Opinion
No. X08 CV 03 0193735
April 22, 2004
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (161.00, 161.20) AND MOTIONS FOR SUMMARY JUDGMENT (157.00, 159.00, 164.00)
In this action Walter and Annemarie Cerretani have sued a heating oil distributor Levco Tech, Inc. and one of its truck drivers, Keith Major, on claims arising out of an incident in which a tanker truck owned by Levco and operated by Major overturned on, or near the Cerretani's residence spilling close to 2,000 gallons of heating oil.
Before the court are defendants' motions for summary judgment seeking to dismiss certain counts and the plaintiffs' motions to strike certain of the defendants' special defenses.
I. Motions to Strike
The Cerretanis have moved to strike special defenses asserted by both defendants of (1) setoff pursuant to General Statutes § 52-141, and (2) equitable setoff. Both special defenses are based on the allegation that the plaintiffs have received the benefit of over $300,000 expended after the incident on oil removal, soil removal, remediation and connecting the plaintiffs to the town public water supply.
In a memorandum dated September 17, 2003 deciding earlier motions to strike portions of the complaint, this court set out the relevant legal standards guiding consideration of motions to strike portions of pleadings. The court assumes the parties are familiar with those standards which will not be repeated here.
The Cerretanis' motions are premised on the contention that the concept of setoff requires mutual debts between the parties, and monies expended by Levco and others in the remediation process on the Cerritanis' property does not constitute a debt owed by the Cerretanis. This contention is correct. General Statutes § 52-141 allows a setoff when the defendant "holds" a "debt" "against the plaintiff." There being no debt owed by the Cerretanis to either Levco or Major, the special defenses of a statutory setoff are stricken.
The defendants oppose the motions to strike their special defense of equitable setoff and cite OCI Mortgage Corp. v. Marchese, 255 Conn. 448 (2001). In that case the Connecticut Supreme Court recognized that setoff may be "legal or equitable in nature" and stated:
When the statutes governing legal setoff do not apply, a party may be entitled to equitable setoff, nonetheless [to arrive at an equitable result].
Id. 463, 464. Nevertheless setoff, whether it be legal or equitable, must include some mutual obligation between the parties. Here, there is none, and the motions to strike the equitable setoff special defenses are granted.
This decision does not wholly discount the remediation expenditures. It is plaintiffs' burden to prove damages. If the remediation expenditures have reduced the damages incurred by the Cerretanis, the defendants will be given an opportunity to establish this at trial.
II. Motions for Summary Judgment
The defendants have moved for summary judgment dismissing various counts in the complaint. Levco moves against counts 2 (claim under General Statutes § 22a-16), 4 (absolute nuisance), 6 (negligent nuisance), 8 (trespass), 11 (negligence per se), and 19 (liability under General Statutes § 14-295, recklessness). Major moves against counts 1 (§ 22a-16), 3 (absolute nuisance), 5 (negligent nuisance), 7 (trespass), and 18 (liability under § 14-295, recklessness). Following oral argument the Cerretanis withdrew their objections to the motions as to the nuisance and trespass counts. Therefore, summary judgment for the defendants is entered on counts 3 through 8.
A. Summary Judgment Standard
Summary judgment may be granted when there is no genuine issue as to any material fact and as a matter of law the moving party is entitled to judgment. Practice Book § 17-49. A genuine issue as to a material fact requires more than just an assertion that there is a triable issue; it requires an evidentiary foundation. Appleton v. Board of Education, 254 Conn. 205, 209 (2000). A fact is material when its existence or not would make a difference in the result of a case. Union Oil Co. v. Urban Development Commission, 158 Conn. 364, 378 (1969). The party seeking summary judgment has the burden of proving the absence of any genuine issue as to a material fact. Appleton v. Board of Education, supra. In deciding a summary judgment motion the trial court must view the evidence in the light most favorable to the non-moving party. Id. Finally, the trial court, in the context of a summary judgment motion, may not decide issues of material fact but only determine whether such genuine issues exist. Nolan v. Borkowski, 206 Conn. 495, 500 (1988).
B. Counts 18 and 19.
These two counts allege that Major violated General Statutes § 14-218a in that he was driving the tanker truck at a speed greater than was reasonable, given road conditions, street intersections and weather conditions. Plaintiffs seek double or treble damages pursuant to General Statutes § 14-295 alleging that Major operated the truck deliberately or with reckless disregard in violation of § 14-218a and that the violation was a substantial factor in causing the accident and damages. The plaintiffs claim against Major directly (count 18) and against Levco as being responsible for Major's actions vicariously, and on the basis of the presumption of agency found in General Statutes § 52-183 (count 19).
In Matthiessen v. Vanech, 266 Conn. 822 (2003), the Connecticut Supreme Court held that Section 52-183 does not abrogate the common-law rule that punitive damages may not be assessed against those held vicariously liable for the acts of others.
The thrust of the defendants' argument is that Major testified at his deposition that as he approached the intersection of Route 106 and Trail's End Road he was driving the tanker truck at 25 to 30 miles per hour. The speed limit at that point was 35 miles per hour. There is no evidence that Major was impaired by drugs or alcohol. The defendants contend that there are no facts by which the plaintiffs can prove Major intentionally, or with reckless disregard, violated General Statute § 14-218a.
The court agrees that plaintiffs are put to a high standard to prove intent or recklessness. They must prove that Major's actions in operating the truck were "an extreme departure from ordinary care." Dubay v. Irish, 207 Conn. 518, 533 (1988). Nevertheless, this is not a case where no material facts are at issue. The intersection where the incident occurred is like a T-intersection. In the direction Major was driving, Trail's End Road comes into Route 106 from the right at a ninety-degree angle. At the same point Route 106 turns left ninety degrees. Going straight through the intersection a vehicle would go off the road. At that point a vehicle must turn left or right at or about ninety degrees. There is a stop sign at the intersection in the direction Major was traveling and before that there is a sign warning that a stop sign is ahead.
The facts indicate that Major did not, or was not able to stop at the stop sign and that he attempted to turn the tanker truck to the right but was not able to do so successfully and the truck rolled over, spilling its cargo. There are questions relevant to Counts 18 and 19 which are suitable to be submitted to a jury. These include whether Major's testimony on his speed is credible, whether he saw the stop sign and why or why not, whether he applied the brakes, and whether they worked, whether he saw the warning of a stop sign ahead, and so on.
The motions for summary judgment on counts 18 and 19 are denied.
C. Counts 13 and 14
In counts 13 and 14 the plaintiffs claim against Levco on a theory of negligence per se. Negligence per se is a theory in which a statute establishes what is reasonable care and a violation of the statute is ipso facto negligence. Count 13 is predicated on violations of certain motor vehicle statutes by Major and, plaintiffs' claim Levco is liable vicariously for Major's actions as his employer or by the presumed agency established by General Statutes § 52-183. Count 14 is predicated on alleged statutory violations by Levco itself.
In Coughlin v. Peters, 153 Conn. 99 (1965) the Connecticut Supreme Court explained:
In order to predicate a recovery on the ground of statutory negligence, two elements must coexist. In the first place a plaintiff must be within the class of persons for whose benefit and protection the statute in question was enacted. In other words, the violation of the statute must constitute a breach of a duty owed to the plaintiff. CT Page 6556
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Second, a plaintiff must prove that the violation of the statute, that is, the breach of the duty imposed by the statute, was a proximate cause of his injuries.
Id., 101-02.
The statutory violations ascribed solely to Major are General Statutes §§ 14-235 (traveling in the left lane), 14-218a (unreasonable speed) and 14-301 (failing to obey a stop sign). The court finds on the undisputed facts that the alleged violation of Section 14-235 did not cause the alleged injuries. Summary judgment for the defendant Levco is granted as to that part of count 13, and denied otherwise.
The statutory violations ascribed to Levco and set forth in count 14 are numerous. They are: General Statutes §§ 29-322 (uncertified tanker truck), 19a-340 (water pollution), 22a-6b (discharge into the environment), 22a-15 (policy against contamination), 22a-16 (unreasonable pollution), 22a-427 (water pollution), 22a-430 (discharge without a permit).
Count 14 is an example of over-pleading. The tanker truck involved in the incident underwent an inspection in October 2000 and failed because its horn, front turn signal and rear lights were not operating properly. At the time of the incident the truck did not have a valid inspection certificate from the local fire marshal required by Section 29-322. However, the noted deficiencies could not be the proximate cause of the accident.
Section 19a-340 defines as a nuisance the discharge of filthy water or other noxious matter from one person's land to another's land This statute is not applicable to this case.
Section 22a-6b authorizes a lengthy list of civil penalties for a violation of various sections of the state's environmental laws. This statute sets no standards of conduct in and of itself, and therefore, cannot be a source for a claim of negligence per se. The same may be said of Section 22a-15 which is a declaration of policy, not of standards.
Section 22a-16 is already the basis of two counts of this complaint (see infra) and its inclusion in counts 13 and 14 duplicative.
Section 22a-427 prohibits any person from polluting waters of Connecticut in violation of any provision of the Water Pollution Control Act, chapter 446k of the General Statutes. Section 22a-430 prohibits discharge of "water, substance or material into the waters of the state" without a permit. A number of Superior Court decisions have declined to allow negligence per se claims based on various provisions of the Water Pollution Control Act. See e.g. Augelli v. Matos, Superior Court, judicial district of Waterbury at Waterbury, CV 01 0163496 (July 29, 2003, Dubay, J.) ( 35 Conn. L. Rptr. 228); The Connecticut Water Company. Thomaston, Superior Court, judicial district of Hartford at Hartford, CV 94 0535590 (March 4, 1996, Corradino, J.) ( 16 Conn. L. Rptr. 213). Given the extremely broad, almost standardless, language of Sections 22a-427 and 430 this is the appropriate result.
The portions of counts 13 except those relying on General Statutes §§ 14-218a and 14-301 are dismissed. Count 14 is dismissed in its entirety.
D. Counts 1 and 2
The plaintiffs have sued the defendants for equitable and declaratory relief pursuant to General Statutes § 22a-16 which provides specifically for such an action by "any person" against "any person."
Levco and Major contend that this section only authorizes relief when those are ongoing polluting activities. See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 509 (2003). There may be some merit to this position. However, the facts with respect to what activities are presently going on at the Cerretanis' property are disputed. Summary judgment on this count is denied.
E. Count 11
In this count the Cerretanis claim that Levco's own negligence contributed to the incident in that it failed to properly supervise and train Major in the transportation and delivery of heating oil, and failed to maintain, inspect or repair the truck. There are disputed factual issues, including the condition of the brakes, which preclude summary judgment on this court.
TAGGART D. ADAMS SUPERIOR COURT JUDGE