Opinion
No. FST CV 06 5001778 S
April 6, 2010
MEMORANDUM OF DECISION
The plaintiff property owner has sued the former owner of adjacent property in a single-count complaint sounding in trespass to her property. The defendants are Ronald Marin, hereinafter ("Marin"), who as owner of the adjacent property at the time of the alleged trespass, hired the defendant Walsh and Sons Paving and Excavating Inc, hereinafter ("Walsh Co.") through his wholly owned corporation, Neptune Painting, LLC, hereinafter ("Neptune").
Marin added Walsh Co. as a third-party defendant and asserts an indemnification claim against it. The plaintiff did not revise her complaint to assert a claim against the third-party defendant, Walsh Co.
In 2005, Walsh Co. was hired to excavate Marin's property and to prepare it for the erection of a two-family house which Marin declared as condominium units. The plaintiff alleges that during the course of the excavation, Marin caused damage to her property by causing machinery to enter upon her property and in doing so removed a masonry stone wall and numerous yards of rock and soil. The plaintiff further alleges that in the process of cutting away the earth, Marin created a rock ledge on her property which slopes downward from the plaintiff's property toward Marin's property. The ledge and corresponding rock face is approximately 100 feet long by 15 feet high. The face of the ledge now consists of exposed rock which the plaintiff complains could "collapse" and that its exposed condition constitutes a safety hazard. On April 7, 2009 (almost three years after commencement of this action) the chief building official of the city of Norwalk sent the plaintiff a "Notice of Violation — Unsafe Building" in which he identified the violation as "unstable excavation of ledge." The notice ordered the plaintiff to remedy the condition in order to render it safe. The notice further advised that the plaintiff's failure to remedy could result in the city performing the remedial work at the plaintiff's expense. The plaintiff responded by erecting a temporary chain link fence on the adjacent condominium property at the base of the ledge. This fence was designed to prevent spalling rock from falling onto any passerby who might be walking along the base of the ledge. The building official's corrective order was issued to the property owner, (the plaintiff) whom the chief building official believed was the owner of the ledge. Since the chain link fence was intended to be a temporary safety measure only, based upon the corrective order from the city, the plaintiff obtained an estimate from Conte Company, LLC (hereinafter "Conte Co.") of the cost to render the ledge face safe to the satisfaction of the city. The Conte Co. estimate was $97,016.36. In addition to this sum, the plaintiff also seeks recovery of $8,942.00 for the cost of the temporary fencing. Finally, the plaintiff seeks reimbursement of her costs of litigation pursuant to her demand for punitive damages.
The defendants contend as a threshold matter that the plaintiff has failed in her obligation to prove by a preponderance of the evidence that she enjoys an ownership or possessory interest in the ledge face which is the subject of the city's corrective order.
It is well settled that in order to prevail on a cause of action for trespass, the plaintiff must prove the essential elements of the tort. "The essential elements of an action for trespass are: "(1) ownership or possessory interest in land . . .; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." Avery v. Spicer, 90 Conn. 576, 579 (1916). "Because it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land." (Citation omitted; internal quotation marks omitted.) Abington LTD. Partnership v. Talcott Mountain Science Center For Student Involvement, Inc., 43 Conn.Sup. 424, 427-28 (1994). "A trespass may be committed on, beneath or above the `surface of the earth' which includes `soil water, trees, and other growths . . ." 1 Restatement (2nd), Torts, Trespass on Land, sec. 159, comment (b) p. 281 (1965). Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-88 (2007). (Alternate citations omitted.)
In accordance with this four-pronged test, the court must begin its inquiry by determining whether the plaintiff had an ownership or possessory interest in the land which comprises the ledge face in question. There was conflicting testimony concerning the location of the common boundary between the two properties. The plaintiff expressed the belief that she owns the entire ledge face from north to south and from top to bottom. Prior to commencement of the excavation, Marin had a survey done to determine the boundary. His surveyor staked out the property line. Based on the survey markers it was "very clear" to him based on the survey markers where the common boundary was located. According to Marin, a portion of the masonry stone wall which Walsh Co. removed was partly on his property and partly on the plaintiff's. Marin believed that the entire ledge face belonged to him rather than to the plaintiff.
Indeed, this may have been the source of the chief building official's belief.
"An owner is presumed to know the boundaries of his own land. Connecticut Light and Power Co. v. Fleetwood, 124 Conn. 386 390 (1939); he is a competent witness to the location of its bounds and its occupancy within his personal knowledge . . ." (alternate citations omitted). The most persuasive evidence on this point is not found in the testimony of either property owner but rather in the several maps that are in evidence. Exhibit 37, a survey map dated March 12, 2001 (prior in time to the excavation in question), shows a stone and masonry wall which parallels the common boundary. The wall is located partly within, partly on and partly beyond the plaintiff's property line. Exhibit 35, dated May 10, 2005, (also pre-excavation) shows the same wall in the same location. Exhibit 36, dated April 3, 2009, was introduced for the limited purpose of supporting the engineering opinions rendered by Alan Shepard, a professional engineer engaged by the plaintiff to render an opinion concerning the stability of the ledge face and appropriate remedial measures. This exhibit contains a notation which reads: "top of slope cut encroachment." The significance of this feature is that when compared to Exhibits 35 and 37 it places the top of the ledge face beyond the plaintiff's property line and entirely within the former Marin property. Because this exhibit may not be utilized to establish the boundary location, reference must be made to the other two exhibits mentioned above as to which there is no such limitation. Comparison of the maps reveals that the courses and distances (meets and bounds) are identical for the common boundary on all three. Thus, exhibit 35 which was prepared after the excavation and after the condominiums were built, makes it clear that not only is the top of the slope of the ledge face located on the former Marin property but the photographs in evidence confirm that the rock face widens as it descends. In fact James Conte, a principal of Conte Co. estimated that the ledge "steps back" about five feet from bottom to top.
With the consent and in the presence of all attorneys, the court visited the premises and confirmed that the base (toe) of the ledge face slope is wider at that point than at the top, thus encroaching further into the former Marin property. Corroboration for this may be found in exhibit 19 which shows the cement footing for the plaintiff's newly constructed masonry wall. It is noted that the footing sits on top of the ledge face and because this is the same "new wall" identified on exhibit 36 it is apparent that the entire face of the rock ledge from north to south and from top to bottom is outside of the plaintiff's property line. Accordingly, the plaintiff has failed in her burden of proving an ownership or possessory interest in the ledge face in question. It necessarily follows that the notice of violation from the chief building official was misdirected to the plaintiff in the mistaken belief that she owns the ledge face.
The plaintiff seeks to recover the sum of $97,016.36 which she claims is the cost to render the ledge face safe for passersby. This figure is based on the estimate of James Conte, a principal of Conte Co. mentioned above. Plaintiff also produced an appraiser, Elliott C. Morales, who offered the opinion that the plaintiff's property had a value of $408,000 before the excavation and $243,000 after the excavation. The difference in before and after values he attributed to the cost of remediation of the ledge face or "the cost to cure." It was clear to everyone that the "cost to cure" was based upon a prior estimate from Conte Co. that was far in excess of the current estimate of $97,016.36. By this reasoning, if the "cost to cure" the condition permanently is $97,016.36, the value post-excavation would be $310,983.64, less the cost of the temporary fencing which is the cost of the temporary cure, for a total diminished value of $302,041.64.
Mr. Conte stated that the final cost could be greater if he encountered adverse conditions unknown at this time or if he was unable to utilize the former Marin property for access to the site.
The rule for establishing damages to real property for trespass is also well settled. The damages are determined by the difference in value of the property as it lay before the trespass compared to its value after the trespass. Eldridge v. Gorman, 99 Conn. 691, 701 (1905). Because the "cost to cure" is represented by the estimate of $97,016.36 to permanently stabilize the ledge face, and the ledge face lies wholly outside of the plaintiff's property line, she has suffered no permanent injury to her property caused by the creation of the ledge face.
The plaintiff next seeks to recover $8,942.00 for the cost of the temporary fencing which she has already paid. In this single-count complaint alleging only trespass and not negligence, whether she can recover this amount depends upon whether the need for the fencing was caused by the trespass. According to William Walsh, III, the machinery operator for Walsh Co., while in the process of digging at the base of the plaintiff's masonry stone wall, it collapsed. This act alone constituted a trespass upon the plaintiff's property, which when combined with the further excavation performed on the rock ledge, created a hazardous condition which the plaintiff was required to make safe by the installation of the temporary fencing. Although the excavated ledge face in its completed state does not cross over the plaintiff's property line, as stated above, it was necessary as it turned out, for Walsh to trespass upon the plaintiff's property in order to produce the finished product. In other words, the completed ledge face would not have turned out as it did to the defendant's benefit if Walsh Co. had not removed the earth material from under the plaintiff's wall. Indeed, it was not just an integral part of the operation, it was inextricably intertwined with the creation of the finished product.
A trespass need not be inflicted directly on another's property but may be committed by discharging harmful matter at a point beyond the boundary of such property. Bristol v. Tilcon Materials, Inc., 284 Conn. at 88. By the same rationale, a trespass may be committed by conducting construction activity beyond the boundary of one's property which causes injury to that property. To put it another way, the masonry stone wall would not have collapsed without creation of the ledge and creation of the ledge necessitated installation of the temporary fencing. Therefore, the trespass caused the need for the fencing. As a result, the plaintiff is entitled to recover the cost of the temporary cure. As mentioned above, the plaintiff's appraiser assigned a value of $408,000 to the plaintiff's property as of October 24, 2008. Irrespective of the lack of timeliness of the date, the significance of his testimony is that he believed that value would be reduced by the "cost to cure," namely the cost to stabilize the ledge face, whatever that cost may turn out to be. Since the cost of temporary fencing is no less a part of the cost to cure because it is temporary and not permanent, it is a legitimate element of trespass damages.
"Whenever a harm to land occurs from an invasion of property rights, the measures of damage to be considered are the difference in the value of the land before and after the harm, the loss of the use of the land, and the discomfort and annoyance to the party harmed as an occupant." (Emphasis added.) 75 Am.Jur.2d 97-98, Trespass § 130 (1991); see 4 Restatement (Second), Torts § 929, p. 544 (1979). "If one is entitled to a judgment for the detention of, or for preventing the use of, land or chattels, [however] the damages include compensation for (a) the value of the use during the period of detention or prevention . . . and (b) harm to the subject matter or other harm, of which the detention is the legal cause." (Original emphasis omitted; new emphasis added.) 4 Restatement (Second), supra, § 931, pp. 551-52.
"The measure of damages to be awarded for an injury resulting from a trespass depends upon whether the injury is permanent or temporary . . . A temporary injury is one which may be abated or discontinued at any time . . . and, when injury to property is remedial by restoration or repair, it is considered to be temporary." 75 Am.Jur.2d 95-96, Trespass § 127 (1991); see also Vincent v. New York, N.H. H.R. Co., 77 Conn. 431, 441-42, (1904) (discussing difference between permanent and temporary taking and damages occasioned thereby). `There is no fixed, inflexible rule for determining the measure of damages for injury to . . . property resulting from a trespass. The measure of damages differs according to the nature of the injury . . . Damages for the dispossession of property are regarded as an award of compensatory damages for the violation of a recognized property right and encompass more than actual pecuniary loss . . . If one is entitled to a judgment for detention of or preventing the use of . . . land . . . the damages include compensation for . . . [t]he value of the use during the period of detention . . . and . . . [t]he harm to the property or other harm of which the detention is the legal cause.' 75 Am. Jur. 2d, 95-96, supra; § 126, see 4 Restatement (second), supra, § 931, pp. 551-52; 1 F. Harper, F. James O. Gray, Torts (3d Ed. 1996) § 1.8, p. 1:36 ("[w]hen the injury is to possession alone, damages are typically measured by rental value" [internal quotation marks omitted]) (alternate citations omitted). Robert v. Scarlata, 96 Conn.App. 19, 23-24 (2006).
In this case, the injury to the plaintiff's property was the undermining of her wall which in turn contributed to the need to render the ledge face safe. Even though the fencing is temporary, it nevertheless remedied or "cured" the unsafe condition of the ledge face at least until a permanent solution could be achieved.
To satisfy the second prong required for a trespass the plaintiff must have proved that the act was intentional. In Bristol v. Tilcon Minerals, Inc., 284 Conn. at 88-89, our Supreme Court instructs that intent in a trespass context would not require that Marin intend to have his contractor enter the plaintiff's land with its machinery, but rather that Marin "intended the act that amounted to or produced the unlawful invasion and had good reason to know or expect" that the instrumentally used (Walsh Co.'s equipment) would cause damage to the plaintiff's property given the proximity of the plaintiff's wall to the property line and the sheer slope that would be created. The credible evidence is that William Walsh, Jr., a principal of Walsh Co., reviewed the property line with Marin and attempted to persuade him "not to go as deep with the cut, but he insisted."
William Walsh, III, the actual equipment operator testified that he "dug at the wall, part of it collapsed and the wall came down." It is clear to the court that this digging occurred in and around the base of the wall and that depending upon the exact location of the wall, the digging either crossed the property line or did not cross the line but came so close to it as to undermine the wall. The plaintiff has thus satisfied the "intentional" prong of the test for trespass.
The court must next address Marin's claim that arises by virtue of Marin adding Walsh Co. as a third-party defendant for the purpose of seeking indemnification. Because the plaintiff has not pled over this against this defendant, the court must adjudicate only Marin's rights as against Walsh Co. At the outset, it is important to note that although Marin hired Walsh Co. through his wholly owned corporation, Neptune, he makes no claim that he, as owner of the property, is absolved of legal responsibility. In fact, Marin signed a written contract with Walsh in his individual capacity as owner of the property. Indeed, a property owner's duty to refrain from committing torts against his neighbor is generally considered to be non-delegable. Smith v. Town of Greenwich, 278 Conn. 428, 456-58 (2006).
Walsh Co. defends against the indemnification claim by making the threshold assertion that the principle of common-law tort-based indemnification does not apply to an intentional tort such as trespass. The court agrees. "Indemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest." Kaplan v. Merberg Wrecking Corp., 152 Conn. 405, 412 (1965). As stated above, one of the essential elements of trespass is that the act of trespass be intentional. While no appellate case law could be found that explicitly limits the doctrine to negligent torts, at the same time, no case could be found in which indemnification was permitted where the tort was intentional.
The court finds persuasive case law that clearly distinguishes between a negligent and intentional tort. "The same conduct [cannot] reasonably be determined to have been both intentionally and negligently tortuous." American National Fire Insurance Co. v. Schuss, 221 Conn. 768, 777 (1992). "`[I]ntentional conduct and negligent conduct, although differing only by a matter of degree; Mingachos v. CBS, Inc., 196 Conn. 91, 103 (1985); are separate and mutually exclusive . . . Although in a given case there may be doubt about whether one acted intentionally or negligently, the difference in meaning is clear. `[As Oliver Wendell] Holmes observed, even a dog knows the difference between being tripped over and being kicked.' [W] Prosser Keeton, Torts, (5th Ed.) (1984) p. 33]." (Citation omitted.) American National Fire Ins. Co. v. Schuss, supra, 775-76." DaCruz v. State Farm Casualty Co., 268 Conn. 675, 693 (2004).
The court now concludes that the doctrine of indemnification does not apply to trespass, so Marin may not recover from the third-party defendant Walsh Co.
Finally, the plaintiff claims punitive damages consisting of attorneys fees and costs of litigation. "The rules in this state regarding the award of common law punitive damages are well established. `Punitive damages are awarded when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights . . . If awarded, they are restricted to cost of litigation less taxable costs of the action being tried . . . Vandersluis v. Weil, 176 Conn. 353, 358-59 (1978)." Aliamo v. Royer, 188 Conn. 36, 42 (1982). "`[T]he extent to which exemplary damages are to be awarded ordinarily rests in the discretion of the trier of the facts.' Gionfriddo, v. Avis Rent A Car System, Inc., 192 Conn. 280, 295 (1984)." (Alternate citations omitted.) Kenny v. Civil Service Commission, 197 Conn. 270, 277 (1985).
Since the plaintiff has made no allegations against Walsh Co., her claim for punitive damages rests entirely on her allegations against Marin. An examination of the complaint discloses that while Marin's act of trespass is described as "intentional" there is no allegation of willfulness or malicious conduct. A willful or malicious injury is one caused by design. Willfulness and malice alike import intent . . . [its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the rights or safety of others or of the consequences of action." (Citations omitted; interlocutory quotation marks omitted.) Markey v. Santangelo, 195 Conn. 76, 78 (1985). Punitive damages do not need to be alleged explicitly in the complaint or included in the claims for relief as long as the pleadings give the defendant sufficient notice that he is being charged with aggravated conduct rather than mere negligence. Id., 78-79." (Alternate citation omitted.) Stohlts v. Gilkinson, 87 Conn.App. 634, 648 (2005).
The allegations of the complaint make no mention of any aggravated conduct by Marin and the evidence supports that omission. For this reason the claim for punitive damages fails.
In accordance with the foregoing, judgment may enter for the plaintiff in the amount of $8,942.00.