Opinion
No. CV 08 5007541
February 11, 2010
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 139
On August 26, 2009, the defendants Daniel M. Stewart, James A. Bartelli, Michael Stoffel, Ronald R. Cusano, Kristen B. Zawacki, Edward Machinski, Stephen A. Steadman and the Town of Waterford filed this motion for summary judgment. The defendants argue that all of the plaintiffs' claims set forth in counts one through four of the amended complaint dated August 27, 2008 should be summarily decided as they were brought outside the two-year statute of limitations for negligence actions or the three-year statute of limitations for all tort actions. Additionally, the defendants argue that the plaintiffs' claims should be barred by the doctrine of sovereign immunity.
On September 17, 2009, the plaintiffs, Edward Coss, MD and Kathleen Coss, MD filed an objection to the defendants' summary judgment motion. The plaintiffs argue that count two of their complaint, alleging strict liability for inherently dangerous conduct, is not based in negligence or tort and is therefore not subject to the two or three year statute of limitations. The plaintiffs argue that count four of their complaint is not subject to the three-year statute of limitations based on the continuing course of conduct doctrine. Further, the plaintiffs argue that the statute of limitations should be tolled as to all counts under the doctrine of equitable estoppel.
With regard to the defendants' claims of governmental immunity, the plaintiffs argue that governmental immunity does not apply to the second count of their complaint because that claim sounds in strict liability and not negligence. Further, they argue that the third count of their complaint is not subject to governmental immunity because it sounds in nuisance. Also, the plaintiffs argue that governmental immunity should not shield the defendants from the plaintiffs' claims of negligence in the first count of their complaint because there is an issue of material fact as to whether the damage to the plaintiffs' wall was caused by the defendants' negligence in carrying out ministerial, rather than discretionary, acts. Further, the plaintiffs argue that under the identifiable victim exception to governmental immunity, the plaintiffs' negligence claims are not subject to summary judgment based on governmental immunity.
Summary of Claims and Procedural History
This case arises out of damage to the plaintiffs' stone wall that was allegedly caused by blasting activity related to a sewer installation project undertaken by the town of Waterford (Waterford). All of the defendants are employees of the Town of Waterford. The town contracted with Baltazar Contractors, Inc. (Baltazar) to perform the sewer installation project. In their revised complaint the plaintiffs assert the following theories of liability. They allege an entitlement to recovery of damages on theories of negligence, strict liability for damages resulting from an ultrahazardous activity, nuisance, and fraud against the defendants, the town of Waterford and its various officers that were involved with the execution of the Sandy Point sewer installation project.
Based upon a review of the affidavits filed in support of the motion for summary judgment the court finds the following facts do not appear to be in genuine dispute.
In 2001, the Town of Waterford commenced the Sandy Point Project, a sewer and storm drain extension that would be under construction through 2002. Prior to starting work on the plaintiffs' street, Oswegatchie Road, the defendants sent a letter dated February 14, 2001, to the plaintiffs informing them that the town intended to begin a five-hundred-day construction project to install sewers and storm drains. This letter also stated that:
(A)t the completion of the project, all property will be restored to an equal or better condition than at the start of the job. The contractor is fully responsible for all damage to private property, and is required by our specification to provide insurance to cover claims. If you should suffer any damage please forward your claim in writing, with a copy to this office, to Baltazar Contractors, Inc. 83 Carmelina's Circle, Ludlow, MA 01056.
Through 2001 and 2002, the project progressed near the plaintiffs' property. As part of the project, Baltazar used explosives to blast through the earth and stone beneath Oswegatchie Road. As a result of the direct effects and vibrations caused by the blasting and other heavy equipment use, at least one section of the plaintiffs' stone wall was destroyed and several other portions of the wall were damaged to some extent.
In December 2002, before the completion of the project, the plaintiffs became aware of the damage to their stone walls. On or about December 3, 2002 the plaintiffs obtained an estimate from Burnett's Landscaping in the amount of $4,955.00 to perform stone wall repairs.
On January 6, 2003 the plaintiffs, referencing the February 14, 2001 letter, sent the Burnett estimate for the repair of the damage to their stone wall to Baltazar. The plaintiffs sent the Town a copy of this letter which was received by the Waterford Utility Commission on or about January 10, 2003. In this letter the defendants asserted that their wall had been extensively damaged during construction and asked that Balthazar be directly responsible for payment of the Burnett bill.
On April 28, 2003, the plaintiffs called the town to inquire about the status of the town's plan to repair their wall. At this time, the plaintiffs were told that the town was preparing a "punch list" of repairs and that their damaged wall would be placed on this list. On July 14, 2003, the plaintiffs again called to complain that the repair work had not been started. On June 25, 2004, the plaintiffs called Stephen A. Steadman, the Assistant Director of the Waterford Public Works Department to complain that nothing had been done to repair the plaintiff's wall. He promised that he would discuss the issue with the head of the Waterford Utility Commission, Edward Machinski.
On June 19, 2004, in response to a request from the head of the Waterford Utility Commission, the plaintiffs submitted photographs of the damaged wall. On December 10, 2004 one of the plaintiffs went to the Department of Public Works and was promised that the Utility Commission would ask Baltazar to repair their wall.
On January 24, 2005, after Baltazar had worked on a twenty-five-foot section of the damaged wall, Edward Machinski notified the plaintiffs that the repairs had been made and were satisfactory in his opinion. The letter further advised the plaintiffs that "(I)n the event you feel that the existing condition is unsatisfactory, kindly forward any claim to Baltazar Contractors Inc. 83 Carmelina's Circle Ludlow, MA 01056 and their insurance carrier, T.P. Daley Insurance Co., 1381 Westfield Street, West Springfield, MA 01089."
The plaintiffs continued to complain to the town. On February 2, 2005, one of the plaintiffs spoke with Edward Machinski and informed him of a video tape of the wall prior to the blasting operations. Mr. Machinski agreed to review the video tape. On October 27, 2005, one of the plaintiffs again called the Utility Commission and was informed that James Bartelli, the Assistant Director of the Utilities Department would review the tape. On October 31, 2005, James Bartelli sent the plaintiffs a brief note along with the January 24, 2005 letter from Edward Michalski attached.
On April 18, 2006, Stephen Steadman wrote to the plaintiffs and noted that "(A) review of your deed and survey plans shows that the wall is within the Oswegatchie Road right-of-way." The letter indicated that the wall would be repaired "in coordination with other wall projects in the area that are planned this summer."
On October 3, 2007, Ronald Caruso, Director of the Waterford Public Works Department wrote to the plaintiffs and informed them that upon investigation it was determined that the Waterford Utility Commission had investigated this complaint and "(I)t was their determination that the work completed in association with this project was acceptable."
On June 3, 2008, the plaintiffs commenced this action via service of process and filing a four-count complaint in Superior Court.
DISCUSSION
"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 . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; internal quotation marks omitted.) Kakadelis v. DeFabritis, 191 Conn. 276, 282, 464 A.2d 57 (1983). "Summary judgment may be granted where the claim is barred by the statute of limitations." Doty v. Mucci, 238 Conn. 800, 806, 679 A.2d 945 (1996). "Summary judgment is appropriate on statute of limitation grounds when the `material facts concerning the statute of limitations [are] not in dispute . . .'" Burns v. Hartford Hospital, 192 Conn. 451, 452, 472 A.2d 1257 (1984). "[S]ummary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) LaBow v. Rubin, 95 Conn.App. 454, 471, 897 A.2d 136, cert. denied, 280 Conn. 933, 909 A.2d 960 (2006).
General Statutes § 52-577 states that "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." Our Appellate Court has stated that "[w]hen conducting an analysis under limitations statute allowing tort action to be brought within three years from date of act or omission complained of, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed." Farnsworth v. O'Doherty, 85 Conn.App. 145, 149-50, 856 A.2d 518 (2004). However, our Supreme Court has recognized that under the doctrine of equitable estoppel, in certain circumstances, a defendant can be estopped from asserting statute of limitations defenses. In Morris v. Costa, 174 Conn. 592, 599-600, 392 A.2d 468 (1978), the court stated "[c]ourts, applying equitable principles, have laid down the doctrine of equitable estoppel by which a defendant may be estopped by his conduct from asserting defenses such as the statute of limitations . . . Estoppel rests on the misleading conduct of one party to the prejudice of the other . . . In the absence of prejudice, estoppel does not exist . . . There are two essential elements to an estoppel the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done . . . An equitable estoppel does not so much shut out the truth as let in the truth, and the whole truth. Its office is not to support some strict rule of law, but to show what equity and good conscience require, under the particular circumstances of the case." (Citations omitted; emphasis added; internal quotation marks omitted.) Id.
In the present case, the harm to the plaintiffs, namely the damage that was allegedly done to their stone wall by the defendants' use of blasting in the Sandy Point construction project, was first noticed and complained of in December 2002. The court accepts the plaintiffs' affidavits which states "In December of 2002, . . . I informed the Town of Waterford and Baltazar Contractors, Inc. That the stone wall on our property had been extensively damaged in the course of blasting . . ." The date of the discovery of damage is further evidenced by the repair estimate prepared by Burnett Landscaping, which bears a date of December 3, 2002. Construing this affidavit in a light most favorable to the plaintiffs, the plaintiffs were aware of the damage to their wall by December 31, 2002, at the latest. Thus, the three-year statute of limitations for all tort actions, including negligence, nuisance, fraud and damages resulting from engaging in an ultrahazardous activity, began to run from, at the latest, December 31, 2002. Thus, absent any inequitable conduct on the part of the defendants, the plaintiffs had until December 30, 2005 to commence litigation in order to preserve their claims. The plaintiffs did not commence this litigation until June 3, 2008, well beyond the three years provided by General Statutes § 52-577.
The plaintiffs argue that the three-year statute of limitations should not run against them because the defendants deceived them several times by promising to repair their wall. The undisputed facts do not support such an assertion. At multiple times during this sewer project the town advised the plaintiffs of the procedure to secure satisfaction for the blasting damage that was anticipated. The February 14, 2001 letter from the town to residents directed that "If you should suffer any damage please forward your claim in writing, with a copy to this office, to: Baltazar Contractors." The plaintiff followed these instructions when they first complained of damage to their stone wall (plaintiffs' letter dated January 6, 2003). When the plaintiffs complained about the lack of repairs to their stone wall the town responded to their complaints and again notified the plaintiffs that if they were not satisfied they should file a claim against Baltazar and its insurance company. Specifically, on January 24, 2005, Edward Machinski, on behalf of the town of Waterford, sent the plaintiffs a letter stating that on January 18, 2005, the town sent Baltazar to repair the plaintiffs' wall. Further, Edward Machinski stated that he had inspected Baltazar's work and found it satisfactory. (Plaintiff's Exhibit IV.) Machinski then instructed the plaintiffs that if they were not satisfied with Baltazar's work, they should file a claim against Baltazar and their insurance company. Id.
The correspondence indicates that the plaintiffs were still unhappy with the condition of their wall. In response, on October 31, 2005, James Bartelli sent the plaintiffs another letter redirecting the plaintiffs back to the Machinski letter of January 24, 2005. (Plaintiffs' Exhibit V.) At this point, the plaintiffs had at least one month to file suit and preserve their claims regarding the damage to their wall; they failed to do so.
The plaintiffs claims of equitable estoppel rely upon conduct of the town officials that occurred beyond the expiration of the statute of limitations. The correspondence referenced in the opposition to this motion for summary judgment does identify correspondence in 2006 that might be interpreted as supporting a claim that the town was still planning to repair the plaintiff's wall. Importantly, however, none of these alleged assurances were made within the relevant statute of limitations period. The plaintiffs have not sufficiently alleged or supported any claim that the defendants' conduct between January 1, 2003 and January 2, 2006 was in any way deceptive in nature or could have lulled them into forgoing litigation. Rather, a close examination of the defendants' actions prior to January 2, 2006 commands the opposite conclusion. In 2005, the town of Waterford through its officers, on two occasions clearly informed the plaintiffs that they had repaired the wall to the extent they felt was necessary to return it to its original condition and that if the plaintiffs were unsatisfied, they should file a claim.
The plaintiffs' allegations and affidavits contain no claims or evidence that the defendants made any assurances that the town would undertake to repair the plaintiffs' wall between the October 31, 2005 letter and December 30, 2005. While the plaintiffs aver that following the October 31, 2005 letter they "continued to discuss the issue of repair to our wall with officials of the Town of Waterford" (Plaintiffs' Exhibit II, 3), they do not attest to the substance of those conversations and do not allege or support with evidence that the town made any assurances of further repair before December 30, 2005. In fact, the plaintiffs allege that their dispute over the town's repair of their wall continued through February 2006, when the plaintiffs tried to persuade James Bartelli to review a tape they had made of their wall prior to the commencement of the Sandy Point project. Indeed, it isn't until April 18, 2006, that the plaintiffs claim the town promised to repair their wall. This alleged promise occurred well after the three-year statute of limitations had expired and cannot be seen as a deceptive act that could have wrongfully induced the plaintiffs into postponing the commencement of litigation beyond the statute of limitations. By April 2006 the defendants may have had several motivations for offering to repair the plaintiffs' wall, but by that point the statute of limitations had run and the threat of litigation was no longer one of them.
The doctrine of equitable estoppel can be used to toll the statute of limitations found in General Statutes § 52-577; however, our Supreme Court has stated that the doctrine "rests on the misleading conduct of one party to the prejudice of the other." Morris v. Costa, supra, 174 Conn. 599. In the present case, the plaintiff has not alleged any misleading conduct by the defendants during the relevant statutory period. In fact, in the two letters sent in to the plaintiffs in 2005, the defendants made it very clear that they had done all of the repair work they intended to do and that if the plaintiffs wished to pursue the matter further, they should do so by filing a claim. Whether defendants continued to assure the plaintiffs that the town would repair their wall at various points after January 2, 2006 is simply of no import with regard to the running of the statute of limitations because the three-year period in which the plaintiffs were required to bring suit had already passed. Simply put, nothing the defendants did after January 2, 2006 could have prejudiced the plaintiffs because the plaintiffs' claims were already barred.
Similarly, the continuing course of conduct doctrine does not toll the statute of limitations because the plaintiffs were well aware that their property had been damaged in December 2002. Our Appellate Court has stated that "an injury occurs when a party suffers some form of actionable harm . . . Actionable harm occurs when the plaintiff discovers . . . that he or she has been injured and that the defendant's conduct caused such injury . . . The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof . . . The focus is on the plaintiff's knowledge of facts, rather than on discovery of applicable legal theories . . . Most importantly, the continuing course of conduct doctrine has no application after the plaintiff has discovered the harm." (Citations omitted; internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn.App. 396, 404-05, 844 A.2d 893 (2004). In the present case, it is not disputed that the plaintiffs became aware of the harm to their wall at some point in December 2002. Therefore, the continuing course of conduct doctrine could not toll the statute of limitations beyond December 2002, and does not expand the period in which the plaintiffs were required to file suit in order to preserve their claims.
In Rosato v. Mascardo, supra, 82 Conn.App. 396, the court addressed the continuing course of conduct doctrine under General Statutes § 52-584. However, this court sees no reason why the Appellate Court's interpretation of the doctrine under that statute would be any less applicable under § 52-577.
The plaintiffs, in their affidavits, do not state when, exactly, in December 2002, they became aware of the damage to their wall. However, a repair estimate sent from the plaintiffs to Baltazar reveals that they may have been aware of the damage to their wall as early as December 3, 2002. (Defendants' Exhibit C.)
Finally, the plaintiffs argue that § 52-577 does not apply to the third count of their complaint because it sounds in strict liability, and not in tort. This is not in accord with the court's understanding. Our Supreme Court has clearly stated that the statute of limitations found in § 52-577 applies to strict liability claims. Prokolkin v. General Motors Corp., 170 Conn. 289, 294, 365 A.2d 1180 (1976). As such, the third count of the plaintiffs' complaint is subject to the same statute of limitations as the rest of their complaint.
Because the plaintiffs failed to file suit within three years of their injury, under § 52-577, their claims in counts one, two, three and four are barred.
In count four of their complaint the plaintiffs assert an action sounding in fraud. The gravamen of their claim is that the town officials stalled and made false promises to the plaintiffs in order to induce them to forego their right to seek a remedy before the court. As is evident that the town officials repeatedly advised the plaintiffs of their right to seek satisfaction from Baltazar or Baltazar's insurer. There is no evidence to support the proposition that town officials sought to prevent the plaintiffs from suing Baltazar prior to the expiration of the statute of limitations. Additionally any of the conduct relied upon by the plaintiffs to support this claim would represent discretionary as opposed to ministerial duties for the town employees. As such statutory immunity would attach to their conduct. The court is of the opinion that this motion for summary judgment should be granted as to count four.
Accordingly, for all of the above reasons summary judgment is granted as to all counts of their complaint.