Michael Keller et al. v. Town of Southbury (2010)

MEMORANDUM OF DECISION

Briefly stated, the plaintiffs in this matter allege that because the defendant had installed a culvert grate on or near 125 Luna Trail Extension in Southbury, Connecticut the plaintiffs who reside at 115 Luna Trail Extension were harmed on or about November 29, 2005 when, during a heavy rainstorm, leaves and other debris clogged the grate and caused runoff to flow onto the plaintiffs' property and into their home.   In December 2008, the plaintiffs' two-count complaint did not survive the defendant's motion to strike (Agati, J.).   On or about December 17, 2008, the plaintiffs filed an amended complaint alleging nuisance and trespass.   On December 22, 2009, the court granted the defendant's motion for permission to file for summary judgment.

Practice book § 17-49 controls the scope of summary judgment and allows its imposition in those matters where there are no genuine issues as to any material fact.

What strikes the court in its review of the somewhat tortured history of this matter is that the GRATE (emphasis transferred from the plaintiffs' amended complaint of December 17, 2008) installed by the defendant municipality was the framework of the nuisance.   A nuisance is a somewhat broad legal concept but in this context it can be taken as anything that disturbs the reasonable use of a person's property.   Plaintiff Marian Keller testified in her deposition that she did not know when the grate was installed but she first became aware of it in 1999.  (Marian Keller Dep. p. 16.)   The court must consider the nature of the claimed nuisance and weigh it in light of the requirement that a motion for summary judgment can only be sustained by the determination that there is no genuine issue of material fact.

The court on one hand could find that if the installation of the GRATE was the procreation of the nuisance claimed by the plaintiff, it would clearly not withstand a challenge under the statute of limitations.   Summary judgment is particularly appropriate for cases involving the statute of limitations.   Doty v. Mucci, 238 Conn. 800, 806 (1996) Also Burns v. Hartford Hospital, 192 Conn. 451 (1984).   The court is uncertain, however, if the plaintiffs' pleadings allege that the nuisance was the result of the heavy rains of November 29, 2005 which obviously had nothing to do with the defendant.   Or, as an alternative argument, was the nuisance claimed a combination of both?

The court concludes that while there may be a genuine issue of material fact, it is very marginal in these proceedings.   The trier of fact may seriously consider the remedy of a directed verdict when the plaintiffs' case is concluded.   Since it is the duty of the court to view the evidence in the light most favorable to the non-moving party, the court will deny the defendant's motion for summary judgment.

Cronan, J.

Cronan, John F., J.