Opinion
No. CV 10 6010524 S
May 10, 2011
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#112)
The plaintiff, Alberto Dichello, brings this action against the defendant, the town of Hamden, seeking damages and injunctive relief. The plaintiff alleges in the complaint that the defendant created a nuisance by causing "water, soil, pollutants and other debris" to drain onto the plaintiff's land from a public highway. The defendant filed the present motion for summary judgment, arguing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law on the following grounds: (1) The defendant is authorized under General Statutes § 13a-138 to drain public highways onto private land and the defendant's drainage activities comply with such section, as alleged in its second special defense; (2) the defendant is protected by governmental immunity, as alleged in its eighth special defense; (3) the plaintiff's claim is barred by the doctrine of laches, as alleged in its sixth special defense; (4) the plaintiff's claim is barred because he has failed to exhaust his administrative remedies, as alleged in its ninth special defense; (5) the plaintiff has failed to allege sufficient facts to state a claim for nuisance; (6) the defendant's interference with the plaintiff's land was not unreasonable as a matter of law; and (7) the defendant's use of the drainage system did not proximately cause any harm to the plaintiff as a matter of law. For the following reasons, the court finds that the defendant has failed to demonstrate entitlement to summary judgment.
The plaintiff had originally interpreted the complaint as advancing a cause of action under General Statutes § 13a-138 as well as a nuisance claim. At oral argument, however, the plaintiff explicitly abandoned the statutory claim and proceeded on the nuisance claim only.
The defendant originally sought summary judgment on the additional ground that the plaintiff's claim was barred by the statute of limitations in General Statutes § 13a-138a. That section provides in relevant part: "No action shall be brought . . . for recovery of damage to . . . property . . . by reason of any draining of water into or through such land by any town, city, borough or other political subdivision of the state pursuant to subsection (a) of section 13a-138, but within fifteen years next after the first occurrence of such drainage . . ." This statute of limitations is thus applicable only to claims under § 13a-138. See Boyne v. Glastonbury, 110 Conn.App. 591, 597-99, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008). Because the plaintiff abandoned any such claim; see footnote 1; this ground need not be addressed.
I BACKGROUND
The plaintiff brought the present action against the defendant on April 21, 2010. In his complaint, he alleges the following: The plaintiff was and is the owner of a tract of land in Hamden, Connecticut. The defendant maintained and continues to maintain the road by utilizing a drainage system designed to collect "water, soil and pollutants" (debris) present on a public highway known as Still Hill Road (road). The drainage system caused and causes such debris to flow along an easement in favor of the defendant existing on land abutting the road. Although the easement did not and does not extend to the plaintiff's property, the drainage system nevertheless caused and continues to cause debris to flow onto the plaintiff's land without his consent. The drainage was and is unnecessary and conducted in a way that does not do the least damage to the plaintiff's kind.
In his complaint, the plaintiff alleges that the defendant's use of the drainage system to deposit debris on his property constitutes a nuisance that caused and continues to cause him irreparable harm for which there is no adequate remedy at law. He seeks damages and an injunction against any further dumping of debris onto his land.
The defendant, as its first responsive pleading, filed an answer (#104) alleging nine special defenses. Thereafter, the defendant filed the present motion for summary judgment, appended to which is a memorandum of law. The plaintiff filed a memorandum in opposition (#113) to the motion. The defendant then filed a reply memorandum (#114). The court heard oral argument on the motion at short calendar on March 21, 2011.
II JURISDICTION
The defendant argues, in support of its motion, that the plaintiff has failed to allege any injury resulting from the defendant's use of the drainage system. It then speculates as to the nature of the claimed injury, concluding that the basis of the plaintiff's claims is that the drainage system impedes his ability to build on the property. From this premise, the defendant argues that the plaintiff has not exhausted his administrative remedies because he has not applied for the necessary permits to construct a residence. Until the plaintiff does so and is rebuffed at some point, the defendant contends, the court cannot tell whether the defendant's use of the drainage system is actually harmful to the plaintiff's interests.
The defendant has improperly characterized its argument as invoking the doctrine of exhaustion of administrative remedies. "Under [the exhaustion of administrative remedies doctrine], a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum . . . In the absence of exhaustion of that remedy, the action must be dismissed." (Internal quotation marks omitted.) Garcia v. Hartford, 292 Conn. 334, 339, 972 A.2d 706 (2009). The defendant is not arguing, however, that the agencies and boards responsible for issuing building permits have the power to give the plaintiff the remedy he is seeking, i.e., damages resulting from, and an injunction against, the defendant's use of the drainage system in a way that drains debris onto his property.
Rather, the proper characterization of the defendant's argument is that the plaintiff's claims are not ripe for review. The ripeness doctrine implicates the court's subject matter jurisdiction and must be addressed before considering the merits. See Keller v. Beckenstein, 122 Conn.App. 438, 443, 998 A.2d 838, cert. granted on other grounds, 298 Conn. 921, 4 A.3d 1227, 5 A.3d 486 (2010). "[T]he rationale of the ripeness doctrine is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements . . . Thus, a court must be satisfied that the case before it does not present a hypothetical injury or a claim contingent upon some event that has not and indeed may never transpire." (Citation omitted; internal quotation marks omitted.) Id.
Although the plaintiff has not enumerated a specific injury, he alleges that "the Defendant has not caused water and other debris from [the road] to drain onto the Plaintiff's land in such a way as to do the least damage to such land." (Complaint, ¶ 13b.) It is implicit from this allegation that the drainage caused and continues to cause at least some physical damage to the plaintiff's land.
Therefore, the plaintiff does not seek redress for merely hypothetical injuries or advance a claim conditioned upon a future event. Accordingly, the claim is ripe for review.
III DISCUSSION
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." Practice Book § 17-49. "[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his [or her] 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 . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . . Once the moving party has met its burden . . . the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 11, 938 A.2d 576 (2008).
A Authorization under General Statutes § 13a-138
The defendant argues that General Statutes § 13a-138 permits it to use the drainage system to drain debris onto the plaintiff's land because such drainage is necessary and is configured in such a way as to do the least damage to the land. It contends that the use of the drainage system is necessary because, otherwise, debris would collect on the portion of the road itself at the bottom of a hill. ft also argues that the drainage system causes the water to flow in the direction in which it would flow naturally and that such system does not increase the flow of water over the plaintiff's property; therefore, it is set up to do the least damage to the plaintiff's land.
The plaintiff argues that this statute does not bar his claim because there is a less damaging method available to the defendant. Therefore, he concludes, the drainage system is not configured to do the least damage to his land.
Section 13a-138 provides, in relevant part: "Persons authorized to construct or to repair highways may make or clear any watercourse or place for draining off the water therefrom into or through any person's land so far as necessary to drain off such water and, when it is necessary to make any drain upon or through any person's land for the purpose named in this section, it shall be done in such way as to do the least damage to such land."
In support of its motion, the defendant submits an affidavit from Robert Brinton, the town engineer. (Defendant's Memorandum of Law, Exhibit B.) Brinton described the drainage system as an eighteen inch culvert with drainage pipes and catch basins positioned upstream, which causes water through an open channel on the north side of the road, on which the defendant has an easement, over the plaintiff's property and into Willow Brook to the east. Brinton then states his opinion that there is no feasible alternative that would do less damage to the plaintiff's land.
In rebuttal, the plaintiff submits an affidavit from Francis D'Onofrio, a licensed engineer. (Plaintiff's Memorandum in Opposition, Exhibit A.) D'Onofrio concurred with Brinton's description of the drainage system. D'Onofrio, however, disputed Brinton's conclusion that the drainage system could not be changed to do less damage to the plaintiff's land. He suggested that the defendant could construct a lined channel in the current open channel that is large enough to safely carry the water flow to Willow Brook.
The court finds that the affidavit of D'Onofrio is sufficient to raise a genuine issue of material fact as to whether the drainage system is configured to do the least damage to the plaintiff's land. Thus, the defendant is not entitled to judgment as a matter of law on this ground.
B Governmental Immunity under General Statutes § 52-557n(b)(1)
The defendant next argues that it has protection under governmental immunity because a municipality is statutorily immune from liability for damage to "unimproved land." It contends that the plaintiff's property is "unimproved land" because it contained no structures and was never developed.
The plaintiff argues that his claim is not based on injury due to unimproved land but based on injury due to the defendant's use of the drainage system. Moreover, he asserts that the defendant is specifically liable under that statute for a cause of action in nuisance.
General Statutes § 52-557n(b) provides in relevant part: "[A] political subdivision of the state or any employee, officer or agent acting within the scope of his [or her] employment or official duties shall not be liable for damages to person or property resulting from: (1) The condition of natural land or unimproved property . . ." (Emphasis added.) The plaintiff is not seeking redress for injuries to his person or property resulting from, i.e., caused by, the condition of unimproved property. He is seeking redress for alleged injuries to his unimproved property resulting from the defendant's use of the drainage system.
The court thus finds that the defendant is not entitled to governmental immunity on account of § 52-557n(b)(1). Accordingly, the defendant is not entitled to judgment as a matter of law on this ground.
CT Page 11231
C Laches
The defendant argues that the plaintiff's claim should be barred under the doctrine of laches. Specifically, the defendant contends that the drainage system was in place when the plaintiff purchased the property and that the plaintiff inexcusably waited four years to bring an action. Moreover, the defendant argues that it has suffered prejudice due to the delay because "the amount of water that has arguably fallen onto the plaintiff's property since the time of purchase and the changes that may have occurred on the property due to any substantial rainstorms or flooding since 2004 is unknown. As such, the defendant has been put in an impossible position to defend against the unknown, namely, what, if any changes have occurred on the property." (Defendant's Memorandum of Law, p. 13.)The plaintiff contends that the defendant's argument is logically inconsistent. He points out that, on the one hand, the defendant argues that the property's condition has been unchanged for four years and the plaintiff should have brought suit earlier, but, on the other hand, the defendant argues that it is prejudiced because the extent of the change to the defendant's property from the four years of drainage is unknown.
"The defense of laches, if proven, bars a plaintiff from seeking equitable relief . . . First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendant . . . The burden is on the party alleging laches to establish that defense . . . The mere lapse of time does not constitute laches . . . unless it results in prejudice to the [opposing party] . . . as where, for example, the [opposing party] is led to change his position with respect to the matter in question." (Internal quotation marks omitted.) R.F. Daddario Sons, Inc. v. Shelansky, 123 Conn.App. 725, 737, 3 A.3d 957 (2010).
The defendant's argument that it is prejudiced because the lapse of time forces it to defend against unknown changes and injuries to the land is without merit. The plaintiff has the burden to prove the extent of the injury to his property and that the defendant's conduct was the proximate cause of such injury. Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). Thus, any difficulty in establishing the extent of any changes or injuries to the property is the concern of the plaintiff and not the defendant. Accordingly, because the defendant has failed to establish that it was prejudiced by the lapse of time, it has not established that laches should bar the plaintiff's claim.
D Failure to Allege a Claim for Nuisance
Next, the defendant contends that the plaintiff has failed to allege sufficient facts to state a nuisance claim. Specifically, the defendant asserts (1) that the plaintiff has not stated whether he is asserting a public or private nuisance claim and (2) that he has failed to allege the nature of his injuries. The plaintiff argues that his complaint is sufficient to state a cause of action in nuisance.
The normal procedural vehicle for challenging the legal sufficiency of a complaint is a motion to strike. Practice Book § 10-39. Nevertheless, the Supreme Court has approved of the use of the motion for summary judgment for the resolution of such a challenge, but only if the defendant establishes that the failure to state a cause of action could not be cured by repleading. See Larobina v. McDonald, 274 Conn. 394, 401, 876 A.2d 522 (2005).
Practice Book § 10-39(a) provides in relevant part: "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 . . . that party may do so by filing a motion to strike the contested pleading or part thereof." The defendant declined to address the sufficiency of the allegations of the complaint via a motion to strike.
The defendant has failed to show the existence of any defect in the complaint that could not be cured by repleading. As to the defendant's first ground, the plaintiff need not explicitly state whether he is pursuing a private or public nuisance. All that is required under Practice Book § 10-1 is that "[e]ach pleading . . . contain a plain and concise statement of the material facts on which the pleader relies . . . If any such pleading does not fully disclose the ground of claim or defense, the judicial authority may order a fuller and more particular statement . . ." Thus, the failure to place a label on a particular count is immaterial for purposes of legal sufficiency. See Catalani v. D'Occhio, Superior Court, judicial district of Waterbury, Docket No. CV 06 5003199 (March 4, 2010, Gallagher, J.).
With respect to the defendant's second argument that the injuries are not specifically alleged, such defect could be cured by repleading. The plaintiff could simply make allegations specifically detailing the nature of the injury or injuries. Accordingly, the defendant is not entitled to judgment as a matter of law based on the sufficiency of the allegations of the complaint.
Under Practice Book § 10-35, "[w]henever any party desires to obtain . . . a more complete or particular statement of the allegations of an adverse party's pleading . . . the party desiring any such amendment in an adverse party's pleading may file a timely request to revise that pleading." Thus, if the defendant was unsatisfied with the level of detail in the complaint with respect to the injuries suffered, it could have filed a request to revise. It chose not to do so.
E Absence of Issue of Fact as to Nuisance Claim
The defendant's final two grounds for summary judgment will be addressed here. The defendant argues that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law on the nuisance claim because, as a matter of law, (1) its interference with the plaintiff's land was not unreasonable and (2) such interference was not a proximate cause of any injury to the plaintiff.
"[A] plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff's] injuries and damages." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 561-62 (2011).
On the issue of whether its interference was unreasonable, the defendant simply argues that the plaintiff has failed to offer any evidence to support its contention that its use of the drainage system was unreasonable. The defendant likens the present case to Boyne v. Glastonbury, 110 Conn.App. 591, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008). The plaintiff does not appear to address this argument directly.
"[I]n determining unreasonableness, [c]onsideration must be given not only to the interests of the person harmed but also [to] the interests of the actor and to the interests of the community as a whole . . . Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated . . . Whether an interference is unreasonable is a question of fact for the fact finder." (Citations omitted; internal quotation marks omitted.) Id., 603-04.
In Boyne, the plaintiff brought a nuisance claim against the town to recover for injury to his land on account of a drainage ditch utilized by the town. See id., 594-95. The court found that the use of the ditch was reasonable as a matter of law because the evidence showed that (1) "the ditch typically has a very small amount of water trickling through it, except during storms," (2) "the ditch capably handles significant storm events and essentially has maintained its same shape and configuration for at least one decade," and (3) "that the plaintiff exacerbates any erosion that occurs by routinely dumping yard waste into the ditch." Id., 605. The plaintiff presented no evidence of any damage except his own testimony that the ditch caused an occasional tree to topple during heavy winds. Id.
The present case is distinguishable from Boyne. The only evidence of the capability of the drainage system is the affidavit of Brinton, discussed above, stating his opinion that the system is configured to do the least damage to the property. Unlike in Boyne, there is no evidence that the system did not flood or that it had not deteriorated over time. Moreover, the plaintiff in this case has presented evidence that there is another feasible drainage method that would do less damage to his property.
Based on the evidence presented, the court cannot conclude that the defendant's interference with the plaintiff's land was reasonable as a matter of law. Accordingly, whether the defendant's use of the drainage system was unreasonable is still a genuine issue of material fact.
As to the issue of proximate causation, the defendant argues that its use of the drainage system could not have caused any injury to the plaintiff. First, it contends that the plaintiff has failed to show that it was harmed by having building permits denied or through physical damage to the land. The defendant argues that this case is similar to Loda v. Seymour, Superior Court, judicial district of Ansonia-Milford, Docket No. 0072044 (December 10, 2002, Moran, J.). Second, it argues that, since the plaintiff's land is 50 percent wetlands, the land cannot be injured by the drainage system.
The plaintiff asserts in its memorandum that he has demonstrated that he was harmed. He contends that he "attests" that the drainage system is compromising the value of his property and that it would be futile to seek permits prior to resolving the present issue.
The defendant has failed to carry its burden to provide sufficient evidence establishing that its conduct caused no injury to the plaintiff's land as a matter of law. It is for this reason that Loda is not analogous to this case. In Loda, the landowner sued the town over the use of a drainage system that diverted water into a brook on the landowner's property. It was undisputed that the water in the brook caused erosion of the plaintiff's land. Id. The court granted the motion for summary judgment filed by the town because there was no issue of fact that the town's use of the drainage system did not cause the erosion complained of. See id. The only evidence before the court was the Town Engineer stated in an affidavit "that neither the roads nor the storm water drainage system increased the flow of water over the plaintiff's property." Id. The court noted that the plaintiff provided nothing refuting this conclusion. See id.
Unlike in Loda, injury in this case was alleged to have been caused not by a watercourse into which the drainage system merely diverted water, but by the very debris itself that the drainage system diverted onto the plaintiff's land. The defendant presents the affidavit of Brinton in which he states that water naturally flows merely "towards" the plaintiff's property and that it flows "onto" the plaintiff's property on account of the drainage system. (Defendant's Memorandum of Law, Exhibit B, ¶¶ 19-20.) This fails to foreclose the possibility that the water and debris diverted by the drainage system causes damage to the plaintiff's land.
Unless the defendant establishes that there is no genuine issue of material fact, it cannot rest on the argument that the plaintiff lacks evidence supporting his claim. See Ramirez v. Health Net of the Northeast, Inc., supra, 285 Conn. 11 ("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").
Moreover, the fact that the plaintiff's land is 50 percent wetlands, if true, does not mean that property cannot be harmed by the flow of water and other debris. In fact, the plaintiff alleges that the debris diverted onto his land includes pollutants. Accordingly, the defendant has failed to carry its burden to show the absence of a genuine issue of material fact as to causation.
IV CONCLUSION
For the reasons stated above, the motion for summary judgment is hereby denied.