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Danz Magic, LLC v. City of Derby

Superior Court of Connecticut, Judicial District of New Haven, New Haven

August 18, 2015

Danz Magic, LLC
v.
City of Derby et al

Filed Date August 20, 2015

MEMORANDUM OF DECISION RE DEFENDANT SOUTH CENTRAL CONNECTICUT REGIONAL WATER AUTHORITY'S MOTION FOR SUMMARY JUDGMENT (#128)

Elpedio N. Vitale, J.

Pursuant to Practice Book § 17-44, the defendant South Central Connecticut Regional Water Authority (" SCCRWA") moves for summary judgment as to count Two of the plaintiff's complaint dated May 10, 2013. The defendant SCCRWA alleges that the statute of limitations for bringing this claim against it has expired. As a result, the defendant SCCRWA contends that the claims against it are barred. The plaintiff objects and alleges that the claim was filed timely and further that SCCRWA owed the plaintiff a duty under the continuing course of conduct doctorine.

Nature of the Proceedings

This action was commenced on May 16, 2013 by service of process on the defendants, South Central Connecticut Regional Water Authority, City of Derby, and Dworkin Properties, LTD. In Count Two of a three-count complaint, dated May 13, 2013, the plaintiff, Danz Magic LLC, alleges that the plaintiff operated a business, located at 4 1/2 Laurel Drive, Derby, Connecticut. The defendant, South Central Connecticut Regional Water Authority, constructed or otherwise was responsible for a sewer and water system that was connected to the building that the plaintiff's business occupied. On or about May 18, 2011, a broken and/or clogged sewer/water line, also built or installed by the defendant, discharged refuse, filthy water, and sewage onto, upon, and in the plaintiff's business property. The discharge damaged the plaintiff's business property, and was caused by the defendant's negligence in the construction and maintenance of the water and sewage system, failure to inspect and repair the system, failure to warn the plaintiff of the potential of a rupture, and the failure to install back flow preventers.

On December 19, 2014, the defendant filed a motion for summary judgment on the ground that the statute of limitations for bringing this claim has expired, and, thus, the plaintiff's claim is time barred. In support of the motion, the defendant filed a memorandum of law and submitted the sworn affidavit of Thomas Adamo, a manager of operations, planning & scheduling who is familiar with the defendant's operations (Exhibit A). The plaintiff filed an objection and supporting memorandum of law on March 20, 2015. In support of the objection, the plaintiff submitted the sworn affidavit of Deborah Parlow (Exhibit 1), a letter from the City of Derby discussing its investigation of the sewer/water line incident (Exhibit 2), and an email from the defendant discussing the incident and the history of the site (Exhibit 3). The defendant filed a reply on May 1, 2015. The matter was heard at the short calendar on June 16, 2015.

DISCUSSION

" Summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Citation omitted; internal quotation marks omitted.) Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 313, 87 A.3d 546 (2014). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 319-20, 77 A.3d 726 (2013).

" Summary judgment may be granted where the claim is barred by the statute of limitations . . . Summary judgment is appropriate on statute of limitations grounds when the material facts concerning the statute of limitations [are] not in dispute . . ." (Citation omitted; internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, supra, 310 Conn. 313. " [I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute." Id., 321.

" Although a judgment based on the running of the statute of limitations bars the plaintiff from bringing an action to relitigate the claim within that jurisdiction, it is not a judgment on the merits and does not erase the plaintiff's claim . . . Thus, the only facts material to the trial court's decision on a motion for summary judgment are the date of the wrongful conduct alleged in the complaint and the date the action was filed . . . [W]e are limited to the events alleged in the complaint of this case and any facts alleged in their affidavit in opposition to the motion for summary judgment." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Navin v. Essex Savings Bank, 82 Conn.App. 255, 259, 843 A.2d 679, cert. denied, 271 Conn. 902, 859 A.2d 563 (2004).

The defendant contends that plaintiff's negligence claim in count Two is subject to a three-year statute of limitations under General Statutes § 52-584.[1] Defendant argues that any claim against the defendant must be brought within three years of the act or omission complained of, not the date of the injury. The defendant asserts that the statute of limitations began running in 2000, on the date the defendant last performed work on that section of the water main and/or sewer system, and not in 2011, on the date of the plaintiff's alleged damages.

In opposition, the plaintiff submits that the claim is subject to a two-year statute of limitations under § 52-584 that began running on May 18, 2011, the date that the plaintiff suffered actionable harm. Thus, plaintiff argues that the claim is timely because the plaintiff filed on May 11, 2013, within two years of the injury. Additionally, the plaintiff argues that there is an issue of material fact as to whether the defendant owed the plaintiff a duty under the continuing course of conduct doctrine, which would toll the statute of limitations.

" The applicable statute of limitations, § 52-584, imposes two specific time requirements on plaintiffs. The first requirement, referred to as the discovery portion . . . requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . The second provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of . . . The three year period specifies the time beyond which an action under § 52-584 is absolutely barred, and the three year period is, therefore, a statute of repose." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn.App. 396, 401-02, 844 A.2d 893 (2004).

As a preliminary matter, the court must determine whether the statute of limitations is tolled by the continuing course of conduct doctrine. As applied to § 52-584, the continuing course of conduct doctrine applies only to the repose portion of the statute, not to the discovery portion of the statute. Rosato v. Mascardo, supra, 82 Conn.App. 405. " The continuing course of conduct doctrine, with its focus on the conduct of the defendant, naturally applies to the repose section of the statute, with its 'act or omission' language. If the act or omission that caused the harm is a series of acts or omissions comprising a continuing course of conduct, the doctrine serves to pinpoint its occurrence at the end of the course of conduct. To satisfy the repose section of the statute, only the endpoint of the conduct need occur within the three years prior to the filing date of the complaint . . . The two year limitation section focuses on the discovery of actionable harm. The continuing course of conduct doctrine is not applicable because the triggering event is no longer the defendant's act or omission but the plaintiff's knowledge of the injury." Rivera v. Fairbank Management Properties, Inc., Superior Court, judicial district of Waterbury, Docket No. ...


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