Opinion
FSTCV176032344S
01-26-2018
HUMMOCK ISLAND SHELLFISH, LLC v. BIRCHWOOD COUNTRY CLUB, INC.
UNPUBLISHED OPINION
OPINION
GENUARIO, J.
I. BACKGROUND
In this two-count complaint the plaintiff pleads that it is an entity which farms shellfish along the Westport, Connecticut shoreline within two miles of a golf course which the defendant operates. The defendant utilizes certain hazardous chemicals including but not limited to herbicide and nitrogen fertilizers in the maintenance of its golf course. On or about April 25, 2017 Westport Fire Department, and other agencies, responded to an emergency report of a release by the defendant of 150 to 200 gallons of chemicals into a drainage creek adjacent to the defendant’s property which creek runs toward the shoreline. As a result of the reported release the bureau of aquaculture of the Connecticut Department of Agriculture ordered that all aquaculture farms within two miles of the release including the plaintiff’s shellfish farm immediately cease operations. This has caused the plaintiff to incur substantial damages.
In its first count, which is not the subject of this motion, the plaintiff has pleaded that the defendant had a duty to exercise reasonable care and violated that duty in the maintenance and operation of its golf course and that it negligently allowed the discharge or release or negligently failed to prevent the release. The first count sounds in common-law negligence.
The second count, which is the subject of this motion, sounds in negligence per se and alleges that the defendant was negligent per se as a result of its violation of Connecticut General Statutes § 22a-427 and § 22a-430. The defendant has moved to strike the second count arguing that those statutes do not provide for a private cause of action and/or provide the basis for liability under the doctrine of negligence per se.
II. THE MOTION TO STRIKE
" A motion to strike attacks the legal sufficiency of the allegations in a pleading ... in reviewing the sufficiency of the allegations in the complaint, courts are to assume the truth of the facts pleaded therein and to determine whether those facts establish a valid cause of action ... [I]f facts provable in the complaint will support a cause of action the motion to strike must be denied ..." Kumah v. Brown, 307 Conn. 620, 626 (2013) (Internal quotation marks omitted; internal citations omitted.) " In ruling on a motion to strike the trial court is limited to considering the ground specified in the motion." Meredith v. Police Commissioner, 182 Conn. 138, 140 (1980). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by facts alleged." Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003) (Internal quotation marks omitted.) " What is necessarily implied [in an allegation] need not be expressly alleged ... it is fundamental that in determining the sufficiency of a [pleading] challenged by a ... motion to strike, all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted ... indeed, pleadings must be construed broadly and realistically rather then narrowly and technically." R.S. Silver Enterprises, Inc. v. Pascarella, 148 Conn.App. 359, 364-65 (2014) (Internal quotation mark omitted.)
III. DISCUSSION
Connecticut General Statute § 22a-427 states in its entirety simply that:
No person or municipality shall cause pollution of any of the waters of the state or maintain a discharge of any treated or untreated wastes in violation of any provision of this chapter.
C.G.S. § 22a-427.
Connecticut General Statute § 22a-430 is a multisection statute which starts by stating " (a) No person or municipality shall initiate, create, originate or maintain any discharge of water, substance or material into the waters of the State without a permit for such discharge issued by the [C]ommissioner [of Energy and Environmental Protection]. " The statute proceeds to delineate certain procedures and processes and to provide the Commissioner with broad regulatory powers, particularly with regard to the Commissioner’s authority to issue permits. Superior Court decisions are split on whether a negligence per se claim can be based upon a violation of the provisions of C.G.S. § 22a-427 and § 22a-430. The cases that have allowed such claims have done so under the theory that those statutes provide standards which can give rise to a negligence per se claim. See French Putnam, LLC v. County Environmental Services et al., 27 Conn.L.Rptr. 684 (2000 D’Andrea, J.) and Goodrich v. Jennings, 19 Conn.L.Rptr. 544 (1997 Mintz, J.) Cases which have not allowed for either a private cause of action or a count based on negligence per se for violation of these two statutes include Cerretani v. Levco Tech, Inc., 2004 WL 1050876 (2004 Adams, J.), Heussner v. LH Gault & Son, Inc., 2015 WL 670716 (2015 Povodator, J.), and Connecticut Water Company v. Thomaston, 16 Conn.L.Rptr. 213 (1996 Corradino, J.). This court, as it did in the case of 1529 Post Road East, Fairfield v. Mitsos (Docket No. CV-15-6025825 S) Superior Court for the Judicial District of Stamford/Norwalk at Stamford (February 26, 2016 Genuario, J.), finds the reasoning in Heussner, Cerretani and Connecticut Water Company to be more persuasive and to be consistent with the principles which give rise to negligence per se claims in appropriate situations.
Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principals, i.e., that standard of care to which an ordinary prudent person would conform his conduct. To establish negligence the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law.
Gore v. People’s Saving Bank, 235 Conn. 360, 376 (1995), on remand, 40 Conn.App. 219 (1996) (Internal citations and quotations omitted.) The Gore court noted that the majority of cases concluding that certain statutory provisions implicate the doctrine of negligence per se have arisen in the context of motor vehicle accident case and Gore itself applied the doctrine with regard to violation of landlord/tenant statute. Clearly however, not every violation of a statute gives rise to a claim in negligence per se. Both Cerratani and Heussner courts concluded that the " broad almost standardless language" of § 22a-427 and § 22a-430 militate against the determination that they provide the basis for a negligence per se count. See also Augelli v. Matos, 35 Conn.L.Rptr. 228 (2003 Dubay, J.).
The statutes upon which the plaintiff relies do not provide specific standards pursuant to which a party engaged in a particular activity must conform its conduct. Rather they include broad policy statements pursuant to which the legislature enacted multiple statutes and empowered agencies and commissioners to adopt multiple regulations designed to promote environmental well being within the state of Connecticut pursuant to those legislatively stated policies. The Connecticut Legislature has adopted multiple pieces of legislation designed to enhance the environmental health of this State but those broad standardless policies in and of themselves do not contain a hint of a legislative intent to provide for a private cause of action or particular standards the violation of which would give rise to a negligence per se claim. This court cannot without " clear statutory guidance" presume that the legislature intended to deviate from the established common-law principles of negligence claims. There is nothing in the two statutes relied upon by the plaintiff that would give such statutory guidance.
If the plaintiffs can prove that the defendant acted negligently and that they were damaged as a result they may obtain recovery. They cannot avoid their normal burden of proof that the defendant acted negligently in order to recover damages by citing statutes that provide no detail as to the specific manner in which the defendant is to conform its conduct.
IV. CONCLUSION
For all these reasons the defendant’s motion to strike the second count of the complaint is granted.