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 1 Accashian v. City of Danbury 1999 WL 27223, 23 Conn. L. Rptr. 648 , Conn.Super., Jan 06, 1999 Not Reported in A.2d Conn.Super.,1999. Jan. 6, 1999. RULING ON MOTIONS TO STRIKE OF THE CITY OF DANBURY AND CITY OFFICIALS HODGSON. *1 The above-captioned case involves claims for damages brought by hundreds of plaintiffs who claim to have suffered either personal injuries or damage to their real property as a result of alleged environmental contamination arising from the operation of the Danbury municipal landfill. There are two groups of plaintiffs: persons who claim injury arising from their presence at the landfill as employees ("employee plaintiffs") and those who claim injury or loss arising from their residence in proximity to the landfill ("residential plaintiffs"). The plaintiffs have alleged liability against several categories of defendants: 1) the City of Danbury, 2) four named officials of the City of Danbury, 3) unidentified employees of the City denominated as "John Doe," and 4) corporations claimed to have deposited substances in the landfill that caused environmental pollution. All of the claims against the city and city officials are brought only by the residential plaintiffs. The City of Danbury (on its own behalf and in connection with claims that it must indemnify the "John Doe" defendants) and the individual municipal officials, Mayor Gene F. Eriquez, Superintendent of Public Utilities William J. Buckley, Jr., and Coordinator of Environmental and Occupational Health Services Jack S. Kozuchowski, have moved to strike Counts One through Five, Seven, Nine, Eleven, Twelve, and Fourteen through Sixteen of the complaint, plus subparts (a) through (e) of paragraphs 299, 304 and 309, as well as the plaintiffs' claims for emotional distress and loss of spousal, filial, and parental consortium. Standard of review The function of a motion to strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15, 618 A.2d 25 (1992); Ferryman v. Groton, 212 Conn. 138, 142, 561 A.2d 432 (1989); Practice Book § 10-39. In adjudicating a motion to strike, the court must construe the facts alleged in the complaint most favorably to the plaintiff. Bohan v. Last, 236 Conn. 670, 675, 674 A.2d 839 (1996); Sassone v. Lepore, 226 Conn. 773, 780, 629 A.2d 357 (1993); Novametrix Medical Systems, Inc., v. BOC Group, Inc., supra, 224 Conn. 215; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). Conclusions of law without sufficient alleged facts to support them will not, however, withstand a motion to strike. Fortini v. New England Log Homes, Inc., 4 Conn.App. 132, 134-35, 492 A.2d 545 (1985); cert. dismissed, 197 Conn. 801, 495 A.2d 280 (1985). Governmental v. Proprietary Function--Counts One, Two and Three *2 The city and the municipal employees claim that the operation of the landfill was a governmental activity, and that they are immune from claims arising from such operation. In Elliott v. Waterbury, 245 Conn. 385, 407-08, 411, 715 A.2d 27 (1998), the Connecticut Supreme

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Court ruled that the scope of governmental immunity is defined in part by Conn. Gen.Stat. § 52557n (which in part codifies some aspects of the common law on the subject) and in part by common law principles concerning such immunity. A municipal government is immune from liability for the performance of governmental acts that are discretionary, as opposed to ministerial, in nature. Elliott v. Waterbury, supra, 245 Conn. 411; Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). Municipalities are not, however, immune from liability for acts that concern a proprietary, as opposed to a governmental, activity. Id. Section 52-557n(a)(1)(b) 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 distinction between governmental and proprietary acts is not drawn on the basis of whether the activity serves the public. 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. 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, 98 A.2d 659 (1953); swimming facilities, Carta v. City of Norwalk, 108 Conn. 697, 145 A. 158 (1929); fire departments, O'Donnell v. Groton, 108 Conn. 622, 144 A. 468 (1929); police services, Gordon v. 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. 487 (1904). A proprietary function is an act "done in the management of [a city's] property or rights for its own corporate benefit or profit and that of its inhabitants." Richmond v. Norwich, 96 Conn. 588. This court has not located, and the parties have not cited, any appellate Connecticut case characterizing the operation of a landfill as either proprietary or governmental in nature. 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). The Court in that case was not, however, faced with facts indicating a proprietary method of operation of the facility at issue. *3 The Supreme Court demonstrated in Elliott v. Waterbury, supra, that it does not look to the nature of the enterprise but to the nature of the specific activity that is alleged to give rise to liability. In Elliott, the city and its officials were alleged to have been negligent in allowing hunting on watershed property. The plaintiff in that case was a jogger accidentally killed by a hunter. The Court noted that in other cases in which operation of a water authority was found to be proprietary, the "allegedly tortious conduct of the municipalities was inextricably linked to the operation of the water utility for corporate gain," while the authorization of hunting on the premises was not so linked. Elliott v. Waterbury, supra, 245 Conn. 413. Since the actual acts in question were unrelated to the proprietary functions, the Court found that they involved discretionary activities to which immunity applied: It is apparent, rather, that that activity consisted of a set of policy decisions--which the plaintiff concedes required the exercise of judgment and discretion--concerning the use of city land for recreational purposes. Moreover, the plaintiff does not allege, and there is no indication in the record, that Waterbury received corporate gain or benefit from the hunting. In these circumstances, we conclude that, as a matter of law, the conduct of which the plaintiff complains

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constituted governmental, and not proprietary, acts. Elliott v. Waterbury, supra, 245 Conn. 414. The plaintiffs in the case before this court have argued that the characterization of an activity as governmental or proprietary is not a matter of law and must therefore be decided by the trier of fact. The plaintiffs cite a number of trial court rulings to this effect; however, our Supreme Court has recently determined otherwise in Elliott, finding the acts at issue to have been governmental, and affirming the trial court's granting of summary judgment on grounds of governmental immunity. In Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 180-81, the Court likewise found that the characterization of a function as a private versus a public duty of a municipality was an issue of law, not of fact. The plaintiffs in the case before this court allege, in effect, 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. They allege that the city accepted demolition waste and construction waste from non- residents, including out-of-state customers, in return for fees of thirty-five dollars per ton. The plaintiffs allege that between January 1995 and December 1996 the city's income from such tipping fees was approximately twelve million dollars. *4 The issue of the status of the sewer treatment plant as a governmental or proprietary function likewise depends on the manner of operation. Under the standard of Bohan v. Last, supra, 260 Conn. 670: this court is unable to determine that there is no set of facts provable under the complaint that would support a finding that the sewer treatment plant is a proprietary rather than a governmental function, especially since sewer treatment plants are often operated, like water companies, as utilities. Applying the standard applicable upon a motion to strike, this court cannot conclude that there is no set of facts provable under the allegations of the complaint that would lead to the characterization of the operations at issue as proprietary rather than governmental. The municipal defendants assert that even if the conduct is proprietary, municipal immunity bars the claims if the acts complained of are discretionary in nature. The words of § 52-557n(a)(B) negate this assertion: "Except as otherwise provided by law, a political subdivision of the 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 Supreme Court has ruled that the phrase "except as otherwise provided by law" means only statutory law, not common law. Sanzone v. Board of Police Commissioner, 219 Conn. 179, 191-92, 592 A.2d 912 (1991). Since the municipal defendants have cited no statute that provides immunity from liability from negligence in the performance of proprietary functions, the court cannot agree with its position that immunity applies as a matter of law. The municipal defendants further argue that they cannot be held liable because § 52-557n(b)(9) provides that municipalities and their employees shall not be liable for "failure to detect or prevent pollution of the environment including groundwater, watercourses and wells, by individuals or entities other than the political subdivision." The plaintiffs have alleged liability based on the deeds of the municipal employees themselves, not on failure to detect the environmental torts of others. The exemption from liability is, on its face, not applicable. The motion to strike is denied as to Counts One, Two and Three. Motion to Strike Certain allegations of Negligence The municipal defendants have moved to strike certain allegations in the plaintiffs' complaint on the grounds that these paragraphs do not state a cognizable cause of action. The paragraphs so

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challenged are subparagraphs a), c), d), and e) of paragraphs 299, 304, and 309. Though these subsections are inartfully pleaded as if they stated discrete instances of negligence, under the favorable reading required by case law, they may be read as the plaintiffs' allegations of knowledge of the dangers of accepting and handling particular kinds of waste in the manner that these defendants are alleged to have done. While the defendants object that they were authorized to accept such waste, such factual defenses cannot be considered upon a motion to strike. The defendants ask this court to accept the allegations in their brief that they received only materials authorized and dealt with them only in authorized ways. In short, the municipal defendants invite a trial on the merits under the guise of adjudicating a motion to strike. As has been discussed above, they have mistaken the function of the motion. *5 The motion is denied as to these paragraphs, without reaching the issue whether discrete paragraphs of a complaint, rather than claims, can be stricken. "John Doe" Defendants--Count Four The City has moved to strike claims that it has a duty to indemnify pursuant to Conn. Gen.Stat. § 7-465 unnamed, unserved defendants designated "John Doe" in Count Four of the complaint. Count Four contains claims of negligence against up to one hundred "John Does" who are claimed to be municipal employees. In Count Five, the plaintiffs seek indemnification of all municipal employees, including, presumably, the John Does. Section 7-465 provides that the City must "pay on behalf of any employee of such municipality .... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ... for physical damages to person or property ... if the employee, at the time of the occurrence, ... was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty." The sheriff's return indicates that no "John Doe" has been served either in person or at his place of abode as required by Conn. Gen.Stat. § 52-57(a). Accordingly, there is no valid pending suit against any municipal employee other than the three individually named and served. The City's duty to indemnify is contingent on the bringing of suit against a municipal employee within the scope of § 7-465. No such claims are pending, as the "John Does" have not been identified and served. See Conn. Gen.Stat. §§ 52-54 and 57(a). While the City has no standing to move to strike the claims against the "John Doe" employees, it has standing to move to strike the claim of indemnification. Accordingly, the motion to strike Count Four is denied; the motion to strike indemnification claims arising from the claimed liability of "John Doe" defendants is granted. Indemnification--Count Five In Count Five, the plaintiffs allege that the individual municipal defendants were negligent in their operation of the landfill and that the City is required to indemnify them pursuant to Conn. Gen.Stat. § 7-465. The individual municipal defendants invoke municipal immunity; however, this ground must be rejected for the same reasons as are discussed above in connection with the first three counts of the complaint. Section 7-465, moreover, provides that "[g]overnmental immunity shall not be a defense in any action brought under this section." The municipal defendants additionally claim that the plaintiffs have failed to state a cause of action because they have failed to comply with the requirement stated in § 7-465(a) that they provide written notice of the intention to commence their action. The plaintiffs have alleged the giving of such notice. The City has moved to strike on the ground that the plaintiffs failed to comply with Practice Book § 10-68, which provides that "[w]henever in an action of tort or upon

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a statute the plaintiff is compelled to allege the giving of a notice required by statute, the plaintiff shall either recite the same in the complaint or annex a copy thereto." *6 If the municipal defendants had wished to enforce the pleading requirements of Practice Book § 10-68, they could have requested that the plaintiffs revise their complaint to attach each notice alleged to have been provided. Instead, their request to revise then-paragraph 131, in which the plaintiffs alleged that they had filed written notice with the Town Clerk "of their intention to commence an action for personal injuries and a general description of same and the cause thereof" was as follows: "Defendants request that this paragraph be deleted in its entirety, as it is repetitive of Count Five and therefore improper." Since § 10-68 merely states the manner in which notice should be pleaded, by failing to request a revision to require pleading in the prescribed form, the defendants acceded to the plaintiffs' choice merely to allege that they had filed notices of the kind required by Conn. Gen.Stat. § 7-465. The City now attempts to convert a Practice Book provision concerning the form of pleading into a substantive provision concerning the sufficiency of the cause of action under § 7-465. The plaintiffs allege that they have provided the requisite notice of the claim. Under that allegation, they may produce at trial the notice that their claim constitutes their compliance with this prerequisite. If the City wishes to test the sufficiency of the notice prior to trial, it may do so by a motion for summary judgment, such that the plaintiffs will have an opportunity to file the documents to which the allegations of compliance made in the complaint must refer. The Supreme Court noted in Bresnan v. Frankel, 224 Conn. 23, 28, 615 A.2d 1040 (1992), that the court may determine as a matter of law whether a required notice is patently inadequate or whether its adequacy is a jury issue. The motion to strike Count Five is denied, except with respect to the "John Doe" defendants, as set forth above. Negligence based on non-compliance with Conn. Gen.Stat. § 22a-427--Count Seven Section 22a-247 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 provision of this chapter." The chapter referred to is the Water Pollution Control Chapter, 446k. The defendants assert that Count Seven should be stricken because the cited statute is not enforceable by a private cause of action. In fact, the plaintiffs quite clearly are not attempting to maintain a direct cause of action based on the cited statute or to enforce statutory remedies. The plaintiffs have quite explicitly pleaded that it was negligent of the defendants to engage in conduct that failed to comply with the standard required by the statute. Negligence is the failure to use the required care in a situation. As the Connecticut Supreme Court has steadfastly held, a duty of care may derive from contract, from common law or from a statute. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); Neil v. Shiels, Inc., 166 Conn. 3, 12-13, 347 A.2d 102 (1974); Connecticut Savings Bank of New Haven v. First National Bank & Trust Co. of New Haven, 138 Conn. 298, 303-04, 84 A.2d 267 (1951); Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402 (1941). *7 In Commercial Union Ins. Co. v. Frank Perrotti & Sons, Inc., 20 Conn.App. 253, 260, 566 A.2d 431 (1989), the Appellate Court ruled that a municipal ordinance requiring separation of combustible materials from other trash could supply the standard of care in a claim based on negligence in disposing of flammable fuel in a load of trash. The court did not treat the allegation as an attempt to bring a direct cause of action under the ordinance, which was enforceable by municipal authorities. It is, of course, commonplace for plaintiffs alleging negligent operation of motor vehicles to claim that violation of traffic control statutes constitutes negligence per se. The

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fact that such statutes are enforceable by the police has never been viewed as a reason to prohibit plaintiffs from invoking the standards of care stated in them in claims of negligence. Violations of statutory standards may be the basis of a claim of negligence per se "if the plaintiff is within the class of persons whom the statute was intended to protect and if the harm was of the type that the enactment was intended to prevent." Wright and Fitzgerald, Connecticut Law of Torts, 38 (1968). The municipal defendants argue that the prohibition against discharge of wastes in manners prohibited by provisions of Chapter 446k is an enactment not meant for protection of persons living in proximity to an alleged hazardous discharge, but rather only for the benefit of the Commissioner of Environmental Protection. This argument is akin to saying that the traffic laws exist for the benefit of the police who enforce them. This court finds persuasive the conclusion of the court in Goodrich v. Jennings, Superior Court, Judicial District of New Haven, Docket No. 150074 (May 22, 1997), 19 CONN. L. RPTR. 544, 1997 WL 297732, that the cited statute may be the basis for a claim of negligence per se in discharge of waste. The motion to strike Count Seven is denied. Strict liability--Count Nine The plaintiffs claim in Count Nine of their complaint that accepting hazardous and toxic substances in the Danbury landfill and discharging or allowing the discharge of hazardous and toxic substances constituted knowingly engaging in an abnormally dangerous activity and that as a result of the defendants conducting these activities, the plaintiffs were injured. The defendants have moved to strike on the ground that the activities at issue do not constitute ultrahazardous activities of the kind that should give rise to strict liability. An ultrahazardous activity for the conduct of which strict liability for damages is imposed is one that poses danger even if due care is exercised. Caporale v. C.W. Blakeslee & Sons, Inc., 149 Conn. 79, 85, 175 A.2d 561 (1961); Green v. Ensign-Bickford Co., 25 Conn.App. 479, 485, 595 A.2d 1383 (1991). Just three activities have been held to be ultrahazardous to date by the appellate courts of this state: blasting, Whitman Hotel Corporation v. Elliott & Watrous Engineering Co., 137 Conn. 562, 570, 79 A.2d 591 (1951); pile-driving, Caporale v. C.W. Blakeslee & Sons, Inc., supra ; and manufacturing explosives, Green v. Ensign-Bickford, supra, 25 Conn.App. 486. *8 The Appellate Court ruled in Green v. Ensign Bickford Co., Id., that the characterization of an activity as ultrahazardous is a question of law for the court to determine; and the court approved adherence to the factors listed at § 520 of the Restatement (Second) of Torts, in determining whether an activity is, as a matter of law, ultrahazardous: (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) extent to which its value to the community is outweighed by its dangerous attributes. The actual materials that the plaintiffs claim are to blame for toxic conditions are demolition debris and construction debris. These are common substances which do not pose the same degree of risk as, for example, explosives. State and federal regulatory schemes suggest that these materials do not pose a hazard if handled properly. See Conn. Gen.Stat. §§ 22a-114 through 134q. While they may be hazardous to some degree, this court cannot conclude, after considering all the factors set forth above, that it is an ultrahazardous activity to receive and process these materials in a landfill facility.

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The plaintiffs note that a federal trial court found receipt of hazardous and toxic wastes by a landfill to be an ultrahazardous activity in Albahary v. Bristol, 963 F.Supp. 150 (D.Conn.1997). The court in that case purported to distinguish storage of hazardous substances as giving or not giving rise to strict liability depending on the locus of the storage, declining to follow rulings by other federal judges holding that storage of such materials at various places of business was not an ultrahazardous activity. One of the factors set forth in the Restatement is the appropriateness of the activity to the place where it is conducted. The storage of hazardous materials in a landfill facility under the supervision of state, federal, and local regulatory authorities cannot logically be a reason for finding strict liability if storage at less equipped, less supervised locations does not. This court does not find the reasoning in Albahary persuasive. The motion to strike Count Nine of the complaint is granted. Trespass--Count Eleven The movants challenge the legal sufficiency of Count Eleven, in which the plaintiffs claim that discharge of materials from the landfill constituted a trespass that damaged their property. The sole ground raised by the movants is the failure to allege an intent to invade the property of the plaintiffs. 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 *9 (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. The plaintiffs assert that they have adequately pleaded facts supporting the element of intent by alleging that the landfill was unlined and that it was contiguous to wetlands. 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." Courts in other cases involving alleged leaching of liquids or aerial transmissions of dust have found that a cause of action in trespass could be maintained. See P.R.I.C.E. v. Keeney, Docket No. CV 94-0542469, 22 CONN. L. R PTR. 373, 1998 WL 417591 (Conn.Super.7/10/98); Ahnert v. Getty, Docket No. 537008, 1997 WL 178064 (4/4/97). The motion to strike Count Eleven is denied. Public nuisance--Count Twelve The plaintiffs claim at Count Twelve of their complaint that the municipal defendants are liable for creating a public nuisance. In order to maintain such a cause of action, a plaintiff must plead facts to support the following elements of proof "1) the condition complained of has a natural tendency to create danger and inflict injury upon person and 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 the proximate cause of the plaintiff's injuries and damages." State v. TippettsAbbetttMcCarthy- Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987). Where the alleged creator of the nuisance is a municipality, another element is required: "the plaintiff must prove that the defendants, by some positive act, intentionally created the condition alleged to constitute a

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nuisance." Elliott v. Waterbury, supra, 245 Conn. 421, citing Keeney v. Old Saybrook, 237 Conn. 135, 165-66, 676 A.2d 795 (1996) ("Keeney I" ), and Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975). In Elliott v. Waterbury, supra, the claimed nuisance involved hunting being permitted in a watershed area. Since the plaintiffs had not alleged that the town of Morris permitted hunting on the portion of the watershed property within the boundaries of the town, summary judgment was held to have been properly granted as to the nuisance claim against the town of Morris. By contrast, our Supreme Court reversed summary judgment on the nuisance claim against the City of Waterbury, which had opened its land to hunters. *10 A plaintiff must allege and prove that the municipality intentionally created the condition claimed to be a nuisance. In Keeney I, supra, 237 Conn. 163, the Supreme Court announced the rule that "an interference with the public right is intentional if the municipality ... knows that it is resulting or is substantially certain to result from its conduct." The Court noted that "it is not enough to make an invasion intentional that the actor realizes or should realize that its conduct involves a serious risk or likelihood of causing the invasion. The actor must either act for the purpose of causing it or know that it is resulting or is substantially certain to result from the actor's conduct." Keeney I, supra, 237 Conn. 163-64, citing 4 Restatement (Second) Torts § 825 (1979). The plaintiffs allege at paragraphs 344 through 347 that the municipal defendants knowingly permitted the demolition and construction debris to be deposited. The only allegation they make as to intent to cause the result of danger or harm from invasion of the rights of others, however, is the allegation at subparagraph (e) of paragraphs 299, 304 and 309 that the defendants "knew or should have known of the possibility" that toxic substances would be created. Such an allegation is a far cry from the standard required by the Supreme Court in Keeney I, supra. The plaintiffs have neither alleged knowledge of the result or substantial certainty of the result of allowing the dumping of demolition and construction materials nor have they alleged facts that would lead to an inference of such knowledge. At most, the factual allegations are that the municipal defendants knew the dumping was occurring, not what the result was or was likely to be. In contrast to a cause of action for trespass, which requires only substantial certainty of invasion, a cause of action in nuisance requires substantial certainty of danger from that invasion. The plaintiffs urge that their nuisance count should survive even though they have failed to plead, even in a conclusory manner, the level of intent required under Keeney I. This position cannot be adopted. A plaintiff must allege facts that support all required elements of the cause of action. The motion to strike Count Twelve is granted. Private nuisance--Count Fourteen In Count Fourteen, the plaintiffs allege private nuisance not against the City itself, but only against the individual municipal defendants. These employees argue that operation of the landfill is a governmental function and that municipal immunity applies to the creation of a private nuisance. As has been discussed above, the pleadings are sufficient to support a claim that the actions complained of were proprietary rather than governmental. It is, however, not likely that municipal immunity bars a cause of action in nuisance, since Conn. Gen.Stat. § 52-557n specifies that immunity applies to damages caused by negligent acts. That statute, at subsection (a)(1)(C) provides that a municipality is liable for acts "which constitute the creation or participation in the creation of a nuisance." *11 The plaintiffs assume that the same element of intent required for proof of a public nuisance

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is not required where a private nuisance is alleged. This court does not agree. The distinction between private and public nuisance is only in the identity of the injured party, not the nature of the conduct. A private nuisance is the creation of a condition that causes damage to the property of another; a public nuisance is the creation of a condition that causes damage to the public in general. See 4 Restatement (Second) Torts §§ 821B and 821D. The Restatement, on which the Supreme Court relied in Elliott, supra, makes no distinction on the basis of private/public harm in the elements of proof of wrongful conduct; rather, it specifies the same elements with regard to both public and private nuisance: The conduct necessary to make the actor liable for either a public or a private nuisance may consist of (A) an act; or (B) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest or the invasion of the private interest. 4 Restatement (Second) Torts § 824. Section 825 of the Restatement, the section relied upon by the Supreme Court in Keeney I with regard to the need to allege knowledge or substantial certainty of harm, is followed by a Comment that indicates that "the rule here stated applies to conduct that results in a private nuisance." Whether the nuisance alleged is private or public in its consequences, a plaintiff must allege intent to create a nuisance, that is, that the actor knew of the dangerous result or was reasonably certain of its occurrence. The allegations of Count Fourteen contain no such allegations of intent. The motion to strike this count is therefore granted. Inverse condemnation--Count Fifteen In the various paragraphs of the revised complaint in which the identity of each plaintiff is set forth, the residential plaintiffs allege that they reside in premises alleged to be in proximity to the Danbury landfill. In Count Fifteen, the plaintiffs reallege paragraphs 1 through 362, in which these allegations of residence are set forth, yet claim, conclusorily, that "the physical invasion, contamination and stigmatization of Residential Plaintiffs' property caused by the Municipal Defendants' operation of the Danbury landfill and/or the Danbury Sewage Treatment Plant has deprived Residential Plaintiffs of substantially all of the value of their property." None of the plaintiffs has alleged that he or she has been forced to move out of his or her residence because of environmental contamination; rather, the plaintiffs allege "substantial devaluation," a term that ordinarily means a lessening of value. A landowner is not eligible for compensation for a diminution in the value of property because of municipal activities "unless the property cannot be utilized for any reasonable and proper purpose ... as where the economic utilization of the land is, for all practical purposes, destroyed." Tamm v. Burns, 222 Conn. 280, 284, 610 A.2d 590 (1992), quoting Horak v. State, 171 Conn. 257, 261, 368 A.2d 155 (1976). The plaintiffs have not alleged the requisite completeness of dimunution of value and usefulness of their properties, which they acknowledge in their pleadings still furnish them with residences. *12 The motion to strike Count Fifteen is granted. Claim for clean-up costs pursuant to Conn. Gen.Stat. § 22a-452--Count Sixteen The plaintiffs claim in Count Sixteen that the defendant City of Danbury is liable to them for clean-up costs that they have encountered or will encounter for removal of discharged substances from their properties. Section 22a- 452(a) provides that "a person, firm, corporation or municipality" that contains, removes or mitigates the effects of discharge of hazardous wastes

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"shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended ..." On its face, the statute does not include municipalities among the kinds of entities from whom reimbursement may be sought. Since the statute was amended by Public Act 86-239, § 12, to specifically list municipalities as among those entities that can recover for performing a clean-up, the General Assembly was being quite specific in identifying rights and exposures according to the identity of the entity. The omission of "municipalities" from the listing of entities from which reimbursement is available must therefore be given effect. "In construing a statutory provision, [the court] first look[s] to its language, and if that language is plain and unambiguous, [the court] need look no further for interpretive guidance because we assume that the words themselves express the intention of the legislature." (Internal quotation marks omitted.) Samperi v. Inland Wetlands Agency, 226 Conn. 579, 590, 628 A.2d 1286 (1993); Nicotra Wieler Inv. Management, Inc. v. Grower, 207 Conn. 441, 455, 541 A.2d 1226 (1988). "Unless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive." Dowling v. Slotnik, 244 Conn. 781, 803, 712 A.2d 396 (1998). The motion to strike Count Sixteen is granted. Loss of Consortium Claims The municipal defendants have moved to strike all claims for loss of consortium. The motion is granted as to claims of parental/filial consortium, as the Supreme Court has rejected such claims in Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998). The movants seek an order striking the claims of spousal loss of consortium on the ground that the plaintiffs have failed to plead such causes of action sufficiently. In each count of their complaint, the plaintiffs have alleged injury to themselves and, in a list of damages, they have alleged that they "have been deprived of the services, consortium, care and society of their spouses." This court cannot conclude that this allegation would not support proof that each plaintiff was married to one of the other named plaintiffs at the time of the claimed harm. If the defendants really had desired each of the hundreds of plaintiffs to allege that he or she was married to the other plaintiff identified in the same paragraph of the complaint, such corrections to the form of pleading could have been achieved by way of a request to revise. *13 The motion to strike the claims for loss of spousal consortium is denied. Claims for damages for emotional distress The municipal defendants have moved to strike the plaintiffs' claims for damages for emotional distress as an element of damages in Counts One, Two, Three, Four, Seven, Nine, Eleven, Twelve and Fourteen. The defendants offer the patently frivolous argument that emotional distress is not available as an element of damages unless the plaintiffs assert a cause of action for negligent or intentional infliction of emotional distress. The total vacuity of this position would lead to incredulity that it could be submitted for adjudication; however, the municipal defendants have actually included the following statement in their brief: "(P)laintiffs' bare assertions that they suffered emotional distress, as a result of the defendants' alleged negligence falls well short of meeting that standard (of a cause of action for negligent infliction of emotional distress). Therefore, the plaintiffs' claim for damages arising from emotional distress must be stricken." Plaintiffs quite plainly have alleged that among the various kinds of harm that they have suffered as a result of the defendants' alleged negligence is emotional distress at the discharge of toxic substances into the land, water and air around them. It is unequivocally the law of Connecticut that mental suffering or emotional distress may be an element of damages arising from negligent conduct. See, e.g., Orlo v. Connecticut Co., 128 Conn. 231, 239, 21 A.2d 402 (1941); Bushnell v. Bushnell, 103 Conn. 583, 594, 131 A. 432 (1925).

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The motion to strike claims for emotional distress arising from the movants' alleged negligence is denied. Since the movants have not briefed any ground for striking the claims for emotional distress in the counts that are based on causes of action other than negligence, the motion is denied as to those counts as well. Conclusion The motion to strike is granted as to the indemnification claims against the City in Counts Four, Nine, Twelve, Fourteen, Fifteen and Sixteen and the claims for damages for loss of filial/parental consortium. The motion to strike is denied as to Counts One, Two, Three, Five, Seven, Eleven, as to claims for emotional distress caused by the movants' negligence, as to the challenged portions of paragraphs 299, 304 and 309, and as to claims of loss of spousal consortium. Conn.Super.,1999. Accashian v. City of Danbury 1999 WL 27223 (Conn.Super.), 23 Conn. L. Rptr. 648 END OF DOCUMENT CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 2 Accashian v. City of Danbury 2000 WL 157926, 26 Conn. L. Rptr. 287, Conn.Super., Jan 27, 2000 Not Reported in A.2d Conn.Super.,2000. Jan. 27, 2000. MEMORANDUM OF DECISION ON DEFENDANT CITY OF DANBURY'S MOTION TO STRIKE PORTIONS OF THE FIFTH AMENDMENT COMPLAINT HODGSON. *1 The above-captioned action concerns claims by the plaintiffs for damages resulting from the operation of the Danbury landfill. By an order issued January 6, 1999, this court granted in part a motion to strike claims against the City of Danbury in the plaintiffs' fourth amended complaint. The plaintiffs have pleaded over, and the City of Danbury ("City") has moved to strike nine counts of the fifth amended complaint: Counts 4, 5, 8, 11, 12, 14,15,16 and 17. Standard of review The function of a motion to strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 214-15 (1992); Ferryman v. Groton, 212 Conn. 138, 142 (1989); Practice Book § 10-39. In adjudicating a motion to strike, the court must construe the facts alleged in the complaint in the manner most favorable to the plaintiff. Bohan v. Last, 236 Conn. 670, 675 (1996); Sassone v. Lepore, 226 Conn. 773, 780 (1993); Novametrix Medical Systems, Inc. v. BOC Group, Inc., supra, 224 Conn. 215; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170 (1998). The requirement of favorable construction does not extend, however, to legal opinions or conclusions stated in the complaint, but only to factual allegations and the facts "necessarily implied and fairly provable under the allegations." Forbes v. Ballaro, 31 Conn.App. 235, 239 (1993).

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Conclusory statements or statements of legal effect not supported by allegations of fact will not enable a complaint to withstand a motion to Strike. Mingachos v. CBS, Inc., 196 Conn. 191, 108 (1985); Fortini v. New England Log Homes, Inc., 4 Conn.App. 132, 134-35, cert. dismissed, 197 Conn. 801 (1985). Counts 4 and 5 "John Doe" claims Counts 4 and 5 of the current complaint, like counts 4 and 5 of the prior complaint, allege tortious conduct by unnamed John Doe employees of the City of Danbury, who have been neither named nor served with process. For the same reasons that these claims were stricken in the court's January 6, 1999 ruling on the motion to strike the prior complaint, these counts are stricken. Count 8 Strict liability In pleading over, the plaintiffs again allege that operating a landfill is an inherently ultrahazardous activity to which the doctrine of strict liability applies. This claim repeats the claim of strict liability stricken by this court in the January 6, 1999 ruling. The plaintiffs allege that they have amended their factual allegations to include the claim that the activity alleged to be ultrahazardous is the City's "acceptance, over the last five or six decades, of a variety of carginogenic, teratogenic, and otherwise toxic chemicals and industrial waste" at the landfill site. While the plaintiffs characterize their allegations as a claim that the City disposed of toxic wastes at the site, at oral argument they conceded that they do not allege that the City disposed of waste but only that it accepted at the landfill wastes disposed of by others. This court ruled in connection with the 1998 motion to strike that storage of wastes is not the sort of ultrahazardous activity that is associated with causing damage even if precautions are taken. The plaintiffs now seek to characterize the maintenance of a landfill not as storage but as disposal, even though they do not allege that the City itself disposed of any toxic material on the site. *2 The court finds that the operation of a landfill is not an ultrahazardous activity giving rise to strict liability, as detailed in the 1999 ruling, and that the plaintiffs' amendments have added nothing to alter that analysis or conclusion. The motion to strike this count is granted. Count 11 Trespass This court previously denied the City's motion to strike the plaintiffs' claim of trespass. In its present challenge to the trespass count in the fifth amended complaint, the City cites a trial court ruling striking a claim of trespass. In Mather v. Birken Manufacturing Co., 23 CONN.L.RPTR. 13, 1998 WL 920267 (December 8, 1998), the court, Hennessey, J., granted a motion to strike a trespass claim where the plaintiff had failed to allege facts sufficient to support a finding that the defendant's invasion of the plaintiff's property was intentional. The court in that case concluded that the allegations did not indicate that the defendant's act was "done with knowledge that it [would] to a substantial certainty result in the entry of the foreign matter on the property" of the plaintiff. Mather v. Birken Manufacturing Co., supra, 23 CONN.L.RPTR. 13, 1998 WL 920267, p. 3. By contrast, in this case the plaintiffs have alleged that the City was put on notice in 1987 by inspectors from the Environmental Protection Agency that the groundwater had been contaminated and that leaching from the unlined landfill would continue into the groundwater, and that the City was aware that the landfill is situated above an aquifer. An aquifer is an underground stream that flows under the land, and the plaintiffs thus allege, in effect, that operation of the landfill after knowledge of contamination of the groundwater posed a substantial likelihood of contamination of land affected by the aquifer. The motion to strike the plaintiffs' trespass claim is again denied.

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Courts 12 through 17 Nuisance In counts Twelve through Seventeen, the plaintiffs allege that the City is liable for creating a nuisance, specifically, the release into the groundwater and soil and air of toxic and hazardous wastes from the Danbury landfill. In their Fifth Amended Complaint, unlike the prior complaint, the plaintiffs plead factual allegations that, if proven, could support a finding that the City continued to create and/or maintain the conditions complained of after learning the likely effects of the activities at issue. (See paragraph 371-72.) Contrary to the City's view, these factual allegations include knowledge by the City that wastes had entered the groundwater. The allegation that the unlined landfill lay on an aquifer is sufficient to support an inference of knowledge of likely harm to properties affected by that aquifer. The nuisance claim was stricken from the prior complaint for failure to allege facts that would support a finding that the failure to respond to reports of conditions affecting the property of others was the equivalent of a "positive act" within the holding of Keeney v. Old Saybrook, 237 Conn. 135, 165-66 (1996). The plaintiffs have now remedied that deficiency. *3 The City claims in its motion that a further reason to strike the nuisance claims is that an additional element of intent to cause an intrusion on to surrounding properties is required. The Connecticut Supreme Court stated in Elliott v. Waterbury, 245 Conn. 385, 421 (1998): "Finally, in order to overcome the governmental immunity of municipal defendants where it applies, the plaintiff must prove that the defendants, by some positive act, intentionally created the conditions alleged to constitute a nuisance." The reference to "intent," taken by the City as creating a new requirement for a cause of action in nuisance against a municipality, is more accurately read as merely synonymous with the longstanding requirement that the condition claimed to constitute a nuisance must be the result of a positive act in creating the condition, as distinguished from an omission. See Hoffman v. Bristol, 113 Conn. 386, 390-92 (1931); Prifty v. Waterbury, 133 Conn. 654 (1947); Wright v. Brown, 167 Conn. 464, 470 (1975). In Keeney v. Old Saybrook, supra, 237 Conn. 165-66, the Supreme Court amended the law of nuisance claims against municipal defendants only by recognizing that a 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. The distinction after Keene is between conditions caused by the failure of a municipality to remedy an intrusion unexpectedly created by others and conditions that are, in effect, adopted as the acts of the municipality after prolonged knowledge of their effect or likely effect on the property of others, after an opportunity to pursue some other course than maintaining the condition created. The former are omissions: failure to remedy conditions created by others, and do not support a cause of action against a municipality for having created a nuisance; the latter are positive acts that support a cause of action in nuisance. The Supreme Court in Keeney v. Old Saybrook, supra, 237 Conn. 165, noted that "a municipality may be liable for nuisance it creates through its negligent misfeasance or nonfeasance even if that misfeasance or nonfeasance also constitutes negligence." This statement specifically negates any implication that in order to be liable in nuisance a municipality must have acted intentionally, rather than negligently, in the creation of the condition claimed to constitute a nuisance. In using the term "intent" in Elliott v. Waterbury, supra, 245 Conn. 385, the Supreme Court did not announce that it was departing from the longstanding principle that a cause of action in nuisance against a municipality could arise from a positive act that was merely negligent and that

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henceforth only intentionally-caused conditions would give rise to a nuisance claim against a municipality. Instead, the Court in Elliott cited with approval the cases cited above, signaling an intent to apply, not alter the standards they delineate for this cause of action. In applying the principles it had discussed, the Court in Elliott found that the town of Morris had no role in deciding that hunting could take place on the road at issue, defeating the claim that hunting in the area, the condition claimed to constitute a nuisance, was the result of a positive act by the town of Morris. Though the use of the word "intentional" to explain "positive act" creates the appearance adoption of the adoption of a new standard, the Court's actual ruling on the nuisance claim in Elliott turns on whether the claimed nuisance resulted from an act of the town, not whether the town intended an intrusion. [FN1] FN1. See the well-reasoned discussion of this point in Calibey and Hammond, "Significant 1998 Tort Law Developments," 73 Conn.Bar J. 317, 328-29 (Oct.1999).

*4 The only ground stated in the motion to strike regarding Counts Twelve through Seventeen is the absence of allegations establishing intent to cause an intrusion or cause damage. Having found that allegations of intentional conduct are not a required element of the cause of action in nuisance against a municipal defendant, and that the factual allegations of the present complaint remedy the omissions identified in the court's January 6, 1999 ruling on the motion to strike the nuisance counts, the court hereby denies the motion to strike these claims. Conclusion The motion to strike is granted as to Counts 4, 5 and 8 and denied as to Count 11, 12, 13, 14, 15, 16 and 17. Conn.Super.,2000. Accashian v. City of Danbury 2000 WL 157926 (Conn.Super.), 26 Conn. L. Rptr. 287 END OF DOCUMENT CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 3 1981 Ohio App. LEXIS 13657, * JOHN P. ALBERTSON, et al. Plaintiff-Appellants v. THE CITY OF AKRON DefendantAppellee NO. 9838 COURT OF APPEALS, NINTH APPELLATE SUMMIT COUNTY, OHIO 1981 Ohio App. LEXIS 13657 February 18, 1981 COUNSEL: RANDALL A. COLE, City Law Department, 304 Municipal Bldg., Akron, OH 44308 for Defendant-Appellee. PAUL E. WEIMER, Attorney at Law, 411 Wolf Ledges Pkwy., Suite 105, Akron, OH 44311 for Plaintiff-Appellants. JUDGES: BELL, P. J.

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VICTOR, J. CONCUR OPINIONBY: MAHONEY, J. OPINION: This cause was heard January 5, 1981, upon the record in the trial court and the briefs. It was argued by counsel for the parties and submitted to the court. We have reviewed each assignment of error and make the following disposition: DECISION AND JOURNAL ENTRY Appellants challenge the trial court's ruling granting the city of Akron's motion to dismiss on the grounds that the city is immune from liability in a private nuisance suit. We reverse and remand. FACTS The appellants are all residents of that part of Hardy Road in Northampton Township which is adjacent to the Hardy Road landfill. The city of Akron annexed the site in 1978 and presently operates the sanitary landfill for the purpose of disposal of solid waste under license from the Ohio Environmental [*2] Protection Agency. On March 21, 1980, plaintiffs-appellants filed a complaint alleging that the city maintained and operated the landfill in such a fashion as to create a nuisance. Appellants claimed that their health, well being and property values were adversely affected and, therefore, prayed for damages. Appellants also asserted that the city's actions in operating the landfill amounted to a taking of their property without due process of law. The city filed their motion to dismiss for failure to state a claim upon which relief could be granted on April 1, 1980. The city argues that the case of Osborn v. City of Akron, 171 Ohio St. 361 (1960) conclusively holds the operating of a sanitary landfill by a municipality is a governmental function and a municipality is not liable to adjacent property owners for an alleged nuisance arising from its operation. Appellants responded claiming that the use of the landfill for a fee by private corporations, other municipalities and individuals transformed the operation of the landfill into a proprietary function. Appellants filed affidavits of the Hardy Road residents detailing their nuisance claims. The city filed a reply [*3] brief to which they attached the affidavit of Larry E. Lann, City Finance Director. This affidavit recited the city's receipts and expenditures for 1979 and the ten (10) year period preceding January 1, 1980, for garbage and refuse disposal. On the basis of the affidavits filed along with the parties' briefs, the trial court treated the defendant's motion to dismiss as a motion for summary judgment. DISCUSSION

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ASSIGNMENTS OF ERROR "I. The trial court erred in its interpretation of Osborn v. The City of Akron as the Ohio Supreme Court, in Osborn did not absolutely decide that in all cases the disposition of garbage by a municipality is a governmental function. "II. The trial court's award of summary judgment in favor of the defendant based on the defendant's financial data was erroneous as the mere dispute between the plaintiffs and defendant over the amount of income produced by the defendant's operation of the Hardy Road landfill creates a genuine issue of a material fact that must be litigated at trial." The appellants' assignments of error taken together challenge the sufficiency of the trial court's granting of summary judgment. The city of Akron's [*4] motion to dismiss was filed pursuant to Civ. R. 12(B)(6). Section 12(B) H N 1 clscc1clscc1provides in part: "* * * When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56." The first indication that the trial court intended to treat the city's motion as a motion for summary judgment is in the court's findings and final order.This is contrary to the purpose of the final sentence of Civ. R. 12(B) which places a duty on the trial court to notify the parties and allow them to submit all pertinent materials before ruling on the motion. Only proper notice to the parties would provide a reasonable opportunity to present all materials pertinent to the issues raised by a summary judgment motion. The parties' inclusion of affidavits [*5] with their briefs did not constitute a reasonable opportunity to present all pertinent material. Unaware of the court's intent to treat the city's motion to dismiss as a motion for summary judgment, appellants did not have a reasonable opportunity to file further affidavits which might refute the immunity claim of the city. Furthermore, even if the trial court had proceeded to judgment on the Civ. R. 12(B)(6) motion it would have been incumbent on the trial court to allow the plaintiffs the opportunity to amend their complaint to include allegations that the landfill was a proprietary function. Having failed to follow either of the above procedures, the trial court erred in its treatment of the city's Civ. R. 12(B)(6) motion under Civ. R. 56 summary judgment procedures. The essence of appellants' challenge to the lower court ruling is that a genuine issue of material fact existed on the issue of whether the landfill operation was a proprietary or governmental function. "* * *The judicially established rule, which is based upon the traditional doctrine of sovereign immunity, is that a municipality is not liable for damages resulting from the exercise of a governmental [*6] function. Damage caused in the exercise of a proprietary function is

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actionable. * * *." Frankhauser v. Mansfield, 19 Ohio St. 2d 102, 104 (1969). In Osborn v. City of Akron, supra, the Supreme Court stated in its syllabus: "A municipal corporation is not liable to owners of adjacent lands for an alleged nuisance arising from the operation by such municipality of a sanitary land fill for the disposal of garbage and refuse." On the authority of Broughton v. City of Cleveland, 167 Ohio St. 29 (1957), the Osborn court had accepted without question that the collection of garbage is a governmental function. We recognize that the Supreme Court of Ohio speaks only through the syllabus of a decision. Cassidy v. Glossip, 12 Ohio St. 2d 17 (1967). However, the law stated in a syllabus is predicated on the particular facts of that case. Moreover, the actual opinion is helpful in revealing the reasoning behind the law stated in the syllabus. 23 O. Jur. 3d, Courts and Judges, §§ 530, 534 (1980). We do not dispute the general rule that a municipally run sanitary landfill is a governmental function. However, there is leeway in the fact situation presented and language [*7] used in Osborn v. City of Akron, supra, to allow for the liability of a municipality operating a landfill where there is a proper showing that the operation is proprietary in character. We note that this court, in an opinion never overruled by the Supreme Court, held that a plaintiff demonstrated sufficient evidence of proprietary operation of a landfill to hold the city liable. Lasko v. City of Akron, 109 Ohio App. 409 (1958). Because this case was disposed of on what the trial court treated as a motion for summary judgment, Civ. R. 56(C) is controlling. This rule provides in part: "* * *Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. * * *." The affidavit of the City Finance Director by itself raises an issue as to whether the operation of the landfill was proprietary in character. The figures cited in the affidavit admit that revenues [*8] exceeded expenditures for 1975, 1978, and 1979. In 1977 and 1978, net profits were offset by capital equipment outlay. The 1980 figures are not available. Based upon the material before the court, we find that there was a genuine issue as to whether the operation of the Hardy Road landfill was a proprietary or governmental function. Therefore, summary judgment should not have been granted by the trial court. SUMMARY We sustain appellants' assignment of error, reverse the trial court judgment and remand the case

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for further proceedings consistent with law. The court finds that there were reasonable grounds for this appeal. We order that a special mandate, directing the County of Summit Common Pleas Court to carry this judgment into execution, shall issue out of this court. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27. Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E). Costs taxed to appellee. Exceptions. END OF DOCUMENT CASE NO. 03-945- PLAINTIFFS' APPENDIX OF UNREPORTED CASES, EXHIBIT 4 Augelli v. Matos 2003 WL 21958554, 35 Conn. L. Rptr. 228 , Conn.Super., Jul 29, 2003 Not Reported in A.2d Conn.Super.,2003. July 29, 2003. Dean Martha, A. Law Offices, Hartford, CT, for Anthony and Rosemarie Augelli. Halloran & Sage, Hartford, for Elisiario and Lourdes Matos. Baio & Associates Law Office PC, Rocky Hill, for Andy's Oil Service Inc. DUBAY, J. *1 On July 17, 2001, the plaintiffs, Anthony and Rosemarie Augelli, filed a seven-count complaint against the defendants, Elisiario and Lourdes Matos. The plaintiffs seek to recover for damages and personal injuries they allegedly sustained when the defendants' underground oil tank leaked oil that subsequently migrated onto the plaintiffs' property. Count one alleges that the defendants were negligent in the maintenance of the oil tank. Count two alleges negligent infliction of emotional distress resulting from the oil spill and the defendants' conduct after the spill. Counts three and four allege trespass to land and private nuisance respectively. Count five seeks reimbursement of the costs the plaintiffs have incurred or will incur in the future to clean up and remediate their property pursuant to General Statutes § 22a-452. [FN1] Count six seeks declaratory and/or equitable relief pursuant to General Statutes § 22a-16 [FN2] and count seven alleges negligence per se in violation of General Statutes § 22a-430. [FN3] FN1. General Statutes § 22a-452 provides in relevant part: "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

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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."

FN2. General Statutes § 22a-16 provides in relevant part: "The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitabl