Opinion
No. CV04-4001115
August 22, 2008
MEMORANDUM OF DECISION RE MOTION FOR RECONSIDERATION #130
Before the court is the plaintiffs' motion for reconsideration of this court's decision after a completed trial in the above titled case. The case is premised on the plaintiffs' allegations that defendant is liable to them for the damages they incurred when sewage backed up into their home at 82 Old Colony Drive, Waterbury, CT. The relevant facts of the underlying case can be gleaned from that decision, Sinotte v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 04 4001115 (March 10, 2008, Upson, J.) ( 45 Conn. L. Rptr. 204). The plaintiffs ask this court to reconsider its decision in light of several issues they contend that the court failed to address, and several points of law which they claim the court misconstrued. Specifically, they contend that the court did not consider their argument that the statutes of limitation that apply to their claims for negligence, public and private nuisance and trespass, i.e., General Statutes §§ 52-584 and 52-577, were tolled by the defendants' continuing course of conduct, and that the court misinterpreted the law in deciding in favor of the defendant, the city of Waterbury, on their inverse condemnation claims.
"Whether denominated as a motion for reargument or reconsideration," the motion filed by the plaintiffs is "a proper vehicle for the court to exercise its equitable discretion to reexamine its decision . . ." Mangiante v. Niemiec, 98 Conn.App. 567, 578, 910 A.2d 235 (2006); see also Practice Book § 11-12. "The granting of a motion for reconsideration and reargument is within the sound discretion of the court." Shore v. Haverson Architecture Design, P.C., 92 Conn.App. 469, 479, 886 A.2d 837 (2005), cert. denied, 277 Conn. 907, 894 A.2d 988 (2006). "[T]he purpose of a reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts . . . It also may be used to address . . . claims of law that the [movant] claimed were not addressed by the court . . . [A] motion to reargue [however] is not to be used as an opportunity to have a second bite of the apple . . ." (Internal quotation marks omitted.) Gibbs v. Spinner, 103 Conn.App. 502, 507, 930 A.2d 53 (2007).
The plaintiffs have not cited any new law or a misapprehension of facts with respect to their inverse condemnation claims, but reassert the same arguments that they made at trial. This court sees no reason to revisit its original decision in this regard, having adequately addressed and dismissed the plaintiffs' claims therein. With respect to the plaintiffs' tort claims, however, their argument that a continuing course of conduct tolled the statute of limitations was not expressly addressed by the court in its decision. The court will, therefore, address this argument now.
It is noted that although the defendant pleaded, as special defenses in its answer, that the plaintiffs' tort claims were barred by the applicable statutes of limitation, the plaintiffs did not raise the continuing course of conduct doctrine in their reply thereto. "Pursuant to Practice Book § 10-57, a `[m]atter in avoidance of affirmative allegations in an answer . . . shall be specially pleaded in the reply . . .'" Bellemare v. Wachovia Mortgage Corp., 94 Conn.App. 593, 607 n. 7, 894 A.2d 335 (2006), 284 Conn. 193, 931 A.2d 916 (2007). The court may nevertheless address the argument if, "however imperfectly . . . the plaintiff placed the issue before the court and . . . [the court thinks] it is just to reach the claim." Id., 607.
General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." General Statutes § 52-584 provides in relevant part: "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 . . ." In the latter phrase, which is known as the "repose period," the term" `date of the act or omission complained of' . . . is the date when the negligent conduct of the defendant occurs and . . . not the date when the plaintiff first sustains damage." (Internal quotation marks omitted.) Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). Here, the conduct by the defendant that forms the basis for the plaintiffs' claims began in the 1970's and continued to June 17, 2001. They did not, however, commence this action until they served the writ of summons and the complaint on the defendant more than three years later, on August 27, 2004. Thus absent a tolling of the limitations period, the plaintiffs' tort claims are time-barred.
As to the repose provision of § 52-584, our Supreme Court has recognized that, in certain circumstances, "the statute of limitations . . . may be tolled under the continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date . . . In its modern formulation, [the 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 [the court has] 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 . . . The 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." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 201-02, 905 A.2d 1135 (2006). See also Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 139-40, 907 A.2d 1220 (2006) (discussing application of continuing course of conduct doctrine to claims governed by § 52-577).
The plaintiffs contend that the defendant engaged in a continuing course of conduct such that the repose periods of §§ 52-577 and 52-584 were tolled. Essentially, they are arguing that the failure of the defendant to remedy the threat of sewage backups constitutes a breach of a continuing duty that tolls the period of repose. Their argument misconstrues the application of the "continuing course of conduct" doctrine. Initially, it must be remembered that the continuing course of conduct doctrine applies "only to the repose portion of the statute and not to the discovery portion." Rosato v. Mascardo, 82 Conn.App. 396, 405, 844 A.2d 893 (2004). Thus, the doctrine does not apply in circumstances, such as are present here, in which the plaintiffs do not contend that they did not discover that they had suffered actionable harm in time to bring an action against the defendant; Rosato v. Mascardo, supra, 82 Conn.App. 405; or that the defendant's later conduct was such that "the date of subsequent wrongs" could not be easily identified. Vanliner Ins. Co. v. Fay, supra, 98 Conn.App. 142.
"Actionable harm occurs when the plaintiff discovers . . . the he or she has been injured and that the defendant's conduct caused such injury . . . The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof." (Internal quotation marks omitted.) Rosato v. Mascardo, supra, 82 Conn.App. 404-05.
Even if the plaintiffs' claims were subject to the repose provisions, the doctrine would still not apply. First, there is no special relationship between the parties; although the city has worked with the plaintiffs to attempt to fix the problem, this is not the sort of special relationship — such as a fiduciary relationship; see Shoreline Care Limited Partnership v. Jansen Rogan Consulting Engineers, P.C., Superior Court, complex litigation docket at New Haven, Docket No. X06 CV 94 0155982 (January 10, 2002, McWeeny, J.), citing Dunham v. Dunham, 204 Conn. 303, 322, 528 A.2d 1123 (1987); or doctor-patient relationship, e.g., Cross v. Huttenlocher, 185 Conn. 390, 400, 440 A.2d 952 (1976) — contemplated by the continuing course of conduct doctrine. The only facts the plaintiffs reference in connection with this tolling argument is that "the plaintiffs have a flapper valve that they must keep clean and attached to their basement washing machine and two gate valves that they must keep in the closed position in order to keep the defendant's sewage from entering their home. This is a breach of Waterbury's duty." There was no "duty" on the part of the defendant, however, other than that which always existed: to avoid allowing sewage to enter into the plaintiffs' home. If this duty could, by itself, constitute the type of special relationship necessary to give rise to a continuing duty, it would eviscerate the statute of limitations entirely.
Moreover, there is no evidence of any act or omission on the part of the defendant that can be characterized as "later wrongful conduct" that occurred within the three years before the plaintiffs commenced this action. Specifically, there is no evidence that the defendant engaged in wrongful acts between the date of the last backup, which occurred in June 2001, and the date that the plaintiffs commenced this action, on August 27, 2004, that might implicate a continuing course of conduct. For example, in H.J. Kelly Associates v. Meriden, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0285781 (January 17, 2008, Taylor, J.), the plaintiff contractor sued the defendant city for failing to return its performance bond, which the plaintiff was required to pay in order to obtain a permit for excavation work. The court found that the plaintiff had posted the bond with the city in 1988 by certified check, but that the city had either lost, mislaid or stolen the check. The city continued to visit the site and tacitly approved of the plaintiff's operations until 1995, when the plaintiff ceased operations and the site was used by the Army Corps of Engineers for training purposes. The plaintiff visited the site periodically to determine if it could be rehabilitated for excavation use, but determined in 2003 that it could not. The plaintiff then demanded the return of its bond from the city, but it did not file suit until 2005. The city pleaded the tort and contract statutes of limitation as a special defense. The court noted that some elements of the continuing course of conduct doctrine were implicated; namely, the duty of the city to transmit the check to the city treasurer remained in existence, and there was evidence of an ongoing relationship between the parties including inspections of the site by city officials and further municipal contracts between them. Ultimately, however, the court determined that the continuing course of conduct doctrine did not apply because there was no "special" relationship "such as exists between a doctor and a patient"; id.; and that the city's failure to determine the status of the permit, though not entirely blameless, did not amount to "wrongful conduct." Id.
The present plaintiffs rely on Knapp Cowles Manufacturing Co. v. New York, N.H. H.R. Co., 76 Conn. 311, 56 A. 512 (1903). In Knapp, the plaintiff owned a portion of a street over which the defendant railroad built a fence, and on a part of which the defendant conducted operations, blocking the plaintiff's access thereto. The court held that, although the plaintiff brought its action beyond the relevant limitations period, as calculated from the date the defendant built the fence, "every day's use of it for railway purposes was a new trespass, founding a new claim for damages." Id., 313. The plaintiffs' reliance on Knapp is misplaced, however, as that case did not involve the continuing course of conduct doctrine, but a factual scenario involving the defendant's repeated, distinct trespasses on the same land. Moreover, in Knapp, the court concluded that "[t]he statute of limitations applicable to actions of trespass . . . was a bar to so much of the plaintiff's cause of action as rested upon acts done more than three years before suit brought . . . but not a bar to a recovery for acts done or damages suffered within three years." Id., 316.
Unlike the defendant in Knapp, the defendant in this case has not engaged in trespass on a daily basis onto the plaintiffs' property, or intruded thereon within the limitations period. While the plaintiffs have taken precautions to prevent backups from occurring, they have been compensated in the past for the installation of these devices, and the defendant cannot be held continuously liable simply because there is a possibility of trespass or other property damages. A landowner cannot build a fence to keep out trespassers and then sue one who attempts to trespass but is dissuaded from doing so by the fence. To hold that the city's mere operation and maintenance of the sewer line constitutes a "continuing course of conduct" to toll a limitations period indefinitely would obviate the repose periods of §§ 52-577 and 52-584. Therefore, the continuing course of conduct doctrine cannot provide the plaintiffs sanctuary, and this court's original decision stands as to this issue, as it applies to the plaintiffs' claims for negligence and trespass.
In the interests of justice, however, the court will indulge a different interpretation of the plaintiffs' argument as to the plaintiffs' nuisance claims. See Steele v. Stonington, 225 Conn. 217, 219 n. 4, 622 A.2d 551 (1993) ("If a court is not convinced that its initial ruling is correct, then in the interests of justice it should reconsider the order, provided it retains jurisdiction over the subject matter and the parties"); see also Mangiante v. Niemiec, supra, 98 Conn.App. 577. Although characterized as a "continuing course of conduct," the plaintiffs' claim is, in effect, in the nature of a permanent nuisance. Having abandoned their claims of damages for injuries to person or property, the plaintiffs only seek damages for the diminution in the value of their home. This remedy, while typical for inverse condemnation claims, is also the appropriate remedy for a finding of a permanent nuisance.
As the Supreme Court has stated in discussing the issue of damages, there is a "distinction usually observed between permanent and temporary nuisances. A permanent nuisance has been said to be one which inflicts a permanent injury upon real estate; the proper measure of damages is the depreciation in the value of the property . . . A temporary nuisance is one where there is but temporary interference with the use and enjoyment of property . . . Whether a nuisance is temporary or permanent is ordinarily a question of fact." (Citations omitted.) Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978). "Once a nuisance is established under substantive law, damages are similar to those in many trespass cases . . . If the nuisance, whatever it is, whether in the form of noxious gases, or noise, or water pollutants, is permanent, the same measure of damages as in cases of permanent damages by trespass is normally used — that is, the depreciation in the market value of the realty by reason of the nuisance. As a rule this will mean a nuisance that is, in the physical nature of things, unlikely to abate or to be avoided by any reasonable expenditure of money . . . Discomfort or inconvenience in the use of the property is, of course, relevant both to establish special damage and as evidence bearing on the loss of . . . use value." (Internal quotation marks omitted.) Kinsale, LLC v. Tombari, 95 Conn.App. 472, 488, 897 A.2d 646 (2006)
While the appellate courts of Connecticut have not discussed the issue recently, in Southern New England Ice Co. v. West Hartford, 114 Conn. 496, 159 A. 470 (1932), the Supreme Court determined that the plaintiff's nuisance action was not barred by limitations in that it was timely commenced shortly after the destruction of its right to use its property became permanent. In that case, the defendant city constructed a sewer system in 1913 or 1914, which included an overflow system that eventually discharged raw sewage into the plaintiff's ice harvesting pond. According to the Supreme Court, the trial court correctly determined that the nuisance became permanent when, in August 1929, the plaintiff received a letter from the commissioner of health directing the plaintiff's attention to a statute that forbade the sale of ice from ponds into which sewage had been discharged, and stating that it was apparent that the plaintiff would have to abandon its use of the pond for harvesting ice. Id., 511. As the court noted, the trial court reasonably regarded the letter "as the circumstance which brought the matter to a head and as marking the time when the plaintiff finally gave up any purpose of harvesting ice from the pond and when its right to do so was completely destroyed. We cannot find error in the conclusion of the trial court that the plaintiff's cause of action became complete upon the receipt of the letter . . . That cause of action did not arise when the overflow sewer was constructed, but only when the plaintiff's property right to harvest ice from the pond was destroyed. This did not occur until August 1929, and consequently the plaintiff was not debarred of its action brought in September 1929, either by the statutes of limitation or by laches." Id., 511-12.
More recently, a number of Superior Court decisions have held that the statute of repose embodied by § 52-577 may be tolled until a nuisance becomes permanent. "[T]he distinction between a permanent nuisance and a temporary nuisance is significant with regard to . . . limitations periods applicable . . ." Walker Manor Environmental Trust v. Oyster Landing Condominium Ass'n., Superior Court, judicial district of Ansonia-Milford at Derby, Docket No. CV 06 4006038 (December 22, 2006, Esposito, J.), citing 58 Am.Jur.2d, Nuisance 587, § 24 (2002). "In nuisance actions it is important, for statute of limitations purposes, to ascertain whether the invasion or interference is `permanent' or `continuous [i.e., temporary]' . . . If the injury or wrong is classified as temporary, the limitation period starts to run only when the plaintiffs' [property is] actually harmed, and for purposes of the statute of limitations, each injury causes a new cause of action to accrue, at least until the injury becomes permanent . . . This rule is especially applicable if the situation involves elements of uncertainty, such as the possibility or likelihood of the alteration or abatement of the causative condition . . . The rule is predicated upon the defendant's ability and duty to abate the existing conditions which constitute the nuisance . . . The characterization of a nuisance is not necessarily dependent on whether the conduct that caused the nuisance has ceased. [T]he life of an absolute nuisance exists as long as the nuisance lasts . . . Courts consider not only the permanent or temporary nature of the damages, but also the permanent or temporary nature of the causative factor, so each case must be considered in its own factual setting." (Citation omitted; internal quotation marks omitted.) Blackburn v. Miller-Stephenson Chemical Co., Superior Court, judicial district of Danbury, Docket No. CV 93 0314089 (September 11, 1998, Leheny, J.); see also Liss v. Milford Partners, Inc., Superior Court, complex litigation docket at Hartford, Docket No. X07 CV 04 4025123 (February 20, 2008, Berger, J.) ( 45 Conn. L. Rptr. 89, 93); Benson v. Redding, Superior Court, judicial district of Danbury, Docket No. CV 02 0344668 (February 4, 2003, White, J.); Bridgeport v. Admiral Associates, LLC, Superior Court, judicial district of New Haven, Docket No. CV 98 035277 (February 7, 2001, Moran, J.) ( 29 Conn. L. Rptr. 444, 447).
But see Tenesaca v. C. Pierce Enterprises, LLC, Superior Court, judicial district of Danbury, Docket No. CV 06 5000488 (June 1, 2006, Schuman, J.) ( 41 Conn. L. Rptr. 443, 44*) ("This motion for summary judgment raises the question of whether Connecticut recognizes a distinction between a temporary and permanent nuisance for purposes of the statute of limitations. The court concludes that it does not.")
In Tenesaca, the court disagreed with the cases that hold that a permanent nuisance may affect the statute of limitations, reasoning thusly: "Thus, in a case such as this one, when the discovery of the damage took place more than three years after the alleged negligence, the language of the statute dictates that the date of the negligent act, rather than the date of the discovery determines the outer time limit for bringing the action.
"Second, our Supreme Court has expressly distinguished between temporary and permanent nuisance only as it pertains to the proper measure of damages . . . Filisko v. Bridgeport Hydraulic Co., [ supra, 176 Conn. 40]. The plaintiffs identify no logical reason why this difference in available damages should dictate a difference in applicable portions of the statute of limitations. Indeed, given that a permanent nuisance involves greater damage than a temporary one, it makes no sense to conclude, as the plaintiffs do, that a plaintiff should have a longer period of time to file a case of temporary nuisance. Finally, the Superior Court cases cited by the plaintiffs holding that a temporary nuisance triggers the statute of limitations at the time of harm to a plaintiff find no support in any Connecticut appellate authority. Rather, those cases ultimately rely on an earlier Superior Court decision that in turn relies on law from other jurisdictions. See Blackburn v. Miller-Stephenson Chemical Co., [ supra, Docket No. CV 93 0314089]." (Citations omitted.) Tenesaca v. C. Pierce Enterprises, LLC, supra, 41 Conn. L. Rptr. 449.
To adopt this approach, of course, requires evidence of when the nuisance became "permanent," a necessarily vague and arguably arbitrary inquiry. It also presents the possibility of extending the tort statutes of limitation and repose significantly beyond three years from the date of the incident or conduct giving rise to the cause of action. Nevertheless, this court believes that the present situation is amenable to such analysis. Despite all efforts by both parties, the problem of gurgling noises and the threat of backups appears to be irremediable. To deny relief on statute of limitations grounds now would in all likelihood only lead to future actions when new injuries occur. The plaintiffs argue that the value of their property has been diminished by the constant threat of sewage backups and the onerous remedial measures they must take to prevent their occurrence. This court finds their testimony and evidence in this regard convincing, and also recognizes the long history of communication and good faith attempts at remedying the problem they have undergone with the defendant, to no avail. Further steps were taken after the incident in 2001, but the threat of sewage backups still exists, even if no more large-scale incidents have occurred. This court finds that the gurgling noises and threat of sewage backups constitute a permanent nuisance, the limitations period for which did not begin to run until it became clear, based on repeated unsuccessful attempts at remedying the problem, that no amount of money or precaution was going to completely remove the noises, twigs, and potential for large backups. This court sets the date of February 25, 2002 as the date that the nuisance became permanent. That date was the beginning of detailed records kept by Waterbury water pollution control as to periodic cleaning and regular maintenance at 82 Old Colony Drive, Waterbury, Connecticut. (From February 25, 2002 through November 11, 2006, regular maintenance was performed some 14 times.) Accordingly, the plaintiffs' nuisance claims are not barred by limitations, and the court vacates the portion of its previous decision in which it held that these claims were time-barred.
Thus, the court must determine whether the plaintiffs proved all of the elements of their causes of action for nuisance. "Although there are some similarities between a public and a private nuisance, the two causes of action are distinct . . . Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety . . . Private nuisance law, on the other hand, is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land." (Citations omitted.) Pestey v. Cushman, 259 Conn. 345, 357, 788 A.2d 496 (2002).
"[A] plaintiff must prove four elements to succeed in a [public] nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Internal quotation marks omitted.) Id., 355.
"[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. The interference may be either intentional . . . or the result of the defendant's negligence . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case . . . Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case." (Citations omitted.) Id., 361-62.
In addition, in nuisance actions, "[l]iability 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 . . . Indeed, we have stated that failure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." (Citations omitted; internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996).
In the present case, the defendant argues that the plaintiffs did not provide any evidence of the following: that the defendant intentionally created or maintained a condition that caused damage to the plaintiffs; that a condition created or maintained by the defendant was the proximate cause on the invasions into their property; or that the defendant's conduct was unreasonable. They also argue that the plaintiffs failed to provide expert testimony as to why the clean-out cap came off on June 21, 2001, and therefore have not established a causal link between the defendant's conduct and their injuries. The plaintiffs did not specifically respond to these arguments.
The defendant city operates an 80-year-old clay 15-inch sewer line to which the lateral for the plaintiffs' home at 82 Old Colony Drive was connected. Since they purchased their home on October 1, 1971, the plaintiffs have consistently and repeatedly suffered sewer backup from 1974 to the present date, some thirty-four years. They have relinquished the use of their basement for all intents and purposes and the plaintiffs still experience gurgling in the plumbing and on occasion, the first-floor bathroom and kitchen sink have had sand, twigs and debris deposited in there from sewer backups. The defendant city has, since 2001, cleaned and maintained said sewer line near Old Colony Drive, some 14 times as of 2006.
Lewis Cesarello, who has been the plumbing inspector for the City of Waterbury since 1989, testified that he exclusively worked on the sewage problem at his plaintiff's sister's home ever since she purchased it. He installed gate valves, check valves, clean-out plugs, vent pipes and the like to protect the house from sewage backups. He also testified at trial that he designed the sewer system at the federal prison in Danbury and that as the plumbing inspector, he is involved with sewer hookups on a daily basis.
His professional opinion was that the sewer line (15-inch) going through the field behind the plaintiffs' home has had back fill placed upon it and the clay pipe has deteriorated and it grabbed water from the wetlands.
Mr. Ferreira, collection supervisor for the City of Waterbury, water pollution control, testified that the plaintiffs' fifteen-inch lateral line goes into an eight-inch line that runs into a manhole where three lines converge, an eight-inch line, a twelve-inch line and a fifteen-inch line.
When asked if he knew the condition of the fifteenth inch line, he said he did not. He said that the line had not been cameraed nor smoke tested, as he felt there was no reason to do so, even though the line was constructed in the 1920s. He stated that he did not know if the line was compromised, but the only way to know is to shut the line down and camera it, which had not been done.
The court finds that the plaintiffs have proven all four elements of their private nuisance cause of action. The sewer backup from the 15-inch sewer pipe creates a danger which has continuously inflicted injuries on 82 Old Colony Drive. The danger is a continuous one. The use of the sewer line is unreasonable, and the city has never checked it in its eighty plus years of existence. The existence of this nuisance is the proximate cause of the diminution of value of 82 Old Colony Drive.
Walter J. Kloss appraised the premises in question as of 2004 and 2006, and, in both appraisals, he made a 30 percent marketing adjustment as "Any attempt to market this home would require disclosure of this problem and the potential for further back ups." Further, Mr. Kloss stated that "no credit would be given for the basement finish, the basement lavatory or garage since their utility would be at risk."
82 Old Colony Drive was assessed on December 5, 2006 at $230,000 minus 30 percent "damages" of $85,000 caused by the sewer line problems. Plaintiff's Exhibit S.
Judgment for the plaintiff for $85,000 plus costs.