Rosalyn Liss et al. v. Milford Partners, Inc. et al. (2010)

MEMORANDUM OF DECISION ON MOTIONS FOR SUMMARY JUDGMENT

This case is again before this court for consideration of certain defendants' motions for summary judgment.   The plaintiffs, approximately fifty owners of the 211–unit Caswell Cove Condominiums in Milford, allege in their sixth amended complaint, filed on November 28, 2008, that various individuals and corporations caused or knew about groundwater contamination which resulted in property damage, financial loss and a diminution of property value to the plaintiffs.   The defendant, Jordan Realty, LLC (Jordan), seeks summary judgment on the second count ¹ alleging negligence, the third count alleging nuisance, the sixth count alleging violation of General Statutes § 22a–16 ² and the seventh count alleging trespass.³  The codefendant, BIC Corporation (BIC), also moves for summary judgment on the same four counts as well as on the fifth count alleging strict liability.   The plaintiffs have filed memoranda in opposition to the respective motions and Jordan and BIC also filed memoranda in opposition to each other's motions for summary judgment.   This court heard oral argument on the motions on August 30, 2010.

“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.   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.”  (Internal quotation marks omitted.)  Brown & Brown, Inc. v. Blumenthal, 297 Conn. 710, 721 (2010).

At the heart of both Jordan's and BIC's motions, and common to all counts, is the argument that the plaintiffs cannot prove that the extensive trichlororethylene (TCE) contamination came from either Jordan's or BIC's property or was caused by any of their actions.   Summary judgment can only be granted, however, when there is no genuine issue as to any material fact.   Id. “[T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment ․ [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist.”   (Internal quotation marks omitted.)  Shukis v. Board of Education, 122 Conn.App. 555, 566 (2010) (finding that trial court improperly granted summary judgment because genuine issue of material fact as to whether defendants violated environmental and regulatory scheme and unreasonably polluted plaintiff's pond).

It is indeed possible that Jordan and BIC may succeed on their arguments at trial;  they are, however, improperly asking this court to decide issues of fact.   For instance, Jordan maintained in its memorandum of law, based upon the affidavit of James Beard, member of Jordan, that “Jordan Realty acquired a parcel of vacant land consisting of 80 acres ․ on or about August 20, 1997 ․ The Jordan Realty Property currently consists of approximately 20 acres of vacant land.”   This statement supports Jordan's argument that it could not be responsible for contamination caused prior to its ownership.   Yet, Beard further asserts in his affidavit that he has “had personal knowledge of the use and condition of the Jordan Realty Property since the early 1960s.”   Moreover, he avers that “Jordan Realty, or its predecessor in title, never used, stored or disposed of any chemicals ․ at the Jordan Realty Property” and “never allowed anyone to use, store or dispose of any chemicals ․ the Jordan Realty Property.”  (Emphasis added.)   Countering this statement are reports of fires, evidence of waste dumping, including steel drums, placements of concrete road blocks, site inspection reports, contaminated soil, evidence of a large release of TCE and historical aerial photographs, showing a large portion of denuded vegetation on the parcel.

“To succeed on a motion for summary judgment, [t]he movant must show 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 ․ [A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party ․ [A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  (Emphasis omitted;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).  “The facts as well as the evidence must be viewed in the light most favorable to the nonmoving party.”  Miller v. United Technologies Corp., 233 Conn. 732, 752, 660 A.2d 810 (1995).

In the present case, Beard's testimony is critical and his credibility is for the finder of fact at trial.   See Engram v. Kraft, 83 Conn.App. 782, 788, 851 A.2d 363 (2004).   Genuine issues of material fact exist concerning causation.   Jordan argues that “the plaintiffs cannot factually connect the TCE that was on the Jordan Property to the TCE discovered on the Caswell Cove Property.”   It disputes both the process and the findings by the plaintiffs' expert, Theodore Stevens.   The plaintiffs respond with proffers including, but not limited to, orders and findings of the Connecticut Department of Environmental Protection, groundwater monitoring data, investigatory reports by other groundwater analysts and Stevens' report.   Additionally, BIC's expert, Darrick Jones, stresses that the TCE moved from the Jordan site to the plaintiffs' site not through the overburden groundwater aquifer, but rather through bedrock fractures.   Viewing the facts and the evidence most favorably for the nonmoving party, the motion must be denied.

As mentioned, BIC has also filed its own motion for summary judgment premised, in large part, on its extensive investigation of its own site, which included, some 334 borings, 718 soil samples and 150 groundwater samples, all of which revealed no TCE contamination on its property.   BIC acknowledges that the overburden soils contain low levels of TCE, but it maintains that they are caused by groundwater volatilization similar to that occurring in the plaintiffs' basements.   The plaintiffs counter this motion with Stevens' report and assertions that the TCE was used by BIC and was found in the BIC soil and that the plume from the Jordan property contains a “fingerprint” of 1,1,1 trichloroethane (TCA) and a related 1,1 dichloroethane (DCA), which are not found in the plume emanating from the BIC property.   Jordan presents arguments based upon BIC's admitted historical use of TCE and releases from the BIC site.⁴  Once again, BIC requests this court to find at this point that only one conclusion could be reached.   It declines, as it must, to do that.

Jordan and BIC seek summary judgment on a number of counts, but the material facts at issue apply to all counts whether negligence, nuisance, trespass, strict liability, or violation of § 22a–16.   It has been said that “summary judgment is not well suited to the disposal of complex cases”;  Miller v. United Technologies Corp., supra, 233 Conn. 752;  this is such a case and the motions for summary judgment are, therefore, denied.

Berger, J.

FOOTNOTES

FN1. In their seven-count complaint, the plaintiffs do not assert the first count or the fourth count against Jordan or BIC Corporation.   This court previously struck the fifth count of the fifth amended complaint alleging strict liability against Jordan and BIC in a memorandum of decision on September 29, 2008 [46 Conn. L. Rptr. 439].   The plaintiff appears to have pled over using the same facts in the fifth count of the sixth amended complaint as those previously struck.   Jordan does not seek summary judgment on the strict liability count even though it notes the court's decision of September 29, 2008 in footnote 2 of its memorandum in support of its motion for summary judgment..  FN1. In their seven-count complaint, the plaintiffs do not assert the first count or the fourth count against Jordan or BIC Corporation.   This court previously struck the fifth count of the fifth amended complaint alleging strict liability against Jordan and BIC in a memorandum of decision on September 29, 2008 [46 Conn. L. Rptr. 439].   The plaintiff appears to have pled over using the same facts in the fifth count of the sixth amended complaint as those previously struck.   Jordan does not seek summary judgment on the strict liability count even though it notes the court's decision of September 29, 2008 in footnote 2 of its memorandum in support of its motion for summary judgment.

FN2. Section 22a–16, in relevant part, provides:  “[A]ny person ․ may maintain an action in the superior court ․ for declaratory and equitable relief against ․ 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 ․”.  FN2. Section 22a–16, in relevant part, provides:  “[A]ny person ․ may maintain an action in the superior court ․ for declaratory and equitable relief against ․ 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 ․”

FN3. Jordan also seeks summary judgment concerning plaintiffs, Margaret LaGaipa, Joseph LaGaipa, Deborah Weinstein, John Kucej, Joanne Kucej, Robert Zolcer and Anne Marie Zolczer on the grounds that the applicable statute of limitations, General Statutes § 52–577c, had run, but the matter was not addressed on August 30, 2010 due to timing issues..  FN3. Jordan also seeks summary judgment concerning plaintiffs, Margaret LaGaipa, Joseph LaGaipa, Deborah Weinstein, John Kucej, Joanne Kucej, Robert Zolcer and Anne Marie Zolczer on the grounds that the applicable statute of limitations, General Statutes § 52–577c, had run, but the matter was not addressed on August 30, 2010 due to timing issues.

FN4. The defendants posit that the plaintiffs' argument is simply that either or both defendants are liable since a release or releases occurred and because the plaintiffs' properties are contaminated.  “It is insufficient to merely cite the historical fact of a spill and the present state of contamination, and provide no facts linking the two.”  Buell Industries, Inc. v. Greater New York Mutual Ins., 259 Conn. 527, 557, 791 A.2d 489 (2002).   Nevertheless, the plaintiffs have produced other facts and evidence..  FN4. The defendants posit that the plaintiffs' argument is simply that either or both defendants are liable since a release or releases occurred and because the plaintiffs' properties are contaminated.  “It is insufficient to merely cite the historical fact of a spill and the present state of contamination, and provide no facts linking the two.”  Buell Industries, Inc. v. Greater New York Mutual Ins., 259 Conn. 527, 557, 791 A.2d 489 (2002).   Nevertheless, the plaintiffs have produced other facts and evidence.

Berger, Marshall K., J.