Kenneth Tullo et al. v. Connecticut Container Corp. (2013)

MEMORANDUM OF DECISION

The plaintiffs, Kenneth Tullo, Douglas Amore, Joseph Vicinauza, Yu–Fong Yen and Mark Grey seek monetary damages against the defendant, Connecticut Container Corporation for a private nuisance.¹

The plaintiffs are all North Haven residents who live in a residential neighborhood in close proximity to the defendant's manufacturing facility, located at 455 Sackett Point Road. Beginning in 2007, the plaintiffs complained of a constant and annoying noise coming from the defendant's cardboard manufacturing facility.   The plaintiffs characterize the noise as a distinct and pulsating hum.   Prior to filing this litigation, the plaintiffs repeatedly met with town officials in an attempt to ameliorate the problem.   The plaintiffs also called the police on several occasions to seek enforcement of the local noise control ordinance.   The police confirmed the noise problems on some occasions, while reporting no audible sounds on other occasions.   One month prior to the trial, in early February 2013, the defendant installed noise attenuators to address the noise issue.   As a result, all of the plaintiffs testified at trial that the noise attenuators significantly lowered the noise level in the neighborhood.

The defendant argues that the plaintiffs have not shown, by a preponderance of the evidence, that its conduct was the proximate cause of the alleged nuisance claim.   Specifically, the defendant argues that (1) its own expert witness provided more reliable evidence regarding the loudness of the noise;  (2) there were multiple contributors to the alleged nuisance;  (3) even if the sound came from its facility, the evidence does not support the conclusion that the sound ever amounted to an unreasonable interference with the plaintiffs' use and enjoyment of their property;  (4) any sound emanating from the facility was within permissible limits set by state regulations and the town of North Haven ordinance;  (5) the defendant acted reasonably and responsibly when faced with the plaintiffs' concerns;  and (6) all of the plaintiffs moved into the neighborhood after the defendant had already been open and operating.   The plaintiffs counter by arguing that they have shown, by a preponderance of the evidence, that the noise originated from the defendant's facility and that the sound deprived the plaintiffs' reasonable use and enjoyment of their property.

“A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land ․ The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor ․ The essence of a private nuisance is an interference with the use and enjoyment of land.”  (Internal quotation marks omitted.)  Argentinis v. Fortuna, 134 Conn.App. 538, 558, (2012).  “[I]n 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 ․ or the result of the defendant's negligence.   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 ․”

“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.”  (Citations omitted.)   Pestey v. Cushman, 259 Conn. 345, 361–62 (2002).

For the reasons that follow, the court finds that based on the totality of the evidence presented, the defendant's conduct in the present case was the proximate cause of an unreasonable interference with the plaintiffs' use and enjoyment of their property.   The defendant first argues that the plaintiffs' expert findings are unreliable because he deviated from the standards of the industry when conducting the noise survey.   Specifically, the defendant argues that the plaintiffs' expert did not measure the background noise level and that the time lengths of the measurements were insufficient.   These arguments are unpersuasive.   The data from both the plaintiffs' and the defendant's experts do not conflict in many respects and the experts' opinions are reconcilable to the extent that there are any discrepancies.   For instance, the plaintiffs provided noise surveys by a licensed professional engineer that show a calculated noise level ranging from 49.0 dBA to 54.6 dBA depending on the location.   Likewise, the defendant's own expert also presented evidence of the equivalent steady noise level calculation at up to 53.8 dBA near the vicinity of the plaintiffs' homes.  “The credibility of expert witnesses and the weight to be accorded to their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible.”  (Internal quotation marks omitted.)  Ferri v. Pyramid Construction Co., 186 Conn. 682, 690 (1982).   Here, the court believes that the plaintiffs' expert is equally as credible as the defendant's witness.   Moreover, it is undisputed that regardless of which expert's testimony is more accurate, the level of noise in the plaintiffs' neighborhood exceeds the threshold of hearing, the plaintiffs were adversely affected by the noise and the noise was, at times, higher than the allowed levels for a residential area.

The court also finds that the noise emitted by the defendant amounts to a private nuisance because it created an unreasonable interference with the plaintiff's use and enjoyment of their property.   The evidence shows that the noise levels, on at least several occasions, exceeded the regulatory nighttime overall limit of 45 dBA for residential areas on numerous occasions.   See Regs., Conn. State Agencies §§ 22a–69–2.3 and 22a–69–3.5;  North Haven Code of Ordinances, c. 146, § 4. Moreover, the defendant can be liable for nuisance even if the noise levels do not violate any zoning restrictions.   Herbert v. Smyth, 155 Conn. 78, 83 (1967) (“a use which does not violate zoning restrictions may nonetheless create a common-law nuisance”).

The plaintiffs suffered from the noise for about five years in duration.   Additionally, the plaintiffs and their witnesses testified that the constant noise was not limited to discrete times and often persisted throughout the day and into the night.   This is consistent with other cases where the court found a nuisance to be continuous throughout the day or night, such as the noise emanating from an air conditioner;  Nair v. Thaw, 156 Conn. 445, 447 (1968);  or the truck terminal with a peak activity period from 7 p.m. to 1 a.m.;  O'Neill v. Carolina Freight Carriers Corp., 156 Conn. 613, 615 (1968);  or a “corn cannon” that operates from 7 a.m. to 8 p.m. at five-minute intervals;  Maykut v. Plasko, 170 Conn. 310, 311 (1976);  or a 8 a.m. to 5 p.m. topsoil processing operation;  Iannicelli v. D & R Equipment Corp., Superior Court, judicial district of New Haven, Docket No. CV 97 0398549 (June 13, 1997, Hodgson, J.).   In this case, the extent, continuity and duration of the noise are important factors that is weighed against the defendant.

Furthermore, the plaintiffs live in a residential neighborhood in North Haven and complain that the noise disturbs their sleep when they are in their own homes.   This court heard testimony from fourteen different witnesses with first-hand knowledge of the noise and all of them testified that the noise was disruptive and annoying.   In addition, at least one of the plaintiffs even received medical treatment from the inability to sleep at night because of the constant noise.   These concerns are certainly understandable and are what this court would expect to hear from ordinary residents living in close proximity to a facility that constantly and continuously emits a clearly audible low-frequency hum.   See Jack v. Torrant, 136 Conn. 414, 422 (1950) (court may consider “the degree of discomfort which the conditions complained of would produce in the normal person”).   They amount to a substantial and unreasonable interference with the plaintiffs' use and enjoyment of their property.

The court is cognizant of the fact that the defendant was already open and operating at its present location prior to any of the plaintiffs moving into the neighborhood.   Nonetheless, the ability to have peace and quiet inside one's own home is a minimal requirement for the plaintiffs who live in a residential neighborhood.   Moreover, “it is no defense to an action for nuisance that the plaintiff ‘came to the nuisance’ by knowingly acquiring property in the vicinity of the defendant's premises.”   58 Am.Jur.2d, Nuisance 855 § 372 (2012).   Accordingly, the interest of the plaintiffs' ability to sleep in their own homes outweigh the manufacturing interests of the defendant.

Additionally, the defendant did not take all feasible precautions to avoid unnecessary interference with the plaintiffs' use and enjoyment of their land because the noise attenuators were installed nearly five years after the defendant first learned of the plaintiffs' concerns and a few days before the commencement of this trial.   Clearly, the installation of the noise attenuators was a feasible precaution that the defendant could easily have installed.   Instead of taking any feasible precautions, however, the defendant chose to continue emitting the noise for five years.²  The defendant attempts to argue that it was a good neighbor by meeting with town officials to discuss this issue, sending its employees to investigate the issue, asking for more data to determine the levels of noise emanating from its facility and ultimately installing the noise attenuators.   The evidence shows, however, that the defendant did not take any proactive steps to address this issue until just before the commencement of this trial.   The defendant faults its lack of action on the plaintiffs because they did not provide it with their engineering report detailing the noise.   It was easily feasible, however, for the defendant to obtain its own engineering report.   In fact, it was not until more than a year after the suit was commenced that the defendant finally retained Brooks Acoustics to determine the levels of noise that the plaintiffs complained of.

Finally, the defendant's argument that there were multiple contributors to the noise is also unavailing.   It is undisputed that the defendant's facility emits noise from the various fans and exhausts on its roof.   Thus, the facts in the present case are unlike the facts that the defendant relies on in Weatherwax v. Grumman Hill Montessori, Assn., Inc., Superior Court, judicial district of Fairfield, Docket No. CV 08 5013186 (April 8, 2010, Maiocco, J.T.R.), where the court was not convinced that parked cars on the defendant's land were a substantial factor in causing damage to the plaintiff's property.   In the present case, all of the plaintiffs testified that the noise concerns were abated once the sound attenuators were installed at the defendant's facility.   In addition, the evidence shows that the noise issues significantly subsided when the defendant's facility was closed for ten days after its roof collapsed following a snow storm.   Therefore, there is clear and convincing evidence that the noise was emitted from the defendant's facility.   Accordingly, the court finds that the evidence on the record is sufficient to establish that the defendant's conduct was the proximate cause of the nuisance.

The plaintiffs are entitled to recover damages for discomfort and annoyance in a nuisance claim.   See Herbert v. Smyth, supra, 155 Conn. 84 (damages awarded for discomfort and annoyance reasonably followed from the court's finding of facts relating to nuisance);  Nair v. Thaw, supra, 156 Conn. 453 (“[t]he plaintiff was entitled to recover monetary damages for the physical discomfort and annoyance caused by the defendant's unreasonable use of his air conditioning equipment so far as it materially affected the comfortable enjoyment and occupancy of [the plaintiff's] home and interfered with her use and enjoyment of her property”).   The defendant's arguments in the present case are similar to those raised in Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 41 (1978), where the defendant polluted the plaintiffs' property for eight years.   In that case, the defendant argued, inter alia, that the plaintiffs failed to offer sufficient evidence that the defendant's dump was the proximate cause of the plaintiffs' injuries and that the conditions at the dump had improved by the time the case was tried.  Id., 37, 41.   Our Supreme Court held that the evidence based on the plaintiffs' expert witness was sufficient to find the defendant liable in nuisance.  Id., 37.   The Court allowed the plaintiffs to recover for their physical discomfort and annoyance the amount of $34,000.  Id. The Court found that the award was fair and reasonable based on the level of annoyance, discomfort and inconvenience shown by the plaintiffs.  Id., 41–42.

The defendant cites to Esposito v. New Britain Baseball Club, Inc., 49 Conn.Sup. 509 (2005) [39 Conn. L. Rptr. 320], for the proposition that the plaintiffs' request for damages is excessive.   In that case, the court found the defendant liable for nuisance and issued a permanent injunction.  Id., 304.   The court expressly recognized that the plaintiffs were entitled to damages for their discomfort and annoyance, but awarded only $100 because it concluded that the plaintiffs' primary concern was for future nuisance, which was addressed by the injunctive relief.  Id., 303–04.   Unlike the facts in Esposito, the plaintiffs' primary concern in the present case is not for future nuisance because the defendant had already installed sound attenuators that abated the noise by the time the trial commenced.   In addition, the fact that the plaintiffs did not seek an injunction is further evidence that their primary concern is not for future nuisance.   Instead, the court was presented with a voluminous record regarding the annoyance, discomfort and inconvenience experienced by the plaintiffs for the past five years of continuous nuisance to their property.   The noise was, at times, so annoying that the plaintiffs had difficulty sleeping.   Therefore, it is appropriate in this instance to compensate the plaintiffs for their prolonged discomfort and annoyance.

The nature of nuisance claims makes it difficult to calculate the exact amount of damages.  Filisko v. Bridgeport Hydraulic Co., supra, 176 Conn. 42.   Nonetheless, “[t]he right to relief against a nuisance does not depend on the extent of damages measured by a money standard ․ [T]he person injured ․ may have relief, although the damages are ․ not ascertainable with certainty and precision, or even though no appreciable or actual damages are shown.”   66 C.J.S., Nuisance § 40 (2009).   In other words, the plaintiffs do not need to prove an exact amount of damages when the injury is a result of a nuisance that is not susceptible of exact computation.   See 66 C.J.S., Nuisance § 244 (2009).   Rather, it is sufficient for the plaintiffs to prove that they suffered physical discomfort and annoyance from the nuisance.   Once this is proved, the court has discretion in awarding damages, so long as the compensation is fair and reasonable.  Nair v. Thaw, supra, 156 Conn. 453;  see also Saleh v. Ribeiro Trucking, LLC, 117 Conn.App. 821, 826 (2009), aff'd, 303 Conn. 276 (2011) (“[t]he fact that it is difficult to measure pain and suffering in terms of money does not prevent a recovery ․ as long as there is a reasonable basis in the record for that recovery”).   The plaintiffs in the present case have provided sufficient evidence to show that they suffered physical discomfort and annoyance based on the plaintiffs' testimonies and the numerous police complaints.   Accordingly, the court will award fair and reasonable compensation to the plaintiffs.

For the foregoing reasons, the court finds that the plaintiffs have shown, by a preponderance of the evidence, that the defendant's conduct was the proximate cause of an unreasonable interference with the use and enjoyment of their property.   Applying the holding in Pestey, the defendant's conduct amounted to a private nuisance and the court grants in their favor an injunction compelling the defendant from emitting the constant noise from its facility.   Furthermore, the plaintiffs are entitled to compensation for their prolonged discomfort and annoyance attributed to the noise that was emitted from the defendant's facility and, the court awards each of the plaintiffs $60,000.00 in damages and collectively taxable costs.

Robert I. Berdon

Judge Trial Referee

FOOTNOTES

FN1. Originally the plaintiff sought damages against the defendant for violating the Connecticut Noise Pollution Act, the North Haven City Ordinance, the Connecticut Unfair Trade Practices Act, respectively.   However, these counts were dismissed by the court, Zoarski, J., on the grounds that the plaintiffs do not have a private cause of action under the Connecticut Noise Pollution Act or the North Haven City Ordinance and that there was no business relationship for a valid claim under the Connecticut Unfair Trade Practices Act..  FN1. Originally the plaintiff sought damages against the defendant for violating the Connecticut Noise Pollution Act, the North Haven City Ordinance, the Connecticut Unfair Trade Practices Act, respectively.   However, these counts were dismissed by the court, Zoarski, J., on the grounds that the plaintiffs do not have a private cause of action under the Connecticut Noise Pollution Act or the North Haven City Ordinance and that there was no business relationship for a valid claim under the Connecticut Unfair Trade Practices Act.

FN2. Indeed the defendant's own expert, Mr. Brooks, testified that many of his corporate clients install noise silencers for this type of equipment as a matter of course and that to do so is a common industry practice..  FN2. Indeed the defendant's own expert, Mr. Brooks, testified that many of his corporate clients install noise silencers for this type of equipment as a matter of course and that to do so is a common industry practice.

Berdon, Robert I., J.T.R.