Opinion
No. CV07-5003868
January 8, 2009
MEMORANDUM OF DECISION RE DEFENDANT ESTATE'S MOTION FOR SUMMARY JUDGMENT — 116 DEFENDANT BURR ROAD REALTY'S MOTION FOR SUMMARY JUDGMENT — 117
I. FACTUAL BACKGROUND
This case arises out of a claim by the plaintiffs, who are husband-and-wife, that the drinking water emitted from their residential well located at 24 Burr Road is not potable, as it is contaminated by lead components which have migrated to the plaintiffs' real property from that owned by the defendant, the estate of John MacDermid (hereinafter referred to as "MacDermid") located at 400 Harwinton Avenue and from that owned by Burr Road Realty, LLC (hereinafter referred to as BRR) located at 19 Burr Road. All three properties are located in Plymouth, Connecticut.
The plaintiffs have filed a fourteen-count amended complaint, dated July 3, 2007, consisting of seven nearly identical counts against each of the defendants. Counts one through seven are brought against MacDermid, while counts eight through fourteen comprise the claims against BRR.
As to MacDermid, the plaintiffs allege in the first count, grounded in negligence, that MacDermid owned and controlled liquid plating material containing "lead or lead contaminant and other substances." The plaintiffs allege that MacDermid had a duty to use the estate property in a reasonable manner so as not to endanger or to harm others, however, on or about March 15, 2004, the plaintiffs discovered that their well was contaminated with lead, which they allege was "discharged, released, spilled or leaked" for an indeterminate time prior thereto, and contaminated the soils of the MacDermid property. They further allege that this contamination continues to this day. They claim that the MacDermid property contaminants migrated through the "soil, bedrock, surface water or groundwater" from the MacDermid property to the plaintiffs' property and, thereby, polluted their source of residential drinking water with contaminants that are harmful to their health and safety and destructive of their well and have caused a diminution in the value of their real property. They further allege that they have suffered exposure to known and unknown contaminants with the resultant fear of future injury and have suffered and will suffer pain, anxiety, mental anguish and distress. They assert that their real estate has become unmarketable as a result of the pollution allegedly caused by MacDermid. They claim that they have incurred and will incur costs for engineers and attorneys to investigate, mediate, restore and monitor the nature and extent of the contamination.
In the first count, they allege that their injuries and damages were caused by the negligence of MacDermid in that the decedent, John MacDermid, and his estate have failed to inspect maintain and properly monitor their property; failed to clean up and remediate the contaminants so as to preclude migration; failed to notify surrounding land owners of the discharge and uncontrolled loss of the contaminants into the MacDermid soil and groundwater, failed to warn surrounding land owners of the likelihood of migration to their properties; and failed to take proper precautions to contain the contaminants when they knew or should have known that their activities would result in groundwater contamination, which would migrate to the wells of surrounding properties. The second count is brought on the theory of negligent infliction of emotional distress. The third count alleges an intentional trespass upon the plaintiffs' land, while the fourth count alleges a private nuisance. The fifth and sixth counts are based upon alleged violations of Connecticut's environmental statutes, to wit, General Statutes Sec. 22a-452 and 22a-16, respectively, while the seventh count is based upon a negligence per se theory grounded on an alleged violation of Section 22a-430. The statutory counts, which also comprise counts twelve through fourteen against BRR, will hereinafter be addressed in some detail.
As noted, the allegations in the latter seven counts against BRR are, for the most part, identical to those contained in the first seven counts against MacDermid. In brief summary, the plaintiffs allege that BRR, as the owner of 19 Burr Road, controlled land which contained lead or lead contaminants and other substances that contaminated BRR's soil and has leached and continues to leach through the soil, bedrock, surface and groundwater located on BRR's property and migrate to the property owned by the plaintiffs at 24 Burr Road, resulting in the contamination of the plaintiffs' well with lead, thereby destroying the potability of the water emitted from said well, resulting in the damages and injuries alleged in the first count of the plaintiffs' complaint.
The second count against MacDermid and the ninth count against BRR are each brought on the theory of negligent infliction of emotional distress. On July 17, 2007, BRR filed a Motion To Strike the ninth count (#107), which has neither been responded to by the plaintiff nor decided by the court. BRR should claim the motion for short calendar. Plaintiff needs to file a responsive memorandum. The pleadings must be closed.
II. NATURE AND HISTORY OF PROCEEDINGS CT Page 1104
On May 8, 2008, the defendant MacDermid filed its motion for summary judgment (#116), claiming, pursuant to Practice Book Section 17-44 et seq., that there is no genuine issue as to any material fact and that the estate is entitled to judgment as a matter of law. On May 12, 2008, after meeting with counsel and obtaining their agreement, this court deferred consideration of MacDermid's motion and ordered a three-month moratorium on all pleadings and discovery in order to allow the plaintiffs a reasonable opportunity to obtain an expert. On September 25, 2008, the court extended the moratorium to October 24, 2008, with the exception of receiving the defendant BRR's motion for summary judgment on October 2, 2008. One final extension was granted to November 17, 2008, on which date the court heard arguments on both motions at short calendar and received the plaintiffs' opposition to the defendant's motion (#119). Counsel for the defendants each declined the court's invitation to allow them sufficient time to file a response to the plaintiffs' submission, which included an engineer's affidavit, whereupon, the court heard from each of the parties.After reviewing the court file; the motions, objections and memoranda filed by the parties; and the exhibits submitted therewith, the court will, as to counts one through six and counts eight through thirteen, DENY the defendants' motions. For the reasons hereinafter set forth, however, the court will GRANT the defendants' motions relative to counts seven and fourteen.
III. APPLICABLE LAW
In Tuccio Development, Inc. v. Neumann, 111 Conn.App. 588, 593-94 (2008), Judge McLachlan offers the most recent statement (December 16, 2008) of the well-settled law in Connecticut governing summary judgments:
The law governing summary judgment and the accompanying standard of review are well settled. Practice Book § [17-49] requires that 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. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings . . .
In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . .
It is frequently stated in Connecticut's case law that, pursuant to Practice Book §§ 17-45 and 17-46, a party opposing a summary judgment motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . [T]ypically [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred . . . Moreover, [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact. (Citation omitted; internal quotation marks omitted.) DaGraca v. Kowalsky Bros., Inc., 100 Conn.App. 781, 785-86, 919 A.2d 525, cert. denied, 283 Conn. 904, 927 A.2d 917 (2007).
Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion . . . a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.
. . . A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. (Internal quotation marks omitted.) Id. at 792.
Emphasis added.
In Little v. Yale University, 92 Conn. 232, 235 (2005); cert. denied, 276 Conn. 936 (2006), the court instructed as follows: "[ t] he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . . If the affidavits and the other supporting documents are inadequate, then the court is justified in granting the summary judgment, assuming that the movant has met his burden of proof . . . Emphasis included. In another recent case, however, the court speaks of an important exception to the general rule that one who opposes a motion for summary judgment must provide evidentiary support for that opposition: "On a motion by the defendant for summary judgment the burden is on [the] defendants to negate each claim as framed by the compliant . . . it necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial. Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue. (Internal quotation marks omitted.) Baldwin v. Curtis, 105 Conn.App. 844, 850 (2008).
IV. CLAIMS OF THE PARTIES A. As To MacDermid
MacDermid filed its motion for summary judgment and memorandum in support thereof, on May 8, 2008, over six months prior to the plaintiffs' responsive memorandum, which was accompanied by an affidavit from the plaintiffs' expert. MacDermid's motion was accompanied by a sworn affidavit, dated April 3, 2008, by Eric Henry, a licensed professional engineer and senior project manager at Kleinfelder, East, Inc. Henry states that he was involved in an on-site investigation of the MacDermid property since August 2004, however, he adds that the investigation is not complete, despite having collected in association with several companies, 158 soil samples and 42 ground samples on the property. He affirms in paragraph #5 that, thus far, no discernible source of lead has been detected in the soil or the overburden groundwater at number 400 Harwinton Ave., however, in paragraph #8, he does confirm that several samples of the soil did contain lead concentrations but avers that they do not represent a source of contamination to the groundwater. In paragraph #7 of his affidavit, Henry states that the dissolved lead in the plume, "is likely not present in the overburden at the subject site." In paragraph #9, he states that the on-site overburden groundwater flow is southwesterly direction, thus it is unlikely that any "deminimis" dissolved lead would migrate to 24 Burr Road, which is 300 meters south southeast of the MacDermid property.
Based on the foregoing, Henry concludes that the lead concentrations in the soil on the MacDermid property, " do not likely represent" a source of groundwater contamination; that the on-site overburden groundwater flow is not in the direction of the plaintiffs' property and that "lead detected in the bedrock groundwater samples were likely related to suspended sediments present in the sample." In its memorandum, which is largely based on Henry's affidavit, MacDermid argues that one can easily conclude from that affidavit that the MacDermid property at 400 Harwinton Avenue is not polluted with lead significant enough to impact the property owned by the plaintiffs and that it is not possible that the estate and or its decedent caused the pollution of the plaintiffs' well, since the hydrology at the MacDermid property confirms that the overburden groundwater flows away from the plaintiffs' property and not toward it. Said defendant, therefore, argues that there can be no genuine issue of material fact as to whether 400 Harwinton Avenue is polluted with lead or as to the direction of the flow of the groundwater. MacDermid insists that Henry's study has "debunked the plaintiffs' allegations." Counsel then argues that the burden now switches to the plaintiff to prove that the MacDermid property is polluted with lead and that said pollution migrated to the plaintiffs' property. MacDermid insists that if the plaintiff cannot prove those two points, via an expert, the estate is entitled to summary judgment.
The plaintiffs have responded on two grounds. Initially, the plaintiffs, citing Baldwin, supra, argue that MacDermid has failed to negate each and every claim made by the plaintiffs in their complaint, thus, since MacDermid has failed to meet its initial burden of showing its entitlement to summary judgment and has failed to establish that there is no genuine issue of material fact, no burden shifts to the plaintiffs, as the plaintiffs have no obligation to submit evidentiary documents which establish such an issue. The plaintiffs claim that such words and phrases as, "does not appear," "likely not present," and "unlikely," all of which are employed by Henry in his affidavit, are not sufficiently assertive so as to establish that a genuine issue of material fact is lacking. Moreover, the plaintiffs point out that Henry's investigation and testing on the MacDermid property is, by his own admission, not as yet complete. Most significantly, the plaintiffs refer to the portions of the Henry affidavit that confirm that lead contaminants were found in the soil, groundwater and bedrock of the MacDermid property as alleged in their complaint.
Secondly, the plaintiffs refer to the affidavit of Brian Cutler, which the plaintiffs submitted in opposition to the defendants' motions for summary judgment. Mr. Cutler is a licensed professional engineer and an environmental professional, who is senior vice president for Loureiro Engineering Associates. In his affidavit dated November 17, 2008 (in the form of a letter to plaintiffs' attorney), Mr. Cutler offers his professional opinion that potable water emitted from the well located on the plaintiffs' property is "sourced from the bedrock aquifer" and that "it is more probable than not that some level of heavy metal contamination impacted the bedrock surface" on the MacDermid property. In support of that conclusion, Cutler notes the identification of multiple sources of lead contamination at the MacDermid facility and that the remediation activities, that included "excavation and off-site disposal of impacted soil," were found to extend to the depth of the bedrock surface. In his affidavit, he points out that if, in fact, as reported, the bedrock surface was impacted, groundwater within the bedrock may have been impacted, as the primary transport mechanism in the bedrock would have been through groundwater flow through fractures within the bedrock. He notes however, that assessing the nature and extent of that groundwater flow in the bedrock aquifer is difficult and costly and "would be necessary to support a claim that conditions at 400 Harwinton Avenue have not affected drinking water at 24 Burr Road." In addressing Henry's conclusion that lead detected in the groundwater on the MacDermid property can be explained by suspended sediments in the sample, Cutler points out that the amount of lead detected in MacDermid's groundwater monitoring well was at a level ten times that allowed for potable water. Cutler asserts that Henry's conclusion in this regard is not supported by the engineering data. Notably, Cutler did not perform any on-site investigation of the properties owned by the defendants, however, he did review several engineering reports which were made available to him by plaintiffs' counsel and did review Henry's affidavit. Mr. Cutler's ultimate opinion is that the investigation conducted at the MacDermid site is incomplete and that the data accumulated thus far is insufficient to support Mr. Henry's conclusions that the lead contamination found at various sites on the MacDermid property do not represent a source of the pollution of the plaintiffs' well.
At oral argument, MacDermid's attorney, after reviewing the plaintiffs' memorandum and Cutler's affidavit, argued that all Cutler did was to read some reports, attempt to pick them apart and point out that no one, including the plaintiffs, has investigated the issue of migration. Counsel argued that what Cutler should have done was his own investigation and testing of the sites in order to be able to produce some evidence that indicates that the lead contaminants are actually leaving the MacDermid property and going to that of the plaintiffs. Counsel asserts that simply reading the reports and then critiquing the defendants for not going further to prove that nothing on the plaintiffs' property is coming from the defendants is exactly the reverse of what Cutler should have been doing. Referring to paragraph #3 of Cutler's affidavit, wherein Cutler opines that the groundwater in the bedrock may have been impacted through bedrock fractures, and then cautions that assessing the nature and extent of the flow would be difficult and costly, MacDermid asserts that such an assessment is precisely the job of the plaintiffs; it is not the responsibility of the defendants to disprove the plaintiffs' allegations. It is not up to the defendants to prove that the contaminants are not emanating from the estate property. It is the plaintiff, who must show, by a preponderance of the evidence, that the lead contaminants are coming from one or the other or both of the defendants' properties. MacDermid insists that all Cutler did was to look at some reports and "guess" what was happening, and then tell the defendants that it's up to them to prove that they are not polluting the plaintiffs' well. That is not how our legal system works.
In response, the plaintiff, once again, pointed out that Mr. Henry, the expert hired by MacDermid, made no concrete assertions and reached no definite conclusions, as indicated by the use of indefinite terms referred to above and, as Cutler pointed out, there is no scientific basis for Henry's opinion that the lead that was actually found in the bedrock groundwater samples taken from the MacDermid property was not due to heavy metal contaminants, but was related to suspended sediments, an opinion, with which Cutler is in vehement disagreement.
B. As To The BRR Site
BRR's motion for summary judgment (#117) and its supporting memorandum was filed on October 2, 2008. Those documents were accompanied by an affidavit submitted by John Kerski, who, on May 29, 1998, purchased the property located at 19 Burr Road from a foreclosure committee and who then formed, BRR, the limited liability corporation who currently owns the parcel. Kerski is the managing member of the corporate owner. He states that prior to his purchase of the parcel from the committee, EEW Management, Inc., an environmental firm performed a so-called Phase I environmental assessment and a Phase II site investigation of the property. He states that those reports are attached to his affidavit as "Exhibit A," however, those reports were not found by this court among the documents submitted to it. Nevertheless, for the purposes of this motion, the court will consider Kerski's sworn representation of what those documents reported as true and correct. According to Kerski, EEW concluded from their investigation that the soil at 19 Burr Road was in fact impacted with lead and cadmium and that water samples from the well that was on said property were not acceptable for drinking due to elevated lead levels. He claims, however, that nothing in said reports indicates that any contamination present in the soil or the groundwater at 19 Burr Road has migrated to the plaintiffs' property. He states that the study stresses that the plaintiffs' property is up gradient from the property owned by his corporation. He claims that even though the study was done prior to 1998, since he purchased the property, it has been used for equipment storage and the sale of snowmobile replacement parts. He insists, therefore, that no additional spills or accumulation of lead contaminants would be expected. In summary, Kerski claims that the two studies, conducted over 10 years ago, by the environmental firm, presumably retained by a prior owner or mortgagee, found no evidence of the migration of the lead contaminants to other sites, including the plaintiffs' property at 24 Burr Road.
In its memorandum, BRR reports that its knowledge of the aforementioned studies came about as a result of the discovery undertaken in this case. Plaintiffs provided the EEW reports to BRR. Said defendant asserts that all seven counts against it are based on a claim by the plaintiffs that lead contaminants entered its groundwater, and then migrated from its property, through soil bedrock, surface or groundwater to the plaintiffs' property. Referring to Kerski's affidavit, BRR argues that there is no evidence of such migration contained in the reports prepared by EEW; thus, there is no evidence that the conditions in the plaintiffs' well water at 24 Burr Road, admittedly polluted by lead contaminants, have any relationship to the condition of the soil and groundwater located at 19 Burr Road. In its memorandum, BRR challenges the plaintiffs to produce expert testimony, which it argues, citing Franchey v. Hannes, 155 Conn. 663, 666 (1967), is required when the question involved goes beyond the field of ordinary knowledge and experience of judges and juries. BRR challenges the plaintiff to prove his case by producing expert testimony showing a causal connection between the contaminated conditions on its property and the polluted condition of plaintiffs' well. Said defendant asserts that the, "plaintiffs are unable to produce such evidence" and, due to that inability, BRR is entitled to the entry of a summary judgment.
The plaintiffs respond by making reference to Cutler's affidavit, submitted in response to BRR's challenge which, in addition to addressing the conditions on the MacDermid property, addresses the conditions found on the property owned by BRR. After noting that the soil borings and the water samples taken at that site reveal lead contamination at higher levels than that required for potable water, Cutler concludes that it is erroneous to state that there is no evidence of migration from one property to the other, as the data reviewed by him was accumulated as a result of a study to assess the environmental impact on the property at 19 Burr Road and was not purposed to assess such an impact at 24 Burr Road.
At oral argument, counsel for BRR initially questioned whether Cutler was qualified to provide an expert opinion, however, counsel ultimately accepted the fact that Cutler was licensed and that he employed appropriate engineering terms in his affidavit, and stated that he would not quarrel with Cutler's qualifications for the purposes of this motion. Counsel, however, on BRR's behalf, questioned the content of Cutler's affidavit and argued that it fails to raise an issue of material fact. BRR correctly asserts that the central issue in the case is whether or not lead contaminants migrated from the property owned by MacDermid or BRR to that owned by the plaintiffs, thereby contaminating the plaintiff's well with lead components. BRR argues, however, that Cutler's affidavit fails to produce an issue of fact as to whether or not, there is evidence of that migration, which is the crucial issue in the case. As MacDermid's attorney pointed out, it is the plaintiffs' burden to show concrete evidence of migration. It is not up to either defendant to conduct the type of examination referred to in Cutler's affidavit. BRR claims that there is no assertion of fact in Cutler's affidavit that there is evidence of migration. It is only when such evidence was shown to BRR that it would be compelled to undertake the burdensome and expensive study called for by Cutler.
Plaintiff argues that the fact that lead was found in the drinking water on BRR's property in and of itself is sufficient to survive a motion for summary judgment. That fact is undisputed, as it is admitted by BRR. The genuine issue of material fact that remains, according to the plaintiffs, and that will have to be decided by the trier of fact, is whether or not what was found in the drinking water at 19 Burr Road migrated to 24 Burr Road ending up in the plaintiffs' well water. According to the plaintiffs, the opposing affidavits presented by the parties clearly provide the court with that genuine issue of material fact. BRR's motion for summary judgment should, therefore, be denied.
V. COURT'S ANALYSIS A. The Experts
Central to the arguments made by each of the parties and to the court's decision on the motions for summary judgment are the affidavits of Henry, who is an engineer; Kerski, who summarizes the conclusions and opinions of an environmental report; and Cutler, the plaintiffs' engineer. Thus, the court, in deciding the motions before it, is called upon to assess and critique findings and opinions offered by experts. That is not what the court is supposed to do in considering a motion for summary judgment. The court does not find facts and decide credibility. The court must determine only whether a genuine issue of material fact exists; it is up to the ultimate trier of fact to resolve factual issues and to assess and critique conflicting opinions by experts; it is not the function or the prerogative of the court.
As to expert witnesses, we typically instruct juries to consider a myriad of factors in deciding whether or not to accept an expert's opinion or, if more than one expert, which opinions to except and which to reject. In the most recent Connecticut Civil Jury Instructions, #2.5-3, we charge jurors to consider the following:
In making your decision whether to believe an expert's opinion, you should consider the expert's education, training and experience in the particular field; the information available to the expert, including the facts the expert had and the documents or other physical evidence available to the expert; the expert's opportunity and ability to examine those things; the expert's ability to recollect the activity and facts that form the basis for the opinion; and the expert's ability to tell you accurately about the facts, activity and the basis for the opinion.
We tell them that they should assess the methods employed and the reliability of the result achieved and ask themselves whether an expert's opinion has, "a rational and reasonable basis in the evidence." We then tell the jurors that they may believe all, some or none of the testimony of an expert. Each and every one of the above factors that we regularly submit to jurors for resolution, present questions of fact, not issues of law. In this case, Cutler, an engineer, questions the findings and opinions of another engineer and interprets those findings in a different manner, thereby reaching an opposite conclusion. Which is the correct conclusion is a question for the fact-finder, whether a judge or a jury, to decide; It is not for this court to resolve via the summary judgment vehicle.
B. As To MacDermid
With regard to the MacDermid property, there is no question that lead contaminants were found in the soils and groundwater located at 400 Harwinton Avenue. There is no question that the plaintiffs' well is contaminated with lead components. There is no question that the extensive environmental testing of the property is not as yet completed. These undisputed facts, in and of themselves, could reasonably result in an inference, based upon the allegations in the plaintiffs' complaint, that some of the contaminated lead at 400 Harwinton Avenue has found its way to 24 Burr Road, which is in the neighborhood. Given the undisputed facts, the court is not "clear" as to what the truth is and not convinced that MacDermid had no part in the plaintiffs' contaminated well. Moreover, Henry, by using in his affidavit the uncertain language referred to in making his conclusions, in particular, his opinion that there was no migration of the lead contaminants from the MacDermid property to that of the plaintiffs, does not convince the court that there are no genuine issues of material fact to be resolved. The court agrees with the plaintiffs that MacDermid has failed to negate each claim alleged by the plaintiffs in their complaint and has, therefore, failed to establish that there is no genuine factual issue, i.e., the issue of migration, to be resolved by a trier of fact. The plaintiffs, therefore, had no obligation to submit any documents that would establish such an issue. Baldwin v. Curtis, supra, 105 Conn.App. 850.
Nevertheless, the plaintiff has submitted Cutler's affidavit, which adds to the undisputed facts, at least for the purposes of a motion for summary judgment, the fact that water emitted from the plaintiffs' well comes from the bedrock aquifer; that a monitoring well on MacDermid's property yielded water contaminated with ten times the acceptable lead content; and that it is "more probable than not" that some of that contamination impacted the bedrock surface. Those factors alone can reasonably cause one to infer, as the plaintiffs allege, that some migration of water through the bedrock, which Cutler states is the "primary transport mechanism," might well have occurred via the fractures in the bedrock, as Cutler opines. Clearly, whether the migration occurred from defendant's property to that of the plaintiffs, the manner of such migration and the effect, if any, of the directional locations of the respective properties are questions to be addressed in greater detail by the experts, as they are genuine issues of material fact for the trier of fact to decide. Any engineer, hydrologist or other expert whom the plaintiffs plan to produce at trial will have to provide more convincing evidence of migration to a judge or jury, however, for the purposes of the motion for summary judgment, Cutler's critique, conclusions and opinions clearly raise factual issues, the resolution of which should be left to the trier of fact.
CT Page 1114
C. As To BRR
With regard to the BRR property located on the same street as that of the plaintiffs, there is no question that lead contaminants, above the acceptable limits for human consumption, were found in BRR's well. It is also a fact that the study relied upon by Kerski, BRR's managing member, as the sole basis of his claim that the lead contaminants found at 19 Burr Road, BRR's property, migrated to the plaintiffs' property at 24 Burr Road, is ten years old. As the court stated above, those facts alone could cause one to reasonably infer, based on what is alleged in the plaintiffs' amended complaint, that the contaminated water on BRR's property may have, in some manner, whether via soil, groundwater or bedrock, found its way to the plaintiff's property, thereby polluting the plaintiffs' well with that contaminated water. As with the MacDermid property, this court it is not convinced that BRR played no part in contaminating the plaintiffs' well. The court agrees with the plaintiff that the very fact that a high concentration of lead was found in BRR's water supply, as a result of an environmental study of its property, could, for the purposes of summary judgment, promote a reasonable inference that the BRR contamination is a source of the plaintiffs' polluted well. Whether the hydrology of the two sites and their directional locations could serve as a basis for finding that BRR's contaminated water migrated to the plaintiffs' well is a question of fact, upon which experts need to offer their explanations and opinions, for the trier to determine, after appropriately assessing those opinions. It is not the function of this court in deciding a motion for summary judgment. Whether what was admittedly found in BRR's drinking water a decade ago, due to the hydrology of the area and the flow of water through the bedrock aquifer, to which Cutler refers, made its way over time to the plaintiffs' property, despite the alleged cessation of the use of any lead contaminants by BRR and its tenants, is also a question of fact to be decided by a trier of fact based upon expert testimony. Summary judgment is not an appropriate vehicle to resolve these issues. Again, the plaintiffs would be well advised to offer at trial more substantial evidence of migration, than that opined and critiqued by Cutler in his affidavit in opposition to BRR's motion for summary judgment. At this juncture, however, BRR's motion, as to counts eight through thirteen, is denied, as there are genuine issues of material fact to be resolved.VI. THE STATUTORY COUNTS A. In General
In counts five through seven, the plaintiffs allege that the defendant MacDermid violated several environmental statutes. The same allegations are made against BRR in counts twelve through fourteen. Specifically, counts five and twelve are based upon General Statutes Section 22a-452 which provides for reimbursement of costs incurred by one whose land is negligently polluted by another, including money spent to contain, remove and mitigate the contamination; the statute also provides for the recovery of reasonable attorneys fees. Counts six and thirteen are based upon General Statutes Section 22a-16, which authorizes "any person" to bring an action against an alleged polluter in the superior court for, inter alia, the protection of the public trust in the water of the state from unreasonable pollution, impairment or destruction.
Section 22a-452(a) provides:
Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or other actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby.
The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state.
None of the aforementioned counts are being challenged by either defendant. The defendant MacDermid, however, does challenge count seven of the plaintiffs' amended complaint as being legally deficient in failing to state a viable cause of action. Count seven is based upon General Statutes Section 22a-430. Notably, count fourteen is based upon the same statute, however, BRR has not raised or addressed the issue; nor has the plaintiff chosen to do so!
B. General Statutes Section 22a-430
In brief summary, the statue prohibits any person to discharge any substance into the waters of the state without obtaining a permit from the commissioner of the department of environmental protection and provides a right to a public hearing to any person aggrieved by the commissioner's decision either to grant or to deny a permit. Additionally, sub-section (d) allows the commissioner to ask the attorney general to initiate legal action in order to enforce any abatement order issued by the commissioner. In count seven against MacDermid and count fourteen against BRR, the plaintiffs allege that each defendant discharged contaminants into the waters of the state without obtaining the statutorily required permit and thereby damaged said waters; that the plaintiffs are members of the class of persons that the statute was designed to protect; and the damage sustained was that envisioned by the statute and which the statute was designed to prevent. The plaintiffs further allege that in violating the statute, each defendant was negligent per se and that the plaintiffs have been damaged as a result of that negligence.
C. MacDermid's Claim
In its motion for summary judgment and accompanying memorandum, MacDermid argues that Section 22a-430 does not provide a private right of action to the plaintiffs, as the statute is a regulatory statute intended to benefit all Connecticut residents and grants solely to the commissioner and to no one else the authority to enforce its provisions, with the assistance of the Attorney General. MacDermid asserts that although there is no question that a private citizen can petition the commissioner to conduct a hearing, make findings and issue abatement orders, no direct right to institute a legal action in the superior court is conferred upon anyone other than the commissioner. MacDermid further asserts that the sole purpose of the statute is to set conditions upon which the department of environmental protection may issue discharge permits and that it would be inconsistent with that purpose to conclude that the General Assembly intended to create a private right of action.
Moreover, MacDermid argues that the elements established by our Supreme Court in Napoletano v. CIGNA Healthcare of Connecticut, Inc., 238 Conn. 216, 249 (1996); cert. denied, 520 U.S. 1103 (1997), and more recently stated in Provencher v. Enfield, 284 Conn. 772, 777-78 (2007), have not been established by the plaintiffs. The court has provided a three-pronged test in order to determine if a private right of action could be necessarily implied in a statute that does not expressly provide for such a right:
(1.) Are the plaintiffs in a class for whose benefit the statute was enacted?
(2.) Is there any indication of the legislature's intent, explicit or implicit, either to create or to deny a private remedy?
(3.) Is it consistent with the underlying purpose of the legislative scheme to imply such a remedy?
As noted, MacDermott argues that the third prong is not met in this instance and that the plaintiff has not provided any evidence of legislative intent. As also noted, plaintiff has not addressed this issue in any manner.
D. Court's Analysis
Initially, the court does find that MacDermid's claim in this regard can be properly raised by a motion for summary judgment per Practice Book Section 17-44 et seq., in lieu of a motion to strike per Practice Book Section 10-39(a). In this case, it is highly unlikely that a re-pleading of count seven, and for that matter, count fourteen, could cure the defects alleged by MacDermid, as either the statute does or does not create a private right of action. There is no middle ground or gray area that could be addressed by the plaintiffs through a re-pleading of the allegations. Larobina v. McDonald, 274 Conn. 394, 401-02 (2005).
P.B. Sec. 10-39(a) provides:
Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party or, pursuant to Section 17-56(b), the failure to join or give notice to any interested person, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.
The court does agree with MacDermid that General Statutes Section 22a-430 does not create a private right of action, that its purpose is regulatory and that the sole authority to initiate legal action thereunder is conferred upon the commissioner of environmental protection. The court agrees with MacDermid that if this court were to imply from a thorough reading of the statute that it creates a private right of action in persons such as the plaintiff, such implication would be entirely inconsistent with the statute's purpose. The third prong of the Napaletano test, therefore, cannot be satisfied by the plaintiffs.
Finally, since the allegations in the fourteenth count against BRR are identical to those set forth in the seventh count against MacDermid, the same rationale necessarily applies, therefore, the court will grant MacDermid's motion as to count seven and will, sua sponte, enter summary judgment in favor of BRR on count fourteen.
VII. CONCLUSION
In conclusion, the court, for reasons stated herein, will deny the motions for summary judgment filed by the defendants as to counts one through six (applicable to the estate of John MacDermid) and as to counts eight through thirteen (applicable to Burr Road Realty, LLC) of the plaintiffs' amended complaint dated July 3, 2007. Summary judgment may enter in favor of MacDermid on count seven and in favor of BRR on count fourteen.