liability under § 13a-138 hinges on whether drainage is "done in such way as to do the least damage" and not whether drainage structures extend beyond a municipality's property. Thus, the plaintiff has set forth a valid cause of action. Accordingly, the defendant's motion for summary judgment as to this ground is denied.
Lastly, the defendant relies on the holding of Housatonic R.R. Co. v. New Milford, Superior Court, judicial district of Litchfield, Docket No. CV 055000143 S (August 20, 2008, Pickard, J.) [ 46 Conn. L. Rptr. 214], to support its argument that the plaintiff's claim must fail because § 13a-138, read together with § 13a-138a, "only creates a right of action for landowners." However, section 13a-138a restricts actions under § CT Page 17859 13a-138 to those "brought by the owner of land adjoining a public highway, or of any interest in such land . . ." Accordingly, § 13a-138 creates a right of action that is available to both landowners and those with "any interest in such land." Because the plaintiff alleges that it holds a lease in the affected property, it implicitly alleges that it holds an interest in the property.
It is well settled that a lessee holds an interest in the property leased. "A lease is . . . a conveyance of an interest in the leased premises." Webel v. Yale University, 125 Conn. 515, 518, 7 A.2d 215 (1939). "A lease transfers an estate in real property to a tenant for a stated period, with a reversion in the owner . . . The tenant acquires an interest in the real estate giving him the right to maintain ejectment or trespass against the landlord." (Citation omitted; internal quotation marks omitted.) Monarch Accounting Supplies, Inc. v. Prezioso, 170 Conn. 659, 663, 368 A.2d 6 (1976). A lease confers an interest in realty. Muniz v. Kravis, 59 Conn.App. 704, 714, 757 A.2d 1207 (2000). "[A] lease is an interest in real estate . . ." Message Center Management v. Getchell, Superior Court, judicial district of Tolland, Docket No. CV 00 73738 (December 18, 2000, Sferrazza, J.). See also, 2 R. Powell, Powell on Real Property (M. Wolf ed. 2011) § 16.02[2], p. 16-9 ("a lease creates an estate in the tenant, and an estate is an `interest in land'"); 4 Thompson on Real Property (Thomas Ed. 1994) 566, § 39.02(b) ("A lease creates a recognized interest in land"); 1 Restatement, Property § 5, p. 9 (1936) ("interest" generally defined as "varying aggregates of rights, privileges, powers and immunities"); R. Cunningham, W. Stoebuck D. Whitman, The Law of Property (1984) § 6.11, p. 267 ("A tenant has an estate in land in the strictest sense").
In sum, the plaintiff has set forth a valid cause of action as to count one. Accordingly, the motion for summary judgment as to this count is denied.
C Count 2: Nuisance
The plaintiff alleges a claim for nuisance in the second count of the revised complaint. The defendant argues, and the plaintiff does not dispute, that "the second count . . . sounds in negligent nuisance."
"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word `nuisance.'" Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). "A nuisance . . . describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property . . . The term nuisance refers to the condition that exists and not to the act or failure to act that creates it." (Citation omitted.) Quinnett v. Newman, 213 Conn. 343, 348, 568 A.2d 786 (1990), overruled in part on other grounds, Craig v. Driscoll, 262 Conn. 312, 329, 813 A.2d 1003 (2003). "[T]he existence of a nuisance generally is a question of fact . . ." Sinotte v. Waterbury, 121 Conn.App. 420, 438, 995 A.2d 131 (2010).
"Claims of nuisance fall into two discrete categories: (1) absolute nuisance and (2) negligent nuisance. The principal distinction between the two is that an absolute nuisance has the added requirement that the conduct be intentional . . . `Intentional,' in this context, means not that a wrong or the existence of a nuisance was intended, but that the creator of [it] intended to bring about the conditions which are in fact found to be a nuisance." (Citation omitted; internal quotation marks omitted.) Green v. Ensign-Bickford Co., 25 Conn.App. 479, 490, 595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341 (1991). "If the creator of the condition intends the act that brings about the condition found to be a nuisance, the nuisance thereby created is said to be absolute and its creator is strictly liable . . . If the condition claimed to be a nuisance arises out of the creator's unintentional but negligent act, i.e., a failure to exercise due care, the resulting condition is characterized as a negligent nuisance." Quinnett v. Newman, supra, 213 Conn. 348-49.
Consistent with a claim for negligent nuisance, the plaintiff alleges that the defendant "took steps that were inadequate," "took action that was insufficient," and "[constructed] berms and or dams [that were] insufficient." The plaintiff does not allege, as it must in order to assert a claim for absolute nuisance, that the defendant intended to bring about the condition which it alleges to be a nuisance. Accordingly, the plaintiff has pleaded a claim for negligent nuisance.
Claims for nuisance are further categorized as either private or public. "[A] private nuisance and a public nuisance represent distinct causes of action. [I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property." (Internal quotation marks omitted.) Shukis v. Board of Education, 122 Conn.App. 555, 586, 1 A.3d 137 (2010). "Nuisances are public where they . . . produce a common injury . . . The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights." Id., 587. The nature of the plaintiff's claim here is that of private nuisance. Consistent with the elements of such a claim, the plaintiff pleads in the operative complaint that the alleged nuisance (1) "has interfered and [continues] to interfere with" its right to hold and enjoy its property; (2) "was the result of an affirmative act by the defendant . . . in designing, grading, constructing and maintaining its property" and "was the direct and proximate cause of the plaintiff's damages"; and (3) "was unlawful or unreasonable" in one or more stated ways. Thus, according to the allegations of the operative complaint, the plaintiff asserts a claim for private, negligent nuisance.
In Pestey v. Cushman, supra, 259 Conn. 361, the Supreme Court adopted the basic principles of § 822 of the Restatement (Second) of Torts for a cause of action in private nuisance. The elements for a cause of action in public nuisance are set forth in Shukis v. Board of Education, 122 Conn.App. 555, 586-87, 1 A.3d 137 (2010).
D Counts 2 3: Application of Governmental Immunity
The defendant moves for summary judgment as to counts two and three on the ground that, pursuant to General Statutes § 52-557n, it is entitled to governmental immunity with respect to the plaintiff's claims of nuisance and negligence because "its acts and/or omissions as alleged by the plaintiff were discretionary in nature" and therefore within the ambit of immunity. General Statutes § 52-557n(a)(2)(B). In particular, the defendant asserts that allegations that it "did not conduct a sufficient inspection, survey or observation of its property, and that [it] failed to reasonably, adequately and sufficiently take steps to prevent the runoff of surface water" constitute discretionary acts or omissions for which it is immune. The defendant further argues that it is entitled to judgment as a matter of law because the plaintiff cannot establish that the imminent harm exception to the governmental immunity doctrine applies.
Section 52-557n provides, in relevant part: "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (c) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
In response, the plaintiff counters that the defendant's motion should be denied on the following grounds: (1) "the facts in this matter do not entitle the defendant to governmental immunity"; (2) governmental immunity raises a question of fact with regard to whether acts complained of are "governmental or ministerial"; (3) the plaintiff has alleged facts relating to duties that are ministerial pursuant to the holding of Spitzer v. Waterbury, 113 Conn. 84, 90, 154 A. 157 (1931); and (4) "the complaint can be construed to set forth a claim that the defendant adopted a plan of construction for the disposal of storm water that was so inadequate as to result in the direct trespass to the plaintiff's property." In its supplemental memorandum in opposition to the defendant's motion for summary judgment, the plaintiff further argues that, as to its claim for nuisance, "immunity is not available to the defendant as there is no immunity from nuisance" pursuant to the holding of Cyr v. Brookfield, 153 Conn. 261, 265, 216 A.2d 198 (1965).
"The issue of governmental immunity is simply a question of the existence of a duty of care, and [the Supreme Court] has approved the practice of deciding the issue of governmental immunity as a matter of law." (Internal quotation marks omitted.) Doe v. Peterson, 279 Conn. 607, 613, 903 A.2d 191 (2006).
1 Governmental Immunity for the Creation of a Nuisance
Section 52-557n(a)(1)(c) provides that municipalities can be held liable for the creation of a nuisance but "imposes liability in nuisance on a municipality only when the municipality positively acts ( does something) to create ( cause) the alleged nuisance." (Emphasis in original.) Picco v. Voluntown, 295 Conn. 141, 150, 989 A.2d 593 (2010). This means that "the nuisance necessarily must be caused by something other than the behavior of ignoring it." (Emphasis in original.) Id., 151. See also Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996) ("Liability can be imposed on [a] municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality").
Section 52-557n(a)(1)(c) provides: "Except as otherwise provided by law, a political subdivison of the state shall be liable for damages to person or property caused by . . . (c) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . . ."
Accordingly, in order to properly assert a claim for nuisance against a municipality, a plaintiff must allege not only that a nuisance exists, but also that the municipality created it. In Picco, the court held that a claim for nuisance could not survive a motion to strike because "[t]he plaintiffs simply [had] not alleged any facts indicating that the defendants, by any positive act, created the alleged nuisance." Picco v. Voluntown, supra, 295 Conn. 152. In Sanford v. Greenwich, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 07 5004775 (November 22, 2010, Tobin, J.), summary judgment was granted to a municipality charged with nuisance on the ground that the plaintiff had failed to brief its nuisance claim and failed to allege that the town created the condition. In Read v. Plymouth, Superior Court, judicial district of New Britain, Docket No. CV 05 5000158 (July 26, 2010, Trombley, J.) [ 50 Conn. L. Rptr. 423], summary judgment was granted to a municipality charged with nuisance on the ground that the alleged nuisance, a crumbled concrete path at a transfer station, was created by deterioration over a period of years, but not by the town. In Nadolney v. Plainville, Superior Court, judicial district of New Britain, Docket No. CV 07 5003829 (July 8, 2010, Trombley, J.), the trial court granted a motion to strike a claim for nuisance on the ground that the alleged nuisance, a patch of ice on which the plaintiff fell, was "created by mother nature and the elements," but not by the defendant town.
In the present case, the plaintiff has pleaded facts to support its claims for private, negligent nuisance. The plaintiff has also pleaded that the defendant created and maintained the nuisance as follows: the alleged nuisance was "the result of an affirmative act by the defendant . . . in designing, grading, constructing and maintaining its property," and the defendant "altered the volume or flow of surface water in such a way to cause excessive surface water to reach surrounding properties [and] . . . constructed and maintained its property in such a manner as to create excess runoff of surface water onto land surrounding its property [and] . . . directed said rainwater to run off its property in a volume and manner that . . . would harm other properties including that occupied by the plaintiff."
The plaintiff argues that these allegations "[relate] to the defendant's construction of drains and sewers." At short calendar, the plaintiff explained the design of the defendant's drainage system, by which it alleges all of the runoff from the defendant's land was directed to a double catch basin where it would then "come out of it instead of go in it," overflowing to neighboring properties including the defendant's leasehold. The plaintiff argued that the defendant has "done a lot to direct all their drainage to a particular outlet in Main Street, right in front of the town hall [and the plaintiff's leasehold]."
These allegations are sufficient to support the plaintiff's nuisance claim. Accordingly, the defendant is not entitled to governmental immunity as to count two, and the motion for summary judgment is denied as to that ground.
2 Governmental Immunity for Negligent Acts
"Section 52-557n(a)(1)(A) . . . provides that political subdivisions of the state may be held liable for certain common-law negligence claims against them and their employees." Coe v. Board of Education, 301 Conn. 112, 120, 19 A.3d 640 (2011). This section states: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties." This tort liability is limited by section 52-557n(a)(2)(B), which provides: "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
"[W]hile a municipality is generally liable for ministerial acts of its agents, § 52-557n(a)(2)(B) explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." Coe v. Board of Education, supra, 301 Conn. 117. This immunity exists "in part because of the danger that a more expansive exposure to liability would cramp the exercise of official discretion beyond the limits desirable in our society . . . Discretionary act immunity reflects a value judgment that — despite injury to a member of the public — the broader interest in having government officers and employees free to exercise judgment and discretion in their official functions, unhampered by fear of second guessing and retaliatory lawsuits, outweighs the benefits to be had from imposing liability for that injury . . . In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion . . . This is because society has no analogous interest in permitting municipal officers to exercise judgment in the performance of ministerial acts." (Citations omitted; internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 614-15, 903 A.2d 191 (2006).
Accordingly, the court must address whether the alleged acts of negligence were discretionary or ministerial. "Although the determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact for the fact finder . . . there are cases where it is apparent from the complaint . . . [that] [t]he determination of whether an act or omission is discretionary in nature and, thus, whether governmental immunity may be successfully invoked pursuant to . . . § 52-557n(a)(2)(B) turns on the character of the act or omission complained of in the complaint . . . Accordingly, where it is apparent from the complaint that the defendants' allegedly negligent acts or omissions necessarily involved the exercise of judgment, and thus, necessarily were discretionary in nature, summary judgment is proper." Bonington v. Westport, 297 Conn. 297, 307, 999 A.2d 700 (2010). "The hallmark of a discretionary act is that it requires the exercise of judgment . . . In contrast, [m]inisterial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion." Coe v. Board of Education, supra, 301 Conn. 118.
The defendant argues that it is entitled to summary judgment because "the alleged acts or omissions of which the plaintiff complains are discretionary in nature" and therefore, it is "immune from liability." Specifically, the defendant argues that the plaintiff's allegations "that the defendant failed to `reasonably,' `properly,' or `adequately' perform the duties in question . . . invoke discretionary acts." In support of its motion, the defendant submits the sworn affidavit of Michael Pastore, engineer and director of public works for the defendant, dated April 8, 2011. In his affidavit, Pastore attests, "the plans for the construction of the New Canaan Teen Center propose the construction of a detention system. There was no local ordinance, statute, regulation or legal authority that mandated that the proposed detention system be incorporated into the construction of the Teen Center's drainage system. A judgment call not to incorporate the proposed detention system was made by members of the Town of New Canaan Department of Public Works. The decision not to incorporate the proposed detention system was a matter of judgment . . ."
The defendant does not address whether the affiant's testimony, that no statute mandated incorporation of the proposed detention system, conflicts with § 13a-138, which requires that highway drainage be "done in such way as to do the least damage."
The plaintiff argues that summary judgment should be denied because the alleged conduct relates to the defendant's construction of drains and sewers, which are ministerial duties. The plaintiff further argues that "summary judgment is not available where the defendant fails to establish that there is no genuine issue as to material facts regarding a claim of governmental immunity." In support of its objection, the plaintiff attaches fourteen exhibits including discovery obtained from the defendant. This discovery includes a sworn affidavit of Michael Pastore, in which he testifies to questions regarding the construction and maintenance of municipal drainage on and adjacent to 77 Main Street. It also includes correspondence and documentation of the defendant's drainage system on or adjacent to 77 Main Street, including a storm water detention analysis, engineering reports, proposals and site utility and drainage plans that were commissioned by the defendant over a period of years as it developed the property.
In count three of the operative complaint, the plaintiff alleges that the defendant failed to "inspect its property sufficiently . . . survey its property sufficiently . . . observe its property sufficiently . . . maintain a reasonable degree of watchfulness . . . cure the defect within a reasonable time . . . warn the plaintiff of the existing conditions . . . redirect the surface water . . . construct and maintain its property in such a manner as to prevent excess runoff of surface water onto land surrounding its property . . . construct [sufficient] berms or dams . . . [or] properly contain, dispose of and disperse rainwater." Additional allegations of the plaintiff include that the defendant "took inadequate steps to prevent runoff . . . altered the volume or flow in such a way to cause excessive surface water to reach surrounding properties . . . [failed to conduct repairs despite advising] residents in the area that the conditions allowing excessive runoff would be repaired . . . [and] allowed and directed said rainwater to run off its property in a volume and manner that it knew would harm other properties."
It is not apparent from the pleadings, affidavits and other proof submitted whether the alleged acts and omissions of the defendant were discretionary or ministerial and the plaintiff disputes the defendant's contention that they were discretionary. Because the defendant has failed to establish the absence of any genuine issue of material fact with regard to whether its alleged acts and omissions were discretionary or ministerial, the motion for summary judgment on this ground as to count three is denied.
Therefore, the court need not consider the issue of whether any exception to governmental immunity applies.
E Counts 2 3: Statutes of Limitation
In its supplemental motion and memorandum of law, the defendant moves for summary judgment as to counts two and three on the ground that they are time-barred by statutes of limitation. The defendant argues that count two, for nuisance, is barred by § 52-577, which provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." The defendant argues that count three, for negligence, is barred by § 52-584, which provides: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ." As to both counts, the defendant contends that "the act or omission complained of is the alleged failure to construct a detention system that was proposed in connection with the construction of the Teen Center. Construction . . . was completed before April 27, 2001 . . . [S]ervice of process was made on June 22, 2009 . . . As the plaintiff did not file suit within the three year time period after the act or omission complained of [the] [claims are] time barred."
In response, the plaintiff counters that § 52-584 is the applicable statute of limitations for both claims. The plaintiff further argues that an action may be brought beyond the statutory period of § 52-584 if it can be proven that the defendant engaged in a continuous course of conduct and that, here, the defendant has engaged in such conduct. Accordingly, the plaintiff argues that, because "issues of the defendant's continuing course of conduct are issues of fact . . . summary judgment is not proper."
The court must first determine which statute of limitation governs each claim. "[O]ur Supreme Court has held that the three year statute of limitations of § 52-577 is applicable to all tort actions other than those excepted therefrom by § 52-584 or other sections . . ." (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 299, 830 A.2d 346 (2003), citing Lambert v. Stovell, 205 Conn. 1, 4, 529 A.2d 710 (1987), superseded on other grounds, Shortell v. Cavanagh, 300 Conn. 383, 15 A.3d 1042 (2011). "[Section] 52-584 is the applicable statute of limitations barring negligence claims and nuisance claims arising out of negligence." Sinotte v. Waterbury, 121 Conn.App. 420, 429, 995 A.2d 131 (2010), citing Johnson v. North Branford, 64 Conn.App. 643, 646-48, 781 A.2d 346, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001) (§ 52-584 applicable to nuisance claim predicated on negligence), and Lombard v. Edward J. Peters, Jr., P.C., supra, 79 Conn.App. 292-93, ("where the plaintiffs' claim is predicated on injury to their personal property caused by negligence, it is clear that they have brought a claim within the purview of § 52-584"). Accordingly, because count two sounds in private, negligent nuisance and count three sounds in negligence, § 52-584 is the applicable statute of limitation for both counts.
The court must next consider whether the continuing course of conduct doctrine applies. The plaintiff argues that "the defendant's wrongful conduct continued at least up to six months prior to the flooding incident" and refers the court to corroborative allegations set forth in the operative complaint. The plaintiff further argues that "the defendant knew about the drainage problem, yet failed to act," and refers the court to "pictures of the erosion to the town property from water running off the town parking lot and out of its drainage system onto the property occupied by the plaintiff." The plaintiff argues that it has alleged, and provided evidence to support its claim, that the defendant engaged in a continuing course of conduct and, accordingly, this issue of fact "should be left to a jury."
See IIC1, supra, and IIC2 n. 17, supra.
The Supreme Court addressed the continuing course of conduct doctrine in Watts v. Chittenden, 301 Conn. 575 (2011) as follows. "This court has recognized the continuing course of conduct doctrine in many cases involving claims sounding in negligence. For instance, we have recognized the continuing course of conduct doctrine in claims of medical malpractice. See, e.g., Martinelli v. Fusi, 290 Conn. 347, 355-56, 963 A.2d 640 (2009) (`[w]e have recognized . . . that the statute of limitations and period of repose contained in [General Statutes] § 52-584 may be tolled, in the proper circumstances, under . . . the continuous course of conduct doctrine . . . thereby allowing a plaintiff to bring an action more than three years after the commission of the negligent act or omission complained of). In doing so, we noted that `[t]he continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied.' . . . The continuing course of conduct doctrine has also been applied to other claims of professional negligence in this state. See, e.g., Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 139-42, 907 A.2d 1220 (2006) (applying continuing course of conduct doctrine to legal malpractice action); see also Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957) (statute of limitations tolled by defendant manufacturer's continuing failure to warn of potential danger associated with inherently dangerous cartridge of ammunition).
"In these negligence actions, this court has `held that in order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act . . ." (Citation omitted.) Watts v. Chittenden, supra, 301 Conn. 583-84. "Therefore, a precondition for the operation of the continuing course of conduct doctrine is that the defendant must have committed an initial wrong upon the plaintiff . . . A second requirement for the operation of the continuing course of conduct doctrine is that there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto . . . This court has held this requirement to be satisfied when there was wrongful conduct of a defendant related to the prior act . . ." (Citation omitted; internal quotation marks omitted.) Id., 585.
Accordingly, the continuing course of conduct doctrine applies if: (1) the defendant committed an initial wrong upon the plaintiff; and (2) there is evidence of a breach of duty that remained in existence after the commission of the original wrong related thereto. In the present case, the defendant has failed to establish the absence of any genuine issue of material fact with regard to whether it committed an initial wrong upon the plaintiff when it built its drainage system, or whether it breached a duty that it owed to the plaintiff after the construction was completed. Thus, the motion for summary judgment is denied on this ground.
III CONCLUSION
For the foregoing reasons, the defendant's motion for summary judgment as to all three counts is denied.