Michael Campanelli v. The Connecticut Light and Power Company et al. (2011)

MEMORANDUM OF DECISION Re MOTION FOR SUMMARY JUDGMENT

The plaintiff Michael Campanelli commenced this action against the defendants Connecticut Light and Power Company and the Northeast Utility Company, claiming damages as a result of the defendants replacing electric transmission lines and poles on his property.   Since 1926, the defendants had acquired and retained a utility easement over a portion of the plaintiff's property that allows the defendants to maintain electric transmission lines and poles on the designated area of the plaintiff's property which encompasses the easement.   The plaintiff claims that commencing on or about October 2006, the defendants took action to remove and replace the electric transmission lines and poles on the property.   The property prior to the defendants' actions had three sets of structures with lines that carried 115,000 volts.   The defendants replaced those with two new 115,000 volt lines and one new 345,000 volt line on two new sets of structures.   The structures previously were 80 feet high and the new structures are now 105 feet high.

The plaintiff claims that as a result of the defendants' actions, the defendants are liable for damages to the plaintiff's property based on three legal causes of action pleaded in three counts:  1) overburdening of the easement;  2) trespass;  and 3) private nuisance.

The defendants have moved for summary judgment on all three counts.

“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.”  (Internal quotation marks omitted.)  Provencher v. Enfield, 284 Conn. 772, 790–91, 936 A.2d 625 (2007).

“[S]ummary judgment is appropriate only if a fair and reasonable person could conclude only one way ․ [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 direct.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003).

“[T]he ‘genuine issue’ aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citations omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Development Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).

“ ‘Issue of fact’ encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  United Oil Co. v. Urban Development Commission, supra, 158 Conn. 379.

“In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue 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 ․ 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].”  (Internal quotation marks omitted.)  Zielinski v. Kotsoris, 279 Conn. 312, 318–19, 901 A.2d 1207 (2006).

“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.”  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).

The court will review the private nuisance claim first.

The law in Connecticut regarding private nuisance claims was most recently restated and reaffirmed by the Supreme Court in the case of Pestey v. Cushman, 259 Conn. 345, 788 A.2d 496 (2002).   The Supreme Court succinctly stated the basis for a private nuisance claim as follows:

On the basis of our reexamination of our case law and upon our review of private nuisance law as described by the leading authorities, we adopt the basic principles of § 822 of the Restatement (Second) of Torts and conclude that in order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property.   The interference may be either intentional;  Quinnett v. Newman, supra, 213 Conn. 348 (nuisance is created intentionally if defendant intends act that brings about condition found to be nuisance);  or the result of the defendant's negligence.  Id., 348–49.   Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case.   In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable.   No one factor should dominate this balancing of interests;  all relevant factors must be considered in determining whether the interference is unreasonable.

The determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society.   There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference.   Accordingly, the interference must be substantial to be unreasonable.   See 4 Restatement (Second), supra, § 822, comment (g);  W. Prosser & W. Keeton, supra, § 88, p. 626.

Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated.   See Walsh v. Stonington Water Pollution Control Authority, supra, 250 Conn. 458–59;  see also 4 Restatement (Second), supra, § 822, comment (g), and § 826, comment (e);  W. Prosser & W. Keeton, supra, § 88, p. 629.

Id., 360–62.

The crux of a private nuisance claim therefore requires a fact finder to determine whether the acts were intentional or negligent and whether the acts were reasonable under the circumstances.

“[S]ummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.”  (Internal quotation marks omitted.)  Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 111, 639 A.2d 507 (1994).

“Issues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.”  (Internal quotation marks omitted.)  Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984).  “Summary judgment procedure is especially ill-adapted to negligence cases, where ․ the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation ․ [T]he conclusion of negligence is necessarily one of fact ․” (Citations omitted;  internal quotation marks omitted.)  Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975).

Considering both the substantive case law and the standard by which motions for summary judgment must be reviewed, the court concludes that there are issues of material fact requiring adjudication and findings of fact that must be made by the trier of fact.

The defendants argue in their brief that Carroll v. Absolute Tank Removal, 48 Conn.Sup. 166, 830 A.2d 823 (2003) [35 Conn. L. Rptr. 514] distinguishes the Pestey decision and is applicable to this case.   The court finds that Carroll is limited to its facts and is not applicable to this case.

The motion for summary judgment on the private nuisance claim is denied.

As for the trespass claim and overburdening of easement claim, once again, there are material issues of fact regarding intent and reasonableness of the actions taken by the defendants which require factual findings to be made by the trier of fact.

The motion for summary judgment on the trespass and overburdening of easement claims are also denied.

Agati, J.

Agati, Salvatore C., J.