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

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT CLARENCE R. COLLINS, JR., et al. Plaintiffs, v. OLIN CORPORATION and the TOWN OF HAMDEN, Defendants. CIVIL ACTION NO.: 3-03-945 (CFD)

OCTOBER 27, 2003

PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO MOTIONS TO DISMISS FILED BY DEFENDANTS TOWN OF HAMDEN AND OLIN CORPORATION For the Plaintiffs: David B. Zabel, Esq. ct01382 [email protected] Monte E. Frank, Esq. ct13666 [email protected] Cohen and Wolf, PC 1115 Broad Street Bridgeport, Connecticut 06604 Tele: (203) 368-0211 Fax: (203) 394-9901 Mark Roberts, Esq. [email protected] McRoberts & Roberts, LLP 101 Merrimac Street Boston, Massachusetts 02114 Tele: (617) 722-8222 Fax: (617) 720-2320 Neil T. Leifer, Esq. [email protected] David C. Strouss, Esq. [email protected] Thornton & Naumes L.L.P 100 Summer Street, 30th Floor Boston, Massachusetts 02110 Tele: (617) 720-1333

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TABLE OF CONTENTS Page PRELIMINARY STATEMENT .......................................................................... FACTS................................................................................................. LEGAL ARGUMENT............................................................................... I. II. STANDARD OF REVIEW ...................................................... PLAINTIFFS SUFFICIENTLY ALLEGE A CAUSE OF ACTION IN NEGLIGENCE AGAINST OLIN AND HAMDEN.......... A. 1 1 3 3 4

The Amended Complaint alleges specific facts, that Olin knew or should have known that the land upon which it was disposing of waste containing lead, arsenic and other obvious poisons would be used to develop residential housing which establishes a legal duty that gives rise to a cause of action in negligence ............ 4 1. A manufacturer in Olin's position, knowing what Olin knew or should have known, would have anticipated that harm of the general nature suffered was likely to result ......... 6 The fundamental public policy underlying Connecticut environmental law dictates that Olin be held responsible for the harms suffered by Plaintiffs ..................... 8 With respect to corporate liability, the Vaillancourt case can be distinguished and Olin's reliance upon it is misplaced .................................... ......................... ........... 9

2.

3.

B.

The Amended Complaint alleges specific facts that Hamden knew or should have known that-the land upon which it arranged for the disposal of waste containing well-known poisons would be used to develop residential housing is sufficient to establish a legal duty that gives rise to a cause of action in negligence ............. 11 The Amended Complaint sufficiently alleges misconduct by Olin and Hamden to state a claim for reckless conduct . . .. ... ......... 13 Olin and Hamden have violated both Connecticut environmental statutes as well as provisions of CERCLA and therefore Plaintiffs have stated causes of action under negligence per se . ... ... . ... .. . ... 14

C. D.

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III.

OLIN'S AND HAMDEN'S ACTIONS CONSTITUTE BOTH NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.......................................................... A. Olin and Hamden mischaracterize the Amended Complaint and, so doing, did not move to dismiss plaintiffs' claims for negligent infliction of emotional distress ....................................... Defendants' disposal of hazardous materials and chemicals for decades knowing houses were being build on the dumps constitutes extreme and outrageous conduct supporting Plaintiffs' claim of intentional infliction of emotional distress ...................

19

19

B.

21

IV.

OLIN'S AND HAMDEN'S JOINT VENTURE TO USE INDUSTRIAL WASTES FOR FILL UNDER RESIDENTIAL DWELLINGS CREATED BOTH PUBLIC AND PRIVATE NUISANCES................................ 23 A. Olin's and Hamden's joint actions have created private nuisances affecting each of the Plaintiffs............................................ 1. 2. B. Private nuisance against Olin.................................... Private nuisance against Hamden............................... 23 24 25

Defendants' creation of toxic industrial waste dumps underlying a residential neighborhood constitute an actionable public nuisance..................................................................... Plaintiffs allege that Olin maintained control over the handling, disposal, and release of hazardous substances that caused the nuisance.....................................................................

26

C.

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V.

CONNECTICUT COURTS HAVE HELD THAT THE DISPOSAL OF HAZARDOUS WASTE CONSTITUTES AN ABNORMALLY DANGEROUS ACTIVITY FOR PURPOSES OF STRICT LIABILITY............................................................... THE AMENDED COMPLAINT SUFFICIENTLY ALLEGES A CAUSE OF ACTION FOR REIMBURSEMENT UNDER CONN. GEN. STAT. § 22A-452................................................. THE DOCTRINE OF PRIMARY JURISDICTION DOES NOT PROVIDE A BASIS TO DISMISS COUNTS V, VI AND XV............. A. The doctrine of primary jurisdiction does not apply..................

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VI.

38 39 39

VII.

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B.

Even if the court applies the doctrine of primary jurisdiction, the proper remedy is to hold plaintiffs' claims for injunctive relief in abeyance, not to dismiss them........................................ Burford abstention does not apply.......................................

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C. VIII.

AS HAMDEN'S ACTS WERE PROPRIETARY, IT CANNOT SHIRK ITS RESPONSIBILITY TO PLAINTIFFS BY CLAIMING SOVEREIGN IMMUNITY....................................................... A. B. Governmental immunity does not extend to proprietary acts........ Whether Hamden acted in a governmental or proprietary manner is a question of fact, and is inappropriate for disposition on a 12(b)(6) motion.......................................................

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XI.

HAMDEN'S MOTION TO DISMISS COUNTS II, IV, VII, X AND XII ON GROUNDS OF STATUTE OF LIMITATIONS SHOULD BE DENIED BASED ON THE ALLEGATIONS CONTAINED WITHIN THE FOUR CORNERS OF THE AMENDED COMPLAINT............... A. A determination of whether the statute of limitations has run with respect to certain counts in this case is a pure questions of fact, and cannot be dismissed on a 12(b)(6) motion................... Connecticut courts apply §52-577c(b) to claims of property damage based upon contamination by hazardous substances......... The Amended Complaint sufficiently alleges acts within the statute of limitations period to withstand a motion to dismiss for failure to state a claim..................................................

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B. C.

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CONCLUSION........................................................................................

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PRELIMINARY STATEMENT The Plaintiffs bring this complaint1, for themselves and on behalf of a class of similarly situated property owners2 in the Newhall section of Hamden, Connecticut (collectively referred to as "Plaintiffs") seeking damages against Olin Corporation ("Olin") and the Town of Hamden ("Hamden")(collectively, Olin and Hamden are referred to as "Defendants") for response costs, the diminution in the value of their properties, loss of use and enjoyment of their properties and emotional distress, resulting from Defendants' contamination of their properties. Plaintiffs also seek a mandatory injunction compelling Defendants to conduct, on an expedited basis, any and all response actions necessary to investigate and remediate the contamination on their properties. Olin and Hamden filed a "kitchen-sink" set of motions pursuant to Fed.R.Civ.P 12(b)(6) seeking to dismiss the majority of Plaintiffs' claims. Because Defendants' motions overlap considerably, Plaintiffs address all the motions and arguments raised by Defendants in this Memorandum.3 FACTS Olin is the successor in interest to Winchester Repeating Arms Company ("Winchester")(See Amended Complaint at ¶7). Winchester was founded in New Haven, Connecticut in 1866 and was in the business of small arms and ammunition manufacturing. (¶8). Winchester's business grew steadily and the New Haven plant expanded to cover over 80 acres. (¶10). In approximately 1919, Winchester expanded its manufacturing and product distribution, putting the well-known Winchester brand on everything from tools and sporting goods to house wares, such as batteries, refrigerators and hardware items. (¶12). In 1931, Olin purchased
1

Plaintiffs served Olin and Hamden with a writ, summons and complaint on May 2, 2003, made returnable to the Superior Court for the Judicial District of New Haven. Hamden, with Olin's consent, removed the case to the United States District Court on May 28, 2003. On that same day, Plaintiffs filed their Amended Complaint (the "Amended Complaint"). 2 Plaintiffs filed their Motion for Class Certification on September 30, 2003. That motion is pending.

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Winchester and continued its operations4 (¶¶17, 18, 19), which produced a substantial quantity of industrial waste containing hazardous substances including but not limited to lead, arsenic, semivolatile organic compounds (SVOCs) and polyaromatic hydrocarbons (PAHs). (¶38). The waste contained substances that were well-known poisons at all relevant times. As early as 1915, Hamden entered into a joint venture with Olin which lasted for decades whereby Hamden solicited owners of private properties in the Newhall Section of Hamden (the " Newhall Section") 5 to allow industrial waste from Olin to be dumped as "fill" onto their properties. (¶21). Olin and Hamden cooperated in the disposal of Olin's toxic industrial waste in the Newhall Section from 1915 until the 1950's. (¶¶ 23, 24). Beginning in approximately 1920, and continuing for decades, portions of the privately owned property used by Olin and Hamden for disposal were developed into residential properties. (¶25). Olin and Hamden were aware that after each dump in the Newhall Section was closed for disposal, residential structures were constructed on the former dumpsites. (¶¶ 26, 49, 54). The development of the residential dwellings increased Hamden's population and tax base. During 2000 and early 2001, the United States Environmental Protection Agency ("USEPA") conducted studies that discovered that wastes including hazardous substances from historical firearm, ammunition and battery manufacturing operations had been disposed of on publicly owned lands that border the residential areas in the Newhall Section. (¶27). Thereafter, USEPA conducted some limited testing of a portion of the yards of private homes,6 and sent test
3

On August 28, 2003, the Court granted Plaintiffs' motion to file an opposition brief in excess of forty pages, but, in doing so, limited the response to sixty pages. 4 Olin and its predecessors in interest are hereinafter collectively referred to as "Olin". 5 The Newhall Section is generally defined in ¶22 of the Amended Complaint, and, more specifically, in the Consent Order which was submitted to the Court as part of the the parties' Rule 26(f) Report and the map from the Consent Order which was affixed to the Amended Complant as Exhibit A. 6 In or about April 2001, USEPA conducted surficial soil sampling on 76 private properties in the Newhall Section and analyzed these samples for a variety of contaminants including lead, arsenic, SVOCs and PAHs. (¶29). All of

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results to the individual property owners on May 29, 2001 or shortly thereafter. (¶32). USEPA carried out "time-critical removal actions" at 13 of the properties, removing soil down to 18 inches or greater and replacing it with clean fill. (¶33). During this limited excavation program, waste materials related to Olin's firearms, ammunition and battery production were found throughout the Newhall Section. (¶34). In or about December 2002, consultants for Olin reported that analyses of fill in the Newhall Section consistently contained concentrations of the same types of hazardous substances, including but not limited to lead, arsenic, SVOCs and PAHs. (¶38). ARGUMENT I. Standard of Review Dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6) is only proper when it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 46 (1957). When the court reviews a claim with respect to a Rule 12(b)(6) motion to dismiss, the court must construe the complaint in the light most favorable to the non-moving party, accepting as true all factual allegations contained in the complaint. Harsco Corp. v. Segui, 91 F.3d 337, 341 (2d Cir. 1996).7 Moreover, the court must draw all inferences in a light most favorable to the plaintiff. Bello v. Barden Corp., 180 F. Supp. 2d 300, 305 (D. Conn. 2002), citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Dismissal is warranted only if, under any set of facts that the plaintiff can prove
the properties tested were found to be affected by similar types of hazardous substances. Over 25% of these samples contained concentrations which exceeded acceptable state standards for residential property soils. (¶30) Approximately 10% of the collected samples exceeded the "action level" developed by USEPA and the Connecticut Department of Environmental Protection ("CTDEP"). 7 The Federal Rules of Civil Procedure require only notice pleading, or "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim." Conley, 355 U.S. at 47. The

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consistent with the allegations, it is clear that no relief can be granted. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). See also Conley, 355 U.S. at 45; Frasier v. General Electric Co., 930 F.2d 1004, 1007 (2d Cir. 1991). "The issue on a motion to dismiss is not whether the plaintiff will prevail, but whether the plaintiff is entitled to offer evidence to support his or her claim." U.S. v. Yale New Haven Hosp., 727 F. Supp. 784, 786 (D. Conn. 1990), citing Scheuer, 416 U.S. at 232. Finally, "[t]he modern trend is to read the pleadings broadly and realistically rather than technically." DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 390, cert. denied, 197 Conn. 813, 499 A.2d 62 (1985). See also Comm. Union Ins. Co. v. Frank Perrotti and Sons, Inc., 20 Conn. App. 253, 257 (1989). II. PLAINTIFFS SUFFICIENTLY ALLEGE A CAUSE OF ACTION IN NEGLIGENCE AGAINST OLIN AND HAMDEN A. The Amended Complaint alleges specific facts, that Olin knew or should have known that the land upon which it was disposing of waste containing lead, arsenic and other obvious poisons would be used to develop residential housing which establishes a legal duty that gives rise to a cause of action in negligence.

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 by Plaintiffs was likely to result from his act or failure. See, e.g., Coburn v. Lenox Homes, Inc., 173 Conn. 567, 575 (1977); Neal v. Shiels, Inc., 166 Conn. 3, 12 (1974). The 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, with
plaintiff is merely required to give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Id. See also Bennett v. Schmidt, 153 F.3d 516 (7th Cir. 1998)

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any specialized knowledge, anticipate that harm of the general nature of that suffered was likely to result. Frankovitch v. Burton, 185 Conn. 14, 20 (1981). To meet the test of foreseeability, the exact nature of the harm suffered need not have been foreseeable, only the general nature of the harm. See, e.g., Jaworski v. Kiernan, 241 Conn. 399, 406 (1997). In addition, a further inquiry must be made as to whether under the fundamental policy of the law, the defendant's responsibility should extend to such results. Although Olin recognizes that in ruling on this Rule 12(b)(6) motion to dismiss, the Court will "accept as true all factual allegations in the complaint and must draw inferences in a light most favorable to the plaintiff," Bello v. Barden Corp., 180 F. Supp. 2d 300, 305 (D. Conn. 2002), Olin ignores both the allegations in the Amended Complaint and the Rule's presumption when it argues that Plaintiffs cannot plead a duty created by Olin's conduct which underlies this count in negligence. Olin appears to argue that because its alleged conduct occurred more than fifty years ago, it cannot, as a matter of law, owe any duty to Plaintiffs. Whether Olin's conduct occurred fifty years ago or yesterday is irrelevant in determining whether it owed a legal duty because of its conduct. "[T]he test for the existence of a legal duty of care entails (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 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 (1998).

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1.

A manufacturer in Olin's position, knowing what Olin knew or should have known, would have anticipated that harm of the general nature suffered was likely to result.

In Coburn v. Lenox Homes, Inc., 186 Conn. 370 (1982), the plaintiffs, remote purchasers of property, brought suit under a claim of negligence against the original installer of a septic system. In analyzing the duty requirement of negligence, and specifically foreseeability, the court noted that in negligent construction, the plaintiff must prove that the defendant knew or should have known of the circumstances that would foreseeably result in the harm suffered...[and `w]here there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge.'" Coburn, 186 Conn. at 624, citing Lippitt v. Ashley, 89 Conn. 451, 464 (1915) (internal quotations omitted). In Coburn, the court noted the defendant's claimed to have had no notice of subsurface soil, water and ledge rock conditions that would foreseeably result in the particular failure of the system as it had occurred. The Connecticut Supreme Court found that the trial court had properly found that the defendant should have known of these conditions. Id. The court further held that "[r] eliance upon the town's testing of the soil and approval of the septic system is relevant, but does not preclude the inference of negligence which may be drawn from actual or constructive notice of these substandard conditions...[f] rom notice of these substandard conditions, a duty to exercise due care arose. Id. at 379 (internal citations omitted). In Cadlerock Properties v. Schilberg, 2000 WL 268548 (Conn. Super. Ct. 2000), plaintiffs, the owners of certain property sued the lessee of the prior owner of the property and the prior owner itself for claims under General Statutes §22a-452 and under common law negligence. The defendant lessees moved to strike the negligence claim on the basis of lack of duty. The defendant argued that the doctrine of forseeability of who may be harmed by a

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negligent act was critical to plaintiffs maintaining the cause of action. The defendant argued that since it could not know who will eventually own the property, it could not foresee harm coming to that person. The court rejected these arguments and denied the motion to strike the negligence claim, stating that: 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 foreseeable that the fact of pollution and its cause may well not surface until after the original owner transfers property to a subsequent purchaser...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, and this is completely foreseeable. Id. at *2 (emphasis in original). Thus, the question is simply whether Plaintiffs have alleged in the Amended Complaint that it was reasonably foreseeable to Olin that the type of harm Plaintiffs allege to have suffered was likely to result from its conduct so that Olin should be made to answer for its conduct. Plaintiffs have alleged sufficient facts for the Court to find that Olin owed Plaintiffs a duty of care, and therefore, Olin's Motion to Dismiss must be denied. In the Amended Complaint, Plaintiffs allege that as early as 1915 and for decades thereafter, Olin began disposing industrial waste and ash in the Newhall Section which originated at Olin's manufacturing operation in New Haven and included well known poisons such as lead and arsenic. ¶¶8, 23, 29 & 30. The dumping of these poisons in the Newhall Section coincided with opening and closing of a sequential series of landfills. ¶¶ 24 & 25. Olin was aware that after each dump in the Newhall Section was closed for disposal, residential structures were constructed on the former dump sites. ¶ 26. This practice continued for decades.

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The foregoing facts, accepted as true for purposes of a Rule 12(b)(6) motion, clearly permit the finding that Olin owed a legal duty of reasonable care to Plaintiffs in light of its actual and constructive knowledge. A reasonable jury could certainly find that an ordinary manufacturer in Olin's position, knowing what it knew or should have known about the dumping of materials containing hazardous substances and poisons such as lead and arsenic on land that was being developed for residential housing, should reasonably have foreseen that harm of the general nature of that suffered by Plaintiffs was likely to result. 2. The fundamental public policy underlying Connecticut environmental law dictates that Olin be held responsible for the harms suffered by Plaintiffs.

After analysis of the foreseeability of harm, a court must make further inquiry into whether, under the fundamental policy of the law, the defendant's responsibility should extend to such results. R.K. Const., Inc. v. Fusco Corp., 231 Conn. 381, 386 (1994). In the present case, the relevant public policy for the Court's consideration is that established under Connecticut's environmental statutes, which is set out in Conn. Gen. Stat. § 22a-1: "The policy of the state of Connecticut is to conserve, improve and protect its natural resources and environment and to control air, land and water pollution in order to enhance the health, safety and welfare of the people of the state."8 The Connecticut Supreme Court has stated that "[t]he finding of the general assembly as articulated in [General Statutes] § 22a-114 forcefully attributes the contamination of the water, soil and air of the state, threatening the health and safety of Connecticut citizens, to hazardous wastes." Circuit-Wise, Inc. v. Comm. of Revenue Svcs., 215
8

Connecticut environmental statute declares it's own policy as follows: It is hereby found and declared that there is a public trust in the air, water and other natural resources of the state of Connecticut and that each person is entitled to the protection, preservation and enhancement of the same. It is further found and declared that it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction.

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Conn. 292, 303 (1990). Courts have held that there is a "strong policy in Connecticut against environmental contamination as expressed forcefully in Title 22a of the General Statutes." Wiehl v. Dictaphone Co., 1998 WL 70585, *1 (Conn. Super. Ct. 1998).9 See also Keeney v. Town of Old Saybrook, 237 Conn. 135 (1996) ("[w]ithout deciding what the law of municipal liability may be in other contexts, in light of the strong public policy manifested by the environmental protection statutes, ... a municipality may be liable for a public nuisance that it intentionally creates through its prolonged and deliberate failure to abate that nuisance.") In the present case, there is a strong public policy in favor of holding that Olin owed a duty to Plaintiffs. Olin benefited from its ability to dispose of hazardous and toxic wastes on Plaintiffs' properties. The unavoidable risk of harm that is inherent in these activities requires that the activities be carried on at Olin's peril, rather than at the expense of the innocent property owners who suffer as a result of it. The environmental statutes of Connecticut were enacted to address just this sort of disposal of hazardous materials. Accordingly, under the standard articulated in Lodge, the motion to dismiss this count should be denied. 3. With respect to corporate liability, the Vaillancourt case can be distinguished and Olin's reliance on it is misplaced.

Notwithstanding the facts alleged in the Amended Complaint giving rise to duty and evidencing a colorable claim in negligence, Olin asks the Court to find no duty as a matter of law. Its sole authority for that suggestion is Vaillancourt v. Town of Southington, 2002 WL 1293053 (Conn. Super. Ct. 2002), which is factually distinguishable on the issue of corporate negligence because, unlike the Amended Complaint herein, the plaintiffs in Vaillancourt did not allege that the corporate defendant, Pratt & Whitney, had reason to foresee that Southington

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would later open the area for development. Olin contends that Vaillancourt requires a dismissal of the negligence count in this case. However, because it is factually distinguishable with respect to the acts of the corporate polluter, nothing in Vaillancourt compels that result. As the trial court noted in Vaillancourt, "a person is required only to take precautions against those dangers that are reasonably foreseeable" and that "[t]he question of duty is always based on the then-existing circumstances." Id. at *3. Applying that rule, the trial court found that the complaint did not set forth any facts that would permit an inference that the defendant should have foreseen that the former landfill would be developed. In contrast, Plaintiffs have alleged that "Olin was aware that after each dump in the Newhall Section was closed for disposal, residential structures were constructed on the former dump sites." ¶ 26. This practice continued for decades and accepting the allegations as true, it was reasonable for Olin to foresee that dumping industrial waste containing lead, arsenic and other hazardous substances in these landfills could result in the harm suffered by Plaintiffs. Similarly, Olin's contention that it could not have anticipated the harm caused by dumping waste containing, among other things, lead and arsenic because at the time of the dumping terms such as "hazardous waste" or "hazardous materials" had not yet been coined misses the point. Olin cannot seriously dispute that materials such as lead and arsenic were known poisons and their dangers were well documented in the scientific literature at the time of the dumping. That laws and regulations were later enacted that named these substances as "hazardous waste" or "hazardous material", does not mean that the well documented literature that existed at the time of the dumping must be ignored when the Court determines whether Olin owed a duty under the then-existing circumstances.
9

In Wiehl, the court was required to balance the policies behind the environmental statutes with the policies

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B.

The Amended Complaint alleges specific facts that Hamden knew or should have known that the land upon which it arranged for the disposal of waste containing well-known poisons would be used to develop residential housing is sufficient to establish a legal duty that gives rise to a cause of action in negligence.

The Amended Complaint sufficiently alleges a cause of action for negligence by Hamden. As is the case for Olin, Hamden contends that it does not owe any duty to Plaintiffs and therefore cannot be liable to them in negligence. However, a review of the allegations of the Amended Complaint make clear that Hamden knew that the lands upon which Hamden arranged for Olin to dispose industrial waste containing hazardous substances would be used for residential housing and therefore had a duty to take reasonable measures to determine that the fill was suitable. The standard for determining an existence of a duty by Hamden is the same as the authorities cited above regarding Olin. See, Lodge, 246 Conn. at 252. Therefore, the issue before the Court is whether it was reasonably foreseeable to Hamden at the time of the events in question that the type of harm Plaintiffs alleged to have suffered was likely to result from Hamden's conduct so that it should be made to answer for that conduct. Contrary to Hamden's contention, it will not be scrutinized on the basis of "21st Century standards", but rather on what it knew or reasonably should have known at the time that it entered into and profited from the joint venture with Olin to arrange for Olin to dispose of its toxic industrial waste in the Newhall Section. On the basis of that standard and knowledge available at that time, Hamden had a duty to determine whether Olin's toxic waste was suitable fill for a landfill that it intended to use for residential properties.

underlying the common law rule of caveat emptor. Caveat emptor is not pertinent to the case at bar.

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The Amended Complaint sufficiently alleges facts upon which this Court can find a duty owed by Hamden to Plaintiffs. First, with the exercise of reasonable care, Hamden knew or should have known that fill from Olin's facility would contain toxins such as lead and arsenic, which were well known poisons at the dawn of the 20th Century. ¶¶ 8, 9 & 11. Second, Hamden knew that areas into which Olin's waste was disposed would be developed for residential housing. ¶25. These two facts, which must be accepted as true for the purposes of this motion, are sufficient to establish a duty by Hamden with regard to the activities related to the development of hundreds of houses in the Newhall Section. Thus Plaintiffs satisfy the first criterion set forth in Lodge, i.e. "the existence of a legal duty of care entails 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 suffered was likely to result." Id. at 572. Hamden seems to argue that even if this general duty can be inferred, there is nothing connecting it to Plaintiffs who did not own the properties in question at the time of the dumping. As Hamden acknowledges in its papers, "[t]he nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." Pantley v. Shop-Rite Supermarkets, Inc., 2000 WL 960934, *2 (Conn. Super. Ct. 2000). In this case, as Plaintiffs explain in response to Hamden's contention that these claims are time-barred,10 the presence of these hazardous substances on the properties was a latent defect, that was not discovered until recently and has harmed present landowners. ¶29. As Plaintiffs have alleged in the Amended Complaint, the foreseeability of harm allegedly caused by

10

See Section IX.

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Hamden's conduct and the reasonable duties flowing from it did not end with the first owners of that property, but continued until it was discovered. ¶54. Hamden also argues that it owed no duty as a matter of law because of public policy considerations. Lodge's consideration of duty includes "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, 246 Conn. at 572. Hamden argues that "the only foreseeable result of the Town's alleged conduct as a benefit, not harm to its citizens." Memorandum of Law at 26 (emphasis added). Whatever salutary goal of filling wetlands to create land to develop residential housing exists does not as a matter of law relieve the town from making the most basic inquiry as to whether the fill is suitable for that purpose or contains no known poisons. Such an inquiry would not have prevented the claimed benefit, i.e. filling wetlands, but would have resulted in obtaining fill from sources that did not contain poisons such as arsenic and lead.11 C. The Amended Complaint sufficiently alleges misconduct by Olin and Hamden to state a claim for reckless conduct.

This case concerns a joint venture by Olin and Hamden wherein a large neighborhood was developed on massive amounts of toxic industrial waste containing lead, arsenic and other toxins. As set forth in the Amended Complaint, Hamden arranged for and profited from Olin's export of these wastes from its New Haven manufacturing plant to the Newhall Section to facilitate the construction of hundreds of residential homes. ¶¶ 20-26. The landfills were operated sequentially so that Hamden had actual knowledge that the areas where Olin dumped its industrial waste would be developed for residential uses. ¶26. As a result of that venture,
11

Hamden may have been forced to pay for clean fill, instead of receiving a pecuniary benefit from Olin of free fill, notwithstanding the risks associated with using massive amounts of Olin's industrial wastes as fill.

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Plaintiffs today live in homes built on a series of landfills contaminated with materials known to be poisons at the time of the disposal. ¶¶29-31. A cause of action for reckless conduct "requires a conscious choice of a course of action either with knowledge of the serious dangers to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man ..." Warner v. Kedah Corp., 1995 WL 573828, *4 (Conn. Super. Ct. 1995). As a manufacturer, Olin is presumed to know the nature of its manufacturing processes, which in this case includes the creation of wastes containing poisons such as lead and arsenic. Restatement (Third) of Torts: Products Liability, §2C, comment m. See also Vassallo v. Baxter Healthcare Corp., 428 Mass. 1 (1998). Olin's conscious choice to enter into a venture with Hamden to dump such wastes in the Newhall Section, despite its knowledge that homes would be built on the former landfills, was reckless. The allegations against Hamden and Olin, accepted as true, can be viewed as "highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." Dubay v. Irish, 207 Conn. 518, 533 (1988). Such a finding is sufficient to recover for reckless conduct under Connecticut law. Id. D. Olin and Hamden have violated both Connecticut environmental statutes as well as provisions of CERCLA and therefore Plaintiffs have stated causes of action under negligence per se.

Under Connecticut law, "[t]he doctrine of negligence per se serves to superimpose a legislatively prescribed standard of care on the general standard of care." Staudinger v. Barrett, 208 Conn. 94, 101 (1998), citing Wendland v. Ridgefield Const. Svcs., Inc., 184 Conn. 173, 178 (1981). In order to establish negligence in a negligence per se case, the jury need only decide whether the defendant violated the relevant statue or regulation. Staudinger, 208 Conn. at 101. See also Wendland, 184 Conn. at 178, Citerella v. United Illuminating Co., 158 Conn. 600, 607

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(1969); Essam v. New York, N.H. & H.R. Co., 140 Conn. 319, 324 (1953). In order to utilize the principle of negligence per se, the plaintiff must satisfy a two-prong test: "(1) that the [plaintiff was] within the class of persons protected by the statute; and (2) that the injury suffered is of the type that the statute was intended to prevent." Mirarchi v. Jennings, 1997 WL 297734, *1 (Conn. Super. Ct. 1997), citing Gore v. People's Savings Bank, 235 Conn. 360, 368 (1995), on remand, 40 Conn. App. 219 (1996). Plaintiffs have alleged a cognizable claim because: (1) General Statutes §§ 22a-15, 22a16 and 22a-427 establish a standard of care: (2) Plaintiffs have alleged a breach of these statutes; (3) Plaintiffs are within the class of persons the statutes were enacted to protect; (4) the injuries and damages Plaintiffs sustained were of the type the statutes were intended to prevent; and (5) Plaintiffs were injured as a proximate result of Defendants' statutory violations. Many courts have sustained claims of negligence per se based upon violations of the Water Pollution Control Act (WPCA). In Walker v. Barrett, 1999 WL 1063189 (Conn.Super. Ct. 1999), a purchaser of a house brought suit against the sellers for concealing sewage problems with the property. The court denied the sellers' motion to strike the purchaser's 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. Id. at * 3. The court held 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. The court further stated 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. Id.

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In Goodrich v. Jennings, 1997 WL 297732 (Conn. Super. Ct. 1997), 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 because the plaintiff was within the class of persons protected by these statutes and had sustained the type of injury these statutes were intended to prevent. In Goodrich, the court stated that "[t]he doctrine of negligence per se serves to superimpose a legislatively prescribed standard of care on the general standard of care." Id. at *2, citing Staudinger, 208 Conn. at 101. In denying the motion to strike, the court further stated 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. at *2. In the present case, Plaintiffs state a cause of action for negligence per se based on General Statutes §§ 22a-15, 22a-16 and 22a-427 of the WPCA. Plaintiffs are not attempting to recover under the WPCA, but are merely attempting to use the standard under the statute as the standard of care. See, e.g., Mirarchi, 1997 WL 297734, at *1. Plaintiffs clearly satisfy the two-pronged test for utilization of the doctrine of negligence per se: (1) the plaintiff must be within the class of persons protected by the statute - As inhabitants of the state of Connecticut, Plaintiffs are within the class of persons protected by the statute.12 See, e.g., Mirarchi, 1997 WL 297734, at *2.; and (2) the injury suffered is of the type that the statute was intended to prevent.13 Plaintiffs allege that Hamden and Olin disposed of and/or released hazardous substances in the Newhall Section over the course of many years, that
12 13

General Statutes § 22a-422 states the policy of the WPCA and this policy mentions "the inhabitants of the state." The injury incurred by Plaintiffs is the type which the WPCA was intended to prevent, namely "the elimination of pollution is hereby declared as a matter of legislative determination." Conn. Gen. Stat. § 22a-422. General Statues §22a-422 further states that "the pollution of the waters of the state is inimical to the public health, safety and welfare of the inhabitants of the state, is a public nuisance ... and impairs domestic, agricultural, industrial, recreational and other legitimate beneficial uses of water." Conn. Gen. Stat. § 22a-422

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has resulted in the contamination of the soil and ground water flowing under the Newhall Section, and failed to warn residents of the Newhall Section of the hazards it had created. ¶¶75 & 79. Plaintiffs further allege that Hamden's and Olin's actions and omissions constitute negligence per se, including the breach of the standard of care set forth in Conn. Gen. Stat. §§ 22a-15, 22a-16 and 22a-427, and, as a result, Plaintiffs have suffered damages, including damage to the value of their homes and properties, loss of the use and enjoyment of their properties and severe emotional distress. ¶¶ 76 & 80. These allegations state a claim for of negligence per se against Olin and Hamden. See Goodrich, 1997 WL 297732, at *2 (court denied motion to dismiss negligence per se claim in part because the plaintiff's alleged pollution had caused a loss of the use and enjoyment of his property, as well as causing the plaintiff concern about the medical effects of the pollution). In addition to having violated relevant Connecticut environmental statutes, Olin and Hamden have violated provisions of the Comprehensive Environmental Response, Compensation, and Liability, 42 U.S.C.A. 9601, et. seq. ("CERCLA"). In enacting CERCLA, and in order to assist the USEPA with its implementation, Congress passed Section 103(c), which required the owner or operator of a facility to file a notification with the USEPA by June 9, 1981 if hazardous wastes were then or had in the past been stored, treated, or disposed of at the facility. 42 U.S.C. § 9603(c). The notification requirement also covered the owner or operator of a facility at the time that such activities occurred, and the person who accepted hazardous wastes for transport and selected the facility. Besides identifying the facility in question, the notification had to specify the amount and type of any hazardous waste to be found there and any known, suspected, or likely releases of such wastes from the facility. Id.

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USEPA has stated that this notification obligation is an ongoing one so that anyone who discovers hazardous waste at a site after the June 8, 1981 deadline must still notify USEPA of the site's existence. USEPA has termed this continuing obligation as the Section 103(c) "lasting provision." See February 1998 Introduction to the Superfund Response Process, RCRA, Superfund & EPCRA Hotline Training Module, at 9 (EPA540-R-98-029, OSWER 9205.5-14A, PB98-963 237, June 1998). CERCLA Section 103(c) contains sanctions for knowing noncompliance with this notification requirement. As was shown relative to the Connecticut environmental statutes, Plaintiffs in the present case clearly satisfy the two-pronged test for utilization of the doctrine of negligence per se with respect to CERCLA as well: (1) the plaintiff must be within the class of persons protected by the statute ­ CERCLA's legislative history makes clear that the statute's basic goal is to protect public health and the environment from the risks posed by hazardous waste sites. See, e.g., Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir. 2001) ("CERCLA was enacted to protect and preserve public health and the environment by facilitating the expeditious and efficient cleanup of hazardous waste sites."). Clearly Plaintiffs comprise Congress' intended beneficiaries of CERCLA, namely the public; and (2) the injury suffered is of the type that the statute was intended to prevent - "Congress enacted CERCLA to protect public health and the environment from inactive hazardous waste sites." Westfarm Associates Ltd. Partnership v. Washington Suburban Sanitary Com'n., 66 F.3d 669, 677 (4th Cir. 1995). The injury incurred by Plaintiffs in this case is exactly the type which CERCLA intended to prevent and rectify. Both Olin and Hamden were required under 42 U.S.C. §9603(c) to have notified USEPA of the existence of hazardous wastes in the Newhall Section in 1981. Hamden was, at the very least, the operator of the successive landfills and Olin, at the very least, transported and chose

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this facility for disposal of its hazardous wastes. In these capacities, Olin and Hamden had, as of June 9, 1981, a statutory duty to report the existence of the hazardous waste sites to USEPA. This duty is continuing. Had Olin and Hamden complied with the applicable statutory provisions of CERCLA, Plaintiffs' property would have been investigated and remediated decades ago, as was contemplated by the enactment of CERCLA. III. OLIN'S AND HAMDEN'S ACTIONS CONSTITUTE BOTH NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS A. Olin and Hamden Mischaracterize the Amended Complaint and, in so Doing, Did Not Move to Dismiss Plaintiffs' Claims for Negligent Infliction of Emotional Distress

In their Amended Complaint, Plaintiffs seek damages from Olin and Hamden for "Infliction of Emotional Distress" based upon cited examples of Olin's and Hamden's negligence and extreme and outrageous behavior in the disposal of toxic industrial wastes in the Newhall Section. Olin and Hamden mischaracterize Plaintiffs' claim in an attempt to limit it to one of intentional infliction of emotional distress alone, ignoring Plaintiffs' repeated references to their negligent acts and omissions. Olin's self-serving and unwarranted conclusion that "[w] hile not specifically identified as such, Count XI can only be read to attempt to state a claim for intentional infliction of emotional distress," is clearly not supported by the structure or factual allegations of the Amended Complaint. Hamden merely "assumes" that Plaintiffs "intend to bring a claim for intentional infliction," ignoring as well Plaintiffs' repeated assertions of negligent conduct.14 As Defendants have made no arguments at all that seek dismissal of

14

Where emotional distress has been claimed on the basis of Defendants' negligence, the Court may review the claim according to the standards of unintentional or negligent infliction of emotion distress. See Voghel v. City of Waterbury, 1999 WL 732984 (Conn. Super. Ct. 1999). It is undisputed that mental suffering or emotional distress may be an element of damages arising from negligent conduct. See Orlo v. Connecticut Co., 128 Conn. 231, 239 (1941); Bushnell v. Bushnell, 103 Conn. 583, 594 (1925).

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Plaintiffs' claims for negligent infliction of emotional distress, those claims must stand for this reason alone. The Connecticut Supreme Court first articulated the test for an award of damages arising from the unintentional or negligent infliction of emotional distress as "[r]ecovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact." Montinieri v. Southern New England Telephone Co., 175 Conn. 337 (1978). Plaintiffs have the burden of pleading that "the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness and bodily harm." Id., see also Morris v. Hartford Courant Co., 200 Conn. 676, 683 (1986). To prevail on an emotional distress claim plaintiffs must show "that the fear or distress experienced by plaintiffs be reasonable in light of the conduct of the defendants." Barrett v. Danbury Hosp., 232 Conn. 242, 261 (1995). See also Carrol v. Allstate Ins. Co., 262 Conn. 463, 446 (2003). "Under Carrol v. Allstate Ins. Co. and

Montinieri, to support a negligent infliction of emotion distress claim a plaintiff need only allege that the defendant knew or should have known that his or her conduct involved an unreasonable risk of causing emotional distress and that such emotional distress occurred." Augelli v. Matos, 2003 WL 21958554, *2 (Conn. Super. Ct. 2003). Plaintiffs need not show that Defendants hold any intent to cause such distress because "[t]he issue in a claim for negligent infliction of emotional distress is the Defendant's conduct, not his intent." Jones v. Gem Chevrolet, 166 F. Supp. 2d 647, 651 (D. Conn. 2001). See also Whitaker, 167 F. Supp. 2d 251, 255 (D. Conn. 2001). Furthermore, the determination of the reasonableness of Plaintiffs' negligent infliction of emotional distress claims are reserved for trial. Augelli v. Matos, 2003 WL 21958554, at *1. Where design or operational negligence has

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been established in the transport, handling and disposal of waste materials (i.e. sewage and stormwater collection facilities), the court has affirmed a finding of negligent infliction of emotional distress where that distress was "reasonably foreseeable." Voghel v. City of Waterbury, 1999 WL 732984, *7 (Conn. Super. Ct. 1999). Defendants' joint conduct, facilitating the disposal of Olin's toxic industrial waste in the Newhall Section, knowing houses were going to be built on the dumps, constitutes at a minimum "inconsiderate" behavior comprising "unreasonable conduct" necessary to support a negligent infliction of emotional distress claim under Barrett v. Danbury Hosp, 232 Conn. at 261. B. Defendants' Disposal of Hazardous Materials and Chemicals For Decades Knowing Houses Were Being Built on the Dumps Constitutes Extreme and Outrageous Conduct Supporting Plaintiffs' Claim of Intentional Infliction of Emotional Distress.

To succeed on a claim of intentional infliction of emotional distress Plaintiffs' must establish "(1) that the actor intended to inflict emotional distress or that he knew or should have known that the emotional distress was a likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiffs' distress; and (4) that the distress suffered by the plaintiff was severe." Appleton v. Stonington Bd. Of Ed., 254 Conn. 205, 210 (2000), citing Petyan v. Ellis, 200 Conn. 243, 253 (1986). Plaintiffs have alleged facts in the Amended Complaint which provide support for each of these four elements, and therefore Defendants' Motion to Dismiss Plaintiffs' emotional distress claims must be denied. Defendants' motions to dismiss Plaintiffs' emotional distress claim concentrates on their purported absence of a factual or legal basis upon which to support a claim of outrageous or extreme behavior. To state a claim for "intentional or reckless misconduct under Connecticut

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law, a plaintiff must plead the defendant's conduct was 'highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.'" Bello v. Barden Corp., 180 F. Supp. 2d 300, 312, citing Dubay v. Irish, 207 Conn. 518 (1988). In Bello the court equates "intentional" and "reckless" behavior with regard to an intentional infliction of emotional distress claim in a manner directly relevant to the current instance. See also Kurzyna v. City of New Britain, supra, 2002 WL 1008450 (Conn. Super. Ct. 2002) (municipality which deposited waste in a former pond, which was subsequently built upon for residential purposes, exhibited "reckless" conduct in regard for public health and safety in failing to inspect the property and allowing construction to continue). The determination of whether the Defendants' conduct is extreme and outrageous conduct rests as a matter of first instance with the court; the general rule in Connecticut holds that "there is liability for conduct exceeding all bounds usually tolerated by a decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind." Whitaker, 167 F. Supp. 2d at 255 (internal citations omitted). However, where "reasonable minds [may] differ this determination becomes a question for the jury." Id., citing Reed v. Signode Corp., 652 F. Supp. 129, 137 (D. Conn. 1986). See also RESTATEMENT (SECOND) OF TORTS § 46 cmt. h (1965). Defendants do not argue that Plaintiffs' allegations of Olin's and Hamden's reckless disposal would not or could not be considered extreme and outrageous by "reasonable" finders of fact, thereby showing that the matter is suitable for consideration by the jury pursuant to Reed. Rather, Defendants' claims that Plaintiffs "fail to present any facts sufficient to support the notion that Olin's conduct was extreme and outrageous" relies on the same conclusory statements and unsupported allegations and fails to provide either legal or factual support for

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their motions. The Court need only look to the Amended Complaint to see the massive scope and scale of toxic industrial waste disposal operations in the Newhall Section and the hazardous materials which were thereby disposed. See Bello, 180 F. Supp. 2d at 306. In arguing that their actions do not exceed all bounds usually tolerated by decent society, Defendants in fact demand that the Court accept that indiscriminate large-scale dumping of hazardous materials in areas where residential development is the known or intended use of the filled land constitutes an activity usually or normally tolerated by informed society. This position is illogical, and runs contrary to long-standing public policy and generations of environmental and public health law. Olin's argument that its conduct was encouraged by the State of Connec ticut and Hamden similarly fails. Plaintiffs are not aware of, and Olin has not cited to, any case law in which a defendant's alleged reliance on third-party permission for hazardous waste disposal exempts that party from liability for claims of negligent or intentional emotional distress. Whether or not Olin claims to have been "following orders", they retain legal liability and responsibility in this disposal. IV. OLIN'S AND HAMDEN'S JOINT VENTURE TO USE INDUSTRIAL WASTES FOR FILL UNDER RESIDENTIAL DWELLINGS CREATED BOTH PUBLIC AND PRIVATE NUISANCES A. Olin's & Hamden's Joint Actions have Created Private Nuisances Affecting Each of the Plaintiffs.

"Private nuisance law ... is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land." Pestey v. Cushman, 259 Conn. 345, 357 (2002). In 2002 the Connecticut Supreme Court set forth the definitive standard for private nuisance and adopted the "basic principles," of § 822 of the Restatement (Second) of Torts. Pestey, 259 Conn. at 360. The Supreme Court refocused the private nuisance analysis to the

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question of whether the defendant's conduct ­ whether intentional or negligent - causes an unreasonable interference with a plaintiffs' use of his or her property. Pestey, 259 Conn. at 360. Accordingly, to support a cause of action for private nuisance, the plaintiff must prove that (1) there was an invasion of the plaintiff's use and enjoyment of his or her property; (2) the defendant's conduct is the proximate cause of the invasion; and (3) the invasion was either intentional or unreasonable, or unintentional and the defendant's conduct was negligent and reckless. Id., at 357, citing 4 RESTATEMENT (SECOND) OF TORTS § 822 (1965). In defining the standard of reasonableness, it is the interference with the use and enjoyment, rather than the conduct of the defendant which is the determining factor. Id. at 359. In other words, even when the conduct of the defendant is otherwise reasonable, the extent and nature of the interference of plaintiff's use and enjoyment can be unreasonable to an extent sufficient to support a claim for private nuisance. A corollary result of this approach was that the Court found that the question of the reasonableness of the defendant's conduct, while a factor in the greater analysis of the unreasonableness of the interference, was not, itself, an independent element that must be proven. Id. at 360. 1. Private Nuisance Against Olin

In applying the Pestey test to the Amended Complaint under the Rule 12(b)(6) standard, Plaintiffs have adequately pled private nuisance. Plaintiffs pled that Olin contaminated their property with hazardous wastes and substances that have caused a diminution in value of their properties, caused severe emotional distress, and may cause additional physical and emotional harm. Plaintiffs allege that as a result Olin has unreasonably interfered with Plaintiffs' use and enjoyment of their property. Plaintiffs allege that Olin maintained control over and otherwise effected the handling, disposal, and release of the toxic hazardous industrial wastes and ash

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created at its manufacturing facility. Further, Plaintiffs allege that the joint venture entered into by Olin and Hamden over a period of decades resulted in hundreds of residences being constructed on hazardous substances. Plaintiffs' private nuisance count against Olin is supported by fact and law. In Giunta v. Town of Westport, 2002 WL 1293918 (Conn. Super. Ct. 2002), plaintiffs alleged that they had suffered odors from the municipal sewage plant, that defendants knew of the condition and effect on the plaintiffs, and that the plaintiffs had been deprived of their right to the use and enjoyment of their property. Id. at *1. The court denied the motion to strike the private nuisance claim, and, citing to Pestey, held that: The case refers to the use and enjoyment of one's property. All the plaintiffs reside [on the affected property], and they allege that the use and enjoyment of their home have been adversely affected by the defendant's conduct, thus affording them the right to pursue this action as plaintiffs . . . this court finds that the allegations are sufficient. Giunta, 2002 WL 1293918, at *2. 2. Private Nuisance Against Hamden

The Amended Complaint sufficiently alleges a cause of action for private nuisance against Hamden. The Amended Complaint alleges that as early as 1915 Hamden solicited owners of properties containing wetlands and low lying areas for the purpose of allowing industrial wastes containing hazardous substances to be disposed on these properties knowing that when filled, Hamden would grant building permits to allow their development for residential housing. The Amended Complaint also alleges that some time prior to 1917 Hamden and Olin entered into a joint venture that lasted for decades whereby dumps were established on properties in the Newhall Section and Olin dumped ash and other toxic industrial waste in these disposal facilities. The Amended Complaint further alleges that from the construction of the first of these

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industrial dumps, they were immediately developed into residential properties. Finally, the Amended Complaint alleges that as a result of the industrial waste brought to the properties in the Newhall Section, the soils contain elevated concentrations of arsenic, lead and PAHs which pose significant risks to human health, welfare and the environment. In order to prosecute a nuisance claim against a municipality plaintiffs must allege that the nuisance was created by some positive act of the municipality. Elliot v. Waterbury, 245 Conn. 385, 421 (1998); Keeney v. Town of Old Saybrook, 237 Conn. 135, 165 (1996). Contrary to Hamden's assertions, Plaintiffs are not required to allege that Hamden intended to create a danger or should have known of the potential toxic substances.15 See Accashian v. City of Danbury, 2000 WL 157926, *3 (Conn. Super. Ct. 2000) ("[t] hough the use of the word `intentional' to explain `positive act' created the appearance of the adoption of a new standard, the Court's actual ruling on the nuisance claim in Elliot turns on whether the claimed nuisance resulted from an act of the town, not whether the town intended the intrusion."). Plaintiffs allege in detail that Hamden entered into a joint venture with Olin and for decades facilitated the disposal of toxic industrial wastes in the Newhall Section and concurrently arranged for and allowed the development of residential dwellings on these massive piles of industrial waste. As a result, Hamden's motion to dismiss Count II (nuisance) must be denied. B. Defendants' Creation of Toxic Industrial Waste Dumps Underlying a Residential Neighborhood Constitute an Actionable Public Nuisance.

The Connecticut Supreme Court has stated that a plaintiff must prove four elements to succeed in a public nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon persons or property; (2) the danger created was

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a continuing one; (3) the use of the land was unreasonable and unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiff's injuries and damages." Pestey, 259 Conn. at 355. According to the Court, "[t] hese elements developed through a long line of cases that can be described best as public nuisance cases." Id., citing RESTATEMENT (SECOND) OF TORTS § 821B (1965) to clarify that interference in the public nuisance context depends on "[w] hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort and the public convenience." Id. at 356. In declining to address whether the "four factor analysis adequately encompasses the proper inquiry in public nuisance cases" the court indicated that some "adjustment" to this test might be necessary. Id. at n. 6. The Court indicated that at least one of these adjustments must consider that "a public nuisance can be created intentionally or negligently," Id. at 358, citing Keeny, 237 Conn. at 163. The Amended Complaint sufficiently alleges a cause of action for public nuisance. The issue before the Court in this motion to strike is whether Plaintiffs sufficiently allege that Defendants unreasonably interfered with a public right, specifically public health and safety. Pestey, 259 Conn. at 357. The facts as pled show Olin's and Hamden's joint venture to facilitate the disposal of toxic industrial wastes in the Newhall Section unreasonably interferes with the public health and safety of the residents of the Newhall Section. The Amended Complaint alleges that Olin dumped ash and other industrial waste containing hazardous substances in the disposal areas created by Hamden in the Newhall Section, that tests of the soil in the Newhall Section indicate the presence of elevated concentrations of arsenic, lead and PAHs, and that elevated concentrations of these various hazardous constituents pose a significant risk to human

15

Similarly, the defendants in both Accashian and Vaillancourt incorrectly argued that a valid nuisance claim against a municipality required that the municipality knew of the hazard it was creating. See Valliancourt, 2002 WL 1041381, at *4; Accashian, 2000 WL 157926, at *3.

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