Opinion
No. CV07-5003539S
November 9, 2007
MEMORANDUM OF DECISION RE MOTION TO STRIKE #120
The plaintiffs, David and Kathy Talnose, filed an eight-count complaint against the defendants, the town of Wolcott, its Mayor, Thomas Dunn, its site inspector, David Kalinowski, its sewer and water department and its sewer and water commission. In response to several requests to amend, the plaintiff filed four amended complaints; the fourth amended complaint, comprising twelve counts, was filed on July 2, 2007. Therein, the plaintiff alleges the following facts.
Kalinowaki and Dunn were sued in their official capacities. Kalinowski, in his individual capacity, is also a party, as are two business entities allegedly controlled by him, DK Realty, LLC, and Dapa Construction Co. The claims against DK Realty, Dapa Construction and Kalinowski individually, however, are not at issue in the present motion. As such, any subsequent reference to "the defendants" refers to the town of Wolcott, the sewer and water department, the sewer and water commission, and Dunn and Kalinowski in their official capacities.
The defendants' motion was addressed to the third amended complaint, filed on May 18, 2007. The only difference between the third and fourth amended complaints, however, was the addition of Kalin Realty as a defendant in the counts against DK Realty, Dapa Construction and Kalinowski individually. The defendants did not object to the request to amend, there were no changes in the counts against the town or its agents, and the addition of Kalin Realty has no effect on the present motion. Therefore, the court will treat the motion to strike as addressing the fourth amended complaint.
Count one sounds in common-law negligence against the town and its agents; count two, indemnity under General Statutes § 7-465 against the town and its agents based on count one; count three, statutory negligence under General Statutes § 52-557n against the town, department and commission; count four, common-law nuisance against the town and its agents; count five, indemnity under General Statutes § 7-465 against the town and its agents based on count four; count six, statutory nuisance under § 52-557n against the town, department and commission; and count seven, negligence per se pursuant to General Statutes § 22a-427 against the town and its agents. Counts eight through ten and twelve are directed against Kalinowski individually, DK Realty, Dapa Construction and Kalin Realty, and are not presently at issue.
The plaintiffs own and reside at 11 Longmeadow Drive Extension in Wolcott. Their home is bordered by several public streets, including Longmeadow Drive Extension and Longview Lane. In front of their home, at the intersection of these two streets, there are three connected storm sewer catch basins ("intersection basins"). A fourth catch basin is located on the easterly side of the plaintiff's property ("side basin"); however, the side basin is not connected to the intersection basins. Starting in August 2001 and continuing to the present day, heavy rainstorms have causing massive "ponding" at the intersection of Longview Lane and Longmeadow Drive Extension, and have caused stormwater discharge to flow over the plaintiffs' front lawn, driveway and backyard. This has occurred at least twelve times prior to the filing of the complaint. The flooding problems are the result of the faulty, inadequate and defective storm drainage system surrounding the plaintiff's home. The defendants were obligated to dispose of surface waters falling on and collecting on the streets of the plaintiffs' neighborhood, and were responsible for both the construction of the storm drainage system and its repair and maintenance. The defendants had notice of the defective conditions as early as August 2001, because the plaintiffs complained of the problems to the town at that time. Due to the defendants' negligence and failure to act reasonably under the circumstances in constructing and maintaining the drainage system, the plaintiffs have suffered damages from the overflow of water on their property; furthermore, the plaintiffs have been sued by their neighbors, Robert and Debra Lee, whose property was damaged by surface waters that had flowed over the plaintiffs' property. The plaintiffs seek to recover damages for their losses and to finance the cost of repairing the defective storm sewer system.
On June 21, 2007, the defendants filed a motion to strike: (1) counts one through seven against all the defendants on the grounds that the statute of limitations has run on the plaintiffs' claims; (2) counts one through seven as to the department, board, Dunn and Kalinowski, on the ground that that the town is the real party in interest; (3) counts two and five as to the town, on the ground that that if the counts against the individual defendants are stricken, there is no basis for indemnification under § 7-465; and (4) counts one, four and seven as to the town, on the ground that the town enjoys governmental immunity and the plaintiffs have not pleaded any statutes abrogating that immunity. The plaintiffs filed an objection to the motion on July 26, 2007.
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court . . . [The court must] take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 229, 905 A.2d 1165 (2006).
The plaintiffs have conceded that the department and commission are not legal entities capable of being sued, and have stated that they will amend their complaint accordingly. Therefore, the court will not address the claims made as to those entities.
I. Statute of Limitations
The defendants first move to strike counts one through seven on the ground that the statute of limitations for negligence actions, General Statutes § 52-584, has run. They argue that the plaintiffs, by their own admission, were aware of the runoff and drainage problems as early as August 2001, which is when the limitation period began. Since the plaintiffs did not file suit until January 9, 2007, the defendants maintain that they exceeded the two-year period set forth in § 52-584.
Section 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, or by reckless or wanton misconduct . . . 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. . ."
The plaintiffs counter that the continuing course of conduct doctrine tolled the statute of limitations for their causes of action, and that, in counts three and six, they allege a temporary nuisance, for which each successive injury creates a new limitation period.
"[A] claim that an action is barred by the lapse of the statute of limitation must be pleaded as a special defense, not raised by a motion to strike . . . [T]here are two exceptions to that holding. Those exceptions relate to situations in which a motion to strike, filed instead of a special defense of a statute of limitation, would be permitted. If all of the facts pertinent to the statute of limitation are pleaded in the complaint and the parties agree that they are true, or if a statute creating the cause of action on which the plaintiff relies fixes the time within which the cause of action must be asserted, a motion to strike would be allowed." (Citation omitted; internal quotation marks omitted.) Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, 686 A.2d 121 (1996).
A. Negligence: Counts one, three, and seven
Section 52-584 sets forth the limitation period for negligence actions, but does not create the negligence cause of action itself, which has always existed at common law. Even the plaintiff's claim of negligence per se, while rooted in violation of General Statutes § 22a-427, is fundamentally a negligence claim. Therefore, the second exception outlined in Girard v. Weiss, supra, 43 Conn.App. 415, does not apply. Furthermore, the parties do not agree that all the facts pertinent to the statute of limitations are pleaded in the complaint; it is the plaintiff's contention that the defendant's duty to maintain the sewer system and constant contact with the plaintiffs regarding such repairs amounts to a continuing course of conduct that tolls the statute of limitations.
The continuing course of conduct doctrine may toll the limitation and repose periods contained in § 52-584. Sherwood v. Danbury Hospital, 278 Conn. 163, 165, 896 A.2d 777 (2006). "The continuing course of conduct doctrine is conspicuously fact-bound." (Internal quotation marks omitted.) Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, LLC, 69 Conn.App. 151, 160, 795 A.2d 572 (2002).
"The question of whether a party's claim is barred by the statute of limitations is a question of law . . . The issue, however, of whether a party engaged in a continuing course of conduct that tolled the running of the statute of limitations is a mixed question of law and fact." (Internal quotation marks omitted.) Vanliner Ins. Co. v. Fay, 98 Conn.App. 125, 139, 907 A.2d 1220 (2006). "Parties are customarily able to avail themselves of that doctrine if they can demonstrate either that there was a special relationship between the parties giving rise to a continuing duty or later wrongful conduct of a defendant that was related to the prior act; " Nieves v. Cirmo, 67 Conn.App. 576, 581, 787 A.2d 650 (2002); and while "determining whether a continuing duty exists is a question of law"; id.; this determination may require an examination of the facts. See Sherwood v. Danbury Hospital, 252 Conn. 193, 207, 746 A.2d 730 (2000) ("We next consider whether there was a genuine issue of material fact with respect to whether the defendant owed the plaintiff a duty that remained in existence after commission of the original wrong related thereto").
The plaintiff argues that the constant "back and forth" with the defendants regarding the defective drainage system and its repair constitutes a continuing course of conduct. Not all of the relevant facts are contained in the complaint; moreover, the parties do not agree as to their veracity. In such circumstances, the statute of limitation defense is inappropriate on a motion to strike, and is more properly asserted via special defense so that the plaintiff has the opportunity to plead facts in avoidance. Girard v. Weiss, supra, 43 Conn.App. 415; see also Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993) ("A motion to strike might also deprive a plaintiff of an opportunity to plead matters in avoidance of the statute of limitations defense"). Whether or not the statute of limitations would be applicable to negate a cause of action is normally raised by way of motion for summary judgment at which time the court can determine whether there are no genuine issues of fact and then whether judgment shall enter as a matter of law. The court would then consider all pleadings, the complaint and special defenses, to reach its conclusion. Therefore, the motion to strike counts one, three and seven is denied on these grounds.
B. Nuisance: Counts four and six
The defendants assert the same argument, that the statute of limitations has run, with respect to the nuisance counts. They argue that when a nuisance action is predicated on negligence, the negligence statute of limitations, § 52-584, and not the general tort statute of limitations, General Statutes § 52-577, is applicable. The plaintiff replies that the nuisance is temporary in nature and, therefore, each new incident giving rise to damages resets the statute of limitations for nuisance actions.
There is a split in the Superior Court, and no appellate authority, on whether the distinction between temporary and permanent nuisance is relevant to the statute of limitation period. The majority of decisions hold that, if a nuisance is "temporary" in nature, the limitation period does not begin to run until the property is actually harmed, and that each new incidence of injury results in a new limitation period for that particular injury. Most such cases rely upon a single Superior Court decision, Blackburn v. Miller-Stephenson Chemical Co., Superior Court, judicial district of Danbury, Docket No. CV 93 0314089 (September 11, 1998, Leheny, J.), wherein the court looked to law from other jurisdictions and tort treatises to reach its conclusion. A subsequent decision, however, Tenesaca v. Pierce Enterprises, LLC, Superior Court, judicial district of Danbury, Docket No. CV 06 5000488 (June 1, 2006, Schuman, J.) (41 Conn. L. Rptr. 448), calls into question the reliance on law from other jurisdictions, which is based on different statutes of limitation, and "our legislature [has] 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." (Internal quotation marks omitted.) Id., 449 citing Prokolin v. General Motors Corp., 170 Conn. 289, 294-95, 365 A.2d 1180 (1976).
E.g. 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] ("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 plaintiff's [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"); accord Benson v. Redding, Superior Court, judicial district of Danbury, Docket No. CV 02 0344668 (February 4, 2003, White, J.)
The court in Tenesaca also observed that the Supreme and Appellate courts of this state have only recognized a distinction between temporary and permanent nuisances for the purpose of calculating damages. Tenesaca v. Pierce Enterprises, LLC, supra, 41 Conn. L. Rptr. 449.
This court need not resolve this issue at present. Even assuming, arguendo, that the relevant statute of limitations is § 52-584 and that Connecticut does not recognize the recurring nature of temporary nuisances for statute of limitation purposes, the continuing course of conduct doctrine may well be applicable. See Maderia v. Northeast Utilities Services Co., Superior Court, complex litigation docket at Middletown, Docket No. X04 CV 00010349 (March 1, 2004, Quinn, J.) (38 Conn. L. Rptr. 286) (continuing course of conduct doctrine is applicable to nuisance claims). The court in Maderia sided with courts such as Blackburn v. Miller-Stephenson Chemical Co., supra, Docket No. CV 93 0314089; instead of characterizing its holding as "temporary versus permanent" nuisance, however, the court based its decision to deny the motion to strike on the continuing course of conduct doctrine. Therefore, for the same reasons previously set forth with respect to the negligence counts, the motion to strike is denied as to counts four and six on statute of limitation grounds.
II. The town is the real party in interest
The defendants contend that the plaintiffs' claims in counts one, two, four, five, and seven against Dunn and Kalinowski in their official capacities are insufficient because the real party in interest is the town of Wolcott. The plaintiffs counter that this argument would render § 7-465 meaningless, because if a municipal official could not be sued, there would be no reason to ever seek indemnification from a municipality from its officials' acts.
The defendants have not cited any legal authority which would permit the striking of a claim against a municipal official simply because the municipality is the true party in interest. The only case they reference, Hadden v. Southern New England Telephone Co., Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 03 0183016 (August 18, 2004, Alander, J.), was considering the different though related issue of whether a plaintiff can assert claims for indemnification under § 7-465 against a municipality if the municipal officials were sued in their official, rather than individual, capacities. The court concluded that this was improper, reasoning that "allegations brought against a municipal employee in his official capacity only, are to be construed as allegations against the municipality" and that "[a] suit against a [government official] in his or her official capacity however is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the [government] itself." Id., quoting Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989); see also Kelly v. New Haven, 275 Conn. 580, 595, 881 A.2d 978 (2005) ("while an award of damages against an official in his personal capacity can be executed only against the official's personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself").
While these cases suggest that the practical effect of a successful suit will be the same regardless of whether a plaintiff sues the municipality alone or the municipality along with the municipal officials — i.e., the plaintiff's judgment is paid by the town —, it falls short of providing legal grounds for striking a claim against the municipal officials. That the individual officials may be unnecessary to the plaintiffs' suit does not render their claims against the officials inadequate or insufficient. Rather, what the defendants in effect are seeking is akin to a request to revise the complaint by "the deletion of any unnecessary, repetitious . . . or otherwise improper allegations in an adverse party's pleading . . . or . . . any other appropriate correction in an adverse party's pleading"; Practice Book § 10-35; for which "[t]he proper vehicle would be a request to revise." Scholastic, Inc. v. Danbury, Superior Court, judicial district of Danbury, Docket No. CV 03 0349100 (January 28, 2004, Richards, J.). "[T]he proper way to cure any confusion [regarding the complaint] is to file a [request] to revise, not a motion to strike the entire complaint." Rowe v. Godou, 209 Conn. 273, 279, 550 A.2d 1073 (1988).
The Superior Court is split over whether it may treat a motion to strike as a request to revise; opinions that do often base the decision on judicial economy, while those that refuse generally note that the Practice Book does not contemplate such a procedure. The court finds that the interest of judicial economy will be best served by treating the motion to strike as a request to revise in this instance; it will achieve the result the defendants seek while not causing prejudice to the plaintiffs. That is, if the plaintiffs' core claims of negligence and nuisance are successful, which itself is not dependent upon the inclusion of their claims against Dunn and Kalinowski, their recovery will be the same regardless of whether they pursue claims against just the town or the town officials in addition. The court orders the plaintiffs to revise their complaint to remove the town officials, Dunn and Kalinowski, from counts one through seven of the complaint as they are unnecessary parties.
See Mutual Fire v. Renz, Superior Court, judicial district of Fairfield, Docket No. CV 04 0412888 (October 21, 2005, Hiller, J.) (court viewed a motion to strike improper allegations as a request to revise in the interest of judicial economy) Connecticut Light Power Co. v. Gilmore, Superior Court, judicial district of Fairfield, Docket No. CV 03 0404311 (July 20, 2005, Doherty, J.) (treating motion to strike as request to revise); contra Schoenberg v. Malhota, Superior Court, judicial district of Danbury, Docket No. CV 06 5001757 (June 20, 2007, Shaban, J.) (43 Conn. L. Rptr. 653) (refusing to treat motion to strike as request to revise); Sabatasso v. Bruno, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 05 4003811, (March 17, 2006, Wiese, J.) (same).
III. Indemnity under General Statutes § 7-465
The defendants next argue that, without the claims against the town officials, there is no basis for recovery under counts two and five for indemnification under § 7-465. The plaintiffs counter that this argument would allow the town to avoid liability altogether, and render § 7-465 superfluous.
The plaintiffs' argument is unpersuasive. Typically, § 7-465 is implicated where a government official is sued in their individual capacity for acts conducted in their official capacity. See Hadden v. Southern New England Telephone Co., supra, Docket No. X06 CV 03 0183016 ("a municipality's liability under § 7-465 is dependent on the plaintiffs first establishing liability on the part of the individual defendants personally and I have concluded that the plaintiffs have not sued the individual defendants in their individual capacity, no claim may be brought against the town . . . based on § 7-465"); see also Kostyal v. Cass, 163 Conn. 92, 97-98, 302 A.2d 121 (1972). The plaintiffs here have sued Dunn and Kalinowski in their official capacities, as evidenced by the summons and by the plaintiffs' admission. As previously held, the plaintiffs have been ordered to remove the claims against Dunn and Kalinowski, so there are no parties for which the plaintiffs could seek indemnification against the town. Furthermore, even were Dunn and Kalinowski to remain in the case, there would be no basis for recovery under § 7-465; the claims against the employees are in their official capacities and, therefore, are already essentially claims against the town. Therefore, the court concludes that the motion to strike as to counts two and five is granted.
The Appellate Court, in Spears v. Garcia, 66 Conn.App. 669, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003), addressed the co-extensive nature of § 7-465 and § 52-557n, holding that §§ 7-465 and 52-557n could harmoniously coexist "in that parties may choose to rely on either statute as long as they meet the requirements therein." Spears v. Garcia, supra, 66 Conn.App. 680. Thus, either a plaintiff may choose to proceed against a government official individually, and seek indemnification from the town under § 7-465, or may assert claims against the town directly under § 52-557n; see Doe v. Petersen, 279 Conn. 607, 903 A.2d 191 (2006) (municipality may be sued directly under § 52-557n even absent claims against municipal employees).
IV. Governmental Immunity
The defendants' next contention is that the claims against the town in counts one, four, and seven are barred by the doctrine of governmental immunity. The plaintiffs counter that the acts complained of in counts one and four are ministerial, and, therefore, the defendants are not entitled to immunity.
"A municipality itself was generally immune from liability for its tortious acts at common law . . . [although] governmental immunity may be abrogated by statute." Williams v. New Haven, 243 Conn. 763, 766, 707 A.2d 1251 (1998). "[A] municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity," and a plaintiff must specifically refer to and rely on such a statute in order to implicate the town's liability. Id., 766-67.
The plaintiffs in the present case have not cited any such statutes with respect to their claims for negligence and nuisance in counts one and four. Rather, the plaintiffs, in counts three and six, assert claims against the town under General Statutes § 52-557n(a), which specifically abrogates the governmental immunity of a municipality for the negligent ministerial or nuisance-creating acts of its employees. Section 52-557n, however, while allowing a cause of action against a municipality, does not create a cause of action where none existed before. While § 52-557n may abrogate the town's immunity, the plaintiffs' claims fundamentally sound in negligence and nuisance. Therefore, with respect to the town, counts three and six (grounded in § 52-557n) are essentially duplicative of counts one (negligence) and four (nuisance) respectively. Because counts one and four do not specifically allege a statute abrogating the town's immunity, the motion to strike both counts is granted.
Section 52-557n(a) provides in relevant part: "(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
Count three incorporates the allegations of count one, sounding in negligence. Count six incorporates the same allegations but sounds in nuisance.
For much the same reasons, count seven, alleging a violation of General Statutes § 22a-247, is also defective. Count seven does not purport to read a cause of action into § 22a-247, but is based in negligence per se. Although there is a split of authority in the Superior Court; see Caprio v. Upjohn Co., 148 F.Sup.2d 168, 172 (D.Conn. 2001) ("This Court recognizes that a split of authority exists among the superior courts of Connecticut that have considered whether a negligence per se action may be based on violation of . . . [§]22a-427"); the majority of cases have held that violation of § 22a-427 can give rise to a valid negligence per se claim. Nevertheless, the availability of a cause of action for negligence per se under § 22a-427 does not entail the abrogation of governmental immunity for the municipality. Section 52-557n, for example, specifically provides that "a political subdivision of the state shall be liable for damages to person or property. . ." explicit language which is conspicuously absent from § 22a-427. Since the plaintiffs' claim sounds in negligence, the town has immunity unless a statute specifically abrogates that immunity. Williams v. New Haven, supra, 243 Conn. 766-67. The plaintiffs have not cited or incorporated any statute in count seven that would expressly abrogate the town's governmental immunity, which is fatal to their claim against the town. Therefore, the court grants the motion to strike with respect to the town on count seven.
Section 22a-427 provides: "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."
See, e.g., Goodrich v. Jennings, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 150074 (May 22, 1997, Mintz, J.) (19 Conn. L. Rptr. 544, 544-45); Walker v. Barrett, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 169673 (November 8, 1999, D'Andrea, J.) (25 Conn. L. Rptr. 665); Blackburn v. Miller-Stephenson Chemical Co., Inc., Superior Court, judicial district of Danbury, Docket No. 314089 (January 12, 1995, Stodolink, J.) (13 Conn. L. Rptr. 364).
CONCLUSION
In summary, the defendants' motion to strike is granted as to the town on counts one, two, four, five, and seven only. In addition, with respect to the claims against Dunn and Kalinowski as town officials, the motion is treated as a request to revise, and that the plaintiffs are ordered to delete the claims against Dunn and Kalinowski in counts one, two, four, five, and seven.