Opinion
No. LLI CV 09 4008675S
April 13, 2011
MEMORANDUM OF DECISION
The plaintiffs, Gregory P. Margaitis and Michelle M. Margaitis, own approximately 25 acres of vacant land on the easterly side of Stoddard Road in the defendant, Town of Morris. The defendant maintains drainage culverts beneath Stoddard Road to drain water from the west side of the road in an easterly direction under the road onto the plaintiffs' land. The plaintiffs claim that these drainage culverts are damaging their property and have brought this suit in five counts seeking injunctive relief and money damages. The defendant has moved to strike (#104) the second count (continuing trespass), fourth count (violation of C.G.S. § 13a-138) and fifth count (wanton and wilful disregard of plaintiffs' rights) of the amended complaint dated August 13, 2009. The defendant has also moved to strike paragraph 5 of the prayer for relief claiming punitive damages for attorneys fees. Each will be discussed in turn.
The first count is based upon private nuisance and contains allegations which, if proven, would enable the plaintiffs to obtain injunctive relief and monetary damages. The defendant has chosen not to attempt to strike this count, presumably because C.G.S. Sec. 52-557n(a)(1)(c), specifically provides, in relevant part, that a municipality shall be liable for damages to property caused by the "acts of the political subdivision which constitute the creation participation in the creation of a nuisance." The third count is based upon negligence in failing to cause the least damage to the plaintiffs' property. The defendant has chosen not to attempt to strike this count, presumably because C.G.S. Sec. 52-557n(a)(l)(A) provides, in relevant part, that a municipality shall be liable for the negligent acts of omissions of the municipality or any employee, officer or agent acting within the scope of his employment of official duties.
Second Count
In the second count, the plaintiffs allege that the defendant's diversion of water onto the plaintiffs' land constitutes a continuing trespass which causes irreparable harm. The defendant has moved to strike this count on the ground that trespass is an intentional tort, and the defendant is immune from suit for intentional torts.
C.G.S. § 52-557n(a)(2)(A) provides, in relevant part, that a municipality cannot be liable for damages caused by wilful misconduct of any employee, officer or agent. It is clear that trespass is an intentional tort, Abington Ltd. Partnership v. Talcott Mountain Science Center, 43 Conn.Sup. 424, 427 [ 11 Conn. L. Rptr. 349] (1994), and that intentional means the same thing as wilful, Pane v. Danbury, 267 Conn. 669, 685 (2004) (intentional infliction of emotional distress.) For the same reason, our Appellate Court has held that a municipality cannot be held liable for invasion of privacy because it is an intentional tort which equates to wilful misconduct. O'Connor v. Board of Education, CT Page 9384 90 Conn.App. 59, 65 (2005). Based on these principles, the defendant argues that § 52-557n(a)(2)(A) precludes this claim for trespass because it amounts to wilful misconduct. The defendant also cites a Superior Court decision which applies the reasoning of Pane and O'Connor to a common law trespass claim for damage to the plaintiff's property caused by municipal flood control measures. Donaghy v. Bristol, Superior Court judicial district of New Britain, Docket No. 076001200, (May 20, 2008).
In response to the defendant's argument the plaintiffs make four points. The first is that liability of municipalities for damage to property due to diversion of water from public roads falls within the exemption from immunity provided by the language "[e]xcept as otherwise provided by law . . ." within § 52-557n. The plaintiffs note that the common law of Connecticut permitted claims for damages caused by the municipal collection of surface water from highways and discharge onto private property. Postemski v. Watrous, 151 Conn. 183, 188 (1963); Peterson v. Oxford, 189 Conn. 740, 748 (1983). They also note that § 13a-138 provides a limitation on immunity. The plaintiffs' fourth count is based upon that section. The plaintiffs argue that the court should find that damages arising from the discharge of highway surface water should be considered as "except as otherwise provided by law."
The plaintiffs' second point is that our Supreme Court has stated that: "The defendant next assigns as error the trial court's finding that the town was not immune from liability for damages to the plaintiffs' property. The town contends that it is not liable for consequential damages incident to the discharge of its governmental functions of draining surface waters from its highways and approving subdivisions. The short answer to this claim was set forth by this court in Spitzer v. Waterbury, 113 Conn. 84, 154 A. 157 (1931). Therein, the court noted that `[w]here . . . the plan of construction [adopted] is such as necessarily results in a nuisance to abutting property owners, or is so obviously inadequate as necessarily to result in a direct trespass upon their property, the municipality cannot claim immunity, since such a result would constitute an appropriation of property without compensation. Id., 89, see Southern New England Ice Co. v. West Hartford, 114 Conn. 496, 504, 159 A. 470 (1932).' °" (Emphasis added.) Peterson v. Oxford, 189 Conn. 740, 748-49 (1983). So, under the common law, it appears that both nuisance and trespass were viable causes of action against a municipality for damages caused by the drainage of highways.
The third point raised by the plaintiffs is related to the last point. They argue that count two is exempted from the immunity provided by § 52-557n because the alleged trespass also constitutes the creation of a nuisance which is specifically referred to by § 52-557n(a)(1) as the basis for potential liability.
Finally, the plaintiffs argue that, even if governmental immunity applies to the claim of damages for trespass, it does not apply to the plaintiffs' claim for injunctive relief. By its terms, § 52-557n applies to damages, not injunctive relief. See, C.G.S. § 52-557n(b)(a): a municipality "shall not be liable for damages to person or property . . .")
The plaintiff's are correct that their claim for an injunction based upon trespass is not subject to municipal immunity. I also agree with the plaintiff's argument that their claim for damages based upon trespass is not subject to immunity because claims for damages caused by the discharge of surface waters from municipal highways are "otherwise provided by law." For this reason, the motion to strike is denied as to the second count.
Fourth Count
In the fourth count the plaintiffs allege that the defendant has violated C.G.S. § 13a-138, thereby causing continuing irreparable injury. The defendant moves to strike the fourth count on the ground that it is barred by the fifteen-year limitation period contained within the statute. According to the complaint, the defendant installed the culverts some time in 1973. This suit was commenced by service of process on the defendant on July 13, 2009.
The plaintiffs' response to the defendant's line of attack is to raise a procedural defense: that it is inappropriate to raise a statute of limitations with a motion to strike. This is, of course, the general rule. There are exceptions to this general rule, the only relevant one being where "a statute gives a right of action which did not exist at common law, and fixes the time within which the right must be enforced, the time fixed is a limitation or condition attached to the right — it is a limitation of the liability itself as created, and not of the remedy alone." (Citations omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 240 (1993). But, this exception does not exist in this case because § 13a-138 does not create a right of action which did not exist at common law. As discussed earlier, the common law of Connecticut permitted claims for damages caused by the municipal collection of surface water from highways and discharge onto private property. Postemski v. Watrous, 151 Conn. 183, 188 (1963); Peterson v. Oxford, 189 Conn. 740, 748 (1983). For this reason, these facts do not give rise to an exception to the general rule that a claim that an action is barred by the lapse of the statute of limitations must be pleaded as a special defense, not raised by a motion to strike.
For these reasons, the motion to strike the fourth count is denied.
Fifth Count
In the fifth count the plaintiffs allege that the defendant's failure to remove the drainage culverts constitutes a wanton and wilful disregard of the rights of the plaintiffs. It appears that this count is designed to provide the basis for an award of punitive damages based upon wanton and wilful conduct. The defendant argues that the motion to strike must be granted as to this count because a municipality cannot be liable for damages caused by the wilful misconduct of its agents. The defendant points to C.G.S. § 52-557n(a)(2) which provides, in pertinent part, that "Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or willful misconduct."
In response, the plaintiffs claim that there is nothing which prohibits them from seeking damages arising out of the willful or wanton creation of a nuisance. They point to § 52-557n(a)(1)(C) which provides, in pertinent part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: . . . (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance."
But, the fifth count is not based upon nuisance. It incorporates the first twelve paragraphs of the first count and is based upon nuisance but it omits the thirteenth count which alleges that the actions of the defendant constitute a nuisance. The fifth count is based upon wanton and wilful conduct. This falls squarely within the immunity provided to municipalities by § 52-557n(a)(1)(C)(A). For this reason the motion to strike the fifth count must be granted.
Punitive Damages
Paragraph 5 of the prayer for relief seeks the following relief: "Punitive damages for Plaintiff's Attorneys fees." The defendant moves to strike it on the sole ground that it cannot stand after the motion to strike is granted as to the second and fifth counts. But, the motion to strike has not been granted as to the second count. Therefore, it would remain as a viable prayer for relief even after the motion to strike is granted as to the fifth count. For this reason, the motion to strike the fifth prayer for relief is denied.
Under the common law, punitive damages are recoverable "when the evidence shows a reckless indifference to the rights of others or an intentional and wanton violation of those rights." Vandersluis v. Weil, 176 Conn. 353, 358 (1978).