Jefferson T. Etting et al v. Estate of John T. MacDermid et al (2010)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT, # 139 AND OBJECTION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, # 144

The plaintiffs, Jefferson T. Etting and Rae A. Etting, commenced this action for damages and other relief arising from the contamination of their domestic water supply well against the defendant, the estate of John T. MacDermid (hereinafter “MacDermid”).   The plaintiff's second amended complaint, the operative complaint, alleges that the contamination was caused by discharge of lead, cadmium, and other heavy metals into the soil and groundwater on the defendant's property, formerly the site of a metal plating business.

On January 26, 2010, the defendant filed a motion for summary judgment, pursuant to Practice Book § 17-44, contending that there exists no genuine issue of material fact, and is entitled to judgment as a matter of law with respect to all claims contained in the plaintiffs' complaint.   The plaintiffs filed an objection to the motion for summary judgment.   The court heard oral argument on June 22, 2010.

DISCUSSION

“Practice Book § 17-49 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.”  (Internal quotation marks omitted.)  Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 296 (2008).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issues 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 ․” (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006).  “When 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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45].”  Id.

In ruling on a motion for summary judgment, the court's function is not to decide the issue of material fact, but rather to determine whether any such issues exist.  Nolan v. Borkowski, 206 Conn. 295, 500, 538 A.2d 1031 (1988).   Summary judgment is appropriate only if a fair and reasonable person could conclude only one way, based on the substantive law and the undisputed material facts.  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).

The second amended complaint against the defendant is set forth in six counts.¹  The plaintiffs are owners of property known as 24 Burr Road, Plymouth, Connecticut, and MacDermid is the owner of property known as 400 Harwinton Avenue, Plymouth, Connecticut.   Common to all six counts against the defendant are allegations that the defendant decedent caused the discharge of contaminants into groundwater on the defendant's property at 400 Harwinton Avenue, Plymouth, and that such contaminants reached the plaintiff's property and domestic water supply well at their property at 24 Burr Road, Plymouth.   The defendant's motion for summary judgment attacks the common allegation of proximate causation, arguing that there is no proof that the defendant caused any lead to be in the plaintiffs' drinking water.   The defendant submits two affidavits of Eric Henry, a senior project manager of Kleinfelder East, Inc., a licensed environmental professional.   Henry conduced an on-site investigation of MacDermid's property at 400 Harwinton Avenue, and in an affidavit dated April 3, 2008, opined that “after reviewing the results of various testing of soil samples, testing ground water with on-site wells;  etc., ․ it is my opinion that:  (a) lead concentrations in the soil at the MacDermid property do not likely represent a source of contamination to ground water;  (b) on-site overburden ground water flow is not in the direction of the 24 Burr Road, Plymouth, Connecticut, property;  and lead detected in the bedrock groundwater samples was likely related to suspended sediments present in the sample.”   (Henry Aff. 4/3/08, ¶ 10).

Thereafter, Henry conducted further investigation and examination of the property at 400 Harwinton Avenue property to assess potential lead impact.   Based on his further samples and investigation, and “[b]ased on the historic environmental studies and these recent geologic and hydrogeologic data, it is my professional opinion that the lead present in the potable well at 24 Burr Road, Plymouth Connecticut, does not appear to emanate from the subject site known as 400 Harwinton Avenue, Plymouth, Connecticut.”  (Henry Aff. 1/21/2010, ¶ 9).

In opposition, the plaintiffs rely on the affidavit of Brian A. Cutler, P.E., L.E.P., a senior vice president of Loureiro Engineering Associates, Inc., dated November 17, 2008, and letters of June 24, 2009, and June 7, 2010.   Cutler has conducted his own investigation and the collection of water samples of the plaintiffs' water supply, as well as reviewing Henry's affidavits and the records of the Connecticut Department of Environmental Protection (“DEP”).²  Preliminarily, Cutler concluded that the defendant's property could not be ruled out as a source of contamination of the plaintiffs' domestic water supply well.  (Cutler Affidavit, ¶¶ 1, 2 and 3.)

Cutler went on to conduct his own water sampling and further review of the DEP files.   He found that the plaintiffs' domestic water supply well was contaminated by lead, as well as finding the presence of cadmium.   Although Cutler stated that the defendant's property is “possibly” the source of the residential water supply well contamination, his opinion appears to be well grounded in data in the sampling, testing, investigation and history of the use of the MacDermid property.   Of further note is that Cutler determined that the contaminated residential water supply wells nearby to the defendant's property are “topographically and hydraulically downgradient” from the defendant's property.   This conclusion directly contradicts Henry's conclusion that the groundwater flows away from the plaintiffs' property.   This alone would merit the submission of the issue of proximate causation to the jury.

CONCLUSION

The plaintiffs' opposition papers, including the affidavits and reports, set forth facts that arguably support the issue of proximate causation needed to sustain the causes of action set forth in their complaint.   The court determines that there is competent competing evidence as to material facts.   Viewing the evidence in the light most favorable to the plaintiffs, the court cannot grant summary judgment to the defendant.   The motion for summary judgment is denied.   The objection to the motion for summary judgment is sustained.

Swienton, J.

FOOTNOTES

FN1. The defendant's motion for summary judgment requests summary judgment on the second amended complaint for Counts One through Seven.   Counts Seven through Twelve, however, are against the defendant, Burr Road Realty, LLC. A withdrawal was filed against that defendant on July 15, 2009..  FN1. The defendant's motion for summary judgment requests summary judgment on the second amended complaint for Counts One through Seven.   Counts Seven through Twelve, however, are against the defendant, Burr Road Realty, LLC. A withdrawal was filed against that defendant on July 15, 2009.

FN2. DEP ordered and oversaw a several year site investigation and remediation project on MacDermid's and nearby properties..  FN2. DEP ordered and oversaw a several year site investigation and remediation project on MacDermid's and nearby properties.

Swienton, Cynthia K., J.