Opinion
No. CV 04-0832671
February 27, 2006
MEMORANDUM OF DECISION ON MOTION TO STRIKE #113.5
On June 14, 2004, the plaintiffs, William H. Jameson and Anne M. Jameson, filed a revised complaint raising seven counts against the defendants, the Town of Newington, the Board of Education of the Town of Newington, Ellen Miller, Principal of Anna Reynolds School, and the Metropolitan District Commission (MDC).
The MDC is sole moving party to the present motion.
By their revised complaint, the plaintiffs allege, in part, that sewage entered and damaged their basement as the result of a blockage originating at the Anna Reynolds School. After initial unsuccessful attempts, the sewage was eventually pumped out of the basement via the plaintiff's washing machine drain by using a submersible electric pump on the same day the sewage was discovered.
Specific to their claim for trespass in count four, the plaintiffs allege that the MDC was responsible for the sewer system and "knew or reasonably should have known that its failure to properly operate, monitor, maintain and repair the sewer system would to a substantial certainty result in the entry of raw sewage on [the] plaintiffs' property." In addition, the plaintiffs allege that "due to the emergency nature of the condition" the MDC had a "duty to act expeditiously to alleviate the condition and to eliminate or reduce the damages" and failed to do so.
Specific to their claim for negligent infliction of emotional distress in count seven, the plaintiffs incorporate the allegations of the preceding counts, and allege further that the MDC "should have known that their actions involved an unreasonable risk of causing emotional distress if a sewage backup were to occur, and that distress, if it were caused, might result in illness or bodily injury." Further, the plaintiffs allege that they "suffered and continue to suffer emotional distress and mental suffering due to the sewage that accumulated within their basement and the damage done to their real and personal property" and that their "quality of life has been and continues to be affected."
Before the court is the MDC's motion to strike counts four and seven of the plaintiffs' revised complaint. The MDC and the plaintiffs filed their respective memoranda in support of and in opposition to the motion to strike.
DISCUSSION
The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Doddv. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "Each motion to strike raising . . . claims of legal insufficiency . . . shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." Practice Book § 10-41.
A. Count Four: Civil Tort of Trespass
The MDC moves to strike count four of the plaintiffs' revised complaint on the ground that it fails to set forth sufficient facts to state a claim for the civil tort of trespass. Specifically, the MDC argues that intent is a necessary element of a trespass claim and that the plaintiffs have failed to allege that the MDC intended for a sewage pipe to clog or intended for sewage from a pipe to overflow and enter the plaintiffs' property and cause property damage. In response, the plaintiffs note that to state a claim for trespass "[i]t is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter" and argue that they have made such an allegation in their revised complaint by stating that the MDC "knew or reasonably should have known that its failure to properly operate, monitor, maintain and repair the sewer would to a substantial certainty result in the entry of raw sewage on [the] plaintiffs' property." The issue, therefore, is whether plaintiffs have sufficiently alleged facts to show the element of intent.
The essential elements of an action for trespass are: "(1) ownership or possessory interest in land by the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive possessory interest; (3) done intentionally; and (4) causing direct injury." (Emphasis added.) Abington Ltd. Partnership v. Talcott Mountain Science Center, 43 Conn.Sup. 424, 427, 657 A.2d 732 (1994), citing Avery v. Spicer, 90 Conn. 576, 579, 98 A.135 (1916). "[I]n order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land." (Emphasis added; internal quotation marks omitted.) Abington Ltd. Partnership v. Talcott Mountain Science Center, supra, 43 Conn.Sup. 427-28, quoting 75 Am.Jur.2d, Trespass § 35. Moreover, "[t]he intention required to make the actor liable for trespass is an intention to enter upon the particular piece of land in question . . . An intrusion on the land of another as a result of negligence is not a trespass." (Citations omitted; internal quotation marks omitted.) Vaillancourt v. Southington, Superior Court, complex litigation docket at New Britain, Docket No. X03 CV01 0510816 (May 7, 2002, Aurigemma, J.) ( 32 Conn. L. Rptr. 191).
Nevertheless, it has been held that "[i]n order that there may be a trespass . . . [i]t is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter [on the property]." (Emphasis added; internal quotation marks omitted.) Ahnert v. Getty, Superior Court, judicial district of New London, Docket No. 537008 (April 4, 1997, Handy, J.); Giunta v. Westport, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 98 0167626 (May 16, 2002, Lewis, J.T.R.) ( 32 Conn. L. Rptr. 232); Mather v. Birken Manufacturing Co., Superior Court, judicial district of Hartford, Docket No. 96 0564862 (December 8, 1998, Hennessey, J.) ( 23 Conn. L. Rptr. 443).
In Mother v. Birken Manufacturing Co., supra, Superior Court, 23 Conn. L. Rptr. 443, the plaintiffs brought a trespass claim arising from contaminants that had migrated from the defendant's property onto the plaintiffs' property. Id., 444. The plaintiffs alleged that the defendant was aware of the contamination on its own property, and argued that it knew with substantial certainty that such contaminated ground water had migrated to the plaintiffs' properties because of reports submitted by the defendant, to the Environmental Protection Agency. Id., 445. Despite this allegation and the plaintiffs' argument, the court struck the trespass claim, stating that "[e]ven when reading the complaint broadly, there are no facts alleged which rise to the level of showing that the defendant knew, or was substantially certain, of the impact its alleged activity had, or would have, on the plaintiffs' property." Id., 445. The court explained further that "[a]lthough the plaintiffs have alleged facts which show that the defendant knew of contaminants on its own . . . the plaintiffs have not sufficiently alleged that the defendant knew with substantial certainty that contaminants would migrate, or had migrated, to the plaintiffs' properties." Id.
On the other hand, in Giunta v. Westport, supra, Superior Court, 32 Conn. L. Rptr. 232, the plaintiffs claimed that the town's failure to cure an odor problem at the town sewage plant constituted trespass. Specifically, the plaintiffs in that case alleged that "intolerable odors . . . invade the [p]laintiffs' [p]roperty." (Internal quotation marks omitted.) Id., 235. The court denied the motion to strike finding this allegation adequate, but declined to comment explicitly on the element of intent, merely stating that "[i]t is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter [on the property]." (Internal quotation marks omitted.) Id., 234.
In Coggins v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV 01-0163783 (July 12, 2001, Doherty, J.), the court was faced with similar facts as in the present case. In that case, the plaintiff alleged that the city "negligently construct[ed] and negligently maintain[ed] the sewer system" which led to the discharge of sewage onto the plaintiff's property. Id. Moreover, the plaintiff alleged that the city, "in the exercise of reasonable care and inspection should have known of the conditions of the sewer system including its propensity to flow into the plaintiff['sl home and should have remedied the same, yet failed to do so." (Internal quotation marks omitted.) Id. Nevertheless, the court struck the trespass claim, explaining that "the plaintiff fail[ed] to sufficiently allege that the defendant intentionally caused the sewage to enter her property. The plaintiff does not allege any facts that the [city] acted intentionally or that it acted with the knowledge that there was a substantial certainty that sewage would enter her property." Id.
In the present case, while the plaintiffs allege that the MDC "knew or reasonably should have known that its failure to properly operate, monitor, maintain and repair the sewer system would to a substantial certainty result in the entry of raw sewage on [the] plaintiffs' property," this allegation without further factual allegations is insufficient to support a claim for trespass.
The motion to strike count four is granted.
B. Count Seven: Negligent Infliction of Emotional Distress
The MDC moves to strike count seven of the plaintiffs' revised complaint, making two arguments in support thereof. First, the MDC argues that Connecticut law does not recognize a claim for negligent infliction of emotional distress arising out of damage to property. Second, the MDC argues that the plaintiffs have failed to sufficiently allege a claim for negligent infliction of emotional distress.
"Although no appellate decision, as yet, deals with a claim for negligent infliction of emotional distress where the damage alleged is injury to property, it is the case that [e]very Superior Court case that has addressed this issue, however, has held that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property." (Internal quotation marks omitted.) Burke v. Boatworks, Inc., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 04 4001838 (July 26, 2005, Jennings, J.); Librandi v. Stamford, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 90 0111346 (March 20, 1991, Ryan, J.) ( 3 Conn. L. Rptr. 364) (no cause of action for emotional distress arising from property damage). Superior courts failing to recognize such a cause of action have found as a matter of law that "[w]here the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Internal quotation marks omitted.) Burke v. Boatworks, Inc., supra, Superior Court, Docket No. CV 04 4004183.
Nevertheless, the plaintiffs argue that their claim for emotional distress does not arise solely from property damage. In support of this argument, the plaintiffs point this court's opinion in Duffy v. Wallingford, 49 Conn.Sup. 109, 862 A.2d 890 (2004). The facts of that case, however, are distinguishable from the present case. In that case, the court denied a motion for summary judgment on an emotional distress claim arising out of an alleged sewage flood. The Duffy court found that the plaintiffs' "claims of emotional distress [arose] from their response to the offensive exposure and continuing risk of exposure to raw sewage, not solely from the damage their property allegedly sustained as a result of the invasion of their home." (Emphasis added.) Id., 123. In reaching this conclusion, the court noted that the "plaintiffs claim not only that their property was damaged as a result of sewage, but also that they suffered physical discomfort and annoyance as a result of the presence of the sewage in their home." (Emphasis added.) Id., 122. Unlike in that case, however, the plaintiffs in the present case fail to allege any substantive discomfort or annoyance created by the flooding, nor do they allege fear from a continued threat of flooding. For this reason, the MDC's motion to strike count seven of the plaintiffs' complaint is granted.
Importantly, in Duffy v. Wallingford, supra, 49 Conn.Sup. 109, the plaintiff alleged that the flooding was an ongoing problem even though the defendant had been made aware of the problem after the initial flooding. Id., 110.
In paragraph 22 of their revised complaint the plaintiffs allege in relevant part: "As a result of the actions of the . . . MDC . . . the plaintiffs have suffered and continue to suffer emotional distress and mental suffering due to the sewage that accumulated within their basement and the damage done to their real and personal property. Their quality of life has been and continues to he affected."
CONCLUSION
The MDC's motion to strike counts four and seven is granted.