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

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CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 7 Brownlee v. Town of Newtown 1992 WL 17123, Conn.Super., Jan 24, 1992 Not Reported in A.2d Conn.Super.,1992. Jan. 24, 1992. MEMORANDUM OF DECISION ON MOTION TO STRIKE FULLER, Judge. *1 The complaint in this action has been brought by a student in the Newtown schools and his mother against the Town of Newtown and a gym teacher at one of the Town's schools for personal injuries sustained by the named plaintiff when his right thumb became caught in a basketball hoop during a gym class. The defendant Town has filed a motion to strike the sixth count of the complaint on the ground that it does not state a cause of action for public nuisance because the plaintiff was not exercising a public right when the accident occurred. The relevant parts of the sixth count allege that the plaintiff was injured when his right thumb was caught in the basketball hoop which the defendant Town placed or allowed to be placed in a dangerous and careless position, and that the Town knew or should have known that the basket had a natural tendency to create danger and inflict injury upon members of the public, including the plaintiff. It is claimed that as a result of that conduct, the defendant created and maintained a nuisance which injured the plaintiff. A motion to strike may be used to challenge the legal sufficiency of a pleading. Ivey, Barnum & O'Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 530 n. 2; Connecticut Practice Book, Sec. 152. With a motion to strike, all of the facts alleged in the complaint and facts necessarily implied from the allegations in it are accepted as true, and the complaint is construed in the manner most favorable to the plaintiff. Blancato v. Feldspar Corporation, 203 Conn. 34, 36. The court is limited to the facts alleged in the complaint and cannot infer other facts beyond those alleged or necessarily implied from stated facts. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170. While a motion to strike admits all facts pleaded, it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. Mingachos v. CBS, Inc., 196 Conn. 91, 108. A municipality may be held liable on the theory of nuisance only if the condition in question was both created and maintained by the municipality. Lukas v. New Haven, 184 Conn. 205, 209; Wright v. Brown, 167 Conn. 464, 470. A nuisance is a condition, the natural tendency of which is to create danger and inflict injury upon person or property. Dingwell v. Litchfield, 4 Conn.App. 621, 624; Kostyal v. Cass, 163 Conn. 92, 99. There are two types of nuisance: public and private. " 'A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land.' " Couture v. Board of Education, 6 Conn.App. 309, 314; Webel v. Yale University, 125 Conn. 515, 525. The facts here do not support an action for private nuisance, and the plaintiff here only claims that the basketball hoop was a public nuisance. Public nuisances are ones which violate public rights and produce an common injury and affect the rights enjoyed by citizens as part of the public; " '[I]f the annoyance is one that is common to the public generally, then it is a public nuisance.... The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public

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nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence.' " Couture v. Board of Education, supra, 314, 315; Higgins v. Connecticut Light & Power Co., 129 Conn. 606, 611-12; Connecticut Law of Torts, 2d Ed., Sec. 130. In order to prevail on a claim of nuisance, a plaintiff must prove that: "(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was a proximate cause of the plaintiffs' injuries and damages." State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183; Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36. Whether these four elements for a nuisance claim exist depends upon the facts of each case and presents questions of fact for the trier. Heilig v. LeQuire, 4 Conn.App. 125, 127; Kostyal v. Cass, supra, 100. *2 In order to prevail on a public nuisance claim, the plaintiff must also prove a fifth element, namely, that the condition or conduct complained of interfered with a right common to the general public. Doe v. Manheimer, 212 Conn. 748, 755-556 n. 4; Couture v. Board of Education, supra, 316; Higgins v. Connecticut Light & Power Co., supra, 611. The defendant bases its motion to strike on a claim that the plaintiff was not engaged in a public right when the accident occurred. It relies upon the Couture and Higgins cases. Both of these decisions involved directed verdicts at the time of trial after the court heard evidence on the plaintiffs' claims. In Higgins, the plaintiff was injured by a high tension wire thirty feet in the air, an area clearly not accessible to the general public. In Couture, the plaintiff, while acting as a football game official, was injured when driven into an unprotected grandstand during the game, and the court concluded that he was in the area where he was injured only because of his special status as a game official and not based upon any interest he held in common with the general public. It is alleged in paragraph eight that the basket had a tendency to create danger and inflict injury upon members of the public, including the minor plaintiff. Elsewhere in the complaint, there is an allegation that the basket was six feet off the floor rather than at the standard ten foot height. The defendant's brief also states facts which may be germane to whether or not the basket was a nuisance. There are factual issues in dispute, including the extent to which the public in general had access to the basket. While the defendant may eventually prevail on its claim, factual issues cannot be resolved on a motion to strike. The motion to strike the sixth count of the complaint is denied. Conn.Super.,1992. Brownlee v. Town of Newtown 1992 WL 17123 (Conn.Super.) END OF DOCUMENT CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 8 Cadlerock Properties v. Schilberg 2000 WL 268548, 26 Conn. L. Rptr. 427 , Conn.Super., Feb 25, 2000 Not Reported in A.2d Conn.Super.,2000. Feb. 25, 2000. Memorandum of Decision on Motion to Strike

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SULLIVAN. *1 The plaintiff, the present owner of property at Squaw Hollow Road in Ashford and Willington, brings this action against the defendants Benjamin Schilberg and Schilberg Integrated Metals Corp., claiming that they, as lessee (Benjamin) and Metals Corp., under Benjamin's officership and influence, caused the contamination of the soil and water at the site by the burning of wire and insulation. As to each of these defendants the plaintiff claims that they are responsible to the plaintiff both under the provisions of General Statutes § 22a-452 and under a common law cause of action in negligence. It is alleged, as against another defendant Thomas Nigro that Nigro was the owner of the site when Benjamin and Metals Corp. operated the site. Nigro, although a party to this action, is not a party to the present motion. The defendant Benjamin and Metals Corp. move to strike the complaint against them. They claim that under General Statutes § 22a-245 there is no cause of action against a former lessee. They further claim that under the negligence counts there is no cause of action in favor of a subsequent purchaser of the property. This claim is based on the premise that there is no duty running between them, first on the legal concept of forseeability and second on the legal bar provided by the doctrine of Caveat Emptor. This same claim of legal duty and forseeability is directed to the statutory counts. I The causes of action under General Statutes § 22a-452 This statute provides that a person who contains or removes or mitigates the effects of this type of pollution shall be entitled to reimbursement from any person if said pollution resulted from the negligence or other actions of that person. The statute also allows a pro rata contribution of each person, each liable to the other for such pro-rata share. The Supreme Court case of Knight v. F.L. Roberts & Co., 241 Conn. 466, 475 (1997) specifically addresses the purpose of this legislation. "The clear purpose of this provision is to encourage parties to pay for remediation by providing them with an opportunity to recoup at least some of their remediation costs from others who are also found to be responsible for the contamination." Knight, supra, p. 475. Of course the first sentence allows full reimbursement if the negligence of the person against whom reimbursement is sought is entirely responsible. Recovery under this statute requires proof of "negligence or other actions" of the person or persons against whom recovery or pro rata contribution is sought. Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., 229 Conn. 455, 457 (1994). The defendant takes the position that the doctrine of forseeability as to the particular person who may be harmed by a negligent act is critical, for if there is no duty owed there can be no negligence. Hence since the defendant cannot know who will eventually own the property, the defendant cannot foresee harm coming to that person. *2 Hence no forseeability equals no duty equals no negligence. The defendant overlooks the fact that the harm is to the land. This court cannot accept a proposition that the duty to not pollute occurs only to the benefit of the then land owner, as it may well appear forseeable that the fact of pollution and its cause may well not surface until after the original owner transfers property to a subsequent purchaser. The proposition set forth by the defendant, as to duty owed, is vastly different than that of the most recent case Lodge v. Arret Sales, 246 Conn. 563, 586 (1998) whereby the negligence was determined by the Supreme Court to be beyond the scope of the risk. Here, the specific risk of the pollution from a damages/liability standpoint is that the owner, present or future, is going to be responsible for clean up when the pollution is then discovered,

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and this is completely foreseeable. The defendant further argues that the plaintiff's claim is barred by the doctrine of Caveat Emptor. The doctrine of Caveat Emptor has been much diminished in recent years. Since at least 1962 the courts have determined that the doctrine does not apply to conditions which a purchaser cannot be expected to discover upon reasonable inspection, and does not apply to negligent misrepresentation or nondisclosure as concerns defects. See Masterson v. Atherton, 149 Conn. 302, 306, 307 (1962); Johnson v. Healy, 176 Conn. 97, 102 (1978); Citicorp Mortgage, Inc. v. Burges, 227 Conn. 116, 120, 121 (1993). The same set of circumstances are applicable to the plaintiff's negligence counts against these defendants. The defendants also claim that the plaintiff's counts against the defendants claiming reckless misconduct must be stricken as the plaintiff cannot establish a duty running from the defendant to the plaintiff. This argument is the same as has been heretofore disposed of as concerns the statutory and the negligence counts. For the reasons set forth herein the motion to strike is denied. Conn.Super.,2000. Cadlerock Properties v. Schilberg 2000 WL 268548 (Conn.Super.), 26 Conn. L. Rptr. 427 END OF DOCUMENT

CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 9 French Putnam LLC v. County Environmental Services, 2000 WL 1172341, 27 Conn. L. Rptr. 684 , Conn.Super., Jul 21, 2000 Not Reported in A.2d Conn.Super.,2000. July 21, 2000. MEMORANDUM OF DECISION RE: MOTIONS TO STRIKE # 155 AND # 157 D'ANDREA I. FACTS *1 On September 20, 1999, the plaintiff, French Putnam, LLC, filed a revised forty-two count complaint, with six counts against each of the seven defendants, County Environmental Services, Inc. (CE Services), County Environmental Systems, Inc. (CE Systems), Sam Testa and Ann Testa (the Testas), Edward Alfveby, Anton Tantalos and C.R. Warner, Inc., alleging negligence, reimbursement pursuant to General Statutes § 22a-452, negligence per se, recklessness, strict liability for ultrahazardous activity and violations of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42- 110 et seq. The revised complaint alleges the following facts: The defendants Sam Testa and Ann Testa acquired the subject property in 1981, which acquisition included real property, buildings and structures located at 35-37 Putnam Avenue in Norwalk, Connecticut. The Testas operated a construction business on the property until 1996. They allegedly used the property for the storage of construction equipment and materials and the mining of gravel and sand and allowed disposal of construction debris on the property. In addition, the Testas leased a portion of the property to CE Services and CE Systems, two waste transportation enterprises. CE Services and CE Systems

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brought waste oil, solvents and other materials onto the property and stored them in large above ground tanks and drums on the property without appropriate permits. The defendants Tantalos and Alfveby, the president and manager of CE Services, respectively, were responsible for managing CE Services and overseeing its daily operations. The plaintiff purchased the property in June 1996 from the Testas' former mortgagee, which had foreclosed on the mortgage in January 1996. The soil and groundwater of the subject property contains, or contained, levels of hazardous materials in excess of those permitted by law, which were allegedly discharged on the property prior to June 13, 1996, the date the plaintiff purchased the property. The Testas, CE Services, CE Systems, Alfveby and Tantalos were allegedly responsible for bringing numerous chemicals and hazardous materials onto the property and for permitting such chemicals and hazardous materials to be discharged on the property. Defendant C.F. Warner, Inc. allegedly owned and/or operated the storage tanks located on the property at the time the hazardous materials were discharged. The plaintiff claims damages in the form of costs incurred in relation to the investigation of the nature and extent of the contamination costs related to mitigation of the contamination and diminished value of the property. On November 9, 1999, defendants CE Services, Tantalos and Alfveby jointly filed a motion to strike accompanied by a supporting memorandum of law. On December 2, 1999, defendant CE Systems filed a motion to strike all counts and prayers for relief pertaining to CE Systems. The only ground expressly raised in both motions is the caveat emptor doctrine. [FN1] CE Systems adopted, in its entirety, the memorandum of law in support of defendants CE Services, Tantalos and Alfveby's motion to strike. On January 13, 2000, the plaintiff filed a memorandum of law in opposition to the motions to strike. FN1. The defendants' motions merely state that their ground for striking the challenged counts is the plaintiff's failure to state a claim upon which relief can be granted, and the plaintiff has not objected to this procedural defect. This court may still consider the motion as presented. In Bouchard v. People's Bank, 219 Conn. 465, 594 A.2d 1 (1991), "[t]he defendant's motion to strike simply stated that the plaintiff had 'failed to state a claim upon which relief can be granted.' Because the defendant did not specify the distinct reasons for the claimed insufficiency of the plaintiff's complaint in its motion, the motion was 'fatally defective' under Practice Book § [10-41] notwithstanding the defendant's inclusion of such reasons in its supporting memorandum.... We, nevertheless, consider the defendant's motion in the form presented to the trial court due to the plaintiff's failure to object to its form and the nonjurisdictional nature of § [10-41 (formerly § 154) ]." (Citation omitted.) Id., 468 n. 4; see also North Park Mortgage Services, Inc. v. Pinette, 27 Conn.App. 628, 630 n. 4, 608 A.2d 714 (1992).

II. DISCUSSION *2 Practice Book § 10-39(a) provides in pertinent part: "Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, to state a claim upon which relief can be granted ... that party

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may do so by filing a motion to strike the contested pleading or part thereof." See also PeterMichael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270, 709 A.2d 558 (1998). A. NEGLIGENCE The defendants move to strike counts fifteen, sixteen, nineteen and twenty of the revised complaint alleging negligence against CE Services, CE Systems, Alfveby and Tantalos, respectively. They move to strike the negligence counts on the ground that these claims do not state legally sufficient causes of action upon which relief may be granted. In relevant part, the defendants argue that a cause of action for common law negligence cannot be stated because no duty exists between themselves, as former lessees of the former property owner, and the plaintiff, the subsequent property owner. In support of their argument, the defendants rely on the doctrine of caveat emptor [FN2] for the proposition that it bars claims by subsequent property purchasers against lessees of the former property owners. The defendants also rely on Wiehl v. Dictaphone Co., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 306492 (February 11, 1998) (Mottolese, J.) (21 Conn.L.Rptr. 402). FN2. "Let the buyer beware. This maxim summarizes the rule that a purchaser must examine, judge, and test for himself...." Black's Law Dictionary (5th Ed.1979).

The defendants further argue that the plaintiff had the responsibility and the opportunity to inspect the property, to examine appropriate land and department of environmental protection records and to obtain environmental disclosure letters. They assert that, had the plaintiff exercised due diligence in inspecting the property, the environmental contamination would have been discovered prior to purchasing the property and would have been taken into account in the negotiated price. They also assert that, in the event the plaintiff was an "innocent" purchaser without knowledge of the environmental contamination, the appropriate remedy is against the seller pursuant to General Statutes § 22a-134b. In opposition, the plaintiff argues that the elements of common law negligence have been sufficiently alleged to withstand the defendants' motions to strike. The plaintiff contends that the determination of whether a duty of care exists is dependent on whether the harm was foreseeable. The plaintiff asserts that it has alleged that the defendants used the property to store hazardous materials and knew or reasonably should have known that hazardous contaminants were being discharged from the materials and negatively impacting the property. The plaintiff concludes, therefore, that the resultant contamination of the property was reasonably foreseeable and a duty of care should have been exercised by the defendants. The plaintiff maintains that Wiehl v. Dictaphone Co., supra, 21 Conn.L.Rptr. 402, the case on which the defendants rely, is distinguishable because that court's analysis did not address the requisite foreseeability of harm" " inquiry in determining the existence of a duty of care. *3 "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so. Dean v. Hershowitz, 119 Conn. 398, 40708, 177 A. 262 (1935). A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). What

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duty the defendant had, if any, is a question of law. Nolan v. The New York New Haven & Hartford Railroad Co., 53 Conn. 461, 471, 4 A. 106 (1885). The issue of whether the defendant owed the plaintiff a duty of care is an appropriate one for a motion to strike because the question embodies a matter of law to be decided by the court. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988)." (Internal quotation marks omitted.) Bennett v. Connecticut Hospice, Inc., 56 Conn.App. 134, 137, 741 A.2d 349 (1999), cert. denied, 252 Conn. 938, 747 A.2d 2 (2000). The Supreme Court has stated that the test for determining the existence of a legal duty of care involves a two prong inquiry: "(1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998). As to the foreseeability prong, "[t]he ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person], in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" (Internal quotation marks omitted.) Lombard v. Edward J. Peters, Jr., P.C., supra, 252 Conn. 633. As to the second prong regarding policy considerations, the Supreme Court has stated that "[t]he fundamental policy purposes of the tort compensation system [are] compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, and deterrence of wrongful conduct ... It is sometimes said that compensation for losses is the primary function of tort law ... [but it] is perhaps more accurate to describe the primary function as one of determining when compensation is required ... An equally compelling function of the tort system is the 'prophylactic' factor of preventing future harm ... The courts are concerned not only with compensation of the victim, but with admonition of the wrongdoer ... [I]mposing liability for consequential damages often creates significant risks of affecting conduct in ways that are undesirable as a matter of policy. Before imposing such liability, it is incumbent upon us to consider those risks." Lodge v. Arett Sales Corp., supra, 246 Conn. 578-79. *4 "Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual ... Although it has been said that no universal test for [duty] ever has been formulated ... our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant." (Citations omitted; internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385, 650 A.2d 153 (1994). "A simple conclusion that the harm to the plaintiff was foreseeable, however, cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally 'foreseeable,' yet for pragmatic reasons, no recovery is allowed ... A further inquiry must be made, for we recognize that 'duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection ... 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

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ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree ... The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Citations omitted; internal quotation marks omitted.) Id., 386. The doctrine of caveat emptor has been treated differently by those Superior Court judges having occasion to analyze the doctrine's application in the present context, i.e., where a common law negligence claim for environmental contamination is brought by a subsequent property owner against the lessee of the previous property owner. In Wiehl v. Dictaphone Co., supra, 21 Conn.L.Rptr. 402-03, the court struck a negligence count after addressing, as an issue of first impression, whether lessees of former property owners owed a duty to subsequent property purchasers to exercise care in the use of contaminants on the property. That court found that mere forseeability of harm is not enough for imposition of a duty and that "inquiry must be made as to whether under the fundamental policy of the law, the defendant's responsibility should extend to such results ..." (Citation omitted; internal quotation marks omitted; emphasis added.) Id., 403. That court stated that such a case involves two competing fundamental policies of law: (1) Connecticut's strong policy against environmental contamination; and (2) the common law doctrine of caveat emptor. While observing that the caveat emptor doctrine has not precluded liability in special cases such as Coburn v. Lennox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982), which involved the defective construction of buildings and other appurtances by builder-vendors of real property, the court in Wiehl v. Dictaphone Co., supra, 21 Conn.L.Rptr. 403, did employ the doctrine of caveat emptor. The Wiehl court reasoned that the fundamental policy of law provides protections to those having no opportunity to protect themselves and that "the rationale upon which the doctrine of caveat emptor is based applies here." Id., 403. That court noted that a purchaser of real property may take measures to discover harm, inspect the premises, and negotiate the terms and conditions of the purchase. Id. The Wiehl court relied on policy considerations when it held that the doctrine of caveat emptor precludes a subsequent purchaser from asserting a common law cause of action for negligent contamination of commercial property against the lessees of the previous property owners. Id. But see Cadlerock Properties v. Schilberg, Superior Court, judicial district of Tolland at Rockville, Docket No. 69263 (February 25, 2000) (Sullivan, J.) [26 CONN.L.RPTR. 427], denying the defendant lessee's motion to strike the common law negligence and recklessness claims brought against it by the subsequent property owner for alleged contamination of the property. That court noted that the application of the caveat emptor doctrine has diminished in recent years and that it is completely foreseeable that the subsequent purchaser of polluted property would have to clean up the property once the pollution is discovered and, therefore, found that a lessee that contaminates land and water can be liable in negligence to the subsequent property purchaser. See id. That court reasoned that "the duty to not pollute [does not extend] only to the benefit of the then land owner, as it may appear foreseeable that the fact of pollution and its cause may well not surface until after the original owner transfers property to a subsequent purchaser ... [and that] the specific risk of the pollution from a damages/liability standpoint is that the owner, present or future, is going to be responsible for clean up when the pollution is then discovered, and this is completely foreseeable." Id. The decisions in Wiehl v. Dictaphone Co., supra, 21 Conn.L.Rptr. 403, and Cadlerock Properties v. Schilberg, supra, Docket No. 69263, do not address both prongs of the analysis for determining the existence of a duty of care to state a negligence claim. The Wiehl court based its decision on the policy considerations prong, whereas the Cadlerock court based its decision on the foreseeability of harm prong.

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*5 In Coburn v. Lenox Homes, Inc., supra, 186 Conn. 375-76, relied upon by the plaintiff, the Supreme Court affirmed that a builder-vendor of a house with a negligently designed and installed septic system owed a duty of care to the second owners of the property, who purchased it from the original buyers, because the testimony and documentary evidence at trial showed that the defendant should have known that the septic system it designed and installed was likely to fail in the manner it did. This court finds that Coburn v. Lenox Homes, Inc., supra, 186 Conn. 370, is distinguishable from the present case. That case involved defective residential construction by the former property owner who had built and designed the septic system. Id., 373-74. Moreover, the court in Coburn v. Lenox Homes, Inc., supra, 186 Conn. 370, did not have occasion to expressly address the caveat emptor doctrine because the defendant builder-vendor did not raise it as a challenge to the negligence claim. In Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., 229 Conn. 455, 458 n. 5, 642 A.2d 697 (1994), the court, citing, in pertinent part, to Coburn v. Lenox Homes, Inc., supra, 186 Conn. 375, stated that "the imposition of liability for negligence on former landowners is a substantial deviation from the common law rule of caveat emptor. The common law rule continues to have vitality even though it has given way to liability for negligence in special cases such as those involving the defective construction of buildings or their appurtenances by buildervendors of real property." Id. Although the court in Connecticut Resources Recovery Authority v. Refuse Gardens Inc., supra, was not directly addressing the applicability of the caveat emptor doctrine in that case, [FN3] that court's discussion of the doctrine is persuasive. FN3. Rather, the issue that the court in Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., supra, 229 Conn. 455, addressed was whether General Statutes § 22a-452(a) imposes strict liability on a prior landowner for a subsequent landowner's environmental clean up costs.

Additionally, in ABB Industrial Systems v. Prime Technology, Inc., 120 F.3d 351 (2d Cir.1997), the purchaser of real property sued the previous chain of owners for environmental clean up costs alleging, inter alia, that each negligently contaminated the property. The circuit court, upon reviewing the district court's grant of summary judgment for the defendants, noted that "[the purchaser] pleaded a common law negligence claim but not a claim under section 22a-452(a) raises novel issues of Connecticut law. Connecticut could treat a common law negligence claim that falls within section 22a-452(a) as arising under that section. On the other hand, Connecticut could treat such a claim like any other common law negligence claim. The distinction could be crucial." Id., 359-60. The circuit court in ABB Industrial Systems v. Prime Technology, Inc., supra, 120 F.3d 360, cited Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., supra, 229 Conn. 456-58 n. 5, for the proposition that "[t]he Connecticut Supreme Court has indicated that the doctrine of caveat emptor generally bars common law negligence claims but does not bar claims under [General Statutes § ] 22a-452(a)." [FN4] FN4. The circuit court in ABB Industrial Systems v. Prime Technology, Inc., supra, 120 F.3d 360, did not make a decision on the applicability of the caveat emptor doctrine because it did not reach the issue since the plaintiff could not establish that the defendants negligently contaminated the property.

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*6 Recently, this court in Piantidosi v. Dragone, Superior Court, judicial district of StamfordNorwalk at Stamford, Docket No. 174606 (June 28, 2000) (D'Andrea, J.), addressed, on a motion to strike, whether a subsequent property purchaser can state a negligence claim against the professional environmental testing company that performed tests for the seller's previous owner to determine if the underground oil storage tank was or had been leaking. Although this court struck the negligence claim for failure to sufficiently allege foreseeability of harm, this court noted that the subsequent property purchaser was not precluded as a matter of law from asserting a negligence claim against the environmental testing company. This court reasoned that "[i]f foreseeability is sufficiently alleged or established, courts have determined that the nature of the relationship between third parties and certain professionals ... permits the professionals to be held liable for the foreseeable consequences of their negligent conduct, even in the absence of privity." Id. That case is distinguishable from the present case with respect to the nature of the relationship between the parties. See id. That case, unlike the present case, involves a defendant who allegedly negligently performed professional services for a previous property owner. See id. Also, in that case the defendant did not raise the caveat emptor doctrine, and policy considerations did not dictate that the environmental testing company could not be held liable. See id. Returning to the two prong analysis for determining the existence of a duty of care in the present case, policy considerations and the Supreme Court's dicta in Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., supra, 229 Conn. 456-58 n. 5, weigh in favor of applying the rule of caveat emptor. The law provides protection to purchasers of real property in cases where, for example, the seller makes negligent misrepresentations regarding the condition of the property. [FN5] The plaintiff has not pleaded any allegations that any exceptions to the caveat emptor doctrine apply in this case. The plaintiff has not fulfilled its burden of alleging facts necessary to preclude the imposition of the doctrine of caveat emptor. Additionally, the plaintiff has not alleged that it purchased the property without knowledge that the property had been contaminated by hazardous waste. [FN6] Accordingly, this court strikes counts fifteen, sixteen, nineteen and twenty of the plaintiff's revised complaint. FN5. This court finds that the plaintiff has other available remedies against the defendants. See infra.

FN6. In the negligence counts, the plaintiff incorporates the allegations contained in paragraphs one through thirty-three of the statutory reimbursement counts and alleges additional facts. The plaintiff alleges that the defendants, as former operators of the site and storage tanks, has a duty of care to use the site and the storage tanks in a reasonable manner and to avoid the unlawful discharge of hazardous materials and, if such materials were discharged, to contain or remediate the hazardous materials at the site. (Revised Complaint, Count One, ¶ 31.) The plaintiff further alleges that the defendants "negligently used, stored and treated Hazardous Materials and/or permitted the use, storage or

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treatment of Hazardous Materials at the Site, resulting in Discharge." (Revised Complaint, Count One, ¶ 32.) The plaintiff also alleges that the defendants allowed and/or caused hazardous materials to be discharged on the property, that they knew, or in the exercise of reasonable care should have known, their acts or omissions would result in the contamination of soil and groundwater. (Revised Complaint, Count One, ¶ 33.) The plaintiff alleges that the defendants' use, storage, treatment or discharge of hazardous materials has caused and continues to cause damage to the property. (Revised Complaint, Count Fifteen, ¶ 34.) The plaintiff goes on to allege that, "as a proximate result of the foregoing, [it] has been injured in that it has expended costs to investigate, contain, remove or mitigate the effects of such Hazardous Materials." (Revised Complaint, Count Fifteen, ¶ 35.) It alleges that it "is entitled to reimbursement of all costs and expenses incurred and to be incurred in investigating, remediating, containing, removing, or otherwise mitigating the effects of the Hazardous Materials on the Site, as well as damages and losses due to diminution in the value and/or loss of use of the Site, including losses resulting from stigma." (Revised Complaint, Count Fifteen, ¶ 35.) The plaintiff has pleaded the same negligence allegations against each defendant in individual counts directed at each movant.

B. REIMBURSEMENT PURSUANT TO GENERAL STATUTES § 22a-452 In counts one, two, five and six, the plaintiff has alleged that it is entitled to reimbursement from CE Services, CE Systems, Alfveby and Tantalos for the environmental decontamination costs of the property as well as property value diminution and lost use of the property, pursuant to General Statutes § 22a-452. The defendants move to strike these counts on the ground that the plaintiff has failed to allege a legally sufficient claim. In response, the plaintiff counters that it has alleged sufficient facts to maintain the statutory reimbursement claim for monies expended in removing, containing and mitigating the environmental contamination on the property. *7 The defendants argue that negligence is a requisite element of a claim pursuant to General Statutes § 22a-452 and that the plaintiff cannot establish negligence against them as a matter of law. They assert that the caveat emptor doctrine bars the plaintiff's statutory reimbursement claim because no duty exists between them, as former lessees of the former property owners, and the plaintiff, a subsequent property owner, to satisfy the duty element of negligence. The defendants further argue that the plaintiff has failed to allege culpability, the second essential element of a claim pursuant to General Statutes § 22a-452, and, consequently, the statutory reimbursement counts are legally insufficient. The plaintiff counters that General Statutes § 22a-452, itself, permits recovery by any person incurring environmental decontamination costs relating to property contaminated by another's negligent actions. The plaintiff relies on ABB Industrial Systems v. Prime Technology, Inc., supra, 120 F.3d 351, in which the second circuit noted that Connecticut's Supreme Court has indicated that the doctrine of caveat emptor does not bar claims pursuant to General Statutes § 22a-452. The plaintiff also cites federal appellate cases [FN7] for the proposition that, just as caveat emptor is not a defense to a claim under the federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA), it is also not a defense to a claim under General Statutes § 22a-452, which is modeled after CERCLA. In sum, the plaintiff's position is that application of the doctrine of caveat emptor would contravene the purpose of General Statutes § 22a-452 to provide a litigant with a cause of action to obtain reimbursement for

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environmental decontamination costs from those responsible. Additionally, the plaintiff reiterates that the defendants owed it a common law duty of care because it was reasonably foreseeable that their contamination of the property would affect subsequent owners and occupiers of the property and, thus, the negligence element of a claim pursuant to General Statutes § 22a-452 is satisfied. The plaintiff also contends that it has alleged sufficient facts to satisfy the culpability element of a claim pursuant to General Statutes § 22a-452.

FN7. The plaintiff relies on Smith Land & Insp. Corp. v. Celotex Corp., 851 F.2d 86, 8990 (3d Cir.1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 837, 102 L.Ed.2d 969 (1989) (holding that the caveat emptor doctrine cannot be used to bar relief under CERCLA and is contrary to the underlying policies of the legislation and congressional objective and, therefore, not an available defense), and on Schiavone v. Pearce, 79 F.3d 248 (2d Cir.1996), on remand, 77 F.Sup.2d 284 (D.Conn.1999) (holding that a subsequent owner may seek reimbursement for clean up costs, pursuant to General Statutes § 22a-452, from the successor property owner and operator of a facility that continued to environmentally contaminate the property like the original owner, from whom the successor owner sought contribution).

General Statutes § 22a-452(a) provides: "Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emergency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or other actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby ." (Emphasis added.) *8 Two elements, causation and culpability, must be alleged to maintain a claim pursuant to General Statutes § 22a-452. Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., 43 Conn.Sup. 83, 90, 642 A.2d 762 (1993), aff'd, Conn. 455, 458, 642 A.2d 697 (1994). In 229 Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., supra, 229 Conn. 458, the Supreme Court, in affirming the trial court, characterized the issue as whether General Statutes § 22a-452 imposes strict liability on a prior landowner of environmentally contaminated property for a subsequent owner's clean up costs. The Supreme Court observed that "[t]he trial court concluded that the legislature intended § 22a-452(a) to require a showing of culpability and not merely causation. Because the plaintiff had not alleged such culpability on the part of the defendants, the [trial] court denied the plaintiff's application for a prejudgment remedy." 458. Id., The Supreme Court agreed with the trial court and adopted its "well reasoned decision as a correct statement of the facts and the applicable law on the contested issue." Id., 458. "The use of the phrase 'resulted from the negligence or other actions of such person, firm or corporation' § in 22a-452(a) can be interpreted to mean only that the legislature intended § 22a-452(a) to be based

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on culpability and not merely causation .... We fail to see how the use of the term 'other actions' in § 22a-452(a) could negate the meaning of the word 'negligence,' which immediately precedes it. To read the term 'other actions' so as to convert22a-452(a) into liability without fault would § cause us to consider the term 'negligence' as either insignificant or unnecessary." (Citations omitted.) Connecticut Resources Recovery Authority v. Refuse Gardens, Inc., supra, 43 Conn.Sup. 90. In ABB Industrial Systems v. Prime Technology, Inc., supra, 120 F.3d 351, the second circuit, citing Connecticut Resources Recovery Authority v. Refuse Gardens, Inc. 229 Conn. 455, 456-58 & n. 5 (1994), stated that "[t]he Connecticut Supreme Court has indicated that the doctrine of caveat emptor generally bars common law negligence claims but does not bar claims under section 22a-452(a)." Application of the caveat emptor doctrine would eviscerate the plain meaning of the statutory language to provide a private cause of action for "any person" incurring clean up costs as a result of environmental contamination against those responsible. See Cadlerock Properties v. Schilberg, Superior Court, judicial district of Tolland at Rockville, Docket No. 69263 (February 25, 2000) (Sullivan, J.) [26 CONN.L.RPTR. 427] (denying a motion to strike a claim under General Statutes § 22a-452 by the subsequent owner of the property against the lessees of the former owner upon refitting the lessees' arguments on the basis that the doctrine of caveat emptor has been diminished in recent years and that it is foreseeable to a polluter that the present or future owner will be saddled with the clean up costs when the pollution is discovered). *9 The plaintiff sufficiently alleges the causation and culpability elements of General Statutes § 22a-452. With respect to the causation element, the plaintiff alleges that the defendants caused the discharge, or permitted the discharge, of hazardous materials on the property when they stored and used the hazardous materials. The plaintiff further alleges that the defendants knew or should have known that their conduct would result in soil and ground water contamination and that as a proximate result of their conduct it has been injured in having to incur the costs of containing, removing and mitigating the pollution effects. As to the culpability element, General Statutes § 22a-452 requires "negligence or other conduct." The failure to satisfy the duty element of negligence does not bar a claim under General Statutes § 22a-452 provided that other culpable conduct is alleged. The plaintiff alleges that the defendants engaged in culpable conduct. Specifically, the plaintiff alleges that the defendants brought hazardous materials onto the property and stored them in above ground tanks and drums on the property without appropriate permits. The plaintiff further alleges that the defendants discharged or permitted the discharge of hazardous materials on the property in the course of their business operations and that the defendants, as former operators of the property, had a duty to exercise care in using the property and the storage tanks in a reasonable manner to avoid an unlawful discharge and contain or remediate any resultant effects. Based on the foregoing allegations, the plaintiff does state a claim upon which relief can be granted for reimbursement of environmental decontamination costs under General Statutes § 22a-452. The defendants' motion to strike counts one, two, five and six is denied. C. NEGLIGENCE PER SE In counts twenty-two, twenty-three, twenty-six and twenty-seven, respectively, the plaintiff has alleged that defendants CE Services, CE Systems, Alfveby and Tantalos were each negligent per se in violation of General Statutes §§ 22a- 114, et seq., the statutory provisions governing hazardous waste, and General Statutes §§ 22a-427, 22a-430, 22a-449, 22a-450, 22a-452, the statutory provisions contained in Connecticut's Water Pollution Control Act (WPCA). The

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defendants move to strike the negligence per se counts on the ground that they are legally insufficient. They argue that the statutes cited by the plaintiff are part of an administrative scheme and cannot be used as a separate cause of action under a theory of negligence per se. In support of their argument, the defendants rely on several Superior Court decisions for the proposition that the legislature did not intend to allow negligence per se actions under the WPCA; General Statutes §§ 22a-416 through 22a-484; because it is a broad administrative scheme. The defendants also argue that, although negligence per se means that a breach of a duty is inferred from a violation of the statute, there must be an existing duty in the first place to be breached by inference and that no duty exists in the present case. The defendants reiterate that no duty runs from them, as former lessees, of the previous landowner, to the plaintiff as the subsequent purchaser. *10 The plaintiff counters that it has alleged a cognizable claim because the statutes cited establish a standard of care, it has alleged a breach of those statutes, it is within the class of persons the statutes were enacted to protect, the injuries and damages it sustained were of the type the statutes were intended to prevent, and it was injured as a proximate result of the statutory violations. This court has previously sustained a negligence per se cause of action pursuant to General Statutes § 22a-427; see Walker v. Barrett, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 169673 (November 8, 1999) (D'Andrea, J.)25 CONN.L.RPTR. 665]; [ and has recognized that "[t]here is a split of authority as to cases sustaining negligence per se actions pursuant to General Statutes § 22a-427." Id. In Walker v. Barrett supra, Superior Court, Docket No. 169673, purchasers of a house brought suit against the sellers for allegedly concealing sewage problems with the property by running piping from the septic system to emit waste into a storm drain. This court denied the sellers' motion to strike the purchasers' negligence per se claim, ruling that a private cause of action pursuant to General Statutes § 22a-427 is sustainable when negligence per se is alleged. This court reasoned that, as inhabitants of the state, the purchasers were within the class of persons protected by the statute and they sustained the type of injury the statute was designed to prevent--the contamination of water of this state. This court further noted that "[s]ome Superior Courts have rigorously applied a two-prong test finding a negligence per se action sustainable pursuant to the statute where inter alia allegations of state water pollution have been made." Id. Similarly, in Goodrich v. Jennings, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 150074 (May 22, 1997) (Mintz, J.) (19 Conn.L.Rptr. 544, 544-45), the court denied a motion to strike a negligence per se action based on General Statutes §§ 22a-427, 22a-430 and 22a-450 of the WPCA on the basis that the plaintiff was within the class of persons protected by these statutes and sustained the type of injury these statutes were intended to prevent. The court reasoned that "[t]he doctrine of negligence per se serves to superimpose a legislatively prescribed standard of care on the general standard of care." (Internal quotation marks omitted.) Goodrich v. Jennings, supra, 19 Conn.L.Rptr. 545. The court emphasized that the plaintiffs were seeking to adopt those sections of the WPCA as the standard of care in their negligence claim and were not interpreting those statutes to provide a private cause of action under the WPCA. Id. Similarly, in Blackburn v. Miller-Stephenson Chemical Co., Inc., Superior Court, judicial district of Danbury Docket No. 314089 (January 12, 1995) (Stodolink, J.) (13 Conn.L.Rptr. 364), the court denied a motion to strike a negligence per se claim by a property owner based on alleged violations of General Statutes §§ 22a-427, 22a-430 and 22a-454 by a neighboring property owner for contaminating a private on-site well that provided water for

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drinking and domestic use. That court found that the plaintiff sufficiently alleged that the defendant's statutory violations caused contamination of her property and reasoned that "[ a i]f plaintiff alleges that a statute, ordinance or regulation has been violated, thereby relying on negligence per se, and also alleges that there is a causal connection between such negligence and the injuries sustained, a cause of action has been stated." (Internal quotation marks omitted.) Id., 366, quoting Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., 20 Conn.App. 253, 258, 566 A.2d 431 (1989); but see Connecticut Water Co. v. Thomaston, Superior Court, judicial district of Hartford at Hartford, Docket No. 535590 (March 4, 1996) (Corradino, J.) (16 Conn.L.Rptr. 213, 213-15) (striking a negligence per se claim under General Statutes §§ 22a427, 22a-430 and 22a-450 on the ground that no private cause of action based on these statutes can be a basis for negligence per se claims); cf. Wiehl v. Dictaphone Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 306492 (January 13, 1994) (Maiocco, J.) (10 Conn.L.Rptr. 591, 593) (granting a motion to strike a negligence per se claim pursuant to General Statutes § 22a-427 on the ground that such claim is legally insufficient because the statute does not create a private cause of action); Reiser v. Island Transportation CO., Superior Court, judicial district of Danbury, Docket No. 332521 (May 2, 2000) (Radcliffe, J.) (26 Conn.L.Rptr. 642, 644) (denying summary judgment on the ground that violation of General Statutes §§ 22a-427 and 22a-430 does not support a negligence per se claim because these statutes are part of a broad regulatory scheme although they may serve as evidence of negligence); Bernbach v. Timex Corp., 989 F .Sup. 403, 408 (D.Conn.1996) (district court dismissed a negligence per se count based on the WPCA violation because persuaded by the number of Connecticut cases holding that the legislature did not intend to provide private parties with negligence per se actions for WPCA violations). *11 "[U]nder general principles of tort law, a requirement imposed by statute may establish the applicable standard of care to be applied in a particular action. It is well established that [i]n order to establish liability as a result of a statutory violation, a plaintiff must satisfy two conditions. First, the plaintiff must be within the class of persons protected by the statute ... Second, the injury must be of the type which the statute was intended to prevent." (Citations omitted; internal quotation marks omitted.) Gore v. People's Savings Bank, 235 Conn. 360, 37576, 665 A.2d 1341 (1995). "Negligence per se operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles, i.e., that standard of care to which an ordinarily prudent person would conform his conduct. To establish negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. They merely decide whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law ..." (Citation omitted; internal quotation marks omitted.) Id., 376. In the negligence per se counts, the plaintiff has alleged that the defendants' "improper use, storage treatment or Discharge of the ... Hazardous Materials is prohibited by applicable law, including but not limited to Conn.Gen.Stat. §§ 22a-114 et seq.; 22a-427; 22a-430; 22a-449; 22a450; 22a- 452; and the regulations promulgated thereunder." (Revised Complaint, Count 22, ¶ 37.) The plaintiff has further alleged that "[t]he foregoing prohibitions are intended to protect the citizens of the state of Connecticut and the United States from physical and economic harm" and that "[it] is within the class of persons protected by the statutes, and it has suffered injury of the type which the statutes were intended to prevent." (Revised Complaint, Count 22, ¶ 38- 39 .) It has further alleged that "[a]s a proximate result of the foregoing, French has been injured in that it has expended costs to investigate, contain, remove or mitigate the effects of such Hazardous

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Materials." (Revised Complaint, Count 22, ¶ 40.) The plaintiff has sufficiently alleged facts to maintain its negligence per se claims against each movant for alleged violations of General Statutes §§ 22a-427 [FN8] and 22a-452. The plaintiff has alleged that as a business enterprise owning property and having its principal place of business in this state that it is within the class protected by the statute. The plaintiff has also alleged that it has sustained the type of injury the statute was intended to protect against--the environmental contamination of the water and land in this state and the economic losses from resultant environmental decontamination costs. The plaintiff further alleges that the defendants' statutory violations, such as discharge of hazardous materials, caused contamination of its property, and caused it to expend monies to remove and mitigate the effects of the hazardous materials. The plaintiff has alleged the required elements to maintain the negligence per se claims. Accordingly, the court denies the defendants' motions to strike the negligence per se claims in counts twenty- two, twenty-three, twenty-six and twenty-seven of the plaintiff's revised complaint. FN8. General Statutes § 22a-427 provides that [n]o person or municipality shall cause pollution of any of the waters of the state or maintain a discharge of any treated or untreated wastes in violation of any provisions of this chapter.

D. RECKLESSNESS *12 The plaintiff has alleged in counts eight, nine, twelve and thirteen, respectively, that defendants CE Services, CE Systems, Alfveby and Tantalos were reckless in handling, storing and discharging hazardous materials on the property. The defendants have moved to strike the recklessness counts on the ground that the plaintiff cannot state a legally sufficient claim for recklessness. The defendants argue that the plaintiff has merely restated its negligence claim and labeled it recklessness. They further argue that the plaintiff has alleged a legal conclusion with no supporting factual allegations, including the failure to allege an intent to injure by the defendants. In response, the plaintiff contends that it has alleged sufficient facts to support an independent cause of action for recklessness and asserts that knowledge of potential harm to others is the level of mental culpability required to state a cause of action for recklessness. "Recklessness is a state of consciousness with reference to the consequences of one's acts.... It is more than negligence, more than gross negligence ... The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ... Wanton misconduct is reckless misconduct ... It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.... Wilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse.... [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.... Not only the action producing the injury but the resulting injury also must be intentional." (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 532-33, 542 A.2d 711 (1988). "To be legally sufficient, a count based on reckless and wanton misconduct must, like an action in negligence, allege some duty running from the defendant to the plaintiff." Sheiman v. Lafayette Bank & Trust Co., 4 Conn.App. 39, 46, 492 A.2d 219 (1985). Because the caveat emptor doctrine bars the plaintiff's common law negligence

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claims then, a fortiori, claims for recklessness are also precluded by the doctrine because the duty element of recklessness is lacking. Consequently, the plaintiff cannot state actionable claims for recklessness because the caveat emptor doctrine prohibits such claims as a matter of law. This court grants the defendants' motions to strike counts eight, nine, twelve and thirteen of the plaintiff's revised complaint. E. STRICT LIABILITY FOR ULTRAHAZARDOUS ACTIVITY The plaintiff also alleges claims for strict liability for ultrahazardous activity against defendants CE Services, CE Systems, Alfveby and Tantalos in counts twenty-nine, thirty, thirty-three and thirty-four, respectively. These counts incorporate paragraphs one through thirty-four of the statutory reimbursement counts and also contain the additional allegations cited below. The hazardous materials allegedly stored on the property by the defendants without the appropriate permits included, but were not limited to, the following: Guard All, Shell Solvent 142 HT; used oil filters and gas filters; antifreeze coolant; ethylene glycol base product; propylene alcohol; anti-wear hydraulic fluid; ZEP cleaner; DYNA clean, parts cleaning system; Mobil grease special; lubricating grease; Quaker State Golden Chasis Lubricant; Safety Kleen Cold Parts; Hot Line Traffic Paint; dirty absorbent pads and gloves; oil-soaked debris, rags and similar materials; heavy equipment and construction material; characterized and uncharacterized waste material; and scrap metal. (Revised Complaint, Count One, ¶ 12-13.) The plaintiff alleges that the defendants "used, stored, treated or Discharged and/or permitted the use, storage or treatment or Discharge at the Site without a permit, Hazardous Materials which, by their nature or by their use, storage, treatment, or Discharge, are abnormally dangerous." (Revised Complaint, Count 29, ¶ 35.) The plaintiff further alleges that "[t]he Hazardous Materials which [the defendants] used, stored, treated, or Discharged at the Site were and are abnormally dangerous, and their use, storage, treatment or Discharge, all without a permit, was an abnormally dangerous activity [that] ... created a serious risk of environmental contamination that could not and cannot be eliminated by the exercise of reasonable care and that has injured, damaged, and/or impaired and continues to injure, damage and/or impair, the Site." (Revised Complaint, Count 29, ¶ 36-37.) It is further alleged that "[a]s a result of the foregoing, French has been injured in that it has expended costs to investigate, contain, remove or mitigate the effects of such Hazardous Materials." (Revised Complaint, Count 29, ¶ 38.) *13 The defendants are moving to strike the strict liability counts on the basis that these counts fail to state claims upon which relief can be granted. They contend that the above-ground storage of hazardous materials does not constitute an abnormally dangerous activity, arguing that reasonable care can be applied to eliminate risk of injury, the activity is of common usage, and that the materials are not exceedingly corrosive and can be stored safely. The plaintiff counters that it has pleaded the requisite elements to state claims of strict liability for ultrahazardous activity. The plaintiff argues that these counts should not be stricken because there is no appellate authority addressing the issue of whether the storage of hazardous waste constitutes an ultrahazardous activity and because some Superior Court decisions recognize such claims in contexts involving similar activity to the storage of hazardous substances. Strict liability for dangerous activities is "applicable when an activity, not regularly engaged in by the general public, is conducted in or near a heavily populated area, such that it necessarily subjects vast numbers of person to potentially serious injury in the event of a mishap." Levenstein v. Yale University, 40 Conn.Sup. 123, 126, 482 A.2d 724 (1984). Imposition of strict liability for an abnormally dangerous activity mandates that certain factors exist: "an instrumentality capable of producing harm; circumstances and conditions in its use which,

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