Opinion
MMXCV156013881
03-15-2016
Deep River Associates, LLC v. William J. McCann et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION TO STRIKE (#101)
Julia L. Aurigemma, J.
The defendants, William McCann and Timothy McCann, have moved to strike the seven-count complaint of the plaintiff, Deep River Associates, LLC. In its complaint, the plaintiff alleges against both defendants, negligence (count one); violations of Connecticut General Statutes § 22a-16 (Connecticut Environmental Protection Act (CEPA)) and Connecticut General Statutes § 22a-14 et seq. (count two), Connecticut General Statutes § 22a-427 (Water Pollution Control Act), Connecticut General Statutes § 22a-416 et seq. (count three), and Connecticut General Statutes § 22a-430 (count four); entitlement to reimbursement for environmental remediation costs pursuant to Connecticut General Statutes § 22a-452 (count five); negligence per se premised on the alleged violations of § § 22a-16, 22a-427, and 22a-430 (count six); and unjust enrichment (count seven). The court grants in part, and denies in part, the defendants' motion.
FACTS
The plaintiff alleges the following facts in support of its claims; additional factual allegations will be presented as needed. Since 1957, the plaintiff and its predecessor in title have owned a parcel of real property located at 193 Main Street in Deep River, Connecticut (Property). From 1957 until 2002, Best Cleaners, Inc. (Best Cleaners), operated a dry cleaning business on the property under a succession of lease agreements. The defendants are current or former directors or officers of Best Cleaners. Throughout its operation, Best Cleaners, at the direction of the defendants, regularly and continuously used the hazardous chemical tetrachloroethylene (perchloroethylene). Over the years, perchloroethylene-contaminated waste was released (Releases) into the environment and eventually seeped into the property's soil and groundwater, as well as into a drinking water supply well on an adjacent property (Contamination). An environmental assessment that was performed on the Property in 2002 revealed these Releases and Contamination. Later that year, Best Cleaners sold the business located on the Property and terminated its lease agreement. By way of the termination agreement, Best Cleaners agreed to indemnify the plaintiff for any liabilities and expenses incurred as a result of any environmental conditions present on the Property. In order to effectuate the transfer of its business in compliance with the Connecticut Transfer Act, General Statutes § 22a-134 et seq. (transfer act), Best Cleaners, through the defendant William McCann, filed a Form III with the Department of Energy and Environmental Protection. Best Cleaners thereby became responsible and liable for investigating the Property and remediating any environmental risks thereon. Best Cleaners ultimately failed to completely investigate the Property and has not engaged in any remediation whatsoever. The perchloroethylene contamination therefore continued to remain unabated, thus requiring the plaintiff to expend significant costs to investigate and remediate it.
On September 3, 2015, the defendants moved to strike the plaintiff's entire complaint. The defendants cited a variety of grounds in support thereof, each of which will be discussed in turn later in this decision. The defendants also filed a memorandum of law in support of the motion. On December 11, 2015, the plaintiff filed a memorandum of law in opposition to the motion, and oral argument on the matter was heard by the court on December 15, 2015.
DISCUSSION OF THE LAW AND RULING
" A motion to strike shall be used whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted . . ." Practice Book § 10-39(a)(1). In ruling on a motion to strike a complaint, " [the court] construe[s] 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 . . . Moreover, [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
In their memorandum, the defendants begin by challenging the plaintiff's ability to hold the defendants personally liable. First, the defendants argue that the complaint must be stricken in its entirety because they, as corporate officers, cannot be held personally liable, whether under the responsible corporate officer doctrine or a corporate veil-piercing theory, for the acts or omissions of Best Cleaners. More specifically, the defendants contend that the plaintiff has failed to allege sufficient facts to pierce the corporate veil and that the plaintiff also cannot employ the responsible corporate officer doctrine because that doctrine may only be used by a government plaintiff, not a private plaintiff. The defendants further assert that, even if the responsible corporate officer doctrine does apply to private plaintiffs, " no case in this [s]tate has applied the [doctrine] to hold corporate officers liable where the corporation itself was not a party to the action"; Defendants' Memorandum, p. 7; which, the defendants posit, " strongly suggests that the corporation is a necessary party in an action asserting personal liability against an officer pursuant to the [doctrine]." Id., p. 11. The defendants thus contend that the plaintiff's failure to join Best Cleaners as a necessary party precludes application of the responsible corporate officer doctrine. Finally, the defendants specifically challenge counts one and seven on the ground that, even if the responsible corporate officer doctrine does indeed apply to private plaintiffs, these counts must fail because they do not allege strict liability public welfare offenses, as is required to invoke the doctrine. In its memorandum in opposition, the plaintiff counters that it need not rely on either of these doctrines because individuals may always be held personally liable for wrongful conduct that they themselves committed, participated in, or directed.
" Generally, a corporation is a distinct legal entity and the stockholders [and officers] are not personally liable for the acts and obligations of the corporation . . ." (Internal quotation marks omitted.) Commissioner of Environmental Protection v. State Five Industrial Park, Inc., 304 Conn. 128, 139, 37 A.3d 724 (2012). Nevertheless, there are several theories of liability under which a corporate officer may be held personally responsible for conduct undertaken in the course of performing professional duties. First, under the corporate veil-piercing doctrine, " [c]ourts will . . . disregard the fiction of a separate legal entity to pierce the shield of immunity afforded by the corporate structure in a situation in which the corporate entity has been so controlled and dominated that justice requires liability to be imposed on the real actor." (Internal quotation marks omitted.) Commissioner of Environmental Protection v. State Five Industrial Park, Inc., supra, 139. Under this doctrine, corporate officers' personal liability is essentially " derivative, " BEC Corp. v. Dept. of Environmental Protection, 256 Conn. 602, 619, 775 A.2d 928 (2001), meaning that the officers need not have been directly involved in the conduct that gave rise to the plaintiff's cause of action.
In contrast, under the responsible corporate officer doctrine, an officer's personal liability is not derivative; it stems from the officer's own role in the corporate structure. Pursuant to this doctrine, an officer may be held personally liable for statutory violations of " strict liability public welfare offenses"; Celentano v. Rocque, 282 Conn. 645, 666, 923 A.2d 709 (2007); when " (1) the officer is in a position of responsibility that allows that officer to influence corporate policies and activities; (2) there is a nexus between the officer's actions or inactions in that position and the violation of [the statute] such that the corporate officer influenced the corporate actions that constituted the violation; and (3) the corporate officer's actions or inactions resulted in the violation." (Internal quotation marks omitted.) Celentano v. Rocque, supra, 669. Thus, under this theory, " a corporate officer's liability under the [relevant statute] is not tantamount to vicarious liability where the corporate officer may be held liable simply because the officer occupies the position of officer or director; rather . . . a corporate officer's conduct must have a responsible relationship to a violation of the [statute]." BEC Corp. v. Dept. of Environmental Protection, supra, 256 Conn. 618-19. Nevertheless, the link between the officer's conduct and the violation need not be direct; our Supreme Court " [does] not require a finding that the officer had committed, directly participated in or directed the conduct that resulted in a violation before he [can] be held personally liable, but require[s] only that the officer have a position of responsibility and influence from which he could have prevented the corporation from engaging in the conduct." Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 144, 881 A.2d 937 (2005), cert. denied, 547 U.S. 1111, 126 S.Ct. 1913, 164 L.Ed.2d 664 (2006). Where the officer did directly participate in the wrongful conduct, however, the injured party need not rely on the responsible corporate officer doctrine to hold the officer personally liable.
It is well settled that, although " an officer of a corporation does not incur personal liability for its torts merely because of his official position"; (internal quotation marks omitted) Joseph General Contracting, Inc. v. Couto, 317 Conn. 565, 584, 119 A.3d 570 (2015); " [w]here . . . an agent or officer commits or participates in the commission of a tort, whether or not he acts on behalf of his principal or corporation, he is liable to third persons injured thereby." (Internal quotation marks omitted.) Id. The fact that such an officer could potentially be held liable under the responsible corporate officer doctrine does not preclude this alternate theory of personal liability. Indeed, in summarizing the contours of the responsible corporate officer doctrine, the Ventres court noted that " [it] did not intend to overrule or abrogate the black letter principle that a corporate officer may be held personally liable for tortious conduct in which the officer directly participated, regardless of whether the statutory basis for the claim expressly allows liability to be imposed on corporate officers." (Emphasis in original.) Ventres v. Goodspeed Airport, LLC, supra, 275 Conn. 145.
In view of the foregoing discussion, it is clear that the defendants in the present case erroneously assume that the plaintiff can only reach the defendants in their personal capacity by either piercing the corporate veil or invoking the responsible corporate officer doctrine. The defendants' challenge on these fronts fails if the plaintiff has alleged sufficient facts to suggest that the defendants were directly involved or participated in the conduct complained of. The court concludes that the plaintiff has sufficiently alleged such facts.
In count one, which sounds in common-law negligence, the plaintiff alleges that the defendants owed a duty to it to " conduct themselves and Best Cleaners in a manner calculated to avoid causing environmental damage to the [p]roperty." (Emphasis added.) Complaint, count one, ¶ 52. The plaintiff further alleges that the defendants " breached their duty by [ inter alia ] . . . [p]ersonally causing the [r]eleases through their own conduct and/or personally participating in the activity that caused the [r]eleases; and/or . . . [d]irecting the activities that caused the [r]eleases." Pl.'s Id., ¶ 53.
Count two alleges a violation of § 22a-16, which provides in relevant part that " any . . . legal entity may maintain an action in the superior court . . . for declaratory and equitable relief against . . . any person . . . or other legal entity . . . for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction." In support of this claim, the plaintiff alleges that the defendants " caused the [r]eleases, directed the activities that caused the [r]eleases and/or participated in the conduct that caused the [r]eleases"; Complaint, count two, ¶ 61; and that the defendants thereafter " fail[ed] to remove, contain, investigate, and remediate the [c]ontamination they caused of the soil and groundwater (on and off-[p]roperty) [which] has unreasonably polluted, impaired or destroyed . . . the public trust in the water and/or natural resources of the [s]tate of Connecticut." (Emphasis added.) Id., ¶ 57.
In count three, the plaintiff alleges that the defendants violated § 22a-427, which provides that " [n]o 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 [chapter 446k of title 22a of the General Statutes]." In support of this claim, the plaintiff alleges that the defendants " caused or allowed [perchloroethylene] to leak, spill, seep, discharge, and release into the environment"; Complaint, count three, ¶ 17; and " caused the [r]eleases, directed the activities that caused the [r]eleases and/or participated in the conduct that caused the [r]eleases"; Id., ¶ 61; and that, " [b]y failing to investigate and remediate the [r]eleases, the [d]efendants continue to harm the waters of the [s]tate by maintaining a discharge of treated or untreated wastes." Id., ¶ 57.
Count four alleges a violation of § 22a-430, which provides in relevant part that " [n]o 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 commissioner [of Energy and Environmental Protection (commissioner)]." In support of this claim, the plaintiff alleges that the defendants " caused the [r]eleases, directed the activities that caused the [r]eleases and/or participated in the conduct that caused the [releases" Complaint, count four, ¶ 60; and " initiated, created, and/or originated the [releases"; Id., ¶ 53; that, " [b]y failing to investigate and remediate the [r]eleases, the [defendants] continue to maintain a discharge into the waters of the [s]tate of Connecticut" Id., ¶ 55; and that " neither the [defendants] nor Best Cleaners hold a permit issued by the [c]ommissioner . . . for the [r]eleases on the [p]roperty at the time of those [r]eleases." Id., ¶ 56.
In count five, the plaintiff alleges that it is entitled to reimbursement under § 22a-452 for the costs it expended to abate the releases. Section 22a-452 provides in relevant part that " (a) [a]ny person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation." In support of this claim, the plaintiff alleges that the defendants " were responsible for the wrongful conduct that led to the [r]eleases, either by performing such conduct themselves or instructing others to perform such conduct; " Complaint, count five, ¶ 48; that " [t]he contamination was caused by the negligence or other actions of the [defendants]"; Id., ¶ 54; and that the plaintiff has " contained, removed, or mitigated the effects of the [r]eleases caused by the [d]efendants' conduct." (Emphasis added.) Id., ¶ 53.
Count six asserts a claim of negligence per se. Although the plaintiff does make any new allegations regarding the nature of the defendants' conduct, it bases its claim on the violations of § § 22a-16, 22a-427, and 22a-430 that were alleged in counts two, three, and four, respectively. Similarly, the unjust enrichment claim in count seven is founded on the same general allegations underlying the rest of the claims and on the additional allegations that the defendants " were benefited by not expending monies investigating the [p]roperty and remediating the [r]eleases, after causing those same [r]eleases"; (emphasis added) Complaint, count seven, ¶ 52; and " unjustly did not pay the [p]laintiff for the benefit of leaving [c]ontamination at the [p]roperty." Id., ¶ 53.
Construing the foregoing allegations in the light most favorable to the plaintiff, the court concludes that the plaintiff has sufficiently alleged, both expressly and by implication, that the defendants were personally and directly involved in the conduct that gave rise to the seven claims asserted. The court therefore need not address the defendants' arguments regarding the applicability of the responsible corporate officer or corporate veil-piercing theories of personal liability. See Aurio v. Allstate Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV-02-0175465-S (November 26, 2003, Gallagher J.) (36 Conn. L. Rptr. 39) (" [i]f a motion to strike attacks an entire count, but any part of the plaintiff's claims therein are legally sufficient, the motion will fail" [internal quotation marks omitted]). Because the defendants have not otherwise challenged the legal sufficiency of counts one, five, and seven, the court further concludes that the defendants' motion to strike must be denied as to these counts.
The defendants next contend that counts three and four, which allege violations of § § 22a-427 and 22a-430, respectively, must be stricken because those statutory provisions do not allow for private causes of action.
In determining whether a statute affords a private cause of action, " [the court] begin[s] [its] analysis with the well settled fundamental premise that there exists a presumption in Connecticut that private enforcement does not exist unless expressly provided in a statute. In order to overcome that presumption, the plaintiff bears the burden of demonstrating that such an action is created implicitly in the statute. Asylum Hill Problem Solving Revitalization Assn. v. King, 277 Conn. 238, 246-47, 890 A.2d 522 (2006). 'In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. First, is the plaintiff one of the class for whose . . . benefit the statute was enacted . . .? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?'" Provencher v. Enfield, 284 Conn. 772, 777-78, 936 A.2d 625 (2007), quoting Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249, 680 A.2d 127 (1996), cert. denied, 520 U.S. 1103, 117 S.Ct. 1106, 137 L.Ed.2d 308 (1997).
" The stringency of [this] test is reflected in the fact that, since [the Supreme Court] decided Napoletano, [it has] not recognized an implied cause of action despite numerous requests. See Rollins v. People's Bank Corp., 283 Conn. 136, 155, 925 A.2d 315 (2007); Asylum Hill Problem Solving Revitalization Assn. v. King, supra, 277 Conn. 259; Eder Bros., Inc. v. Wine Merchants of Connecticut, Inc., 275 Conn. 363, 378-79 n.9, 880 A.2d 138 (2005); Pane v. Danbury, 267 Conn. 669, 680, 841 A.2d 684 (2004) . . . [I]t is a rare occasion that [the Supreme Court] will be persuaded that the legislature intended to create something as significant as a private right of action but chose not to express such an intent in the statute." (Footnote omitted.) Provencher v. Enfield, supra, 284 Conn. 779-80.
In the present case, the court need not even reach the Napoletano test. It is apparent from the plain language of § § 22a-427 and 22a-430 that these statutes do not explicitly create any privately enforceable rights, and, thus, the court presumes that § § 22a-427 and 22a-430 do not afford private causes of action. As a result, the burden is on the plaintiff to establish that these statutes implicitly create such rights; the plaintiff has failed to satisfy this burden. The plaintiff's memorandum in opposition is completely devoid of any discussion of this issue, and the plaintiff likewise did not address the issue at oral argument. Thus, the plaintiff necessarily fails to overcome the presumption that § § 22a-427 and 22a-430 do not provide for private causes of action. The court must, therefore, grant the defendants' motion to strike as to counts three and four.
The defendants next challenge the legally sufficiency of count two, which alleges that the defendants' conduct caused " unreasonable pollution" in violation of § 22a-16. The defendants argue that this count should be stricken because the plaintiff has failed to allege the existence of a statutory or regulatory scheme that, if violated, would constitute " unreasonable pollution" as that term has been defined by our appellate courts. More specifically, the defendants contend that the plaintiff has failed to allege " substantive violations giving rise to unreasonable pollution." (Emphasis in original.) Defendants' Memorandum, p. 21, quoting Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 557, 23 A.3d 1176 (2011). In its memorandum in opposition, the plaintiff counters that it has alleged substantive violations of both the Water Pollution Control Act and the Transfer Act, and, therefore, it has sufficiently alleged a cause of action under § 22a-16.
Section 22a-16 provides for a private cause of action " for declaratory and equitable relief against . . . any person, partnership, corporation, association, organization or other legal entity . . . for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction." " In determining what the term 'unreasonable' means for purposes of CEPA, our Supreme Court concluded that 'when . . . the legislature has enacted an environmental legislative and regulatory scheme specifically designed to govern the particular conduct that is the target of the action, that scheme gives substantive content to the meaning of the word " unreasonable" as used in the context of an independent action under CEPA. Put another way, when there is an environmental legislative and regulatory scheme in place that specifically governs the conduct that the plaintiff claims constitutes an unreasonable impairment [or pollution] under CEPA, whether the conduct is unreasonable under CEPA will depend on whether it complies with that scheme . . .
" [T]his conclusion [is based on] the overriding principle that statutes should be construed, where possible, so as to create a rational, coherent and consistent body of law . . . It would be inconsistent with that principle to conclude, absent some clear indication to the contrary, that the legislature intended that the same conduct that complies with an environmental legislative and regulatory scheme specifically designed to govern it, nonetheless could be deemed by a court to be an unreasonable impairment of the environment." Animal Rights Front, Inc. v. Jacques, 88 Conn.App. 358, 362-63, 869 A.2d 679, cert. denied, 273 Conn. 941, 875 A.2d 42 (2005), quoting Waterbury v. Washington, 260 Conn. 506, 557-58, 800 A.2d 1102 (2002). Thus, " [w]hen determining the meaning of 'unreasonable' for purposes of CEPA, [the appellate courts] look to legislation specifically designed to govern the particular conduct complained about." Animal Rights Front, Inc. v. Jacques, supra, 363. " A claim that the defendant has violated the substantive provisions of such [legislation] . . . may give rise to an inference that the conduct causes unreasonable pollution." (Emphasis in original.) Fort Trumbull Conservancy, LLC v. New London, 282 Conn. 791, 808, 925 A.2d 292 (2007).
In support of its § 22a-16 claim, the plaintiff alleges the following relevant facts. The defendants " caused or allowed [perchloroethylene] to leak, spill, seep, discharge, and release into the environment." Complaint, count two, ¶ 17. Perchloroethylene " is a hazardous chemical that has historically been used in the process of dry cleaning"; Id., ¶ 15; and " is a probable carcinogen." Id., ¶ 16. " The [r]eleases caused and continue to cause contamination of the soil and groundwater on the [p]roperty and caused and continue to cause contamination to the drinking water supply on an adjacent down gradient property . . ." Id., ¶ 21. " By failing to remediate the [r]eleases, the [defendants] continue to harm the waters of the [s]tate of Connecticut." Id., ¶ 55. " The [defendants'] failure to remove, contain, investigate and remediate the [c]ontamination they caused of the soil and groundwater . . . has unreasonably polluted, impaired or destroyed, or will unreasonably pollute, impair or destroy the public trust in the water and/or natural resources of the [s]tate of Connecticut." Complaint, count 2, 57. Although this conduct may, as the plaintiff suggests, implicate multiple environmental legislative schemes, the Water Pollution Control Act is the most obviously applicable.
" The Water Pollution Control Act sets forth a comprehensive statutory scheme for the protection of the waters of the state." Keeney v. Old Saybrook, 237 Conn. 135, 144, 676 A.2d 795 (1996). The Act defines " waters" to include " all tidal waters, harbors, estuaries, rivers, brooks, watercourses, waterways, wells, springs, lakes, ponds, marshes, drainage systems and all other surface or underground streams, bodies or accumulations of water, natural or artificial, public or private, which are contained within, flow through or border upon this state or any portion thereof." Connecticut General Statutes § 22a-423. The groundwater contamination complained of in the present case thus falls within the ambit of the Water Pollution Control Act, specifically, § 22a-427, which provides that " [n]o 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 [chapter 446k of title 22a of the General Statutes]." Although the " in violation of" language in this provision suggests that § 22a-427 does not in and of itself create any prohibitions, the Supreme Court's decision in Keeney v. Old Saybrook, supra, 237 Conn. 135, made clear that this statute establishes a broad proscription against water pollution that is independently enforceable by the commissioner. See id., 157-58 (agreeing that " § 22a-427 creates a cause of action on the part of the commissioner independent of the cause of action for violations of orders created by [General Statutes] § § 22a-435 and 22a-438"; [footnote omitted]; and holding that " the commissioner may sue for an injunction to abate pollution in violation of § 22a-427 whether or not the commissioner has chosen to issue an order to abate pollution"). Thus, a person violates § 22a-427 by causing " pollution" to the state's waters. " 'Pollution' means harmful thermal effect or the contamination or rendering unclean or impure or prejudicial to public health of any waters of the state by reason of any wastes or other material discharged or deposited therein by any public or private sewer or otherwise so as directly or indirectly to come in contact with any waters . . ." Connecticut General Statutes § 22a-423. In the present case, the plaintiff alleges that the defendants contaminated the groundwater with a hazardous chemical inimical to the public health. This plainly constitutes a " substantive violation" of § 22a-427 and is thus sufficient to give rise to an inference that the defendants' conduct caused " unreasonable pollution." The plaintiff has therefore sufficiently alleged a cause of action under § 22a-16. Accordingly, the court denies the defendants' motion to strike as to count two.
Finally, the defendants challenge the legal sufficiency of count six on the ground that the alleged violations of § § 22a-16, 22a-427, and 22a-430 do not constitute negligence per se. More specifically, the defendants maintain that § 22a-16 cannot form the basis of a negligence per se claim because the plaintiff has failed to allege a complex statutory scheme or set of administrative regulations that establishes a standard of care that, if violated, would constitute " unreasonable pollution" under that statute. For reasons similar to the those supporting the conclusion in the preceding section, this argument is without merit and, thus, the court need not consider whether § § 22a-427 and 22a-430 establish standards of the care the violation of which is negligence per se.
" [T]he existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 578, 945 A.2d 388 (2008). " Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily 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. [It] merely decide[s] whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law." (Internal quotation marks omitted.) Considine v. Waterbury, 279 Conn. 830, 860-61 n.16, 905 A.2d 70 (2006).
" Generally, our courts have treated a statutory violation as negligence per se 'in situations in which the statutes or city ordinances at issue have been enacted for the purpose of ensuring the health and safety of members of the general public.'" Shukis v. Board of Education, 122 Conn.App. 555, 580, 1 A.3d 137 (2010), quoting Pickering v. Aspen Dental Management, Inc., 100 Conn.App. 793, 800, 919 A.2d 520 (2007). " The majority of cases concluding that a statutory provision implicates the doctrine of negligence per se have arisen in the context of motor vehicle regulation. See, e.g., Velardi v. Selwitz, 165 Conn. 635, 639, 345 A.2d 527 (1974); Busko v. DeFilippo, 162 Conn. 462, 466, 294 A.2d 510 (1972); Bailey v. Bruneau's Truck Service, Inc., 149 Conn. 46, 54, 175 A.2d 372 (1961). Such a history, however, should not be read to suggest that the negligence per se doctrine is relevant only in the context of statutes pertaining to motor vehicles." Gore v. People's Savings Bank, 235 Conn. 360, 378, 665 A.2d 1341 (1995). Indeed, in Shukis v. Board of Education, supra, 122 Conn.App. 555, the Appellate Court explicitly recognized that an alleged violation of § 22a-16 can form the basis for a claim of negligence per se. Id., 582.
The plaintiff in Shukis was the owner of a parcel of real property situated downhill from the defendant high school. Shukis v. Board of Education, supra, 122 Conn.App. 559. After the school began construction and renovation work on its property, sediments and other waterborne substances began running off into a pond located on the plaintiff's property. Id., 559-60. The plaintiff thereafter commenced an action against the school and its contractors, alleging, inter alia, both a § 22a-16 claim under CEPA and a common-law negligence per se claim based on this alleged statutory violation. Id., 560-61. The trial court granted the defendants' motions for summary judgment, in part on the ground that the plaintiff failed to disclose expert testimony to establish the defendants' breach of a duty of care. Id., 562-63. On appeal, the plaintiff argued that the court improperly granted the motions because it failed to graft the regulatory permit standard of care under CEPA and the Inland Wetlands and Watercourses Act (wetlands act), General Statutes § 22a-36 et seq., onto the plaintiff's negligence counts. Id., 579. In addressing this contention, the Appellate Court began by setting forth the well established test for determining whether a particular legislative enactment may serve as the basis for a negligence per se claim: " the two-pronged test applied to establish negligence per se is: (1) that the plaintiff was within the class of persons protected by the statute; and (2) that the injury suffered is of the type that the statute was intended to prevent." Shukis v. Board of Education, supra, 580. Acknowledging that this inquiry is essentially an exercise in statutory construction; Shukis v. Board of Education, supra, 580-81 (" '[i]n deciding whether the legislature intended to provide for such statutory liability, we look to the language of the statute and to the legislative history and purposes underlying the provision's enactment'" [quoting Gore v. People's Savings Bank, supra, 235 Conn. 380]); the Appellate Court proceeded to analyze the relevant legislative schemes-CEPA, the wetlands act, and municipal zoning regulations-and ultimately concluded that " § 22a-16 imposes on the defendants a standard of care, the violation of which constitutes negligence per se." Shukis v. Board of Education, supra, 582. Following this same analytical process in the present case, the court concludes that § 22a-16, when viewed in conjunction with the Water Pollution Control Act, imposes on the defendants a standard of care the violation of which constitutes negligence per se.
" CEPA was enacted by the legislature to 'enable persons to seek redress in the court when someone is [polluting] our environment.' Conn. Joint Standing Committee Hearings, [Environment, Pt. 1, 1971 Sess., p. 163], remarks of [James] Wade, counsel for the majority leadership in the House of Representatives . . . As previously stated, our Supreme Court has determined that 'when there is an environmental legislative and regulatory scheme in place that specifically governs the conduct that the plaintiff claims constitutes [unreasonable pollution] under [§ 22a-16 of] CEPA, whether the conduct is unreasonable under CEPA will depend on whether it complies with that scheme.' Waterbury v. Washington, supra, ." (Citation omitted.) Shukis v. Board of Education, supra, 122 Conn.App. 581.
As explained above, the Water Pollution Control Act provides substantive content in determining what constitutes unreasonable pollution in the present case. " The Water Pollution Control Act sets forth a comprehensive statutory scheme for the protection of the waters of the state." Keeney v. Old Saybrook, supra, 237 Conn. 144. In enacting this legislation, the General Assembly " found and declared that the pollution of the waters of the state is inimical to the public health, safety and welfare of the inhabitants of the state, is a public nuisance and is harmful to wildlife, fish and aquatic life and impairs domestic, agricultural, industrial, recreational and other legitimate beneficial uses of water . . . and [thus] the elimination of pollution is . . . a matter of legislative determination." Connecticut General Statutes § 22a-422. Under the two-pronged test for negligence per se, the plaintiff in the present case, who alleges continuous impairment of the groundwater on its and a neighboring property caused by hazardous chemical waste pollution, is within the class of persons protected by the statute. See Shukis v. Board of Education, supra, 122 Conn.App. 581-82 (" [T]he the wetlands act and the town's zoning regulations provide substantive content in determining what constitutes unreasonable pollution. The wetlands act, and the town's zoning and wetlands regulations promulgated thereunder are designed 'for the protection, preservation, maintenance and use of the inland wetlands and watercourses by minimizing their disturbance and pollution . . . preventing damage from erosion, turbidity or siltation . . . [and for] protecting the quality of wetlands and watercourses . . . General Statutes § 22a-36. Under the two-pronged statutory test, the plaintiff in this case, who alleges damage to his pond caused by erosion, turbidity and siltation from nonfunctioning erosion and sediment control measures on the school grounds, is within the class of persons protected by the statute"). Furthermore, having already determined that the conduct complained of is sufficient to allege a violation of § 22a-427 and, thus, unreasonable pollution under § 22a-16; the court concludes that the alleged injury suffered by the plaintiff is of the type that CEPA intended to prevent. See id., 582 (" on the basis of our Supreme Court's interpretation of unreasonable pollution, we also conclude that the alleged injury suffered by the plaintiff is of the type that CEPA intended to prevent in this case, continued violations of the applicable regulatory scheme governing conduct on the school grounds construction site"). The court, therefore, holds that the particular § 22a-16 violation alleged by the plaintiff may properly form the basis for the negligence per se claim made in count six. This conclusion is further supported by the general rule that " [t]he violation of an ordinance [or statute] enacted for the protection of the public is negligence as a matter of law." Panaroni v. Johnson, 158 Conn. 92, 101, 256 A.2d 246 (1969); Buravski v. DiMeola, 141 Conn. 726, 728-29, 109 A.2d 867 (1954) (" [i]t is, of course, the rule that when a person violates a statute or an ordinance enacted for the protection of the public, he is guilty of negligence as a matter of law"). Accordingly, the court denies the defendants' motion to strike as to count six.
CONCLUSION
For the foregoing reasons, the defendants' motion to strike is denied as to counts one, two, five, six, and seven, and granted as to counts three and four.