Opinion
No. CV 04 0104038S
June 24, 2005
MEMORANDUM OF DECISION ON MOTION TO STRIKE BY DEFENDANT TOWN OF HADDAM
The defendant Town of Haddam ("Town"), has moved to strike the Second Revised Complaint dated September 10, 2004 (the "Complaint") with respect to all allegations against the Town. The Complaint is in four counts. The First Count alleges a violation of the Connecticut Environmental Protection Act, Connecticut General Statutes §§ 22a-14 to 22a-20. The Second and Third Counts allege public and private nuisance, respectively, and the Fourth Count alleges negligence.
Allegations of the Complaint
The Complaint alleges the following facts. The plaintiff, Edward J. Shukis, is the owner of land located at 33 Little City Road in the Higganum section of Haddam. The defendant Regional School District 17 Board of Education ("HK BOE") is the owner of real property located at 91 Little City Road in Haddam. The Town is responsible for enforcing the Inland Wetland and Watercourses Regulations of the Town.
In September, October and December of 2000 an investigation revealed that HK BOE's renovation and construction of an athletic field caused the accumulation of large deposits of silt rocks and dirt along the edges of a pond located on the plaintiff's property. Site visits by the Town's wetlands enforcement officer, the plaintiff, the plaintiff's engineering firm, and the defendant M.R. Roming, the project architect, from October 2000 through January 2002 revealed several instances of erosion control measures failing. Despite a cease and desist order issued by the Town wetlands enforcement officer against continued illegal discharge into the wetlands, large quantities of storm water runoff containing soil rocks and other debris continues to flow from HK BOE's property into the plaintiff's pond and surrounding wetlands. The defendants have created and continue to maintain an ongoing private nuisance through their actions and inaction by causing or allowing water, rocks, silt, bacteria, and other waterborne substances to enter and harm the wetlands area on the plaintiff's property and the illegal and ongoing discharge of stormwater, silt, iron bacteria, rocks, top soil and other materials into the wetlands located on the plaintiff's property and the resultant filling of those wetlands constitute unreasonable pollution of and injury and impairment of the public's trust in the wetlands and natural resources of the State of Connecticut. (First Count-Violation of Environmental Protection Act).
The conduct of the defendants interferes with the public right to the protection of and enjoyment of the wetlands of the State of Connecticut. (Second Count-Public Nuisance). The Town intended that M.R. Roming and its subcontractors perform remedial work, including the construction of the sedimentation basin. The Town wetland officer actively participated in the oversight of the construction and remedial measures, the improper construction of which caused the sedimentation and discharge to the plaintiff's property, thereby interfering with the plaintiff's use and enjoyment of his property. (Third Count-Private Nuisance).
The Town was negligent in that it failed to require that the other defendants cease and desist their violations of local regulations and state statutes within a reasonable period of time, failed to remedy the violations of the Inland Wetland and Watercourse regulations, including the enforcement of the cease and desist order, and failed to conduct proper oversight of the erosion and sedimentation controls designed and constructed by M.R. Roming and its agents at the instruction of the Town wetlands officer.
Discussion of the Law and Ruling
The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., CT Page 10640 203 Conn. 34, 36, 522 A.2d 1235 (1987).
The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986).
"It is incumbent on a Plaintiff to allege some recognizable cause of action" in the complaint and it is not the burden of the defendant to attempt to correct the deficiency. Brill v. Ulrey, 159 Conn. 371, 374, 269 A.2d 262 (1970). A motion to strike is an appropriate means of presenting to the court legal issues at the outset of litigation. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). "Whenever a party wishes to contest . . . the legal sufficiency of any such complaint . . . or any count thereof, because of the absence of any necessary party . . . that party may do so by filing a motion to strike the contested pleadings or part thereof." George v. St. Ann's Church, 182 Conn. 322, 325, 438 A.2d 97 (1980).
In Keeney v. Town of Old Saybrook, 237 Conn. 135, 676 A.2d 795 (1996), the Supreme Court stated:
We have long held that "[l]iability can 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." Brennan v. West Haven, 151 Conn. 689, 692, 202 A.2d 134 (1964); Starr v. Commissioner of Environmental Protection, supra, 226 Conn. 388; Lukas v. New Haven, 184 Conn. 205, 209, 439 A.2d 949 (1981); Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975). Indeed, we have 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." Lukas v. New Haven, supra, 209-10; Brennan v. West Haven, supra, 693; see Sheeler v. Waterbury, 138 Conn. 111, 115, 82 A.2d 359 (1951).
The plaintiff does not allege any positive act of the Town which created the alleged public or private nuisance here. Instead, the plaintiff alleges that nonfeasance by the Town in failing to adequately enforce regulations and failing to adequately oversee erosion control measures, constitutes the nuisance. The plaintiff has failed to provide any authority to support its claim that such nonfeasance can constitute a nuisance.
The following cases are illustrative of the type of municipal conduct which has been held to constitute a nuisance. Dingwell v. Litchfield, 4 Conn.App. 621, 496 A.2d 213 (1985), and Marchitto v. West Haven, 150 Conn. 432, 190 A.2d 597 (1963) involved a landfill operated by the town. Hoffman v. Bristol, 113 Conn. 386, 155 A. 499 (1931), dealt with a diving board installed by the town. In Kostyal v. Cass, 163 Conn. 92 (1972), the alleged nuisance was oil leaking from a tank located on the town's property.
The plaintiff argues that this case is analogous to Keeney v. Old Saybrook supra, where the Court held, "Without deciding what the law of municipal liability may be in other contexts, in light of the strong public policy manifested by the environmental protection statutes, we conclude that a municipality may be liable for a public nuisance that it intentionally creates through its prolonged and deliberate failure to act to abate that nuisance." Keeney v. Old Saybrook, supra, 237 Conn. at 165.
The prolonged and deliberate failure to act in Keeney was the failure over fifteen years to implement a sewer avoidance program as Old Saybrook had been ordered to do several times by the Commissioner of Environmental Protection. In addition, Keeney was an action brought by the Commissioner to enforce those orders. The alleged nonfeasance of the Town here is not analogous to the egregious conduct of the town in Keeney. Rather, it is precisely the type of nonfeasance, failure to remedy a condition not of the municipality's own making, which the Keeney court stated would not impose liability on a town for nuisance. See Keeney v. Old Saybrook, supra, 237 Conn. at 164-65.
Based on the foregoing, the motion to strike the First, Second and Third Count of the Complaint is granted insofar as those Counts relate to the Town.
In the Fourth Count the plaintiff alleges that the Town was negligent. The Town has moved to strike on the grounds of governmental immunity set forth in Connecticut General Statutes § 52-557n, which provides, in pertinent part:
(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. (b) 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: . . . (6) the act or omission of someone other than an employee, officer or agent of the political subdivision; (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety; . . . 9) failure to detect or prevent pollution of the environment, including groundwater, watercourses and wells, by individuals or entities other than the political subdivision; . . .
A municipality does not have the cover of immunity if an employee acts negligently and the act is ministerial rather than discretionary. A ministerial act is one which is to be performed in a prescribed manner without the exercise of judgment or discretion. Tango v. New Haven, 173 Conn. 203, 205, 377 A.2d 284 (1977); Fraser v. Henninger, 173 Conn. 52, 60, 376 A.2d 406 (1977). A discretionary act is one performed for the direct benefit of the public and involves the exercise of discretion and judgment in its execution. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167, 544 A.2d 1185 (1988).
In Evon v. Andrews, 211 Conn. 501, 559 A.2d 1131 (1989), the Supreme Court addressed the difference between ministerial and discretionary acts insofar as they related to inspections performed by a municipality. The plaintiff's decedents were killed in a fire that broke out in a multifamily residence. The fifth count of the complaint was directed against the city of Waterbury and various city officials. The plaintiffs alleged that the city and its officers had been negligent in failing properly to enforce various statutes, regulations and codes concerning the maintenance of rental dwellings. The defendants moved to strike that count on the grounds that the statutes and regulations alleged did not impose a duty on the city of Waterbury or its agents and that any duty to enforce those statutes and regulations was discretionary. The trial court granted the defendants' motion. On appeal, the plaintiffs claimed that the allegations against the city of Waterbury involved either acts that were (1) ministerial in nature, or (2) discretionary acts that subjected an identifiable person to imminent harm.
The Court rejected the plaintiffs' claim that the defendants' acts were ministerial, stating:
The plaintiffs do not allege that the defendants failed to inspect the dwelling. They allege that the defendants failed" to make reasonable and proper inspections" of the premises. They further claim that the defendants failed "to conduct adequate inspections." While an inspection by definition involves "a checking or testing of an individual against established standards"; Webster, Ninth New Collegiate Dictionary; what constitutes a reasonable, proper or adequate inspection involves the exercise of judgment. Further, no matter how objective the standard, an inspector's decision as to whether a building falls below a standard and whether remedial orders are therefore required involves the exercise of his or her judgment. It is axiomatic that "ministerial acts [are those that] are performed in a prescribed manner without the exercise of judgment . . ." Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). Since the acts alleged in the fifth count required in some measure the exercise of judgment by a municipal employee, we conclude that they were not ministerial and therefore the defendants were immune from liability.
To the plaintiffs' claim that their decedents were identifiable victims subjected to imminent harm, the Court stated:
The "discrete person/imminent harm" exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state. In Shore v. Stonington, supra, a police officer stopped a speeding automobile. Despite evidence of intoxication, the officer did not arrest the driver. Later that evening, the driver struck a vehicle being operated by the plaintiff's decedent, who died from the injuries she sustained in the collision. We upheld the trial court's conclusion that the plaintiff had failed to show that the plaintiff's decedent was an identifiable person subject to imminent harm. In Sestito v. Groton, supra, a police officer, while on duty, observed a group of men drinking, arguing and scuffling in a parking lot outside a bar. The officer did not intervene until he heard gunshots. The plaintiff's decedent died as a result of being shot. This court concluded that the trial court erred in directing a verdict for the defendant town based upon governmental immunity. In resolving "conflicting testimony on the issue of imminence of harm in favor of the plaintiff, we held that the case should then have been submitted to the jury." Shore v. Stonington, supra, 153. This case does not present a situation in which this narrow exception applies. The gravamen of the plaintiffs' allegations is that the defendants had not done enough to prevent the occurrence of a fire. The risk of fire implicates a wide range of factors that can occur, if at all, at some unspecified time in the future. The class of possible victims of an unspecified fire that may occur at some unspecified time in the future is by no means a group of "identifiable persons" within the meaning of Shore v. Stonington, supra. Furthermore, the plaintiffs' decedents were not subject to "imminent harm."
The plaintiff here does not allege that the Town failed to make any inspections, or even failed to take action to enforce regulations (paragraph 19 of the Complaint alleges that the Town issued a cease and desist order). Rather, the plaintiff alleges that the town was negligent in the manner it took the foregoing actions. Such allegations pertain to purely discretionary acts for which the Town is immune.
There are no exceptions which apply to the Town's immunity. The plaintiff has not alleged any facts from which a trier could conclude that the Town's actions constituted a "reckless disregard for health or safety." See Connecticut General Statutes § 52-557n(b)(7). He has also failed to allege facts sufficient to put him within the "identifiable victim/imminent harm." exception. Like the risks in the Evon case, the risk of erosion and sedimentation control measures failing ". . . implicates a wide range of factors that can occur, if at all, at some unspecified time in the future." "The class of possible victims of an unspecified [failure of control measures] that may occur at some unspecified time in the future is by no means a group of "identifiable persons" within the meaning of Shore v. Stonington . . ." Evon, supra, 211 Conn. at 508.
For the foregoing reasons the motion to strike the Fourth Count of the Complaint insofar as it relates to the defendant Town is granted.
By the court,
Aurigemma, J.