Angela Diaz v. Michael Lonardo et al. (2011)

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Angela Diaz, is the owner of real property known as 80 Clifton Avenue, Ansonia.

The defendant Frank Halpin owns property designated as 72–78 Clifton Avenue, which property is situated west of the Plaintiff's parcel.

This suit was instituted against Michael Lonardo, Frank A. Halpin, and Birm–1 Construction Company, LLC. In a single-count complaint applicable to all defendants, it is claimed that the defendants, either individually or acting through authorized agents, entered upon the Plaintiff's property.   It is alleged that excavation occurred without the permission of the Plaintiff, and that her property was damaged as a result.

The Plaintiff makes a claim for money damages.   She further requests that an injunction issue against Frank A. Halpin.   She claims that water is being permitted to drain from his property on to 80 Clifton Avenue.

Two causes of action are encompassed within the Plaintiff's complaint—trespass and private nuisance.   The Plaintiff further alleges that a drainage conduit was installed on her property, and asks for a mandatory injunction, in order to remove the encroachment.

A review of the file indicates that in 2005, Frank A. Halpin retained Birm–1 Construction Company, LLC, to perform drainage work on the back of his property, 72–78 Clifton Avenue.   He claims that all of the work was performed on his property, and that he did not authorize Birm–1 to enter upon the Plaintiff's property at any time.   The purpose of the work was to tie into a catch basin situated on Pershing Drive.

The Plaintiff maintains that Birm–1 entered upon her property without permission, and installed a conduit for the water, which remains on her property.

She further claims that the conduit and excavation on her property have caused surface water from the Halpin property to drain on to her property and that of the defendant Michael Lonardo, before reaching property under the control of the City of Ansonia.   She contends that the flow of the surface water has been altered, and would not drain across her property, had the drainage work not been initiated by Frank A. Halpin and performed by Birm–1 Construction Company, LLC.

The Defendant, Frank A. Halpin, has moved for summary judgment as to both the trespass and the private nuisance causes of action.   He claims that there exists no evidence to demonstrate that he personally trespassed upon the Plaintiff's property or created a nuisance.

He claims that no liability in either trespass or nuisance may be premised upon vicarious liability.

STANDARD OF REVIEW

A trial court may properly render summary judgment when documentary and other evidence demonstrate that no genuine issue of material fact remains between the parties, and the moving party is entitled to judgment as a matter of law.   Daily v. New Britain Machine Co., 200 Conn. 562, 568 (1986);  Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 11 (1983).   A material fact has been defined as one which will make a difference in the result of the case.   United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 379 (1969).

Connecticut Practice Book § 17–49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law.”

In deciding a motion for summary judgment, a trial court must view the evidence in the light most favorable to the nonmoving party.  Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309 (1978);  Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317 (1984).   The test to be applied is whether the party seeking summary judgment would be entitled to a directed verdict on the same facts.  Batick v. Seymour, 186 Conn. 632, 647 (1982).

A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue.  Connell v. Colwell, 214 Conn. 242, 246 (1990).

Although the purpose of a motion for summary judgment is to test for the presence of contested factual issues, the use of a motion for summary judgment to challenge the legal sufficiency of a complaint is appropriate, where the complaint fails to set forth a viable cause of action, and the defect cannot be cured by re-pleading.  Larobina v. McDonald, 274 Conn. 392, 401 (2005).

TRESPASS TO PROPERTY CLAIM CANNOT BE SUSTAINED

The Plaintiff contends that the Defendant, Frank A. Halpin, committed a trespass, by entering on to her property without right or permission.

In order to prevail in a cause of action for trespass, a plaintiff must prove four essential elements:  1) ownership or a possessory interest in the land, 2) an invasion, intrusion or entry by the defendant, affecting the Plaintiff's exclusive possessory interest, 3) done intentionally, and 4) causing direct injury.  Avery v. Apicer, 90 Conn. 576, 579 (1916);  Abington Ltd. Partnership v. Talcott Mountain Science Center, 43 Conn.Sup. 424, 427–28 [11 Conn. L. Rptr. 349] (1994).

In order to be liable for a trespass, a defendant must intentionally cause some substance or thing to enter upon another's land.   An intrusion on to the land of another, even if supported by negligence, is not a trespass.   Vallancourt v. Southington, 32 Conn. L. Rptr. 191 (May 7, 2002, Aurigemma, J.);   Donaghy v. Bristol, 2008 Conn.Ct.Sup. 8646, 8647 (May 20, 2008, Gilligan, J.).

The measure of damages concerning trespass to real property is the value of the property before the trespass, as compared to its value following the trespass.  Eldridge v. Gorman, 99 Conn. 691, 701 (1908).

Here, there can be no showing that Frank A. Halpin intentionally trespassed on the Plaintiff's property.   The contract with Birm–1 concerned work to be performed exclusively on the Halpin property, and entry on to the Plaintiff's property was not within the scope of the work.   No one acting on behalf of Frank A. Halpin was instructed to perform work on any portion of 80 Clifton Avenue.

In the absence of any evidence of an intentional invasion or intrusion of the Plaintiff's property by Frank A. Halpin, a summary judgment must be granted, as to this trespass count.

However, this does not mean that the Defendant, Frank A. Halpin, necessarily prevails.   The complaint can be read to include the entry of surface water on to 80 Clifton Avenue, resulting from work performed on the property of the Defendant Frank A. Halpin, and at his direction.

A landowner cannot use or improve his land so as to increase the volume of surface water which flows from it, to the land of other, nor can he discharge surface waters from his land on to the land of another in a different course from its natural flow, if by so doing damage to the other property is created.  Taylor v. Conti, 149 Conn. 174, 177 (1962).   A landowner is entitled to take only such steps as are reasonable, in light of all the circumstances of relative advantage to him, and disadvantage to the abutting landowner.  Page Motors Co. v. Baker, 182 Conn. 484, 488–89 (1980).

In order to prevail on this claim, the Plaintiff need not prove that injury to her property was intended by the owner of the abutting parcel.   One who maintains a situation on his land, even though it was created by a predecessor in title, may be liable for a continuing injury.  Falco v. James Peter Associates, Inc., 165 Conn. 442, 446 (1973).

Furthermore, her inability to prosecute a trespass claim against the defendant Frank A. Halpin, does not affect the Plaintiff's claim, concerning the removal from her property of the conduit.   She seeks a mandatory injunction, ordering removal.

Ordinarily, an injunction is available, in a suitable case, to compel the removal of encroachments.  Santopietro v. New Haven 239 Conn. 199, 206–07 (1996).   In determining whether to issue the injunctive relief, a court must balance the injury complained of, with that which will result from the issuance of the injunction.  Walter v. New Hartford, 233 Conn. 155, 158 (1992);  Adams v. Greenwich Water Co., 138 Conn. 205, 218 (1951).

The issue of injunctive relief cannot be disposed of by way of summary judgment.

NUISANCE CLAIM IS A VALID CAUSE OF ACTION

Angela Diaz claims that the alleged presence of the conduit on her property, and the continuing drainage of water on to her property, constitutes a nuisance.

In order to recover damages in a common-law private nuisance cause of action, a plaintiff must demonstrate that the conduct of the defendant was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of her property.  Pesty v. Cushman, 259 Conn. 345, 361 (2002);  4 Restatement (Second) Torts, § 822.   Nuisance involves the breach of a duty by a property owner, to make reasonable use of his property, without occasioning unnecessary damage or annoyance to his neighbor.  Herbert v. Smith, 155 Conn. 78, 82 (1967).   If the use is unreasonable, the law will hold the owner accountable.  Krulikowski v. Polycast Corporation, 153 Conn. 661, 669 (1966);  Nailor v. C.W. Blakeslee & Sons, Inc., 117 Conn. 241, 245 (1933).

The term nuisance refers to the condition that exists, and not to the act or failure to act which created it.   If the creator of the condition intends the act that brings about the condition found to be a nuisance, the nuisance thereby created is said to be absolute, and the creator is strictly liable.   Quinnett v. Newman, 213 Conn. 343, 348 (1990);  DeLahunta v. Waterbury, 134 Conn. 630, 633–34 (1948).   In the context of a private nuisance, intent may be shown by demonstrating that the defendant has continued the condition causing unreasonable interference, with full knowledge that harm to the plaintiff's interests is occurring or is substantially certain to follow.   Pesty v. Cushman, supra, 358;  W. Prosser & W. Keeton, Torts (5th Ed.1984) § 87, p. 622–25.

The proper inquiry concerns control over the property, rather than control over the activity which is claimed to have produced the unreasonable intrusion or invasion of another's property, and any subsequent injury.  State v. Tippets–Abbett–McCarthy–Stratton, 204 Conn. 177, 185 (1987).

Here, the plaintiff claims that a continuing nuisance is present, and that injury to her property has resulted.   She seeks to enjoin the continuation of the alleged nuisance, in addition to her claim for money damages.

There is no question, that work was performed by the defendant, Birm–1, on 72–78 Clifton Avenue, at the request of the property owner, Frank A. Halpin.

Whether a private nuisance was thereby created, whether the nuisance, if proven, is continuing, and whether the Plaintiff Angela Diaz sustained damages, are questions for the trier of fact, which do not lend themselves to summary judgment.

CONCLUSION

The motion for summary judgment is GRANTED, IN PART, as to the claims of trespass.   The motion for summary judgment is DENIED, as it relates to the nuisance claim.

RADCLIFFE, J.

Radcliffe, Dale W., J.