Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 1 of 40

CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 25 Vaillancourt v. Town of Southington 2002 WL 1293053, 32 Conn. L. Rptr. 191 , Conn.Super., May 07, 2002 Not Reported in A.2d Conn.Super.,2002. May 7, 2002. AURIGEMMA, J. *1 Defendant United Technologies Corporation, Pratt & Whitney Division ("Pratt & Whitney") has moved to strike the First, Third, Fourth, Fifth, Sixth, Seventh and Eighth Counts of the plaintiffs' Revised Complaint dated August 31, 2001. This case involves municipal waste disposal activities that took place several decades ago. The plaintiffs, Richard and Norma Vaillancourt, live on Rejean Road in the Town of Southington. Mr. Vaillancourt purchased the home in 1988. The home is located near the site of a former municipal landfill, a facility which operated for more than forty years until it was closed in 1967. Summary of Allegations The plaintiffs have sued the Town of Southington ("Southington" or "the Town"), on claims concerning Southington's operation of the landfill up to 1967. The plaintiffs also have sued Southington based on claims that, after closing and covering the landfill in 1967, the Town permitted residential and commercial development to occur in areas on and around the former landfill. During its decades of operation, the landfill was the municipally designated facility for disposal of all wastes in Southington. The Town accepted and disposed of a variety of residential, commercial and industrial wastes at the landfill. Pratt & Whitney, along with many other parties, used this landfill for disposal of its wastes, including industrial wastes. The plaintiffs have sued Pratt & Whitney based on claims that Pratt & Whitney used the landfill. The plaintiffs have not sued any of the other former users of the Southington landfill. The Revised Complaint asserts common-law theories of negligence (First, Second and Eighth Counts), nuisance (Fourth Count), trespass (Fifth Count), and strict liability (Sixth Count) to advance plaintiffs' claims for damages based on alleged contamination and/or toxic exposure. The plaintiffs also claim damages for fraud (Seventh Count), alleging that they relied upon false assurances by the Town (and possibly Pratt & Whitney) as to the environmental condition of the former landfill. Discussion of the Law and Ruling The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987). The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 2 of 40

manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986). First Count--Negligent Disposal of Toxic and Hazardous Wastes *2 For purposes of this decision, the following are the relevant allegations by the plaintiffs under their First Count. Plaintiffs allege that Southington "owned and operated" the Old Southington Landfill for about 47 years, from approximately 1920 until the landfill was closed by Southington in 1967. First Count ¶¶ 6, 12. During that period, the Town accepted liquid, solid, and other wastes at the municipal landfill, from a variety of residential, commercial, and industrial sources. Id. at ¶ 8. Among the users of the landfill was Pratt & Whitney. Id. at ¶ 10. Some of the wastes disposed of in the landfill up to 1967, including wastes from Pratt & Whitney, allegedly were "hazardous" and/or "toxic." [FN1] Id. at ¶¶ 9-10. FN1. The Complaint contains various assertions that, up until 1967, "hazardous" or "toxic materials" were disposed of at the landfill. But plaintiffs do not allege that the defendants violated any laws or regulations with respect to "hazardous" materials. During the time the Southington landfill was in operation, the terms "hazardous waste" and "hazardous materials" had no particular meaning. Laws defining "hazardous waste" and regulating its disposal were not enacted until much later. See Connecticut General Statutes § 22a448(3) (1979 Public Acts No. 79-605) (definition of "hazardous waste," referring to definition under 1976 federal law) and Conn. Gen.Stat. § 22a-115 (1980 Public Acts No. 80- 472) (same); see also Connecticut General Statutes § 22a-1331 (1989 Public Acts No. 89-365) (authorizing grants to municipalities "for the clean up of landfills where wastes were disposed of and later determined to be hazardous waste").

Plaintiffs further allege that, after Southington closed the landfill, Southington permitted and allowed residential, commercial and industrial development to occur in the formerly undeveloped areas on and around the landfill site, including the construction of residences on Rejean Road, located to the north of the site, where the plaintiffs now live. First Count ¶ 13-14. Southington allowed this development to occur without requiring the properties to be tested. Id. at ¶ 15. In 1988, plaintiff Richard Vaillancourt purchased a house at 94 Rejean Road, "across [the road] from" the former landfill site. Id. at ¶¶ 3, 7. Ten years later, in 1998, plaintiff Norma Vaillancourt moved to the 94 Rejean Road residence. Id. at ¶ 3. Richard Vaillancourt also owned and operated a welding business which was situated on the former landfill site for over fifteen years. Id. at ¶¶ 53-54 (pp. 15-16). Plaintiffs allege that the defendants were negligent in disposing of "toxic and hazardous substances," in failing to maintain the landfill, in allowing substances to spread, in failing to warn the plaintiffs, and in permitting or encouraging the plaintiffs to live and work on and around the former landfill site. Id. at ¶ 59 (pp. 17-18). Plaintiffs claim that their property has been contaminated by unidentified "chemical runoff from the hazardous and toxic wastes" at the landfill. Id. at ¶ 48 (pp. 14-15). They also claim that they have been personally exposed to unidentified "hazardous chemicals." Id. at ¶ 56 (p. 18). The existence of a duty of care, which is a question of law for the court, is essential to any claim of negligence. Lodge v. Arett Sales Corp., 246 Conn. 563, 571, 717 A.2d 215 (1998). The nature of the duty and the identity of the persons to whom a duty is owed are determined by the specific circumstances surrounding the conduct of the individual. Jaworski v. Kierman, 241 Conn. 399,

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 3 of 40

405, 696 A.2d 332 (1997). Only if a duty is found by the court to exist may the trier of fact consider the question of whether that duty was violated. Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990). To determine the existence of a duty, the court considers: (1) whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that the harm of the general nature of that suffered by the plaintiff was likely to result; and (2) whether, on the basis of public policy, the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. Zamstein v. Marvasti, 240 Conn. 549, 558, 692 A.2d 781 (1997). *3 The first step in the court's duty analysis is to determine the foreseeability of the plaintiff's injury. Jaworski, 241 Conn. at 406. In hindsight, virtually all harms are technically "foreseeable." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 386, 650 A.2d 153 (1994). What is relevant in determining foreseeability is the "attenuation between [the defendant's] conduct, on the one hand, and the consequence to and the identity of the plaintiff on the other hand." RK Constructors, 231 Conn. at 387-88. While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. Waters v. Autuori, 236 Conn. 820, 827-28, 676 A.2d 357 (1996). Thus, a person is required only to take precautions against those dangers that are "reasonably foreseeable." Lodge, 246 Conn. at 577 (emphasis in original). The question of duty is always determined based on the then-existing circumstances. Roy v. Friedman Equip. Co., 147 Conn. 121, 124, 157 A.2d 599 (1960). In Lodge, a fire alarm was falsely reported due to negligence on the part of the defendants. When fire engines responded to the alarm, a fire truck's brakes failed en route, resulting in an accident. The fire engine's brakes had not been properly maintained. Lodge, 246 Conn. at 567-69. The plaintiffs sued the defendants in negligence. The Supreme Court declined to recognize a duty of care between the defendants and the plaintiffs, because the circumstances of the injuries were too far removed from the defendant's conduct. at 577. The court observed that the negligent Id. transmission of a fire alarm did entail some foreseeable risk; id. at 573-74; and that the risk of brake failure by a fire engine was literally or technically "foreseeable." Id. at 576. However, as a matter of law, the court held that that particular risk was not "reasonably foreseeable," and that the brake failure therefore was considered an "unforeseeable consequence." Id. at 577. Lodge further considered the question of duty from a policy perspective, concluding that imposing a duty on the defendants running to the remote plaintiffs would not serve a proper purpose. Id. at 577-86. Here, the link between Pratt & Whitney and the plaintiffs is too attenuated for the plaintiffs' alleged injuries to have been a reasonably foreseeable consequence of Pratt & Whitney's activity when Pratt & Whitney used the landfill. Pratt & Whitney's waste disposal activity took place decades before Richard Vaillancourt purchased his house on Rejean Road. Southington owned and operated the landfill for the purpose of receiving and disposing of wastes from businesses such as Pratt & Whitney. Southington had responsibility to oversee the closure of its landfill in 1967, and plaintiffs do not allege any role by Pratt & Whitney in that process. See First Count ¶ 12. Similarly, plaintiffs allege that it was Southington that decided to open the former landfill site and its nearby areas to development. Id. at ¶ 13-14. Plaintiffs do not allege that Pratt & Whitney had anything to do with those actions by the Town. *4 The Complaint sets forth no facts to support a conclusion that, when Pratt & Whitney used the

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 4 of 40

landfill, it had any reason to anticipate the Town would not operate or maintain this public facility in a safe and proper manner. See Cahill v. Board of Educ ., 198 Conn. 229, 242, 502 A.2d 410 (1985) (public officers are presumed to have performed their duties properly). Nor did Pratt & Whitney have any reason to anticipate any negligence on the part of the Town in closing the landfill in 1967. There is no factual allegation supporting a conclusion that Pratt & Whitney had either the opportunity or the legal authority to control the actions and decisions of Southington. A refuse disposal operation is a governmental function. Wood v. Wilton, 156 Conn. 304, 310, 240 A.2d 904 (1968). Similarly, zoning and development are matters controlled by municipalities. At the time Pratt & Whitney used the landfill, Pratt & Whitney could not reasonably foresee that Southington later would open the area on and around the former landfill site for development. When those decisions later were made by Southington, Pratt & Whitney had no role or involvement. The case of Accashian v. Danbury, 23 Conn. L. Rptr. No. 19, p. 656, 1999 Conn.Super. LEXIS 59 (Conn.Super.Ct. Jan. 8, 1999) (Hodgson, J.), is directly on point. In Accashian, corporate parties which had disposed of wastes at the Danbury municipal landfill were sued in negligence based on claims that the landfill had contaminated neighboring property. The court struck the claims of negligence against the users of the landfill, concluding that such claims failed both the foreseeability test and the public policy test: The first [test], foreseeability, would be satisfied only if an entity paying a fee to deposit waste at a public refuse facility should be expected to investigate the manner in which the municipality operates the facility and foresee that the materials it is accepting will not be stored or processed in an appropriate manner ... It does not seem reasonable, as a matter of law, to impose on a user of a regulated facility the task of foreseeing that the municipality will fail in its duties to comply with applicable standards and to take applicable precautions regarding the waste it accepts and of further foreseeing that managing authorities or regulatory authorities will fail to detect or prevent noncompliance. ... The plaintiffs' claim also fails the public policy test. It is not the public policy of this state to impose on entities disposing of wastes a duty to oversee and regulate the operation of the facilities where the wastes are accepted. Rather, the statutes impose those duties on various environmental protection officials and boards. Accashian, 1999 Conn.Super. LEXIS 59, *5, *7. The Complaint does not contain any facts to support an inference that Pratt & Whitney had any reason to foresee that Southington would not operate, maintain, or close the landfill properly. Pratt & Whitney had no reason to foresee the alleged post-closure actions by Southington to permit or encourage the development of areas on and around the former landfill. Furthermore, the alleged actions or omissions by Southington were not within the scope of any risk reasonably created by any alleged negligence of Pratt & Whitney. As a matter of public policy, this court cannot impose upon Pratt & Whitney the duty to have anticipated such events decades ago, when Pratt & Whitney (like many others) simply used the landfill. Accordingly, because Pratt & Whitney cannot be said to have owed a duty of care to these remote future plaintiffs during the time when Pratt & Whitney used the landfill, the First Count claim of "negligent disposal" against Pratt & Whitney is ordered stricken. *5 To the extent the First Count also may be construed to include claims that Pratt & Whitney had any common-law duty to the plaintiffs arising or continuing sometime after the landfill closed in 1967, the plaintiffs also fail to state a claim. Paragraphs 16-18 of the First Count (pp. 5-

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 5 of 40

6) assert, in conclusory fashion, that Pratt & Whitney "knew," or was "aware," or "should have been aware," of the manner in which Southington closed the landfill, and of the post-closure development and uses subsequently permitted by Southington in the area of the former landfill. A bare assertion that the defendant "knew or should have known" something is simply a claim of negligence, not a sufficient allegation of fact. Ruocco v. United Adver. Corp., 98 Conn. 241, 244, 119 A. 48 (1922); Jerez v. City of Danbury, 2000 Conn.Super. LEXIS 2238 (Conn.Super.Ct. Aug. 25, 2000) (Moraghan, J.). Although plaintiffs allege broadly that "the defendants" were negligent in that "they permitted and actively encouraged people ... to live and work on and around the Site" (First Count ¶ 59(e) (p.18)), there is absolutely no factual allegation supporting any conclusion that Pratt & Whitney was involved in such matters. Conclusory assertions in a pleading, not supported by sufficient allegations of fact, are not sufficient to withstand a motion to strike. Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985); Fortini v. New England Log Homes, Inc., 4 Conn.App. 132, 134-35, 492 A.2d 545, cert. dism'd, 197 Conn. 801, 495 A.2d 281 (1985); P.R.I.C.E. Inc. v. Keeney, 22 Conn. L. Rptr. 373, 1998 Conn.Super. LEXIS 2018, *30-31 (Conn.Super.Ct. July 9, 1998) (Hale, J.) (claim of strict liability stricken where sufficient supporting facts not pleaded). The gravamen of plaintiffs' post 1967 claims against Pratt & Whitney is that Pratt & Whitney became aware of problems with the landfill sometime after 1979, but failed to warn the plaintiffs. See First Count ¶¶ 47, 59(d) (pp. 14, 17). These allegations do not state a claim against Pratt & Whitney in negligence, because Pratt & Whitney had no common-law duty to the plaintiffs. Courts generally will not impose a continuing duty in negligence unless there is evidence of a special relationship between the parties. See e.g., Blanchette v. Barrett, 229 Conn. 256, 275, 640 A.2d 74 (1994) (doctor-patient relationship); Starkweather v. Patel, 34 Conn.App. 395, 400-02, 641 A.2d 809 (1994) (same). Even where a defendant initially may have been negligent in the performance of some act, the defendant generally has no continuing duty to warn. See Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 13, 459 A.2d 115 (1983) (no continuing duty of contractor to safeguard large hole left on construction site); Sanborn v. Greenwald, 39 Conn.App. 289, 297, 664 A.2d 803 (1995) (no continuing duty to warn of negligently prepared stipulation); Nardi v. AA Elec. Sec. Eng'g, Inc., 32 Conn.App. 205, 213, 628 A.2d 991 (1993) (no continuing duty to warn of negligently installed phone jack). *6 To the extent that the First Count might be interpreted as a claim by the plaintiffs that Pratt & Whitney failed to warn them about Southington's alleged negligence, either before or after 1967, the plaintiffs also fail to state a claim. A defendant generally does not have a duty to warn others of the dangers posed by third parties. See Fraser v. U.S., 236 Conn. 625, 627, 674 A.2d 811 (1996) (no duty of medical center to control outpatient to prevent harm to third parties); Kaminski v. Fairfield, 216 Conn. 29, 37, 578 A.2d 1048 (1990) (parents have no duty to warn police officer of child's violent propensity). Due to Pratt & Whitney's lack of a common-law duty running to the plaintiffs either before or after 1967, the First Count of the Complaint is ordered stricken as to Pratt & Whitney. Fourth Count--Nuisance In the Fourth Count, the plaintiffs attempt to pursue a private nuisance claim against both Southington and Pratt & Whitney. The plaintiffs allege that Southington "owned and operated" the landfill, First Count ¶ 6; and that Southington "stored and disposed of" wastes from various residential, commercial and industrial sources. Id. at ¶ 8. Pratt & Whitney, along with others, simply "used" the landfill for disposal of its wastes. Id. at ¶ 10. The plaintiffs allege that both

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 6 of 40

defendants "created" the nuisance "by permitting harmful materials to spread onto and into Plaintiffs' property in an unreasonable manner." Fourth Count ¶ 64 (p. 29). The plaintiffs allege generally that the harms that they claim to have suffered "were caused by the nuisance created, permitted, continued and/or maintained by the Defendants ..." Id. at ¶ 65 (p. 30). In a nuisance case, control over the land claimed to be a nuisance is an essential requisite to liability. State v. Tippetts-Abbett-McCarthy- Stratton, 204 Conn. 177, 185, 527 A.2d 688 (1987) (trial court did not err in refusing to submit nuisance claim to jury, where no evidence to suggest defendant had control over land, even if pleadings considered in light most favorable to plaintiff); Lomangino v. LaChance Farms, Inc., 17 Conn.App. 436, 438-39, 553 A.2d 197 (1989). Where a defendant exercises no control over the land at issue, the court may strike a nuisance count. See Wiehl v. Dictaphone Corp., 10 Conn. L. Rptr. 591, 1994 Conn.Super. LEXIS 44, *3 (Conn.Super.Ct. Jan. 12, 1994) (Maiocco, J.) (granting motion to strike nuisance count against former lessee for disposal of hazardous wastes, where no control over land shown). Here, the plaintiffs do not allege that Pratt & Whitney actually exercised control over the landfill. Although the Fourth Count purports to claim broadly that both defendants "created" or "maintained" a nuisance, that allegation is insufficient. It is clear from the complaint that Southington operated and controlled this landfill as a public refuse disposal facility and a municipal service. See Wood v. Wilton, 156 Conn. 304, 310, 240 A.2d 904 (1968). In the Tippetts case, supra, the defendants had contracted with the State of Connecticut to maintain the Mianus River Bridge, portions of which collapsed in 1983. 204 Conn. at 178-79. The State alleged that, by failing to properly construct and maintain the bridge, the defendants had created a nuisance. Id . The Supreme Court held that while the defendants were delegated a degree of control over the bridge for purposes of construction and maintenance, the "ultimate" control over the bridge was always with the State, and thus the defendants were not liable in nuisance. Id. at 186. Here, since control over the Southington landfill always rested with its owner and operator, the Town of Southington, Pratt & Whitney cannot be liable in nuisance as a matter of law. The Fourth Count is ordered stricken as to Pratt & Whitney. Fifth Count--Trespass *7 In the Fifth Count, the plaintiffs claim trespass, alleging that unidentified toxic and hazardous substances "escaped" from the landfill and migrated to the plaintiffs' property. Fifth Count ¶ 62 (p. 31). The essential elements of a trespass are: (1) the plaintiffs ownership or possessory interest in the land; (2) an invasion by the defendant which affects the plaintiff's ownership or possessory interest; (3) that such invasion was "done intentionally"; and (4) damages. See Abington Ltd. P'ship v. Talcott Mountain Science Ctr. for Student Involvement Inc., 43 Conn.Sup. 424, 427, 11 Conn. L. Rptr. 349 (Super.Ct.1994). Here, plaintiffs fail to plead the intentionality element. "The intention required to make the actor liable for trespass is an intention to enter upon the particular piece of land in question." Ike's Auto Body, Inc. v. Martin, 1995 Conn.Super. LEXIS 3628 *13 (Conn.Super.Ct. Dec. 22, 1995) (Pickett, J.); see also Kramer v. Ordway, Conn.Super. LEXIS 3082, *3 (Conn.Super.Ct. Nov. 30, 1994) (Lewis, J.) ("[I]n order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land"); Caltabiano v. Jimmo, 1995 Conn.Super. LEXIS 1334, *19 (Conn.Super.Ct. May 5, 1995) (Higgins, J.) (intent to do that which causes the invasion is a required element of trespass). An intrusion on the land of another as a result of negligence is not a trespass. Walsh v. Stonington Water Pollution Control Auth., 1996 Conn.Super. LEXIS 1461 (Conn.Super.Ct. June

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 7 of 40

5, 1996) (Hurley, J.) (granting summary judgment). Even where EPA and DEP are alleged to have issued notices of environmental violations to the defendant, a claim based on trespass may be stricken for failure to show the requisite intent. Mather v. Birken Mfg. Co., 23 Conn. L. Rptr. 443, 1998 Conn.Super. LEXIS 3669 (Conn.Super.Ct. Dec. 8, 1998) (Hennessey, J.). In Accashian v. Danbury, 23 Conn. L. Rptr. 656, 1999 Conn.Super. LEXIS 59 (Conn.Super.Ct. Jan. 8, 1999) (Hodgson, J.), the City of Danbury and several corporations which had used the city landfill to dispose of wastes were sued for trespass because chemicals allegedly leached from the landfill onto the plaintiffs' neighboring properties. The court granted the corporate defendants' motion to strike the trespass claim, holding that a user of a municipal landfill cannot be liable in trespass. Since the corporate defendants are not alleged to have operated the landfill or decided how their materials were to be handled or processed, they cannot be said to have had any basis for certainty, substantial or otherwise, as to the likelihood that any substance from their materials would invade neighboring properties by air or water or soil. Accashian, 1999 Conn.Super. LEXIS 59, at *9-*10. Here, plaintiffs broadly allege that the defendants "caused and allowed" substances to escape from the landfill. Fifth Count ¶ 62 (p. 31). The plaintiffs also allege that the escaping substances included "vapors" (Fifth Count ¶ 62 (p. 31)), but a claim relating to "vapors" does not lie in trespass. A trespass claim must allege the invasion of plaintiff's property by tangible matter. See Abington Ltd. Partnership, 43 Conn.Sup. at 428, 11 Conn. L. Rptr. 349 ("Generally, all intangible intrusions, such as noise, odor, or light [alone], are dealt with as nuisance cases, not trespass"); Kramer v. Ordway, supra, 1994 Conn.Super. LEXIS at 3082, *3 ("[I]t is generally held that intrusion of the property be physical and accomplished by a tangible matter"); Pestey v. Cushman, 13 Conn. L. Rptr. 217, 1994 Conn.Super. LEXIS 3275, *9 (Conn.Super.Ct. Dec. 15, 1994) (Hurley, J.) (rejecting a trespass claim based on farm odor, court held that, "[a]bsent some direct or indirect physical invasion or deposit of some substance onto the Pesteys' land, there is no recognizable action in trespass"). *8 The plaintiffs also allege, without factual elaboration, that the defendants "knew or in the exercise of reasonable care should have known" that substances "released from the Site would enter the land of others, including the plaintiffs." Id. at ¶ 63. The plaintiffs cannot satisfy the element of intent based only upon these conclusory allegations. Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985); Fortini v. New England Log Homes, Inc., 4 Conn.App. 132, 134-35, cert. dism'd, Conn. 801 (1985). A bare assertion that a defendant "knew or should have known" 197 something is a claim of negligence only, not a factual allegation of actual knowledge. Ruocco v. United Advertising Corporation, 98 Conn. 241, 244 (1922); Jerez v. City of Danbury, 2000 Conn.Super. LEXIS 2238 (Conn.Super.Ct. Aug. 25, 2000) (Moraghan, J.). The plaintiffs have not pleaded any facts which would support a conclusion that Pratt & Whitney intended, prior to 1967, that wastes which Pratt & Whitney disposed of at the landfill would migrate to the property of these remote future plaintiffs decades later. Indeed, by plaintiffs' own allegations, it was not until "[b]etween 1979 and 1983" that the defendants first "learned" that substances from the former landfill allegedly were affecting other properties. First Count ¶ 48 (p. 14). Because plaintiffs have not pled the required element of intent as to Pratt & Whitney, the Fifth Count is ordered stricken as to Pratt & Whitney. Sixth Count--Strict Liability In the Sixth Count, the plaintiffs claim that the "handling, burning, burying and disposing" of unspecified "toxic and hazardous substances" at the landfill prior to 1967 was "an ultra-

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 8 of 40

hazardous activity" for which the defendants should be strictly liable. Sixth Count ¶¶ 62, 65 (pp. 34, 35). To prevail in a claim of strict liability under Connecticut law, a plaintiff must prove, among other things, that the defendant engaged in activity that was so dangerous it was unsafe even with the exercise of due care. Specifically: To impose liability without fault, certain factors must be present: an instrumentality capable of producing harm; circumstances and conditions in its use which, irrespective of a lawful purpose or due care, involve a risk of probable injury to such a degree that the activity fairly can be said to be intrinsically dangerous to the person or property of others; and a causal relation between the activity and the injury for which damages are claimed. Caporale v. C.W. Blakeslee & Sons, Inc., 149 Conn. 79, 85, 175 A.2d 561 (1961) (emphasis added). Connecticut courts have applied the factors listed in the Restatement (Second) of Torts to determine whether an activity is abnormally dangerous so as to give rise to strict liability. Those factors are the: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. *9 Green v. Ensign-Bickford Co., 25 Conn.App. 479, 486, 595 A.2d 1383 (1991) (emphasis added) (quoting Restatement (Second) of Torts § 520). The Connecticut Appellate and Supreme Courts have recognized abnormally dangerous activity giving rise to strict liability only with respect to blasting, pile driving and research with explosives. See, e.g., Whitman Hotel Corp. v. Elliott & Watrous Eng'g Co., Conn. 562, 565, 137 79 A.2d 591 (1951) (blasting); Caporale, 149 Conn. at 85-86 (pile driving); Green, 25 Conn.App. at 482-83 (research with explosives). In Accashian v. City of Danbury, No. XO1CV-97-0147228-S, 23 Conn. L. Rptr. 648, 1999 Conn.Super. LEXIS 36 (Conn.Super.Ct. Jan. 6, 1999) (Hodgson, J.), the court held that operation of a landfill is not ultrahazardous because "[s]tate and regulatory schemes suggest that these [disposed] materials do not pose a hazard if handled properly." Id. at *20-21 (citing Conn. Gen.Stat. §§ 22a-114 through 134q). Judge Hodgson articulated that conclusion three times in consideration of the Accashian litigation. See 23 Conn. L. Rptr. 656, 1999 Conn.Super LEXIS 59, at *7-8 (Conn.Super. Jan. 8, 1999); 26 Conn. L. Rptr. 287, 2000 Conn.Super. LEXIS 168, at *4 (Conn.Super.Ct. Jan. 27, 2000); and 23 Conn. L. Rptr. 648, 1999 Conn.Super. LEXIS 36, supra, injury," id. at *17. Other courts have reached the same conclusion with respect to storage of hazardous materials. See, e.g., Goodrich v. Jennings, No. 150074, 19 Conn. L. Rptr. 542, 1997 Conn.Super. LEXIS 1399, at *78 (Conn.Super.Ct. May 22, 1997) (Mintz, J.) (storage of gasoline in an underground tank is not an ultrahazardous activity); Nielsen v. Sioux Tools, Inc., 870 F.Sup. 435, 442 (D.Conn.1994) (refusing to impose strict liability for leaking underground tank); Arawana Mills Co. v. United Techs. Corp., 795 F.Sup. 1238, 1251 (D.Conn.1992) ("I am persuaded that if given the opportunity to expand the narrowly-construed concept of ' ultrahazardous' or 'abnormally dangerous' activity to storage and use of hazardous wastes, the Connecticut Supreme Court would decline to do so"); Bernbach v. Timex Corp., 989 F.Sup. 403, 407 (D.Conn.1996) (declining to extend strict liability to the handling of hazardous wastes).

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 9 of 40

The plaintiffs allege that the disposal of toxic and hazardous materials was an ultra-hazardous activity, subjecting persons coming into contact with said substances and materials to a severe risk of personal injury, regardless of the degree of caution they might have exercised. (Sixth Count, ¶ 62.) In other words, they plead that the OSL should be found to be ultrahazardous because it involved materials that would cause severe harm to those who come into contact with the materials, regardless of the care exercised by such people prior to coming into contact with the harmful materials. That is not the test for determining whether an activity is ultrahazardous in Connecticut. Rather, the plaintiffs must plead and prove that a landfill cannot be operated safely regardless of the exercise of due care by the landfill operator. This proposition has been rejected in Connecticut. See Accashian, supra. There is simply no basis for an argument that landfills will probably cause harm even where operated in accordance with appropriate operating procedures and regulations. *10 Strict liability applies only to activities that entail an obvious risk of probable harm, under the theory that a defendant who chooses to engage in such obviously dangerous activity must be prepared to pay compensation for any resultant harm. The doctrine is inapplicable to a circumstance in which an activity was not known to be dangerous at the time it was undertaken but is only alleged to have been dangerous years after the fact. The Connecticut Supreme Court explained the doctrine as follows: In all of these situations danger may be foreseen by reasonable men, as possible if not probable, but the risks to others are not by the ordinarily prudent man, regarded as unreasonable. It is precisely these conditions which give rise to the doctrine of strict liability. Whitman Hotel Corp. v. Elliott & Watrous Eng'g Co., Conn. 562, 567, 79 A.2d 591 (1951) 137 (emphasis added). In such a situation, [a] person who uses an intrinsically dangerous means to accomplish a lawful end, in such a way as will necessarily or obviously expose the person of another to the danger of probable injury, is liable if such injury results, even though he uses all proper care. Id. at 565. In all circumstances in which strict liability has been applied by Connecticut's appellate level courts, the danger was obvious to the defendant at the time of the disputed action. In Caporale, the defendant drove heavy steel piles with a pile driver for four months within seventy-five feet of the plaintiff's concrete-block buildings, and "actually anticipated [the potential damage] when it inspected premises nearby before it began work." 149 Conn. at 85-86. In Whitman Hotel, the defendant "discharged many hundreds of blasts of ... dynamite ... in close proximity to a number of compactly located business buildings." 137 Conn. at 564. In Green, the defendant's employees were experimenting with explosives. 25 Conn.App. at 481. In order to state a claim against Pratt & Whitney for strict liability the plaintiffs must plead facts supporting a conclusion that the particular circumstances and conditions of Pratt & Whitney's use of the Southington municipal landfill prior to 1967 were such that Pratt & Whitney was engaging in conduct which "necessarily or obviously" created a high risk of unavoidable harm. Whitman, 137 Conn. at 565. Here, the plaintiffs have not alleged any facts concerning the particular "circumstances or conditions" of Pratt & Whitney's use of the Southington landfill in the decades prior to 1967. There are no factual allegations supporting a conclusion that Pratt & Whitney knew, prior to 1967, that its conduct in disposing of wastes in Southington would have posed a "high degree of risk of harm." Restatement (Second) of Torts § 520(a). The plaintiffs themselves state that it was not until "[b]etween 1979 and 1983" that the defendants "learned" of contamination allegedly

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 10 of 40

affecting properties away from the former landfill site. First Count ¶ 48 (p. 14). From the allegations of the complaint, therefore, it is not possible to conclude that any industrial user of the Southington landfill prior to 1967 would have been engaging in an activity that "necessarily or obviously expose[d] the person of another to the danger of probable injury." Whitman Hotel, 137 Conn. at 565 (emphasis added). For the foregoing reasons the Motion to Strike the Sixth Count is granted. Seventh Count--Fraud *11 The Seventh Count of the Revised Complaint purports to state a claim for common-law fraud. Most, if not all, of the allegations are directed against Southington; the plaintiffs refer to various times between the 1970s and 1993 when the Town allegedly made statements or allegedly failed to disclose information. Plaintiffs claim generally that the Town "implied by its actions and affirmatively advised invitees and the public, including the Plaintiffs, that no danger condition existed on or around the Site" of the former landfill. Seventh Count ¶ 68 (p. 37). Plaintiffs claim that Southington "did not disclose the dangers of the Site to the public, nor did it disclose the health risks and dangers to those residents of the Town who were living ... adjacent to the Site." Id. at ¶ 72 (pp. 38-39). Plaintiffs also allege that "the Town, in January, February and March 1993, indicated that the adjacent areas, including those of the Plaintiffs were not affected by the contamination in the landfill and that there is no risk to the residences herein [sic]." Id. at ¶ 77 (p. 40). Plaintiffs further allege that the Town Manager "disagreed with the amount of contamination on the Site" and that "on July 1, 1993 the ... Town Manager, indicated that there was no health hazard." Id. at ¶¶ 73, 75 (p. 39). Only two paragraphs in the Seventh Count mention Pratt & Whitney. Paragraph 75 (p. 39) alleges, in pertinent part: "The Defendants Pratt & Whitney and the Town of Southington stated on July 8, 1993 that the State of Connecticut, Department of Public Health Service Report overstated the risk attributable to landfill gases ..." This is followed by paragraph 76 (pp. 39-40), which reads in full as follows: Again, on July 8, 1993, the Town of Southington, speaking for the Town and for Pratt & Whitney, indicated that the Department of Health Service Report characterization of the former landfill as a public health hazard was misleading and that the report overstated the risk to the residents. A cause of action for common-law fraud requires the plaintiff to establish four distinct elements. They are: "(1) a false representation was made as a statement of fact; (2) it was untrue and known to be untrue by the party making it; (3) it was made to induce the other party to act upon it; and (4) the other party did so act upon that false representation to his injury." Weisman v. Kaspar, 233 Conn. 531, 540, 661 A.2d 550 (1995) (citations omitted). When interpreted in a manner most favorable to the plaintiff, the Seventh Count is sufficient to state a cause of action against Pratt & Whitney for Fraud. Therefore, the Motion to Strike the Seventh Count is denied. Eighth Count--Negligent Infliction of Emotional Distress In the Eighth Count, the plaintiffs again attempt to allege a claim of negligence in connection with post 1967 events. The Eighth Count purports to state a claim for negligent infliction of emotional distress. Plaintiffs allege that the "Defendants have known since 1979 that the contamination at the Site constituted a severe health hazard ... but that the defendants "took no steps to promptly relocate the Plaintiffs from the Site, and in fact ... consistently advised the Plaintiffs and others the health risk (sic), and permitted the Plaintiffs and others to use and/or occupy the Site ..." Eighth Count ¶ 87 (pp. 43-44). *12 To recover on a claim for negligent infliction of emotional distress, a plaintiff must show

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 11 of 40

that "the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm." Montinieri v. Southern New England Tel. Co., 175 Conn. 337, 345, 398 A.2d 1180 (1978); Barrett v. Danbury Hospital, 232 Conn. 242, 260, 654 A.2d 748 (1995). When the emotional distress is claimed to be based on fear of future illness, a plaintiff's fear must be objectively reasonable when compared against the defendant's conduct. See Barrett, 232 Conn. at 261. The plaintiff must present sufficient facts to demonstrate the objective reasonableness of the fear. Id. at 262 (affirming defense summary judgment where plaintiff failed to show that alleged fear was reasonable). In the present case, although plaintiffs claim that Pratt & Whitney's "conduct" was unreasonable (Eighth Count ¶ 88 (p. 44)) and caused the plaintiffs to suffer distress, the gravamen of the claim is not Pratt & Whitney's affirmative "conduct" but rather the absence of action by Pratt & Whitney with regard to the plaintiffs. There is no authority for the claim that some twenty years after Pratt & Whitney last used the OSL for the disposal of substances that it did not then know were hazardous, Pratt & Whitney had a common-law duty to "relocate" the plaintiffs, to prevent them from living or working in the area, or otherwise to intervene in their situation. Negligence cannot be predicated upon failure to perform an act which the actor was under no duty to perform. Behlman v. Universal Travel Agency, Inc., 4 Conn.App. 688, 691, 496 A.2d 962 (1985). Therefore, the Motion to Strike the Eighth Count as to Pratt & Whitney is granted. Conn.Super.,2002. Vaillancourt v. Town of Southington 2002 WL 1293053 (Conn.Super.), 32 Conn. L. Rptr. 191 END OF DOCUMENT

CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 26 Vaillancourt v. Town of Southington 2002 WL 1041381, 32 Conn. L. Rptr. 185 , Conn.Super., Apr 26, 2002 Not Reported in A.2d Conn.Super.,2002. April 26, 2002. AURIGEMMA, J. *1 The defendant Town of Southington ("Southington") has moved to strike all counts of the plaintiffs' Amended Complaint, dated August 31, 2001, which alleges liability arising from acts and omissions involving the Old Southington Landfill ("OSL"), and has also moved to strike plaintiffs' second, third, fifth, sixth, seventh, eighth, and ninth prayers for relief. Summary of Allegations The plaintiffs have sued the Town of Southington ("Southington" or "the Town"), on claims concerning Southington's operation of the landfill up to 1967. The plaintiffs also have sued Southington based on claims that, after closing and covering the landfill in 1967, the Town permitted residential and commercial development to occur in areas on and around the former landfill. During its decades of operation, the landfill was the municipally designated facility for disposal of all wastes in Southington. The Town accepted and disposed of a variety of

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 12 of 40

residential, commercial and industrial wastes at the landfill. Pratt & Whitney, along with many other parties, used this landfill for disposal of its wastes, including industrial wastes. The plaintiffs have sued Pratt & Whitney based on claims that Pratt & Whitney used the landfill. The plaintiffs have not sued any of the other former users of the Southington landfill. The Revised Complaint asserts common law theories of negligence (First, Second and Eighth Counts), nuisance (Fourth Count), trespass (Fifth Count), and strict liability (Sixth Count) to advance plaintiffs' claims for damages based on alleged contamination and/or toxic exposure. Plaintiffs separately assert a claim for "Diminution in Property Value" (Third Count), in which they apparently seek damages based solely upon the proximity of their home to the former landfill site. Plaintiffs also claim damages for fraud (Seventh Count), alleging that they relied upon false assurances by the Town (and possibly Pratt & Whitney) as to the environmental condition of the former landfill. Discussion of the Law and Ruling The function of a motion to strike is to test the legal sufficiency of a pleading. Practice Book § 10-39; Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Mingachos v. CBS, Inc., 196 Conn. 91, 108, 491 A.2d 368 (1985). In deciding a motion to strike the trial court must consider as true the factual allegations, but not the legal conclusions set forth in the complaint. Liljedahl Bros., Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990); Blancato v. Feldspar Corp., 203 Conn. 34, 36, 522 A.2d 1235 (1987). The court should view the facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly provable under them. Dennison v. Klotz, 12 Conn.App. 570, 577, 532 A.2d 1311 (1987). In ruling on a motion to strike, the court must take as admitted all well-pled facts, and those necessarily implied thereby, and construe them in the manner most favorable to the pleader. Norwich v. Silverberg, 200 Conn. 367, 370, 511 A.2d 336 (1986). Negligence Claims *2 Southington seeks to strike the three counts sounding in negligence--the First, Second and Eighth Counts--based on the doctrine of governmental immunity. The doctrine of governmental immunity protects municipalities from liability for alleged negligence in the performance of discretionary, governmental acts, as opposed to acts that are merely ministerial. Evon v. Andrews, 211 Conn. 501, 504, 559 A.2d 1131 (1989); Gauvin v. City of New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982). Discretionary acts are those that require "the exercise of judgment by a municipal employee." Evon, 211 Conn. at 507. Governmental acts are those "performed wholly for the direct benefit of the public and are supervisory and discretionary in nature." Gauvin, 187 Conn. at 184. Conversely, ministerial acts are those "performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action ." Id. Municipalities are not, however, immune from liability for acts that concern a proprietary, as opposed to a governmental, activity. Elliott v. Waterbury, 245 Conn. 385, 414, 715 A.2d 27 (1998). Section 52-557n(a)(1)(b) of the Connecticut General Statutes provides that "[e]xcept as otherwise provided by law, a political subdivision of that state shall be liable for damages to person or property caused by: ... negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit." The plaintiffs argue that the conduct about which they complain in the negligence counts was proprietary in nature. Operation or maintenance of the following public amenities has been ruled governmental rather than proprietary: storm sewers, Spitzer v. Waterbury, 113 Conn. 84, 154 A.

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 13 of 40

157 (1931); public parks, Stradmore Development Corp. v. Commissioners, 164 Conn. 548, 324 A.2d 919 (1973), and Wysocki v. City of Derby, 140 Conn. 173, 376 A.2d 1111 (1953); swimming facilities, Carta v. City of Norwalk, 108 Conn. 697, 145 A. 158 (1929); fire departments, O'Donnell v. Groton, Conn. 622, 144 A. 468 (1929); police services, Gordon v. 108 Bridgeport Housing Authority, 208 Conn. 161, 544 A.2d 1185 (1988); and maintenance of fire hydrants, Williams v.. City of New Haven, 243 Conn. 763, 707 A.2d 1251 (1998). Provision of utilities for profit, such as the operation of a water works, has been ruled proprietary. Abbott v. Bristol, 167 Conn. 143, 355 A.2d 68 (1974); Richmond v. City of Norwalk, 96 Conn. 582, 115 A. 11 (1921); Hourigan v. Norwich, 77 Conn. 358, 59 A. 486 (1904). The Connecticut Supreme Court has ruled that refuse disposal operations, unlike water utilities, are governmental functions: "[a] refuse disposal operation is generally held to be a governmental function." Wood v. Wilton, 156 Conn. 304, 310, 240 A.2d 904 (1968). Several trial courts have applied the doctrine of governmental immunity to landfills. In Doyle v. Webster, No. CV- 980076407-S, 1999 Conn.Super. LEXIS 2629, at *3-4, 23 Conn. L. Rptr. 332 (Conn.Super.Ct. Sept. 29, 1999) (DiPentima, J), the court, on the ground of governmental immunity, struck a third-party claim against the Town of Litchfield arising from pollution emanating from the town landfill. In Jewett City Sav. Bank v. Town of Canterbury, No. CV-97-0056725-S, 1998 Conn.Super. LEXIS 2948, at *3-4 (Conn.Super.Ct. Oct. 16, 1998) (Sferrazza, J.), the court refused to strike a special defense asserting governmental immunity with respect to the operation of a landfill. *3 In Accashian v. City of Danbury, No. X01 CV 970147228S, 1999 Ct. Sup. 772, 23 Conn. L. Rptr. 648 (Jan. 6, 1999) (Hodgson, J.), the plaintiffs alleged that in addition to operating a municipal landfill for the benefit of town residents, the city conducted a proprietary enterprise in that it accepted waste from entities that were not town residents in return for a per-load fee and that between January 1995 and December 1996 the city's income from such fees was approximately twelve million dollars. Based on that allegation the court could not rule out the possibility that Danbury's operation of the landfill was proprietary and, therefore, denied the city's motion to strike the negligence counts. The plaintiffs here argue that Southington, like Danbury in Accashian, "operated a municipal landfill for the benefit of Town residents, but also conducted a proprietary enterprise in that the use of the landfill was open to area citizens without regard to whether they lived in Southington or whether they had industrial, commercial, or residential municipal wastes and acted as a catalyst for out of town companies to locate in Southington who paid a large percentage of the taxbase of the Town (e.g. Pratt & Whitney Aircraft)." See Plaintiffs' Memorandum in Opposition to Defendant Town of Southington's Motion to Strike p. 3. However, the foregoing language appears nowhere in the plaintiffs' lengthy complaint. Paragraph 8 of the complaint alleges that the Town of Southington accepted waste over the course of seventeen years from residential, commercial and industrial sources. Taking the complaint in a manner most favorable to the plaintiffs, as the court must when considering a motion to strike, the allegation that the town accepted commercial and industrial waste could give rise to the inference that it operated the landfill on a proprietary basis. Therefore, the court denies the Motion to Strike Count One which alleges negligent disposal of toxic and hazardous waste. The Second Count, titled Negligent Closure and Sale of the Site, alleges that Southington negligently allowed the post-closure commercial and residential development of OSL and surrounding area by issuance of building permits, zoning approval and the like. (Second Count, ¶ 62.) The Eighth Count, titled Negligent Infliction of Emotional Distress, alleges that Southington

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 14 of 40

negligently caused the Plaintiffs to suffer stress-related injuries by virtue of Southington's use of OSL. (Eighth Count, ¶¶ 77, 80.) Those counts fail to complain about conduct which is even arguably proprietary. Rather they allege negligence in the conduct of Southington's land regulation function. Municipalities are granted governmental immunity for their regulatory actions, including efforts to regulate land use and health. See, e.g., Evon, 211 Conn. at 506 (1986) (municipality immune from liability for alleged failure to enforce statues, regulations and codes regarding maintenance of rental dwellings). *4 In 1986, the Connecticut Legislature reformed Connecticut's tort laws by, in part, the adoption of Section 52-557n of the Connecticut General Statutes. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 185, 592 A.2d 912 (1991). The statute adds further support to the above interpretation of the doctrine of governmental immunity. Specifically, Section 52557n(a) provides in part that: a political subdivision of the state shall not be liable for damages to person or property caused by ... negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. In addition, Section 52-557n(c) provides that municipalities in Connecticut cannot be liable for: the issuance, denial, suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety. Conn. Gen.Stat. § 52-557n(c)(7). Emphasis added. The Second Count paragraph 59(g) alleges that Southington "granted permits, licenses and approvals to members of the public to construct dwelling and other facilities on and in the vicinity of the Site, including the residences of the Plaintiffs, while knowing of the danger presented by said substances and materials ..." Taken in a manner most favorable to the plaintiffs, the foregoing paragraph alleges Southington's reckless disregard for health or safety, within the exception to governmental immunity set forth above in § 52-557n(c). Therefore, the Motion to Strike must be denied with respect to the Second Count. Similarly, the Eighth Count alleges that "notwithstanding the fact that the Defendants have known since 1979 that the contamination at the Site constituted a severe health hazard to the public, took no steps to promptly relocate the Plaintiffs from the Site and ... permitted the Plaintiffs and others to use and/or occupy the Site and abutting properties as a place of work, residence and recreation." ¶ 87. Based on the foregoing the reckless disregard of health and safety exception could apply to defeat the governmental immunity and therefore, the Motion to Strike the Eighth Count is denied. Nuisance Claim Southington argues that the plaintiffs' Fourth Count, alleging nuisance, should be stricken because it fails to allege that Southington intentionally created the conditions that constituted the nuisance, as required to prevail on such a claim against a municipality in Connecticut. This argument is based on the claim that Keeney v. Town of Old Saybrook, 237 Conn. 135, 676 A.2d 795 (1996), imposed an additional element of intentional conduct in a nuisance action against a municipality. That interpretation of Keeney is incorrect. In Keeney the Court dealt with the longstanding rule that " '[l] iability can be imposed on the municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality.' Brennan v. West Haven, 151 Conn. 689, 692, 202 A .2d 134 (1964)." Keeney, supra, 237 Conn.

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 15 of 40

at 164. The Court expanded that rule, holding that "steadfast refusal to change a situation known to cause an intrusion on the property of others satisfied the requirement of a showing of a 'positive act,' since the prolonged continuation of the status quo with knowledge of the results evidenced a choice by the town to let the condition exist." Accashian v. City of Danbury, No. X01CV970147228S, 2000 Ct. Sup. 1114, 1118, 26 Conn. L. Rptr. 287 (Jan.27, 2000) (Hodgson, J.). *5 In the Fourth Count of the Complaint the plaintiffs allege that the nuisance was created by the "negligent disposing of toxic and hazardous substances and materials on the Site ..." Complaint ¶ 59. Thus they allege a positive act sufficient, if proven, to constitute the creation of a nuisance. Therefore, the Motion to Strike the Fourth Count is denied. Trespass Claim To state a claim for trespass, the plaintiff must show: 1) plaintiff's ownership or possessory interest in the land; 2) an invasion by defendant that affects plaintiff's exclusive possessory interest; 3) defendant's invasion was done intentionally; and 4) such invasion causes direct injury. Abington Ltd. Partnership v. Talcott Mountain Science Ctr. for Student Involvement, Inc., 43 Conn.Sup. 424, 427, 657 A.2d 732, 11 Conn. L. Rptr. 349 (1994) (emphasis added). "The intention required to make the actor liable for trespass is an intention to enter upon the particular piece of land in question, irrespective of whether the actor knows or should know that he is not entitled to enter." Ike's Auto Body, Inc. v. Martin, CV-95-0068506, 1995 Conn.Super. No. LEXIS 3628, at *3 (Conn.Super.Ct. Dec. 22, 1995) (Pickett, J.); see also State v. Avila, 223 Conn. 595, 606, 613 A.2d 731, 737 n. 11, 613 A.2d 731 (Conn.1992) ( "[T]o act intentionally it must be one's conscious objective to bring about a result or conduct"); Kramer v. Ordway, No. CV-91-0118711, 1994 Conn.Super. LEXIS 3082, at *3 (Conn.Super.Ct. Nov. 30, 1994) (Lewis, J.) ("[I]n order to be liable for trespass, one must intentionally cause some substance or thing to enter upon another's land"); Caltabiano v. Jimmo, No. CV-93-0068929-S, 1995 Conn.Super. LEXIS 1334, at * 19 (Conn.Super.Ct. May 5, 1995) (Higgins, J.) (intent to do that which causes the invasion is required element of trespass). The Restatement of Torts (Second) sets forth the elements of a cause of action for trespass to stand in Section 158: One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove. In Accashian v. City of Danbury, No. X01CV970147228S, 1999 Ct.Sup.772, 23 Conn. L. Rptr. 698 (Jan. 6, 1999) (Hodgson, J.), the court stated: The Comments to § 158(a) of the Restatement indicate that intent to invade another's land may be established by showing conduct of a kind substantially certain to result in an invasion: "It is enough that an act is done with knowledge that it will to a substantial certainty result in the entry of the foreign matter. Thus one who so piles sand close to his boundary that by force of gravity alone it slides down onto his neighbor's land or who so builds an embankment that during ordinary rainfalls the dirt from it is washed upon adjacent lands, becomes a trespasser on the other's land." *6 1999 Ct. Sup. at 783. In Accashian the court denied the defendant's Motion to Strike a claim of trespass on the grounds that the plaintiff had alleged facts supporting the element of intent by alleging that the landfill

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 16 of 40

was "unlined and that it was contiguous to wetlands." In this case the plaintiffs allege that the Old Southington Landfill was closed in 1967, and that they suffered injuries decades later from the escape into the surrounding environment of hazardous substances stored at the landfill. The plaintiffs point to the allegation that "no impervious covering was used to close the OSL, nor was any remedial work performed by the Town of Southington, or by other defendants before OSL was closed." Therefore, the issue is: does an allegation of the failure to put an impervious covering on a landfill which was closed in 1967 allege that Southington engaged in conduct of a kind substantially certain to result in an invasion of the plaintiffs' properties in the 1980s and 1990s? The answer to this question depends on Southington's knowledge of the nature of the materials in the OSL at the time it closed the landfill without an impervious cover. By the plaintiffs' own admission, Southington did not learn until 1979--12 years after OSL closed--that OSL "was contaminated by hazardous wastes" (Complaint, First Count, ¶¶ 12, 46); Southington did not learn until after 1979 that chemical runoff from OSL could be contaminating some adjoining properties (Complaint, First Count, ¶ 48). Based on the foregoing, the complaint fails to allege that Southington knew about the hazardous nature of the materials at the time it closed OSL. The failure to secure the landfill with an impervious cover is not enough to constitute an allegation that Southington acted in a manner that it knew to be substantially certain to cause injury to the plaintiffs' properties. Therefore, the Motion to Strike the Fifth Count is granted. Strict Liability Claim The plaintiffs' Sixth Count alleges strict liability. To prevail in a claim of strict liability under Connecticut law, a plaintiff must prove, among other things, that the defendant engaged in activity that was so dangerous it was unsafe even with the exercise of due care. Specifically: To impose liability without fault, certain factors must be present: an instrumentality capable of producing harm; circumstances and conditions in its use which, irrespective of a lawful purpose or due care, involve a risk of probable injury to such a degree that the activity fairly can be said to be intrinsically dangerous to the person or property of others; and a causal relation between the activity and the injury for which damages are claimed. Caporale v. C.W Blakeslee & Sons, Inc., 149 Conn. 79, 85, 175 A.2d 561 (1961) (emphasis added). Connecticut courts have applied the factors listed in the Restatement (Second) of Torts to determine whether an activity is abnormally dangerous so as to give rise to strict liability. Those factors are the: *7 (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes. Green v. Ensign-Bickford Co., 25 Conn.App. 479, 486, 595 A.2d 1383 (1991) (emphasis added) (quoting Restatement (Second) of Torts § 520). The Connecticut Appellate and Supreme Courts have recognized abnormally dangerous activity giving rise to strict liability only with respect to blasting, pile driving and research with explosives. See, e.g., Whitman Hotel Corp. v. Elliott & Watrous Eng'g Co., Conn. 562, 565, 137 79 A.2d 591 (1951) (blasting); Caporale, 149 Conn. at 85-86 (pile driving); Green, 25 Conn.App. at 482-83 (research with explosives). In Accashian v. City of Danbury, No. X01CV-97-0147228-S, 1999 Conn.Super. LEXIS 36, 23 Conn. L. Rptr. 648 (Conn.Super.Ct. Jan. 6, 1999) (Hodgson, J.), the court held that operation of a

Case 3:03-cv-00945-CFD

Document 54-7

Filed 10/27/2003

Page 17 of 40

landfill is not ultrahazardous because "[s]tate and regulatory schemes suggest that these [disposed] materials do not pose a hazard if handled properly." Id. at *20-21 (citing Conn. Gen.Stat. §§ 22a-114 through 134q). Judge Hodgson articulated that conclusion three times in consideration of the Accashian litigation. See 1999 Conn. Super LEXIS 59, at *7-8 (Conn.Super.Jan.8, 1999); 2000 Conn.Super. LEXIS 168, at * 4 (Conn.Super.Ct. Jan. 27, 2000); and 1999 Conn.Super. LEXIS 36, supra. injury," id. at *17. Other courts have reached the same conclusion with respect to storage of hazardous materials. See, e.g., Goodrich v. Jennings, No. 150074, 1997 Conn.Super. LEXIS 1399, at *7-8, 19 Conn. L. Rptr. 542 (Conn.Super.Ct. May 22, 1997) (Mintz, J.) (storage of gasoline in an underground tank is not an ultrahazardous activity); Nielsen v. Sioux Tools, Inc., 870 F.Sup. 435, 442 (D.Conn.1994) (refusing to impose strict liability for leaking underground tank); Arawana Mills Co. v. United Techs. Corp., 795 F.Sup. 1238, 1251 (D.Conn.1992) ("I am persuaded that if given the opportunity to expand the narrowly-construed concept of ' ultrahazardous' or 'abnormally dangerous' activity to storage and use of hazardous wastes, the Connecticut Supreme Court would decline to do so"); Bernbach v. Timex Corp., 989 F.Sup. 403, 407 (D.Conn.1996) (declining to extend strict liability to the handling of hazardous wastes). The plaintiffs allege that the disposal of toxic and hazardous materials was an ultra-hazardous activity, subjecting persons coming into contact with said substances and materials to a severe risk of personal injury, regardless of the degree of caution they might have exercised. *8 (Sixth Count, ¶ 62.) In other words, they plead that the OSL should be found to be ultrahazardous because it involved materials that would cause severe harm to those who come into contact with the materials, regardless of the care exercised by such people prior to coming into contact with the harmful materials. That is not the test for determining whether an activity is ultrahazardous in Connecticut. Rather, Plaintiffs must plead and prove that a landfill cannot be operated safely regardless of the exercise of due care by the landfill operator. This proposition has been rejected in Connecticut. See Accashian, supra, 1999 Conn.Super. LEXIS 36, at *20-21 ("State and federal regulatory schemes suggest that these materials do not pose a hazard if handled properly." (citing Conn. Gen.Stat. §§ 22a-114 through 134q)). There is simply no basis for an argument, in 2002, that landfills will probably cause harm even where operated in accordance with appropriate operating procedures and regulations. Strict liability applies only to activities