`diti [IN SUPERIOR COURT DOCKET NO.: HHD-CV S J.D. OF HARTFORD JMS NEWBERRY, LLC V. AT HARTFORD

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1 DOCKET NO.: HHD-CV S SUPERIOR COURT JMS NEWBERRY, LLC J.D. OF HARTFORD V. AT HARTFORD KAMAN AEROSPACE CORPORATION, ET AL APRIL 3, 2013 MEMORANDUM OF DECISION RE: MOTIONS FOR SUMMARY JUDGMENT (#125 AND #139) In this action the plaintiff, JMS Newberry, LLC, claims that the grading of property owned by the defendants, Kaman Aerospace Corporation and Kaman Corporation, results in sheet flow water runoff from their property to the JMS property which has resulted in the erosion of soil and banks on the JMS property. JMS claims that Kaman has failed to remedy the unnatural grading of and continues to maintain the grading of the Kaman property. The plaintiff makes claims of private nuisance (Count One), negligence (Count Three), trespass (Count Five), wrongful diversion of surface waters (Count Six), liability under General Statutes 22a-16 (Count Eight), and General Statutes 22a-44(b) (Count Ten) against Kaman.' The other five counts of the eleven count complaint are directed to the defendant the town of Bloomfield. `diti [IN 7L6 '&cd L C. C '1( Lc D

2 Kaman has moved for summary judgment on all claims asserted by JMS against it. JMS has also moved for partial summary judgment on its claims against Kaman. Both parties submitted memoranda and various documents and affidavits in support of their positions and oral argument on the motions was heard by the court on December 17, "Practice Book provides that summary 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. 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... 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... Once the moving party has met its burden [of production]... the opposing party must present evidence that demonstrates the existence of some disputed factual issue... [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which -2-

3 it can be determined, as a matter of law, that a genuine issue of material fact exists.. The presence.. of an alleged adverse claim is not sufficient to defeat a motion for summary judgment." (Citation and internal quotation marks omitted.) The Episcopal Church v. Gauss, 302 Conn. 408, (2011). Based on a review of the pleadings and the evidence submitted, the following facts are undisputed. The Kaman property consists of approximately 86 acres in Bloomfield which is generally bounded to the north by East Newberry Road. Kaman has owned the property since 2008, although it has occupied the property since the 1950s. JMS owns land on the north side of East Newberry Road across the street from the Kaman property. The parties' properties do not abut and East Newberry Road runs between them. Since the 1950s there has been a flight line for helicopter approaches approximately 400 feet wide running adjacent to East Newberry Road on the Kaman property. It is essentially a flat grassy field. Since 1980 neither Kaman nor its predecessor in title have installed any impervious material onto the flight line or graded it to shed water. JMS has been aware that water was coming from East Newberry Road onto its property since at least Water from Kaman's property does not flow onto the JMS property but onto the road. Water runoff from the impervious surfaces on the Kaman property is diverted pursuant to a stormwater plan away from the JMS property. Water runoff coming over East Newberry Road after tropical storm Irene in

4 caused erosion by flooding on JMS' property. Both parties agree that this matter is controlled by the Court's decision in Tide Water Oil Sales Corporation v. Shimelman, 114 Conn. 182 (1932). There the Court held: "A landowner is under no duty to receive upon his land surface water from the adjacent properties, but in the use or improvement of it he may repel such water at his boundary. On the other hand, he incurs no liability by reason of the fact that surface water falling or running onto his land flows thence to the property of others in its natural manner. But he may not use or improve his land in such a way as to increase the total volume of surface water which flows from it to adjacent property, or as to discharge it or any part of it upon such property in a manner different in volume or course from its natural flow, to the substantial damage of the owner of that property." Id., In Page Motor Co. v. Baker, 182 Conn. 484, 488-9(1980), the Court modified these principles by adopting "the rule of reasonable use" which provides that "the landowner, in dealing with surface water, is entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowners, as well as social utility. Ordinarily, the determination of such reasonableness is regarded as involving factual issues to be determined by the trier." (Citation omitted.) It is with these principles in mind that the parties' claims must be considered. -4-

5 Count One - Private Nuisance Utilizing the definition set forth in the Restatement, our Supreme Court has held that in order to establish a private nuisance claim the plaintiff must prove that "(1) there was an invasion of the plaintiffs 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 ntentional and unreasonable, or unintentional and the defendant's conduct was negligent or reckless." Pestey v. Cushman, 259 Conn. 345, 358 (2002). The plaintiff has not identified any evidence that would establish that action on Kaman's part has altered the flow of water from its property resulting in flooding of the plaintiffs property. Robert Pryor, JMS' expert, an engineer and land surveyor, opined in his affidavit that certain grassy areas of the Kaman property are not level and slope towards East Newberry Road and that storm water runoff from this area would flow towards East Newberry Road. In 1986 the Bloomfield Town Engineer referred to a portion of Kaman's lawn draining onto East Newberry Road. In his affidavit, the plaintiffs managing member, Jerome Scharr, states that part of the Kaman property is graded in such a manner that storm water run off from the Kaman property is shed onto East Newberry Road and, under certain conditions, washes over the road onto JMS' property. He also testified at his deposition that the Kaman property is no different than when it was in the early 1970's. He knew -5-

6 of no grading that had occurred on the property since that time. He simply stated that the land dips and that's why the water comes onto his property. He also stated that Kaman's property couldn't absorb a large rainfall so the water rain off the property. From the evidence presented, JMS has established no more that surface water flows from the Kaman property in its natural manner. In addition, as to the cause of the erosion on the plaintiff's land, Pryor opined that in certain storms the catch basins on the road cannot contain the volume of runoff from the Kaman property and when the capacity of the catch basins is exceeded, the water from the road and the Kaman property flows to the JMS property. That water combines with the runoff from the JMS property and existing topography directs the runoff to a steeply sloped area causing erosion of the slope. Such a claim is not actionable under Tide Water and cannot support a claim of intentional and unreasonable, or negligent or reckless conduct, required to support a nuisance claim. In order to prevail on its claim based on either nuisance or trespass, JMS must submit evidence that it can prove that " the defendant has (1) altered the volume or flow of surface water; (2) in a way that has caused injury or irreparable harm." (Citation omitted.) George Street of Middletown, LLC v. Woodgate Condominium Association, Superior Court, Judicial District of Middlesex at Middletown, Docket No. CV (Gordon, 1, Jan. 13, 2004). JMS has not done so. -6-

7 JMS claims that under Falco v. James Peter Associates, Inc., 165 Conn. 442 (1973), the failure of Kaman to repair an alteration after being requested to do so constitutes a private nuisance. JMS claims that "Kaman made an intentional and unreasonable decision to maintain the unnatural grade of its property, despite the fact that damage to the JMS Property would result." JMS Memorandum of Law in Support of Motion for Partial Summary Judgment, 11/6/12, p,9. But JMS has not identified any condition of Kaman's property, other than its natural state, or any alteration of the property by Kaman, which has caused an alleged "unnatural grade." In addition, there is no evidence presented that Kaman was requested by JMS to repair an alteration to its property and did not. The evidence indicates only that Attorney Thomas R. Kasper, on behalf of JMS, alerted Kaman's General Counsel of a "flooding problem." Affidavit of Thomas R. Kasper, paragraph 7. Kasper did not identify any alteration to Kaman's property requiring removal or suggest that any form of correction be made to their property. This case is clearly distinguishable from the facts in Falco. In Falco the defendants' predecessor in title had brought in extensive landfill on the property which altered the natural flow of water, causing water to flow onto the plaintiffs' land instead of away from it. The Falco Court held that: "A landowner cannot use or improve his land so as to increase the volume of the surface waters which flow from it onto the land of others, nor can he discharge surface waters from his land -7-

8 onto the land of others in a different course from this natural flow, if by so doing he causes substantial damage... Moreover, one who maintains such an alteration in his land, though it was created by his predecessor in title, may, after a request to remove it, be held liable for the continuing injury." (Citations and internal quotation marks omitted.) Id, However, the Supreme Court reversed the trial court's decision in Falco as to the issue of damages for two reasons, one of which was that "there [was] no finding that the defendants were given notice, of the condition and thereafter refused to correct it." Id., 446. A finding that the court cannot make here as well. In any event, the court agrees with Kaman's claim that JMS' nuisance claim is barred by the statute of limitations. Pursuant to General Statutes "[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of" "Summary judgment may be granted where the claim is barred by the statute of limitations." (Citations omitted.) Doty v. Mucci, 238 Conn. 800, 806 (1996). Here it is undisputed that Kaman has done nothing to alter its property such as to change the flow of water off of it since at least In opposition to this argument JMS argues that under the decision in Falco the act or omission complained of for purposes of the statute of limitations is the failure of Kaman to alter its property as requested by JMS. But the evidence fails to support that JMS requested that Kaman alter its property in any way but, as noted above, simply advised it of a flooding problem. This is not -8-

9 sufficient to toll the statute of limitations. JMS has not established any act or omission within the last three years that supports its claim of nuisance against Kaman. Count Two - Negligence "To prove negligence, a plaintiff must present sufficient evidence of duty, breach of duty, proximate cause and injury." (Citation omitted.) Morris v. Cee Dee, 90 Conn. App. 403, 417, cert. granted, 275 Conn. 929 (2005) (appeal withdrawn March 13, 2006). JMS claims that under Falco Kaman has a duty to repair on alteration on its land which it did not. However, as noted above, JMS has presented no evidence that Kaman or its predecessor altered the land in such a way as to divert water off its property onto the property of JMS. A review of the evidence submitted by JMS at most indicates that some time in between 1934 and 1951 trees may have been cut down on Kaman's property (see Second Affidavit of Robert P. Pryor, 12/13/12) and that they may mow the grass on the property (see Affidavit of Robert P. Pryor, 10/26/12). This evidence is not sufficient to support JMS' claim of an alteration to the property or that any such alteration increased the volume of water flowing from it. In any event, the court agrees with Kaman that an action for negligence is barred by the statute of limitations. Negligence actions are covered by the statute of limitations set forth in -9-

10 General Statutes That statute provides that: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence.. shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of..." "General Statutes is the statute of limitations applicable in an action to recover damages for njury to the person or property caused by negligence.... That statute imposes two specific time requirements on prospective plaintiffs. The first requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered....the second provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of....the statutory clock on this three year time limit begins running when the negligent conduct of the defendant occurs.. Consequently, an action may be time barred even if no injury is sustained during the three years following a defendant's act or omission." (Citations and internal quotation marks omitted.) Johnson v. Town of North Branford, 64 Conn. App. 643, 648, cert. denied, 258 Conn. 926 (2001). In Johnson the court held that an action based on nuisance and negligence was barred by the statute of limitations where the flooding on the plaintiffs property was caused by the town filling in a swale on -10-

11 neighboring property in 1969 or 70 and the plaintiffs were aware that this was the cause of flooding on their property since 1990, yet did not sue the town until Here the undisputed evidence establishes that Kaman has not altered its property since the 1980s and JMS was aware of flooding coming over its property since the 1980s. Count Five - Trespass "The essentials 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... The invasion, intrusion or entry must be physical.... [B]ecause it is the right of the owner in possession to exclusive possession that is protected by an action for trespass, it is generally held that the intrusion of the property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land... A trespass may be committed on, beneath or above the surface of the earth, which includes soil, water, trees, and other growths....a trespass need not be inflicted directly on another's realty, but may be committed by discharging foreign polluting matter at a point beyond the boundary of such realty." (Citations and internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-8 (2007).

12 JMS claims that by failing to stop the intrusion of water onto its property, Kaman has intentionally trespassed. A review of the evidence presented indicates that Kaman has taken no action which has caused an increase in the flow of water onto JMS' property and therefore JMS cannot support a claim of trespass. Count Six - Wrongful Discharge of Surface Waters JMS relies on the Court's decisions in Tide Water and Falco to support its claim of "wrongful discharge." JMS claims that: "Kaman used the Kaman Property in such a way as to increase the total volume of surface water which flowed from it to the JMS Property in a manner different in volume or course from its natural flow, to the substantial damage of JMS." Complaint, Count Six, paragraph 11. Based on the above discussion, this claim is without merit. In any event, it does not appear that Connecticut courts have recognized "wrongful diversion of surface waters" as a distinct cause of action. Okie v. Becker, Superior Court, Judicial District of Hartford at Hartford, Docket No. HHD CV S (Woods, J., June 5, 2012). Count Eight - Liability Under Connecticut General Statutes 22a-16 General Statutes 22a-16 provides that: ".. any person, partnership, corporation, -12-

13 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...for declaratory and equitable relief against the... 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..." In order to prevail under this statute the plaintiff must prove that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute, impair, or destroy the public trust in the air, water or other natural resources of the state. Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57-8 (1981). In Okie v. Becker, Superior Court, Judicial District of Hartford at Hartford, Docket No. HHD CV S (Woods, 1, June 5, 2012), the court held that: "Diverting surface water off one's property onto another's, thereby causing erosion of that property owner's soil, constitutes impairment of a natural resource. The plaintiff's soil is a protectible natural resource, and the actions of the defendants impair this natural resource." Yet the evidence here does not provide a basis for such a claim. JMS has not presented any evidence which would establish that Kaman is, in fact, diverting surface water off its property. The plaintiff claims that "Kaman's refusal to repair the alteration on its property that leads to the flooding of the JMS property is an actionable offense" under the statute. JMS -13-

14 Memoranudm of Law in Opposition to Motion for Summary Judgment, 10/26/12, p.12. Yet JMS has not identified "the alteration" it claims or what "repair" is necessary to fix it. 2 Without an evidential basis JMS' claim under the statute fails. Count Ten- Liability Under Connecticut General Statutes 22a-44(b) General Statutes 22a-44(b) provides that a person may bring an action to restrain a continuing violation of the statutes regarding inland wetlands. As noted above, JMS has provided no evidence which supports it claim under this statute that "Kaman's acts or omissions resulted in an increased flow of surface water, which led to a nonregulated use of a wetland that disturbed the wetland's natural and indigenous character by deposition of matter, alteration of water flow, and pollution, in violation of Connecticut General Statutes 22a-40. " Complaint, Count Ten, paragraph JMS claims in its brief that the remedy is a "trench designed to store and infiltrate the results of the 100 year storm event, just south of East Newberry Road on the Kaman Property would probably prevent this problem form reoccurring. There is enough space there. " Memorandum of Law in Opposition to Motion for Summary Judgment, 10/26/12, n.1, p. 14, and Memorandum of Law in Support of Motion for Partial Summary Judgment, 11/9/12, p.5. However JMS has presented no evidence that supports this claim. -14-

15 Conclusion "Although the moving party has the burden of presenting evidence that shows the absence of any genuine issue of material fact, the opposing party must substantiate its adverse claim with evidence disclosing the existence of such an issue... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.... The test is whether a party would be entitled to a directed verdict on the same facts." (Citations and internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 217 (1994). Kaman has established that there is no issue of material fact as to JMS' claims against it and that it is entitled to summary judgment. Although JMS repeatedly claims that Kaman is maintaining a condition on its property it identifies as an "unnatural grade," JMS has not pointed to any evidence as to what that is, who created it, or how that condition results in an increase in the flow of water over its property. Without more it cannot prevail. Therefore Kaman's Motion for Summary Judgment (#125) is granted and JMS' Motion for Partial Summary Judgment (#139) is denied. -15-

16 CHECKLIST FOR CLERK Docket Number Cy 17--&0a7&5?-- S Memorandum of Decision dated ' File Sealed: yes no Memo Sealed: yes no This memorandum of Decision may be released to the Reporter of Judicial Decisions for publication. V This Memorandum of Decision may NOT be released to the Reporter of Judicial Decisions for publication.

17 Case Detail )-CV S Page 1 of 5 HHD-CV S LLC v. KAMAN AEROSPACE CORPORATION Et Al Prefix: WOO Case Type: T90 File Date: 12/14/2011 Return Date: 12/20/2011 Case Detail Data Updated as of: 04/03/2013 Case Information Case Type: T90 - TORTS - ALL OTHER Court Location: HARTFORD List Type: JURY (JY) Trial List Claim: 09/14/2012 Referral Judge or Magistrate: Last Action Date: 03/18/2013 (Last Action Date is a data entry date, not actual date) Disposition Date: Disposition: Judge or Magistrate: Disposition Information Parties & Appearances Party No Fee Party P-01 JMS NEWBERRY LLC Attorney: ( ) Data 2114/2011 (),T ' :3103 D-50 KAMAN AEROSPACE CORPORATION Attorney: ri ^- 1 - (049248; 1-o-).) Date: 01'13/2012 CT ) D-51 KAMAN CORPORATION Attorney: : A CULLINA LLP (040248) i. ONE HI)) Date: 01/13/2012 :;_ )) -C1 -,(69 D-52 TOWN OF BLOOMFIELD Attorney: (028228) ih Date, 12121/ G q.) Attorney: N LAW 0001C 0U Fi ) Date: 12128/2011 POAD N. C D-53 ITW CONVERTED PRODUCTS DIVISION OF IL TOOLS WORKS IN Attorney: 101)1:31 - r LLP (419091'; 1, Date 06'0700'2 31;1 41 i=lr Viewing Documents on Civil Cases: Order Documents and Judicial Notices that are electronic on this case can be accessed on this website." Pleadings and other documents that are electronic can be viewed at any Judicial District courthouse and at many Geographical Area courthouses during normal business hours. Documents that are not electronic can be viewed at the Clerk's Office in the Judicial District where the case resides.* ' unless otherwise restricted Motions / Pleadings / Documents Case Status hup://eivi I ilk! uiryj uci.ct.gov/casedetail/publiecasedetail.aspx?docketno HHDClV /3/2013