Opinion
No. CV 06-5000488-S
June 1, 2006
RULING ON MOTION FOR SUMMARY JUDGMENT
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.
I
On March 14, 2006, the plaintiffs, Manuel Tenesaca and Thelmo Tenesaca, filed a three-count complaint against the defendant, C. Pierce Enterprises, LLC, for private nuisance, negligence, and recklessness. The plaintiffs subsequently withdrew the negligence and recklessness counts based on their own admission that the statute of limitations bars those claims. In the nuisance count, the plaintiffs claim that their property in Danbury was damaged in November 2005, due to the flooding of the Blind Brook. They allege that the flooding resulted from the defendant's installation on its own property of a culvert or drainage pipe that could not adequately handle the water flow from the brook. The defendant has submitted an affidavit asserting that it installed the drainage pipe in 1995. The defendant now moves for summary judgment on the grounds of the statute of limitations.
The culvert is described in the plaintiffs' complaint as "a cement wall with a pipe through which the Blind Brook now flows."
II
"[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." Practice Book § 17-49. "Summary judgment may be granted where the claim is barred by the statute of limitations"; Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996); and is appropriate on statute of limitation grounds when the "material facts concerning the statute of limitations [are] not in dispute . . ." Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984).
There are no material factual disputes here. The plaintiffs do not contest the defendant's position that General Statutes § 52-584, the negligence statute of limitations, is the applicable limitations provision. The defendant does not dispute, for purposes of this motion, the plaintiffs' characterization of their lawsuit as alleging temporary rather than permanent nuisance. The question presented is the purely legal one of whether § 52-584 bars the plaintiffs' temporary nuisance action.
The other possibly applicable statute is General Statutes § 52-577, the general tort statute of limitations. However, in Johnson v. North Branford, 64 Conn.App. 643, 648 n. 10, 781 A.2d 346, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001), the Appellate Court noted that when a nuisance cause of action is predicated on negligence, which is the case here given the identical allegations made in both counts, § 52-584 is the applicable statute. In addition, the Supreme Court has explained that "[t]he three-year statute of limitations of § 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52-577 and enumerated in § 52-584 or another section." (Internal quotation marks omitted.) Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 441, 551 A.2d 1220 (1988). Thus, because this action falls within § 52-584, the tort statute of limitations would not apply. In any event, since both § 52-577 and, as will be discussed, § 52-584 provide a limitations period of three years from the date of the act or omission, regardless of the date of discovery, the result would not differ under either statute. See Valentine v. LaBow, 95 Conn.App. 436, 445 (2006); Johnson v. North Branford, supra, 648.
III
Section 52-584 provides in relevant part: "No action to recover damages for injury to . . . real . . . 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 Johnson v. North Branford, 64 Conn.App. 643, 648, 781 A.2d 346, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001), the Appellate Court explained that § 52-584:
imposes two specific time requirements on prospective plaintiffs. The first requires a plaintiff to bring an action `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 . . .' The second provides that in no event shall a plaintiff bring an action `more than three years from the date of the act or omission complained of . . .' The statutory clock on this three year time limit begins running when the negligent conduct of the defendant occurs. (Internal quotation marks omitted.)
The second requirement is also known as the repose section of the statute. See Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369 n. 5, 746 A.2d 753 (2000).
Despite this language, the plaintiffs argue that, in a case of temporary nuisance, the statute of limitations does not begin to run until the date of discovery, regardless of when the negligent act or omission occurred. Thus, according to the plaintiffs, the alleged fact that the plaintiffs did not discover the damage until 2005 makes this case timely. The plaintiffs observe that the Connecticut Supreme Court has distinguished between temporary and permanent nuisance, and that judges of the Superior Court have interpreted such a distinction as relevant for purposes of the statute of limitations.
The first and fundamental flaw in the plaintiffs' argument is that it overlooks the plain language of the statute, which neither the plaintiffs nor this court have permission to ignore. See General Statutes § 1-2z. The statute unequivocally provides that "no such [negligence] action may be brought more than three years from the date of the act or omission complained of . . ." The Supreme Court has confirmed that "an action commenced more than three years from the date of the negligent act or omission complained of is barred by the statute of limitations in § 52-584, regardless of whether the plaintiff had not, or in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period." Witt v. St. Vincent's Medical Center, 252 Conn. 363, 369, 746 A.2d 753 (2000). See also Johnson v. North Branford, supra, 64 Conn.App. 648 ("an action may be time barred even if no injury is sustained during the three years following a defendant's act or omission"). 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.
Section 1-2z provides:
The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.
Second, our Supreme Court has distinguished between temporary and permanent nuisance only as it pertains to the proper measure of damages. "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; the appropriate measure of damages is the temporary reduction in rental value, not depreciation in market value." (Citations omitted.) Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 40, 404 A.2d 889 (1978). 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. See Maderia v. Northeast Utilities Service Co., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 00 0103499 (March 1, 2004, Quinn, J.) ( 36 Conn. L. Rptr. 649); Benson v. Redding, Superior Court, judicial district of Danbury, Docket No. CV 02 0344668 (February 4, 2003, White, J.); Bridgeport v. Admiral Associates, Superior Court, judicial district of New Haven, Docket No. CV 98 035277 (February 7, 2001, Moran, J.) ( 29 Conn. L. Rptr. 444). 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., Superior Court, judicial district of Danbury, Docket No. CV 93 0314089 (September 11, 1998, Leheny, J.). These other jurisdictions have differing limitations statutes. As our Supreme Court has stated, "our legislature distinguished Connecticut's statute of limitations for torts from those of other jurisdictions, the majority of which begin to run only `after the cause of action has accrued.'" Prokolin v. General Motors Corp., 170 Conn. 289, 294-95, 365 A.2d 1180 (1976). Therefore, these Superior Court cases are not persuasive authority.
Contrary to the plaintiffs' suggestion, the Appellate Court's decision in Johnson v. North Branford, supra, does not support their position. While Johnson was a nuisance case involving a limitations defense, the Court's reference to when the plaintiffs discovered actionable harm, relied upon by the plaintiffs, was dictum. The remaining discussion makes clear that the Court viewed the statute as running from "a defendant's act or omission." (Internal quotation marks omitted.) Johnson v. North Branford, supra, 64 Conn.App. 648.
Thus, the Blackburn court quoted a Tenth Circuit decision, which in turn applied Kansas law, to the effect that: "If the injury or wrong is classified as temporary, the limitation period starts to run only when the plaintiff's land or crops are 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." (Emphasis added; internal quotation marks omitted.) Blackburn v. Miller-Stephenson Chemical Co., supra, Superior Court, Docket No. CV 93 0314089 (quoting Miller v. Cudahy, 858 F.2d 1449, 1453 (10th Cir. 1988), cert. denied, 492 U.S. 926 (1989)).
IV
Because in this case the plaintiffs filed their complaint well after the three-year period following the time of the alleged negligence in 1995, § 52-584 bars this action. Accordingly, the court grants the motion for summary judgment.
It is so ordered.