Opinion
No. CV 030566400
October 4, 2005
MEMORANDUM OF DECISION RE MUNICIPAL LIABILITY AS TO MAINTAINING CULVERT
Plaintiff, Geoffrey Burnham, has filed a six-count amended complaint against the defendants, Ronald R. Cusano (Cusano) and the town of Waterford (the town) At all relevant times, Cusano was the director of public works for the town of Waterford. In count one, the plaintiff alleges that Cusano was "responsible to reasonably construct, maintain and/or repair Waterford-owned structures and/or improvements . . . including [a] drainage culvert" which is located adjacent to the plaintiff's property; Cusano was obligated to reasonably clean and maintain the culvert to allow for the free and unobstructed passage of surface water through the culvert, but Cusano failed to execute his obligation. It is alleged that as a result, silt, refuse and other debris obstructed the flow of water causing a rise of surface water in a pond upstream from the culvert, which caused the flow of the water to reverse. This reversal of water flow allegedly caused a hyper-saturation of water into the soil surrounding the plaintiff's residence which culminated in the flooding of the plaintiff's basement causing damage to the walls, floors, fixtures and various contents. It is alleged that these defects of the culvert existed for a sufficient amount of time that the defendant, during the exercise of ordinary and reasonable care, knew or should have known of the existence of these defects. The plaintiff further alleges that Cusano breached his duties under the Waterford municipal code § 2.20.010, by, inter alia, failing to conduct reasonable periodic inspections of the drain culvert; failed to correct the condition of the drain culvert; and failed to warn the plaintiff of the condition of the drain culvert.
Section 2.20.010 of the Waterford municipal code entitled, "Created — Duties," provides in relevant part: "There is a department of public works which shall have supervision and control of the maintenance of all town-owned structures . . . and of the planning, surveying, constructing and reconstructing, altering, paving, repairing, maintaining, cleaning, lighting and inspecting of highways, sidewalks and curbs, public and private drains, [and] other public improvements and town buildings . . ."
In count two the plaintiff alleges that Cusano's failure to reasonably maintain, repair, and/or clean the culvert poses a substantial natural and continuing threat to the plaintiff's property. As a result, it is alleged that Cusano's actions or omissions have unreasonably and/or unlawfully interfered with the plaintiff's use and quiet enjoyment of his property.
In count three the plaintiff alleges, inter alia, that the town, through Cusano and other agents, breached its duties under its own municipal code § 2.20.010. The plaintiff alleges this breach of duty was the direct and proximate cause of his damages and losses resulting from the flood.
In count four the plaintiff asserts that through the town's acts or omissions, the town has unreasonably interfered with the plaintiff's use and quiet enjoyment of his property, and that the town is liable to the plaintiff pursuant to General Statutes § 52-557n. In counts five and six, the plaintiff alleges that, pursuant to General Statutes §§ 7-101a and 7-465, the town is required to defend and indemnify Cusano for the negligence and nuisance claims asserted against him by the plaintiff.
Defendant Town of Waterford and Robert Cusano, Director of Public Works, have filed a motion for summary judgment, with an accompanying memorandum of law in support. In their motion the defendants assert (1) that they are entitled to governmental immunity with respect to the plaintiff's negligence claims; (2) that they did not engage in a "positive act" from which liability for nuisance upon a municipality can be imposed; (3) that the plaintiff cannot satisfy the required elements of a common-law private nuisance claim; and (4) that the plaintiff's indemnification claims must fail because the plaintiff cannot sustain his underlying claims against the individual defendant. In support of their motion the defendants submit as evidence: the municipal code § 2.20.010, an affidavit of Ronald R. Cusano, and various case law. On April 28, 2005, the plaintiff filed an objection to the motion for summary judgment with accompanying memorandum of law. In support of his objection, the plaintiff submits as evidence various affidavits, deposition transcripts, the municipal code § 2.20.010 and case law.
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 . . . 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." (Citations omitted; internal quotation marks omitted.) Barrett v. Montesano, 269 Conn. 787, 791-92, 849 A.2d 839 (2004).
Negligence
The defendants argue, inter alia, that the negligence claims in counts one and three are barred by the doctrine of governmental immunity. They contend that the cleaning of the drainage culvert is a governmental act which necessarily entails the discretion of judgment as to the manner and time in which the cleaning is to be performed. In addition, Cusano and the town argue that the municipal code, § 2.20.010, does not prescribe the manner by which the drainage culverts are to be maintained, and as such, the maintenance of the culvert is an exercise of judgment or discretion.
The plaintiff argues in opposition that the question is not how an act is performed, but whether it is a duty for the municipal employee to perform the act. The plaintiff maintains that the act of cleaning the drainage culvert is a ministerial act, and, therefore, governmental immunity is not an available defense to the negligence charge in count one and three of the complaint.
"A municipality's potential liability for its tortious acts is limited by the common law principle of governmental immunity . . . Governmental immunity, however, is not a blanket protection for all official acts. For example, [a] municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts." (Internal quotation marks omitted.) Coggins v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 01 0163783 (July 12, 2001, Doherty, J.), citing Heigl v. Board of Education, 218 Conn. 1, 4, 587 A.2d 423 (1991). "This court has . . . discussed extensively the difference between a ministerial and a discretionary act . . . Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature . . . On the other hand, ministerial acts are performed in a prescribed [manner] without the exercise of judgment or discretion as to the propriety of the action." (Internal quotation marks omitted.) Coggins v. Waterbury, supra, Superior Court, Docket No. CV 01 0163783, citing Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982).
"[O]ur Supreme Court has held that [t]he work of constructing drains and sewers, as well as that of keeping them in repair, is ministerial, and the municipality is responsible for negligence in its performance." Coggins v. Waterbury, supra, Superior Court, Docket No. CV 01 0163783, citing Spitzer v. Waterbury, 113 Conn. 84, 88, 154 A. 157 (1931). In the present case, the plaintiff has alleged, among other things, that his property was damaged because Cusano and the town were negligent in their maintenance obligation to correct the condition of the drain culvert by clearing away blockages. In accordance with the precept annunciated in Spitzer v. Waterbury and the several Superior Court cases that have found that the maintenance of drains and sewers is a ministerial task, this court finds that Cusano and the town are not protected by the doctrine of governmental immunity in the context of the negligence claims in the present case. Moreover, summary judgment is particularly "ill-adapted to negligence cases, where . . . the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation . . . [T]he conclusion of negligence is necessarily one of fact . . ." (Citations omitted; internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975). Therefore, the motion for summary judgment as to counts one and three should be denied.
Nuisance
The mandatory elements for nuisance against a municipality and its officers and employees are well settled in Connecticut case law. "At common law, a plaintiff asserting a private nuisance claim must establish the following elements: `(1) there was an invasion of the plaintiff's use and enjoyment of his or her property; (2) the defendant's conduct was the proximate cause of an unreasonable interference with the invasion; and (3) the invasion was either intentional and unreasonable, or unintentional and the defendant's conduct was negligent or reckless.' Pestey v. Cushman, 259 Conn. 345, 358, 788 A.2d 496 (2002), citing 4 Restatement (Second), Torts § 822 (1979). In Pestey, the Supreme Court adopted the principles of § 822 of the Restatement (Second) of Torts and further explained that `in order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional . . . or the result of the defendant's negligence.' (Citation omitted.) Id., 361. Furthermore, a nuisance claim against a municipality must also show that the condition alleged to be the nuisance `was created by some positive act of the municipality.' (Internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996)." (Internal quotation marks omitted.) Duffy v. Wallingford, 49 Conn.Sup. 109, 113, 862 A.2d 890 (2004).
"[I]n order to overcome the governmental immunity of municipal defendants where it applies, the plaintiff must prove that the defendants, by some positive act, intentionally created the conditions alleged to constitute a nuisance." Elliott v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998). "Under the applicable common law, however, a municipality is liable for maintaining a nuisance only if, in fact, the municipality both created and maintained the nuisance by some positive act." Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 388, 627 A.2d 1296 (1993). "Failure to remedy a dangerous condition not of the municipality's own making is not the equivalent of the required positive act." Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975). Moreover, "a municipality is not liable where its sole fault is a failure to take remedial steps." (Internal quotation marks omitted.) Insurance Co. of North America v. Buccheri, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 90 0399063 (May 28, 1992, Hennessey, J.) (6 Conn. Law. Rptr. 457).
In the present case, the plaintiff alleges in counts two and four that the defendants failed to reasonably construct, maintain, repair and/or clean the drainage culvert consistent with its design or purpose. The plaintiff argues that the city committed a positive act when it accepted responsibility for the culvert from Mortimor Sokol, who constructed said culvert. In the defendants' exhibit "B," an affidavit by Cusano, Cusano avers that the construction of the culvert was conducted by Mortimor Sokol. The plaintiff's own exhibit "C," the transcript of the deposition of Cusano, also reveals that the construction of the culvert was conducted by Mortimor Sokol. Therefore, there is no genuine issue as to the fact that Mortimore Sokol created the culvert. Consequently, the plaintiff can merely attempt to prove that defendants failed to take remedial steps to alleviate the blockages to the culvert, not that they created the culvert or the nuisance. It bears repeating, that "[u]nder the applicable common law, however, a municipality is liable for maintaining a nuisance only if, in fact, the municipality both created and maintained the nuisance by some positive act." Starr v. Commissioner of Environmental Protection, supra, 226 Conn. 388. Failure to adequately maintain the drainage culvert is not enough to constitute a positive act. See Insurance Co. of North America v. Buccheri, supra, Superior Court, Docket No. CV 91 0399063. Therefore, counts two and four sounding in nuisance fail as a matter of law because there has been no proof of a positive act.
CONCLUSION
For all the foregoing reasons, the court issues the following orders:
Motion for Summary Judgment as to Counts Two, Four and Six is granted. The Motion for Summary Judgment as to Counts One, Three and Five is denied.
Clarence J. Jones, Judge