Opinion
No. CV 04 4000354
September 28, 2006
MEMORANDUM OF DECISION
The plaintiffs, Richard W. Chase and Jeannette A. Chase, filed a two-count complaint on August 16, 2004 against the defendants, Anthony J. Tusia and Kathleen A. Mills, seeking an injunction and monetary damages. This case arises out of alleged damage to the plaintiffs' property caused by the overflow of the defendants' water. The plaintiffs allege the following facts in their complaint. The eastern boundary line of the plaintiffs' property abuts the western boundary of the defendants' property. The defendants maintain a beaver dam which "impounds water in a pond that overflows onto" the plaintiffs' property. The unlawful overflow of water constitutes both a nuisance and trespass which has depreciated the value of the plaintiffs' property and has deprived the plaintiffs' use of this portion of their property.
On December 12, 2004, the defendants filed a substituted answer and special defense, denying the alleged trespass and nuisance. The defendants filed a two-count counterclaim on April 14, 2005 against the plaintiffs alleging trespass and nuisance. The plaintiffs filed an answer to the defendants' counterclaim on June 7, 2005 denying the alleged trespass and nuisance. On September 2, 2005, the defendants filed a motion for summary judgment against the plaintiffs' complaint and a memorandum of law in support of their motion. The plaintiffs filed a memorandum of law in opposition to the defendants' motion for summary judgment on September 13, 2005.
On September 28, 2005, the court, Riley, J., denied the defendants' motion for summary judgment because "the defendants [had] failed to establish that there [were] no genuine issues of material fact in dispute and that they [were] entitled to judgment as a matter of law." Chase v. Tusia, Superior Court, judicial district of Windham at Putnam, Docket No. CV 04 4000354 (September 28, 2005, Riley, J.).
The defendants filed a revised amended counterclaim on October 18, 2005 alleging nuisance and trespass against the plaintiffs and seeking an injunction and monetary damages. The defendants allege the following facts in their revised amended counterclaim. They acquired wetlands that abut the plaintiffs' property in 1985. Prior to this, the water company, which had dammed an area near the reservoir, breached the dam to permit the wetlands water to run into the reservoir. In 1991, beavers moved into the wetlands and dammed the breached area, deepening the wetlands by "a foot or two." The defendants or individuals associated with them never placed the beavers into the wetlands area.
The plaintiffs have a stone wall and hunting stand on their property line which abuts the defendants' property. On an intermittent basis, the plaintiffs and/or individuals associated with the plaintiffs fired weapons from the plaintiffs' land onto the defendants' land to kill beavers and other wildlife. After the shooting, the plaintiffs or others would then go onto the defendants' land to retrieve the bodies of the dead animals to hang them on the plaintiffs' hunting stand. The defendants allege that this activity constitutes both a nuisance and trespass. On October 25, 2005, the plaintiffs filed an answer to tine defendants' revised amended counterclaim, denying the alleged nuisance and trespass.
On December 30, 2005, the plaintiffs filed a motion for summary judgment against the defendants' revised amended counterclaim, a memorandum of law in support of their motion, a copy of the defendants' answers to several interrogatories and affidavits from each plaintiff. On January 5, 2006, the defendants filed a counteraffidavit and a memorandum of law in opposition to the plaintiffs' motion for summary judgment.
"Summary judgment is a method of resolving litigation when 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." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "[A]ny party may move for summary judgment upon any counterclaim or cross complaint as if it were an independent action." Practice Book § 17-44. "As the party moving for summary judgment, the [movant] is required to support its motion with supporting documentation, including affidavits." Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 796, 653 A.2d 122 (1995). Likewise, "[t]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence." (Internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006). "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." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005).
"[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way . . . [A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party . . . [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed." (Citations omitted; emphasis in original; internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).
The plaintiffs move for summary judgment on the grounds that no genuine issue of material fact exists regarding the identity of the individuals committing the alleged nuisance and trespass and that they are entitled to judgment as a matter of law. In support of their motion, the plaintiffs submitted a copy of defendants' answers to interrogatories dated November 11, 2005. In the plaintiffs' memorandum of law, they point out that in the defendants' answers to the plaintiffs' interrogatories, "[they] do not name either plaintiff or anyone else as the perpetrators of the alleged acts and under oath state that the names of the perpetrators are unknown." In addition, the plaintiffs submitted an affidavit from each plaintiff in which they both denied ever firing weapons onto the defendants' property; entering the defendants' property to retrieve dead animals; and/or permitting anyone to fire weapons from their property onto the defendants' property. The plaintiffs argue in their memorandum of law in support of their motion for summary judgment that the identity of the shooters is a material fact. Since the defendants do not know who fired the rifles and because the plaintiffs aver that neither they, nor anyone known to them fired rifles or entered the defendants' land, there is no issue of material fact. Thus, they argue that they are entitled to judgment as a matter of law.
This court has previously discussed the admissibility of evidence in a motion for summary judgment: "As a preliminary matter, `before a document may be considered by the court in support of a motion for summary judgment, there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings . . . Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be.'" (Internal quotation marks omitted.) Rizzo v. New Haven Register, Superior Court, judicial district of New Haven, Docket No. CV 02 0467267 (October 7, 2005, Martin, J.) quoting New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005). In Rizzo, this court considered the defendant's admission of selective portions of deposition testimony. Because the plaintiff did not object to this evidence and also submitted "duplicate and additional excerpts of the same deposition," this court, Martin, J., explained that this evidence was "properly before the court." Rizzo v. New Haven Register, supra, Superior Court, Docket No. CV 02 0467267. In the present case, although the defendants did not submit their answers to the plaintiffs' interrogatories in support of their memorandum of law in opposition, they do not object to the plaintiffs' submission of this evidence. Thus, this court may consider this evidence. See Havens v. Collard, Superior Court, judicial district of New Britain, Docket No. CV 04 4003510 (February 23, 2006, Shapiro, J.) ("where each party has asked the court to consider uncertified evidence, and no objection was raised on that basis to their consideration, the court, in the exercise of its discretion, [may review] the exhibits submitted by each side").
Defendants state in the answers to plaintiffs' interrogatories, "I do not know the names and/or addresses of the people that fired weapons . . . We do not know names or addresses of witnesses that saw anyone kill beavers or other wildlife. Witnesses can only verify gunfire of continuous rounds being fired for hours coming from the Chase property or isolated firing of 2-5 rounds . . . I do not know the names or addresses of people who entered our land to retrieve dead animal bodies. Kathleen witnessed the sounds of a shovel striking rock . . . close to our property line within 45 minutes of gunfire on 4/4/05. Our largest beaver was missing the next day. We also noticed a beaver was missing on 4/3/05 after gunfire was heard on 4/2/05."
In response, the defendants argue that there is a genuine issue of material fact as to the identity of the shooters and the individuals entering the defendants' property unauthorized. The defendants have submitted an affidavit from Tony Tusia and Kathleen Mills, jointly. In their affidavit, they explain that for the past fifteen to twenty years, they have experienced gunfire coming from the Chase property onto their property. Also, beavers have disappeared from their property on numerous occasions when shots were fired from the Chase property. The defendants argue that the plaintiffs' denial that they authorized anyone to shoot onto the defendants' property; and their denial that anyone came onto the defendants' property to retrieve dead animals is "not conclusive" as to the issue of the shooter's identity or the identity of the individuals entering the defendants' property to retrieve the dead animals. The defendants also point out that the plaintiffs constructed a hunting stand on the boundary line between the two properties. They assert that because the plaintiffs' land is heavily wooded and the defendants' land is an open area, the hunting stand was erected on the boundary line to enable the plaintiffs to fire onto the defendants' property. Lastly, the defendants argue that these allegations create an issue of fact as to the identity of the shooters and the individuals entering the defendants' land unauthorized; therefore, they argue that summary judgment should be denied.
"It is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002). To bring a nuisance cause of action, "a plaintiff must prove that: (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 the invasion; and (3) the invasion was either intentional and unreasonable, or unintentional and the defendant's conduct was negligent or reckless." Id., 358.
In the present case, the defendants allege in their revised amended counterclaim that the plaintiffs have committed a nuisance by shooting at beavers and other wildlife on the defendants' property. In the plaintiffs' memorandum of law in support of their motion for summary judgment, they argue that there is no issue of material fact regarding the identity of the shooters: (1) because they deny shooting onto the defendants' property, in their affidavits in support of their motion; and (2) because the defendants cannot state the names and addresses of the alleged shooters in their answers to the plaintiffs' interrogatories. Therefore, the plaintiffs argue that they are entitled to judgment as a matter of law. In response, the defendants argue even though the plaintiffs deny that they shot onto the defendants' property or that they authorized anyone to shoot onto the defendants' property, this denial is not conclusive in determining whether there is a genuine issue of material fact. This issue "must be decided by the trier of fact." Thus, the defendants argue that the plaintiffs' motion for summary judgment should be denied.
The plaintiffs have submitted the following evidence in support of their motion for summary judgment: (1) two affidavits, denying that they were the shooters; and (2) the defendants' answers to interrogatories, claiming that the defendants do not specifically know the names and addresses of the shooters. The plaintiffs' affidavits state "I categorically deny that I have ever fired any firearms onto the premises of the defendants and I further deny that I have ever entered onto the premises of the defendants for the purpose of retrieving dead animals . . . I categorically deny that I have given permission to, consented, or acquiesced in permitting anyone to fire rifles from my property onto the land of the defendants or to enter such land for any purposes."
"Only evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment." (Internal quotation marks omitted.) Great Country Bank v. Pastore, 241 Conn. 423, 436, 696 A.2d 1254 (1997). "It is especially appropriate to hold an affidavit [or supporting documentation] submitted by a moving party to a stringent standard." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 680, 874 A.2d 849 (2005). See also Evans Products Co. v. Clinton Building Supply, Inc., 174 Conn. 512, 516, 391 A.2d 157 (1978). "Denials of the allegations in the complaint are an insufficient basis for the rendition of summary judgment." Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995); see also Kuleza v. Greenblott, Superior Court, judicial district of New Britain, Docket No. CV 03 0523490 (June 24, 2005, Robinson, J.) ( 39 Conn. L. Rptr. 578) ("[s]elf-serving affidavits of moving parties are insufficient to support a motion for summary judgment") (Internal quotation marks omitted); Cope v. Belisle, Superior Court, judicial district of New London, Docket No. CV 04 568473 (March 7, 2005, Hurley, J.T.R.) ("[c]onclusory statements or mere denials of allegations in the complaint within an affidavit provide an insufficient basis for the rendition of summary judgment"). The plaintiffs have not met their burden of showing the absence of any genuine issue of material fact regarding the defendants' nuisance claim. The plaintiffs' affidavits merely deny that they were shooting onto the defendants' property. As mentioned, simply denying an allegation in the defendants' revised amended counterclaim is "an insufficient basis for the rendition of summary judgment." See Gambardella v. Kaoud, supra, 38 Conn.App. 360. Although the plaintiffs have also submitted as evidence in support of their motion the defendants' answers to interrogatories, this evidence is insufficient to conclusively disprove the existence of any genuine issue of material fact and prove that the plaintiffs are entitled to judgment as a matter of law. "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." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005).
Further, the defendants' answers to the plaintiffs' interrogatories in which they stated that they do not specifically know the names and addresses of the alleged shooters does not necessarily relieve the plaintiffs from all liability for the alleged nuisance. Our Supreme Court has explained that courts may consider not only facts presented by the parties' affidavits and exhibits, but also the "inferences which could be reasonable and logically drawn from them." United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 381, 260 A.2d 1329 (1996). Although the defendants stated in their answers to the plaintiffs' interrogatories that they did not specifically know the names and/or addresses of the shooters or individuals retrieving dead animals from their property, they also explain that there is circumstantial evidence linking this activity to the plaintiffs. For example, they state that "[w]itnesses can . . . verify gunfire of continuous rounds being fired for hours coming from the Chase property or isolated firing of 2-5 rounds . . . [one of the defendants] witnessed the sounds of a shovel striking rock . . . close to our property line within 45 minutes of gunfire on 4/4/05. Our largest beaver was missing the next day. We also noticed a beaver was missing on 4/3/05 after gunfire was heard on 4/2/05."
"Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them." (Internal quotation marks omitted.) Morascini v. Commissioner of Public Safety, 236 Conn. 781, 808, 236 A.2d 1340 (1996). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). The plaintiffs are unable to meet their burden of proving that there are no genuine issues of material fact regarding the identity of the alleged shooters, or the individuals creating the alleged nuisance, and whether the plaintiffs authorized the shooting. Therefore, the plaintiffs' motion for summary judgment as to the defendants' nuisance claim is denied.
"In order to recover on a common-law trespass action, a plaintiff must show [1] ownership or possessory interest in property; [2] the physical invasion, entry or intrusion by defendant which affects the plaintiff's possessory rights; [3] intent to do that which causes the invasion; and [4] a direct injury to the plaintiff's property." (Internal quotation marks omitted.) Bongiovanni v. Saxon, Superior Court, judicial district of Tolland, Docket No. CV 02 0079540 (June 4, 2003, Scholl, J.) ( 34 Conn. L. Rptr. 659, 659); see also Day v. Gabriele, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0196802 (August 10, 2005, Tobin, J.). The defendants allege in their revised amended complaint that the "plaintiffs, their friends, family or others with their knowledge and/or consent, would continuously fire weapons onto [the defendants'] property . . . and then actually go on the defendants' property to retrieve dead animals that they had shot without permission or license"; thus, constituting a trespass onto the defendants' property. Courts in Connecticut have explained that shooting from adjacent land, onto the property of another, is considered a trespass. For example, in Munro v. Williams, 94 Conn. 377, 379, 109 A. 129 (1920), our Supreme Court explained that individuals, who were "standing on adjoining land [and] . . . shooting on to the respondent's land . . . were trespassers." See also Holt v. Crest Lincoln Mercury, Inc., Superior Court, judicial district of New Haven, Docket No. CV 0283667 (December 10, 1990, Pastore, J.T.R.) ( 3 Conn. L. Rptr. 574).
Similar to their argument in regards to the defendants' nuisance claim, the plaintiffs deny shooting and entering the defendants' property to retrieve dead animals. In addition, they argue that because the defendants cannot state the names and addresses of the alleged shooters and trespassers, there is no genuine issue of material fact as to the culpability of the plaintiffs. Thus, the plaintiffs argue that they are entitled to judgment as a matter of law. The defendants respond by arguing that there is a genuine issue of fact regarding the identity of the alleged trespassers; and therefore, summary judgment should be denied.
As set forth above, the plaintiffs' affidavits, which merely deny the nuisance and trespass alleged in the defendants' counterclaim, are self-serving affidavits. Further, the plaintiffs' submission of the defendants' answers to plaintiffs' interrogatories do not conclusively prove that the plaintiffs are not liable for the alleged nuisance and trespass. Without submitting additional evidence to prove that there is no genuine issue of material fact regarding the identity of the individuals who committed the alleged activity, the plaintiffs are unable to meet their burden required for this court to grant summary judgment in their favor. "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." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399-400, 876 A.2d 522 (2005).
In addition, the plaintiffs' limited evidence, especially in the form of self-serving affidavits which merely deny the alleged activity, creates an issue of credibility. "[Q]uestions which revolve around credibility are particularly ill-suited for the summary judgment procedure. Ferrucci v. S.N.E.T., Superior Court, judicial district of New Haven, Docket No. CV 03 476161 (August 17, 2005, Lopez, J.) "It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised." Barasso v. Rear Still Hill Road, 81 Conn.App. 798, 806, 842 A.2d 1134 (2004).
For the reasons set forth above and those discussed in regard to the defendant's nuisance claim, the plaintiffs have not submitted sufficient evidence to meet their burden of proving that there is no genuine issue of material fact regarding the defendants' trespass claim. Therefore, the plaintiffs' motion for summary judgment as to the defendants' trespass claim is denied. In conclusion, the plaintiffs' motion for summary judgment against the defendants' revised amended counterclaim is denied in its entirety.