Opinion
No. CV08 501 31 86
April 8, 2010
MEMORANDUM OF DECISION
This matter was tried before the court on the four-count amended complaint of the plaintiff, Sari Weatherwax, a private property owner, wherein she alleges property damage as a result of water runoff caused by the defendant, Grumman Hill Montessori Association, Inc., a private school, in the use of a portion of its property as a parking lot. In her complaint, the plaintiff alleges that she is and was the owner of property located at 19 Whipple Road in Wilton, Connecticut; that the defendant is and was the owner of the property located at 22 Whipple Road, Wilton, Connecticut, which property is across Whipple Road from the plaintiff. She contends further that the defendant used its own land as a parking lot and did not take proper steps to consider whether this use would cause damage to her property, and failed to apply for or obtain a permit to use its property as a parking lot but continued such use in the face of a zoning officials' cease and desist order.
She claims that after the defendant began using its property as a parking lot, water, dirt, rocks and other sediment (runoff) began flowing from the defendant's property across Whipple Road and onto and through the plaintiff's property. Further it is her claim that the defendant increased the runoff by dumping debris into a culvert at the edge of the defendant's property bordering Whipple Road. She alleges that the defendant never took any steps to mitigate the flow of runoff onto and through the plaintiff's property even after the defendant had notice of the runoff. Consequently she seeks relief on the contention that the runoff was and continues to be deposited on the plaintiff's property, and has caused and continues to cause erosion of the plaintiff's property. The plaintiff's four-count complaint alleges: (1) negligence; (2) trespass; (3) nuisance; and (4) an action for remediation of environmental pollution pursuant to General Statutes § 22a-44b.
The defendant filed an answer denying the allegations in the amended complaint and filed two special defenses: (1) the plaintiff failed to mitigate her damages; (2) if the plaintiff was damaged as claimed, her damages were caused in part or in whole by the plaintiff's failure to take any steps to prevent or to minimize the alleged runoff. The matter came before this court at a two-day trial on October 27 and 28, 2009. Both parties filed post-trial briefs on December 1, 2009. The plaintiff's post-trial brief only discusses the first and the third counts of the complaint — negligence and nuisance, respectively. Consequently, the court considers counts two and four, trespass and remediation, as abandoned, and bases its finding solely on the parties' arguments related to negligence and nuisance.
Generally, the law concerning use of one's land is found in Tide Water Oil Sales Corp. v. Shimelman, 114 Conn. 182, 158 A. 229 (1932). According to that case, a landowner has the right to occupy his land and use it as he wishes, by changing its surface or building structures upon it, despite the fact that such a use will cause natural water flow to accumulate on adjacent lands or to pass over them in changed direction and quantity. Id., 184. Nevertheless, a landowner "may not use or improve his land in such a way as to increase the total volume of surface water which flows from it to adjacent property, or as to discharge it or any part of it upon such property in a manner different in volume or course from its natural flow, to the substantial damage of the owner of that property." Id., 190.
"In [ Page Motor Co. v. Baker, 182 Conn. 484, 438 A.2d 739 (1980)], the rule set forth in Tide Water was modified by the rule of `reasonable use,' which states that a landowner, in dealing with surface water is entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility. [ Id., 488-89]. Reasonableness is determined on a case-by-case basis. A court must consider all of the relevant circumstances, including the amount of harm caused, its foreseeability, the purpose with which the action was taken, and whether the utility of the use of the land outweighs the gravity of the harm done . . . The basic measure of damages for injury to real property is the resultant diminution in its value . . . A limitation on this rule is that while the diminution in value may be determined by the cost of repairs, such cost must not exceed the former value of the property and repairs shall not enhance the former value of the property." (Citations omitted.) Street v. Woodgate Condominium Assn., Superior Court, judicial district of Middlesex, Docket No. CV01 096955 (January 13, 2004, Gordon, J.) [ 36 Conn. L. Rptr. 381].
"[I]njury must be proven for either damages or injunctive relief, and evidence must be reviewed to determine whether or not the plaintiff has proven that the defendant has (1) altered the volume or flow of surface water; (2) in a way that has caused injury or irreparable harm. See Gould, The Law of Water, Secs. 513-21." Street v. Woodgate Condominium Assn., supra, Superior Court, Docket No. CV 01 096955.
Negligence
In the first count of the complaint, the plaintiff brings a claim for negligence. "In a negligence action, the plaintiff must meet all of the essential elements of the tort in order to prevail. These elements are: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Stein v. Tong, 117 Conn.App. 19, 27, 979 A.2d 494 (2009). Furthermore, "the plaintiff must prove both causation in fact and proximate cause." (Internal quotation marks omitted.) Burton v. Stamford, 115 Conn.App. 47, 76, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009). A proximate cause is "[a]n actual cause that is a substantial factor in the resulting harm . . . Under the substantial factor doctrine, the trial court could accept the plaintiff's evidence of causation without requiring that the defendant's alternative theories be expressly and entirely discredited. Since the determination of proximate cause is ordinarily a question of fact . . . we will review the trial court's finding only to ascertain whether it is clearly erroneous in light of the record before us." (Citations omitted; internal quotation marks omitted.) Ferri v. Pyramid Construction Co., 186 Conn. 682, 687, 443 A.2d 478 (1982).
The parties' arguments regarding the elements of negligence are as follows.
Duty and Breach: According to the plaintiff, the defendant had a duty to refrain from using its land in such a way as to damage the plaintiff's property through altered water flow. The defendant breached this duty because without obtaining zoning or other government approval, and without taking precautions to obtain approval, the defendant routinely used its sloping piece of property as a parking lot. Such use created trenches in the defendant's land, causing runoff to flow onto the plaintiff's property, creating extensive damage. The defendant increased the runoff by dumping debris into a culvert at the edge of the defendant's property. The defendant failed to mitigate the flow of runoff even though the defendant had notice of it. The defendant's actions caused runoff to be deposited on the plaintiff's property, which created erosion of soil on the plaintiff's land. The plaintiff claims that she has been damaged by: "(a) erosion of her property; (b) deposits of sediment (rocks, sand, dirt) on her property; (c) undermining of her driveway; and (d) undermining of her stone wall."
In response, the defendant argues that the plaintiff fails to show that the defendant breached a duty of care to the plaintiff, because "the plaintiff offers no evidence that the total volume of surface water from 22 Whipple Road changed, or that the flow of water was different from its natural flow due to any actions of [the defendant]." Additionally, the defendant argues that it has no duty to maintain the culvert, which was owned by the town of Wilton.
Causation. The plaintiff argues that there is no question that the change in water course caused by the defendant's actions resulted in damage to the plaintiff's property. In further support of her argument, the plaintiff explains that: (1) defendant's own witness testified that he had seen the water flowing solely from the defendant's property to the plaintiff's property; and (2) even if natural waters were the cause of damage to the plaintiff's property, it was the defendant who changed the flow of the water that caused the damage.
In response, the defendant argues that the plaintiff failed to prove that the defendant was the cause of the damage because the plaintiff "cannot show that the water came from 22 Whipple Road as opposed to any other source . . . [T]he plaintiff testified that: (1) water comes down the entire Whipple Road; (2) water has come from the culvert which is the [t]own's responsibility to maintain; and (3) she cannot differentiate [the source of the water that flows on her driveway.]" The defendant explains that water runoff could have also come from rain water, that the plaintiffs ten-year-old driveway had cracks where no water damage occurred, and that the design of the down-spout on the plaintiff's property caused erosion to the plaintiff's soil. Finally, the defendant argues that most of the damage to the plaintiff's property occurred in 2006-07, which was at least one year after the defendant used its land as a parking lot.
Expert Testimony
In further support of its argument, the defendant asserts that expert testimony is required to establish that the defendant's actions caused the water flow to change. "It is well established that expert testimony is required when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." (Internal quotation marks omitted.) Kenney v. Mystic Valley Hunt Club, 93 Conn.App. 368, 375, 889 A.2d 829 (2006). "Where property damage has occurred, [t]he burden is on the plaintiff to present evidence which affords a reasonable basis for measuring her loss." (Internal quotation marks omitted.) Sovereign Bank v. Licata, 116 Conn.App. 483, 508, 977 A.2d 228 (2009). Nevertheless, the United States District Court, District of Connecticut found that "[i]n cases involving general negligence . . . expert testimony is not needed unless the factual question at issue is not within the sphere of common knowledge of the lay person." (Internal quotation marks omitted.) Costin v. Bhandari Constructors Consultants, Inc., 285 F.Sup.2d 165, 172 (2003). This court finds that in the present case, expert testimony is not needed regarding the relationship between flowing water and property damage. Nonetheless, this in no way relieves the plaintiff from her burden of establishing causation by a fair preponderance of the evidence.
Nuisance
In addition to her claim for negligence, in the third count of the complaint, the plaintiff brings a claim for private nuisance. "A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land . . . The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor . . . The essence of a private nuisance is an interference with the use and enjoyment of land." (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).
"[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. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable." (Citations omitted.) Pestey v. Cushman, supra, 259 Conn. 361.
The plaintiff argues that "the [d]efendant's conduct caused an unreasonable interference with her use and enjoyment of her property, constituting a nuisance." She further argues that the defendant's unlawful use of the property, and lack of precautions to prevent damage to other properties, caused the plaintiff to work to remediate damage that the defendant caused. Finally, the plaintiff claims that "[s]he is entitled to damages for this annoyance in addition to the physical damage to her property."
In response, the defendant argues that the plaintiff did not show that the defendant's conduct was the proximate cause of an unreasonable interference with the use and enjoyment of her property. Further, the defendant argues that the plaintiff provides no evidence that the water that caused damage to the plaintiff's property came from 22 Whipple Road as opposed to any other source.
Failure to mitigate damages
The defendant provides two special defenses to the plaintiff's claims of negligence and nuisance: (1) the plaintiff failed to mitigate her damages; (2) if the plaintiff was damaged as claimed, her damages were caused in part or in whole by her own failure to take any steps to prevent or to minimize the alleged runoff. The defendant argues that the plaintiff did nothing to stop the flow of water onto her property. At trial, the plaintiff admitted that she had not taken any actions to prevent further cracking of her driveway, and had not tried to divert the water or block it from coming down the driveway. Nevertheless, the plaintiff explained that she planted shrubbery, hoping that the water would sink into the root system. The court acknowledges that the parties disagree regarding the extent to which the plaintiff mitigated her damages; however this issue is not dispositive regarding the defendant's liability for negligence or nuisance.
Court's Finding
In the present case, the question of the defendant's liability primarily turns on the issue of whether the defendant's actions caused or were a substantial factor contributing to damage of the plaintiff's property. This court acknowledges that the plaintiff has experienced damage to her property as a result of flowing water, however this court is not convinced from the evidence presented, that runoff from the defendant's property had been sufficiently changed in its natural flow or in its volume, by the parking of cars on its land so as to be the cause or a substantial factor of the plaintiff's property damage. This court finds that based upon the parties' testimony and evidence presented at trial, that there were multiple factors that led to damage of the plaintiff's property. Therefore, this court finds that the evidence and testimony that the plaintiff presented at trial are not sufficient to prove by a fair preponderance of the evidence that the defendant breached a duty of care to the plaintiff, nor that the defendant's actions were the cause of the plaintiff's property damage.
For the foregoing reasons, this court holds that the defendant is not liable to the plaintiff for negligence or nuisance, and owes the plaintiff no compensation for property damage.
Judgment on all four counts may enter in favor of the defendant.