Opinion
CV146049840S
02-20-2018
Vincent Cirillo et al. v. Donna Pantaleo et al.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Fischer, Brian T., J.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #123
Brian T. Fischer, Judge
FACTS AND PROCEDURAL HISTORY
On September 19, 2014, the plaintiffs, Vincent and Sandra Cirillo, filed a ten-count complaint against seven defendants: Donna and Michael Pantaleo (Pantaleos), the town of Branford (town), Anthony Becchia, Laura Burban, Wendy Joyce, and Pam Medlyn. In their complaint, the plaintiffs allege the following facts. The plaintiffs are owners of residential property located in Branford and the Pantaleos are owners of the residential property directly adjacent to the plaintiffs’ property. The Pantaleos are the owners and/or keepers of six dogs, including five Labrador Retrievers, who bark constantly at all hours of the day and night. The Pantaleos have caused or allowed and permitted the dogs to bark constantly and have at times encouraged them to do so by throwing toys into a built-in swimming pool located on their property. This constant barking and the Pantaleos’ allowance and encouragement of the same has caused an unreasonable interference with the plaintiffs’ use and enjoyment of their property. It has also caused the plaintiffs to suffer emotional distress, mental anguish and nervousness.
Anthony Becchia is alleged by the plaintiffs to be the town’s Zoning Enforcement Officer, Laura Burban, Wendy Joyce, and Pam Medlyn are alleged to be Animal Control Officers. The municipal employees and the town will collectively be referred to as the " defendants" in this memorandum.
The plaintiffs further allege that Becchia had a duty as the Zoning Enforcement Officer to enforce the town’s ordinances and regulations which prohibited owning or harboring dogs that are a nuisance because of excessive barking and only allowed up to four dogs per dwelling. Becchia failed to inspect or failed to adequately inspect the Pantaleos’ property to determine whether they were in compliance with these rules. He had prior notice of these violations and his failure to inspect or adequately inspect was a reckless disregard for the plaintiffs’ health and safety and participation in the creation of a nuisance. The plaintiffs also allege that the Animal Control Officers had a ministerial duty to enforce the laws related to dogs and other domestic animals and their failure to inspect or adequately inspect the Pantaleos’ property to determine compliance with the laws was participation in the creation of a nuisance.
On November 12, 2014, the defendants filed their answer and special defenses to the plaintiffs’ complaint. Specifically, the defendants deny that Anthony Becchia had any responsibility within the town and deny that the town rules quoted by the plaintiff come from the town charter. The defendants do admit, however, that the quoted language comes from the Branford Town Code and the Branford Zoning Regulations. They asserted four special defenses: (1) failure to state a claim upon which relief may be granted; (2) contributory negligence; (3) governmental immunity; and (4) statute of limitations. The plaintiff filed a reply to the defendants’ answer and special defenses on February 13, 2015. The defendants filed a motion for summary judgment accompanied by a memorandum of law on November 21, 2016. The plaintiffs filed a memorandum in opposition on April 24, 2017, to which the defendants filed a reply memorandum on June 5, 2017. The matter was heard at short calendar on November 13, 2017.
The plaintiffs filed a surreply on June 9, 2017. Practice Book § 11-10(c) provides: " Surreply memoranda cannot be filed without the permission of the judicial authority." No leave to file this surreply was requested and is not properly before the court. Therefore, the court does not consider it in ruling on the defendants’ motion for summary judgment.
STANDARD OF REVIEW
Practice Book § 17-49 provides that 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." " In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 820-21, 116 A.3d 1195 (2015). " The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... A material fact ... [is] a fact which will make a difference in the result of the case." (Internal quotation marks omitted.) Id., 821.
" To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ... It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact ... are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015).
" [S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ... [A] summary disposition ... should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ... [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). " While [a party’s] deposition testimony is not conclusive as a judicial admission; General Statutes § 52-200; it is sufficient to support entry of summary judgment in the absence of contradictory competent affidavits that establish a genuine issue as to a material fact." Collum v. Chapin, 40 Conn.App. 449, 450 n.2, 671 A.2d 1329 (1996).
DISCUSSION
The defendants move for summary judgment on three grounds: (1) they did not owe the plaintiffs a duty; (2) the plaintiff’s negligence claims are barred by governmental immunity; and (3) the nuisance claims fail because there is no positive act. The plaintiffs argue that the defendants’ motion should be denied because (1) they do not allege negligence, but rather claims pursuant to General Statutes § 52-557n(b)(8); and (2) they have sufficiently alleged claims of nuisance because their allegations track the language of § 52-557n(a)(1)(c) and the defendants’ arguments regarding the lack of a positive act should have been raised in a motion to strike.
I
General Statutes § 52-557n(b)(8)
Subsection (b) provides in relevant part: " Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: ... (8) failure to make an inspection or making an inadequate or negligent inspection of any property ... to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances ..."
In counts five and six, the plaintiffs allege that the defendants’ failure to inspect their neighbors’ property to determine whether they were violating rules regarding barking dogs and the number of dogs, was a reckless disregard for their health and safety under § 52-557n(b)(8). The defendants first contend that § 52-557n(b)(8) does not provide for a direct cause of action. This is incorrect as our Supreme Court specifically held that § 52-557n(b)(8) creates a cause of action. Ugrin v. Cheshire, 307 Conn. 364, 387, 54 A.3d 532 (2012) (" we conclude that the plaintiffs are not precluded from bringing a cause of action against the town under § 52-557n(b)(8)" ). The court interpreted the word " unless" in that provision as creating exceptions to the rule that municipalities are protected from liability in the inspection context. Id., 386-87. Accordingly, the plaintiffs in the present case can bring a cause of action against the defendants under § 52-557n(b)(8). The issue, therefore, is whether the plaintiffs can maintain these claims. In their reply to the plaintiffs’ objection, the defendants contend that they are immune from liability because there was no reckless disregard for health or safety.
" It is well established ... that a person acts with reckless disregard when he ignores a substantial risk of harm ... There is no indication that the legislature intended to adopt a lower standard for recklessness in the context of municipal inspections, one requiring that a defendant merely disregard a possible impact on public or individual health or safety." (Citations omitted.) Williams v. Housing Authority, 327 Conn. 338, 362, 174 A.3d 137 (2017). " In most instances ... [our Supreme Court] [has] defined recklessness simply as disregarding a high degree or substantial risk of danger, leaving open the question whether it may be reckless to engage in conduct that carries a relatively low likelihood of causing momentous harm ... In any event, regardless of what standards govern allegations of recklessness in other contexts ... in the context of § 52-557n(b)(8), a municipal actor may demonstrate reckless disregard for health and safety when it is clear that the failure to inspect may result in a catastrophic harm, albeit not a likely one." (Citations omitted; emphasis in original; footnote omitted.) Id., 363-64.
In the present case, the plaintiffs cannot maintain their reckless disregard for health or safety claims because their allegations cannot reasonably be characterized as rising above mere negligence, if that, as the allegations are largely legal conclusions. The plaintiffs generally allege that their neighbors, the Pantaleos, have six dogs that bark all hours of the day and night. They further allege that the town prohibits excessive barking and only allows up to four dogs before a permit is required. The plaintiffs allege that the failure to inspect the Pantaleos’ property to determine whether they were violating these rules was a reckless disregard for their health and safety. This case is on the opposite side of the spectrum from Williams v. Housing Authority, supra, 327 Conn. 338, which involved a failure to conduct statutorily mandated fire safety inspections and the high degree of danger posed by fire. Id., 363-65. Here, the case involves harm that may result from excessive barking. There is nothing in the record before the court, however, that the issues with the neighbors’ dogs involved a situation with such a high degree of danger or substantial risk of harm, that the defendants’ failure to inspect the property evidenced a reckless disregard for the plaintiffs’ health and safety. See Northrup v. Witkowski, 175 Conn.App. 223, 249, 167 A.3d 443 (" no evidence [in the summary judgment record] that the flooding in the neighborhood involved a situation of such a high degree of danger that the failure to take immediate action to prevent its recurrence demonstrate a conscious disregard for the safety of the plaintiffs" ), cert. granted, 327 Conn. 971, 173 A.3d 392 (2017). Moreover, even accepting all of the plaintiffs’ allegations as true, particularly the allegation that the defendants were aware of the barking issue and that the Pantaleos had more than four dogs, this does not provide a basis upon which a jury could reasonably find that the defendants disregarded a substantial risk of harm. The plaintiffs’ allegations simply do not support, as a matter of law, submitting the reckless disregard for health and safety counts to a jury.
Although the plaintiffs’ frustration with the situation and in their view, the defendants’ lack of response, as well as their perception that their complaints were minimized or ignored is understandable, Vincent Cirillo’s own testimony is evidence that he was able to make complaints and discuss them with town officials. He testified at his deposition that he spoke with Laura Magaraci, who was at that time the Zoning Enforcement Officer for the town, and asked her to do an inspection, but was told that she did not have the right to do that. Vincent Dep., 85:12-22. He avers in his affidavit that he attended a meeting with Jamie Cosgrove, the town’s First Selectman, and Laura Burban, an Assistant Animal Control Officer, to discuss the constant barking. Cirillo Aff., p. 2-4. The plaintiffs’ unhappiness with how the situation was handled by the town or disagreement regarding what constitutes excessive barking cannot, however, support a finding that the defendants acted or failed to act with the kind of wantonness that is a hallmark of recklessness.
The defendants submitted excerpts from the certified transcripts of Vincent Cirillo’s deposition as exhibit A to their motion for summary judgment.
Summary judgment is appropriate when the " pleadings, affidavits and other proof " show that there is no genuine issue of material fact. (Emphasis added.) Practice Book § 17-45. Viewing the pleadings and evidence in a light most favorable to the plaintiffs, it is quite clear what the truth is, namely, that there is no genuine issue of material fact that the defendants’ conduct represents no more than " mere momentary thoughtlessness or inadvertence" ; Williams v. Housing Authority, supra, 327 Conn. 361 (internal quotation marks omitted); and that a high degree of danger or substantial risk of harm did not exist. There is no factual basis for the reckless disregard for health and safety counts, and the plaintiffs cannot maintain these claims as a matter of law. See Northrup v. Witkowski, supra, 175 Conn.App. 247-50 (affirming granting of summary judgment on different ground, namely, that no factual basis for recklessness counts existed and, thus, recklessness counts could not be maintained as matter of law). Summary judgment as to counts five and six is therefore proper.
II
Nuisance
In counts seven, eight, nine and ten, the plaintiffs allege nuisance against the defendants. Specifically, the plaintiffs allege that the defendants participated in creating a nuisance under § 557n(a)(1)(c) by failing to inspect or adequately inspect the Pantaleos’ property for compliance with the town’s rules regarding dogs as well as the nuisance dog statute, General Statutes § 22-363. The defendants argue that the nuisance claims fail as a matter of law because they did not, by any positive act, create the alleged nuisance, the excessive barking. The plaintiffs’ complaint is silent as to whether they are alleging claims for private or public nuisance, however, it appears from the arguments made and the law cited in their objection to the defendants’ motion that their claims are for public nuisance. Nevertheless, whether the plaintiffs are alleging private or public nuisance is ultimately irrelevant, as both require a positive act in order for a municipality to be held liable.
General Statutes § 22-363 provides in relevant part: " No person shall own or harbor a dog or dogs which is or are a nuisance by reason of ... excessive barking ..."
Under the common law, " [l]iability [could] be imposed on the municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality ... Indeed, [our Supreme Court] [has] stated that failure to remedy a condition not of the municipality’s own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." (Citations omitted; internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996). Section 52-557n(a)(1)(c) codified the well established common-law positive act requirement. Picco v. Voluntown, 295 Conn. 141, 989 A.2d 593 (2010). In Picco, our Supreme Court was called upon to interpret the meaning of the term " acts," as used in § 52-557n(a)(1)(c) (" acts of the political subdivision which constitute the creation or participation in the creation of a nuisance" ). " Common usage does not equate a failure to act with an act ... Notably, the definition of the word ‘act’ does not denote something not done by a person. The latter appropriately falls within the meaning of the word ‘omission,’ which is defined as ‘something left out, not done, neglected ... This distinction is particularly significant in the present case because the statutory provision at issue references only ‘acts,’ whereas, in other provisions of the same statute, the legislature uses the phrase ‘acts or omissions.’ ... We conclude that the legislature’s use of different phrases within the same statute evidences a deliberate decision on its part to exclude omissions, or a failure to act, from the realm of municipal liability for nuisance." (Citations omitted; emphasis in original.) Id., 148-49. " A failure to act to abate a nuisance does not fall within the meaning of the term ‘acts,’ as used in § 52-557n(a)(1)(c), because inaction does not create or cause a nuisance; it merely fails to remediate one that had been created by some other force." Id., 149.
The defendants argue that the plaintiffs’ nuisance claims fail as a matter of law because they are based solely on inaction and, thus, there is no genuine issue of material fact that the defendants did not by any positive act, create the alleged nuisance, the barking dogs. In support of this argument, the defendants point to the pleadings as well as the deposition testimony of both plaintiffs. Reviewing the pleadings and evidence, in a light most favorable to the plaintiffs, it is clear that the plaintiffs cannot maintain their nuisance claims as a matter of law, as no reasonable jury could find that the defendants by any positive act caused the alleged nuisance.
The plaintiffs allege that the defendants had prior notice of the violations of the town rules and state statute and that the failure to inspect or adequately inspect the Pantaleos’ property amounted to the participation in the creation of a nuisance. In their depositions, both plaintiffs testify that their claims are about the failure to enforce the laws and fully investigate their complaints. See Vincent Dep., 82:8-83:4, 85:25-86:6; Sandra Dep., 31:2-33:13. Specifically, when Vincent was asked what he contends the town did wrong, the following exchange took place:
Excerpts from the certified transcripts of Sandra Cirillo’s deposition is attached as Exhibit E to the defendants’ motion for summary judgment.
Q What do you contend in this litigation that the Town did wrong?
A What they did?
Q Yes.
A That they didn’t enforce their laws.
Q Anything else beyond that, not enforcing the laws?
A They subjected me to a life of misery.
Q The town?
A That’s right.
Q Okay. But listen to me, sir, just listen to this question. Other than failure to enforce certain ordinances or zoning regulations, are there any other actions taken by any representatives or employees of the Town that you can identify that caused you harm?
A Well, their lack of doing their job.
Q But when you talk about their lack of doing their job, it’s enforcement of the ordinances, correct?
A Yes.
Q Okay. And that’s it?
A Yeah. I guess I would say yes. Vincent Dep., 82:8-83:4.
Similarly, Sandra testified that her only complaints about the town’s conduct was the failure to thoroughly investigate her claim and to enforce its ordinances and regulations. Sandra Dep., 31:2-9. When asked if she had any other complaints with regards to the town’s conduct, she answered: " I don’t think so that I can think of right now." Sandra Dep., 31:12-13. The foregoing underscores an important point: that the factual basis for the plaintiffs’ nuisance claims are a failure to act or omissions on the part of the defendants. The plaintiffs contend, however, that their nuisance claims survive because the " acts" of the defendants in minimizing or ignoring the plaintiffs’ repeated complaints and failing to take any action in response maintained the nuisance of excessive barking. This argument is illogical and wholly contrary to the law.
" Unlike with the proverbial chicken and egg conundrum, logic dictates that, in the context of public nuisances, the nuisance must precede the ‘behavior’ ignoring the nuisance, because one cannot ignore something that does not exist." Picco v. Voluntown, supra, 295 Conn. 151. Further, the mere omission, failure to perform an act, or the mere behavior of ignoring a warning to abate a nuisance are not positive acts nor do they actually cause the nuisance in the first place. See id., 150 (rejecting plaintiffs’ contention that definition of term act encompassed " conscious decision to ignore a warning to abate a dangerous condition" [internal quotation marks omitted] ); Geanuracos v. Farmington, Superior Court, judicial district of Hartford, Docket No. CV-07-5013679-S (April 23, 2013, Vachelli, J.) (" [a]llegations that municipal officials had knowledge of the situation, but failed or refused to address the problem are inadequate to state a claim for nuisance" ). Additionally, even if the defendants had inspected the property, the plaintiffs’ nuisance claims would still be unsustainable because this act still did not create the nuisance and, thus, would not constitute a positive act within the meaning of § 52-557n(a)(1)(c). See Picco v. Voluntown, supra, 152 (" [a]lthough the plaintiffs argue that the defendants’ act of ordering an evaluation of the tree constitutes a positive act within the meaning of the statute, such argument necessarily fails because the evaluation of the tree did not create the nuisance; it merely evaluated it" [emphasis in original] ).
The plaintiffs additionally argue that the maintenance of a nuisance is the same as the creation of one, but misquote Brennan v. West Haven, 151 Conn. 689, 693, 202 A.2d 134 (1964) in support of this argument. This argument is thus unavailing. In Brennan, our Supreme Court concluded that the trial court had erred in failing to charge the jury that to hold a municipality liable it must be found that the nuisance was created by a positive act. Brennan v. West Haven, supra, 151 Conn. 692. Instead, the trial court had charged the jury that the town could be held liable for maintaining a nuisance. Id. In so ruling, our Supreme Court noted that the trial court had relied on a prior Supreme Court case which stated " that maintenance of a nuisance is equivalent in law to the creation of one." (Citation omitted.). Id., 692-93. The court went on, however, to note that this principle " has long since been discarded as unsound." (Internal quotation marks omitted.) Id., 693; see also Sheeler v. Waterbury, 138 Conn. 111, 116, 82 A.2d 359 (1951) (" In [ Morse v. Fair Haven East, 48 Conn. 220, 223 (1880)] the court stated by way of dictum, that ‘An intentional continuance of a nuisance is equivalent to the creation of one.’ In so far as this statement is applicable to a municipality which maintains a nuisance not of its own creation, it has long since been discarded as unsound" ). Finally, any reliance on the language in Keeney regarding an invasion caused by continuing or recurring conduct and knowledge of such invasion, is misplaced, as that case did not involve § 52-557n(a)(1)(c) and, moreover, the holding of that case was explicitly limited to the environmental context and the environmental protection statutes at issue in the case. Keeney v. Old Saybrook, supra, 166 (declining to decide what law of municipal liability may be in other contexts and noting that holding was " in light of the strong public policy manifested by the environmental protection statutes" ).
On the basis of the record before the court, there is no factual basis for the nuisance counts against the defendants. The failure of the town and its employees to act, either by inspecting the Pantaleos’ property or enforcing its ordinances and regulations, is not a positive act within the meaning of § 52-557n(a)(1)(c). Even accepting as true the plaintiffs’ allegations that the defendants were aware of the excessive barking, that allegation, as a matter of law, does not support submitting the nuisance counts to a jury. The ignoring of a warning to abate a nuisance does not cause the nuisance, it is simply a failure to remediate a nuisance that already exists. See Picco v. Voluntown, supra, 295 Conn. 149-51. The plaintiffs’ nuisance claims against the defendants cannot be maintained as a matter of law and, therefore, summary judgment as to counts seven, eight, nine and ten is proper.
III
CONCLUSION
The court grants the defendants’ motion for summary judgment in its entirety.