DOCKET NO.: HHD-CV-11-6027658 S SUPERIOR COURT

JMS NEWBERRY, LLC J.D. OF HARTFORD

V. AT HARTFORD

KAMAN AEROSPACE CORPORATION, ET AL APRIL 3, 2013

MEMORANDUM OF DECISION RE: MOTIONS FOR SUMMARY JUDGMENT (#125 AND #139)

In this action the plaintiff, JMS Newberry, LLC, claims that the grading of property owned

by the defendants, Kaman Aerospace Corporation and Kaman Corporation, results in sheet flow

water runoff from their property to the JMS property which has resulted in the erosion of soil and

banks on the JMS property. JMS claims that Kaman has failed to remedy the unnatural grading of

and continues to maintain the grading of the Kaman property. The plaintiff makes claims of private

nuisance (Count One), negligence (Count Three), trespass (Count Five), wrongful diversion of

surface waters (Count Six), liability under General Statutes §22a-16 (Count Eight), and General

Statutes §22a-44(b) (Count Ten) against Kaman.'

The other five counts of the eleven count complaint are directed to the defendant the town of Bloomfield.

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Kaman has moved for summary judgment on all claims asserted by JMS against it. JMS has

also moved for partial summary judgment on its claims against Kaman. Both parties submitted

memoranda and various documents and affidavits in support of their positions and oral argument on

the motions was heard by the court on December 17, 2012.

"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. 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. . . 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. . . Once the moving party has met its burden [of production] . . . the opposing party

must present evidence that demonstrates the existence of some disputed factual issue. . . [I]t [is]

incumbent [on] the party opposing summary judgment to establish a factual predicate from which

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it can be determined, as a matter of law, that a genuine issue of material fact exists. . The presence

. . of an alleged adverse claim is not sufficient to defeat a motion for summary judgment." (Citation

and internal quotation marks omitted.) The Episcopal Church v. Gauss, 302 Conn. 408, 421-2

(2011).

Based on a review of the pleadings and the evidence submitted, the following facts are

undisputed. The Kaman property consists of approximately 86 acres in Bloomfield which is

generally bounded to the north by East Newberry Road. Kaman has owned the property since 2008,

although it has occupied the property since the 1950s. JMS owns land on the north side of East

Newberry Road across the street from the Kaman property. The parties' properties do not abut and

East Newberry Road runs between them. Since the 1950s there has been a flight line for helicopter

approaches approximately 400 feet wide running adjacent to East Newberry Road on the Kaman

property. It is essentially a flat grassy field. Since 1980 neither Kaman nor its predecessor in title

have installed any impervious material onto the flight line or graded it to shed water. JMS has been

aware that water was coming from East Newberry Road onto its property since at least 1986. Water

from Kaman's property does not flow onto the JMS property but onto the road. Water runoff from

the impervious surfaces on the Kaman property is diverted pursuant to a stormwater plan away from

the JMS property. Water runoff coming over East Newberry Road after tropical storm Irene in 2011

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caused erosion by flooding on JMS' property.

Both parties agree that this matter is controlled by the Court's decision in Tide Water Oil

Sales Corporation v. Shimelman, 114 Conn. 182 (1932). There the Court held: "A landowner is

under no duty to receive upon his land surface water from the adjacent properties, but in the use or

improvement of it he may repel such water at his boundary. On the other hand, he incurs no liability

by reason of the fact that surface water falling or running onto his land flows thence to the property

of others in its natural manner. But he may not use or improve his land in such a way as to increase

the total volume of surface water which flows from it to adjacent property, or as to discharge it or

any part of it upon such property in a manner different in volume or course from its natural flow, to

the substantial damage of the owner of that property." Id., 18990. In Page Motor Co. v. Baker, 182

Conn. 484, 488-9(1980), the Court modified these principles by adopting "the rule of reasonable

use" which provides that "the landowner, in dealing with surface water, is entitled to take only such

steps as are reasonable, in light of all the circumstances of relative advantage to the actor and

disadvantage to the adjoining landowners, as well as social utility. Ordinarily, the determination of

such reasonableness is regarded as involving factual issues to be determined by the trier." (Citation

omitted.) It is with these principles in mind that the parties' claims must be considered.

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Count One - Private Nuisance

Utilizing the definition set forth in the Restatement, our Supreme Court has held that in order

to establish a private nuisance claim the plaintiff must prove that "(1) there was an invasion of the

plaintiffs use and enjoyment of his or her property; (2) the defendant's conduct was the proximate

cause of the invasion; and (3) the invasion was either ntentional and unreasonable, or unintentional

and the defendant's conduct was negligent or reckless." Pestey v. Cushman, 259 Conn. 345, 358

(2002).

The plaintiff has not identified any evidence that would establish that action on Kaman's part

has altered the flow of water from its property resulting in flooding of the plaintiffs property.

Robert Pryor, JMS' expert, an engineer and land surveyor, opined in his affidavit that certain grassy

areas of the Kaman property are not level and slope towards East Newberry Road and that storm

water runoff from this area would flow towards East Newberry Road. In 1986 the Bloomfield Town

Engineer referred to a portion of Kaman's lawn draining onto East Newberry Road. In his affidavit,

the plaintiffs managing member, Jerome Scharr, states that part of the Kaman property is graded

in such a manner that storm water run off from the Kaman property is shed onto East Newberry Road

and, under certain conditions, washes over the road onto JMS' property. He also testified at his

deposition that the Kaman property is no different than when it was in the early 1970's. He knew

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of no grading that had occurred on the property since that time. He simply stated that the land dips

and that's why the water comes onto his property. He also stated that Kaman's property couldn't

absorb a large rainfall so the water rain off the property. From the evidence presented, JMS has

established no more that surface water flows from the Kaman property in its natural manner. In

addition, as to the cause of the erosion on the plaintiff's land, Pryor opined that in certain storms the

catch basins on the road cannot contain the volume of runoff from the Kaman property and when the

capacity of the catch basins is exceeded, the water from the road and the Kaman property flows to

the JMS property. That water combines with the runoff from the JMS property and existing

topography directs the runoff to a steeply sloped area causing erosion of the slope. Such a claim is

not actionable under Tide Water and cannot support a claim of intentional and unreasonable, or

negligent or reckless conduct, required to support a nuisance claim.

In order to prevail on its claim based on either nuisance or trespass, JMS must submit

evidence that it can prove that " the defendant has (1) altered the volume or flow of surface water;

(2) in a way that has caused injury or irreparable harm." (Citation omitted.) George Street of

Middletown, LLC v. Woodgate Condominium Association, Superior Court, Judicial District of

Middlesex at Middletown, Docket No. CV-01-096955 (Gordon, 1, Jan. 13, 2004). JMS has not

done so.

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JMS claims that under Falco v. James Peter Associates, Inc., 165 Conn. 442 (1973), the

failure of Kaman to repair an alteration after being requested to do so constitutes a private nuisance.

JMS claims that "Kaman made an intentional and unreasonable decision to maintain the unnatural

grade of its property, despite the fact that damage to the JMS Property would result." JMS

Memorandum of Law in Support of Motion for Partial Summary Judgment, 11/6/12, p,9. But JMS

has not identified any condition of Kaman's property, other than its natural state, or any alteration

of the property by Kaman, which has caused an alleged "unnatural grade." In addition, there is no

evidence presented that Kaman was requested by JMS to repair an alteration to its property and did

not. The evidence indicates only that Attorney Thomas R. Kasper, on behalf of JMS, alerted

Kaman's General Counsel of a "flooding problem." Affidavit of Thomas R. Kasper, paragraph 7.

Kasper did not identify any alteration to Kaman's property requiring removal or suggest that any

form of correction be made to their property.

This case is clearly distinguishable from the facts in Falco. In Falco the defendants'

predecessor in title had brought in extensive landfill on the property which altered the natural flow

of water, causing water to flow onto the plaintiffs' land instead of away from it. The Falco Court

held that: "A landowner cannot use or improve his land so as to increase the volume of the surface

waters which flow from it onto the land of others, nor can he discharge surface waters from his land

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onto the land of others in a different course from this natural flow, if by so doing he causes

substantial damage. . . Moreover, one who maintains such an alteration in his land, though it was

created by his predecessor in title, may, after a request to remove it, be held liable for the continuing

injury." (Citations and internal quotation marks omitted.) Id, 445-6. However, the Supreme Court

reversed the trial court's decision in Falco as to the issue of damages for two reasons, one of which

was that "there [was] no finding that the defendants were given notice, of the condition and

thereafter refused to correct it." Id., 446. A finding that the court cannot make here as well.

In any event, the court agrees with Kaman's claim that JMS' nuisance claim is barred by the

statute of limitations. Pursuant to General Statutes §52-577 "[n]o action founded upon a tort shall

be brought but within three years from the date of the act or omission complained of" "Summary

judgment may be granted where the claim is barred by the statute of limitations." (Citations

omitted.) Doty v. Mucci, 238 Conn. 800, 806 (1996). Here it is undisputed that Kaman has done

nothing to alter its property such as to change the flow of water off of it since at least 1986. In

opposition to this argument JMS argues that under the decision in Falco the act or omission

complained of for purposes of the statute of limitations is the failure of Kaman to alter its property

as requested by JMS. But the evidence fails to support that JMS requested that Kaman alter its

property in any way but, as noted above, simply advised it of a flooding problem. This is not

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sufficient to toll the statute of limitations. JMS has not established any act or omission within the

last three years that supports its claim of nuisance against Kaman.

Count Two - Negligence

"To prove negligence, a plaintiff must present sufficient evidence of duty, breach of duty,

proximate cause and injury." (Citation omitted.) Morris v. Cee Dee, 90 Conn. App. 403, 417, cert.

granted, 275 Conn. 929 (2005) (appeal withdrawn March 13, 2006).

JMS claims that under Falco Kaman has a duty to repair on alteration on its land which it did

not. However, as noted above, JMS has presented no evidence that Kaman or its predecessor altered

the land in such a way as to divert water off its property onto the property of JMS. A review of the

evidence submitted by JMS at most indicates that some time in between 1934 and 1951 trees may

have been cut down on Kaman's property (see Second Affidavit of Robert P. Pryor, 12/13/12) and

that they may mow the grass on the property (see Affidavit of Robert P. Pryor, 10/26/12). This

evidence is not sufficient to support JMS' claim of an alteration to the property or that any such

alteration increased the volume of water flowing from it.

In any event, the court agrees with Kaman that an action for negligence is barred by the

statute of limitations. Negligence actions are covered by the statute of limitations set forth in

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General Statutes §52-584. That statute provides that: "No action to recover damages for injury to

the person, or to real or personal property, caused by negligence . . shall be brought but within two

years from the date when the injury is first sustained or discovered or in the exercise of reasonable

care should have been discovered, and except that no such action may be brought more than three

years from the date of the act or omission complained of . . ." "General Statutes § 52-584 is the

statute of limitations applicable in an action to recover damages for njury to the person or property

caused by negligence . . . . That statute imposes two specific time requirements on prospective

plaintiffs. The first requires a plaintiff to bring an action within two years from the date when the

injury is first sustained or discovered or in the exercise of reasonable care should have been

discovered . . . .The second provides that in no event shall a plaintiff bring an action more than three

years from the date of the act or omission complained of .. . .The statutory clock on this three year

time limit begins running when the negligent conduct of the defendant occurs. . Consequently, an

action may be time barred even if no injury is sustained during the three years following a

defendant's act or omission." (Citations and internal quotation marks omitted.) Johnson v. Town

of North Branford, 64 Conn. App. 643, 648, cert. denied, 258 Conn. 926 (2001). In Johnson the

court held that an action based on nuisance and negligence was barred by the statute of limitations

where the flooding on the plaintiffs property was caused by the town filling in a swale on

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neighboring property in 1969 or 70 and the plaintiffs were aware that this was the cause of flooding

on their property since 1990, yet did not sue the town until 1994. Here the undisputed evidence

establishes that Kaman has not altered its property since the 1980s and JMS was aware of flooding

coming over its property since the 1980s.

Count Five - Trespass

"The essentials of an action for trespass are: (1) ownership or possessory interest in land by

the plaintiff; (2) invasion, intrusion or entry by the defendant affecting the plaintiff's exclusive

possessory interest; (3) done intentionally; and (4) causing direct injury. . . The invasion, intrusion

or entry must be physical. . . . [B]ecause it is the right of the owner in possession to exclusive

possession that is protected by an action for trespass, it is generally held that the intrusion of the

property be physical and accomplished by a tangible matter. Thus, in order to be liable for trespass,

one must intentionally cause some substance or thing to enter upon another's land. .. A trespass may

be committed on, beneath or above the surface of the earth, which includes soil, water, trees, and

other growths. . . .A trespass need not be inflicted directly on another's realty, but may be committed

by discharging foreign polluting matter at a point beyond the boundary of such realty." (Citations

and internal quotation marks omitted.) Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 87-8 (2007).

JMS claims that by failing to stop the intrusion of water onto its property, Kaman has

intentionally trespassed. A review of the evidence presented indicates that Kaman has taken no

action which has caused an increase in the flow of water onto JMS' property and therefore JMS

cannot support a claim of trespass.

Count Six - Wrongful Discharge of Surface Waters

JMS relies on the Court's decisions in Tide Water and Falco to support its claim of

"wrongful discharge." JMS claims that: "Kaman used the Kaman Property in such a way as to

increase the total volume of surface water which flowed from it to the JMS Property in a manner

different in volume or course from its natural flow, to the substantial damage of JMS." Complaint,

Count Six, paragraph 11. Based on the above discussion, this claim is without merit. In any event,

it does not appear that Connecticut courts have recognized "wrongful diversion of surface waters"

as a distinct cause of action. Okie v. Becker, Superior Court, Judicial District of Hartford at

Hartford, Docket No. HHD CV 11-6026336-S (Woods, J., June 5, 2012).

Count Eight - Liability Under Connecticut General Statutes §22a-16

General Statutes §22a-16 provides that: " . . any person, partnership, corporation,

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association, organization or other legal entity may maintain an action in the superior court for the

judicial district wherein the defendant is located, resides or conducts business . . .for declaratory and

equitable relief against the . . . 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 . . ." In order to prevail under this statute the plaintiff must prove that the conduct of the

defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to

pollute, impair, or destroy the public trust in the air, water or other natural resources of the state.

Manchester Environmental Coalition v. Stockton, 184 Conn. 51, 57-8 (1981). In Okie v. Becker,

Superior Court, Judicial District of Hartford at Hartford, Docket No. HHD CV 11-6026336-S

(Woods, 1, June 5, 2012), the court held that: "Diverting surface water off one's property onto

another's, thereby causing erosion of that property owner's soil, constitutes impairment of a natural

resource. The plaintiff's soil is a protectible natural resource, and the actions of the defendants

impair this natural resource." Yet the evidence here does not provide a basis for such a claim. JMS

has not presented any evidence which would establish that Kaman is, in fact, diverting surface water

off its property. The plaintiff claims that "Kaman's refusal to repair the alteration on its property that

leads to the flooding of the JMS property is an actionable offense" under the statute. JMS

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Memoranudm of Law in Opposition to Motion for Summary Judgment, 10/26/12, p.12. Yet JMS

has not identified "the alteration" it claims or what "repair" is necessary to fix it. 2 Without an

evidential basis JMS' claim under the statute fails.

Count Ten- Liability Under Connecticut General Statutes §22a-44(b)

General Statutes §22a-44(b) provides that a person may bring an action to restrain a

continuing violation of the statutes regarding inland wetlands. As noted above, JMS has provided

no evidence which supports it claim under this statute that "Kaman's acts or omissions resulted in

an increased flow of surface water, which led to a nonregulated use of a wetland that disturbed the

wetland's natural and indigenous character by deposition of matter, alteration of water flow, and

pollution, in violation of Connecticut General Statutes §22a-40. " Complaint, Count Ten, paragraph

12.

2

JMS claims in its brief that the remedy is a "trench designed to store and infiltrate the results of the 100 year storm event, just south of East Newberry Road on the Kaman Property would probably prevent this problem form reoccurring. There is enough space there. " Memorandum of Law in Opposition to Motion for Summary Judgment, 10/26/12, n.1 , p. 14, and Memorandum of Law in Support of Motion for Partial Summary Judgment, 11/9/12, p.5. However JMS has presented no evidence that supports this claim.

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Conclusion

"Although the moving party has the burden of presenting evidence that shows the absence

of any genuine issue of material fact, the opposing party must substantiate its adverse claim with

evidence disclosing the existence of such an issue.. . In deciding a motion for summary judgment,

the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The

test is whether a party would be entitled to a directed verdict on the same facts." (Citations and

internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 217 (1994). Kaman has

established that there is no issue of material fact as to JMS' claims against it and that it is entitled

to summary judgment. Although JMS repeatedly claims that Kaman is maintaining a condition on

its property it identifies as an "unnatural grade," JMS has not pointed to any evidence as to what that

is, who created it, or how that condition results in an increase in the flow of water over its property.

Without more it cannot prevail. Therefore Kaman's Motion for Summary Judgment (#125) is

granted and JMS' Motion for Partial Summary Judgment (#139) is denied.

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CHECKLIST FOR CLERK

Docket Number

Cy 17--&0a7&5?-- S

Memorandum of Decision dated '1- 3-13

File Sealed: yes no

Memo Sealed: yes no

This memorandum of Decision may be released to the Reporter of Judicial Decisions for publication. V

This Memorandum of Decision may NOT be released to the Reporter of Judicial Decisions for publication.

Case Detail - 1-11- )-CV11-6027658-S Page 1 of 5

HHD-CV11-6027658-S LLC v. KAMAN AEROSPACE CORPORATION Et Al

Prefix: WOO Case Type: T90 File Date: 12/14/2011 Return Date: 12/20/2011

Case Detail

Data Updated as of: 04/03/2013

Case Information

Case Type: T90 - TORTS - ALL OTHER Court Location: HARTFORD

List Type: JURY (JY) Trial List Claim: 09/14/2012

Referral Judge or Magistrate: Last Action Date: 03/18/2013 (Last Action Date is a data entry date, not actual date)

Disposition Information

Disposition Date: Disposition:

Judge or Magistrate:

Parties & Appearances

Party

P-01 JMS NEWBERRY LLC Attorney: (0411162)

(),T ' :3103

No Fee Party

Data 2114/2011

D-50 KAMAN AEROSPACE CORPORATION Attorney: ri ^- 1 - (049248; 1-o-).) Date: 01'13/2012

CT )91033469

D-51 KAMAN CORPORATION Attorney: : •A CULLINA LLP (040248)

i. ONE HI)) Date: 01/13/2012

:;_

)) -C1 -,(69

D-52 TOWN OF BLOOMFIELD Attorney: (028228) ih Date, 12121/201 1

111G q.)

Attorney: N LAW 0001C 0U Fi•) Date: 12128/2011

POAD N. C 06002

D-53 ITW CONVERTED PRODUCTS DIVISION OF IL TOOLS WORKS IN Attorney: 101)1:31 - r LLP (419091';

1 , Date 06'0700'2

31;1 41 i=LR

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Motions / Pleadings / Documents Case Status

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