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Cholewa v. Hill

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

December 19, 2016

Michael Cholewa et al.
v.
Robert G. Hill et al

          MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT LAKE ROAD PLAZA, FILING #111

          Timothy D. Bates, J.

         FACTS

         This action arises out of a complaint brought by the plaintiffs, Michael and Tracy Cholewa, (hereinafter referred to as " the plaintiffs") against Robert Hill[1] and Lake Road Plaza, LLC, (Lake Road Plaza, LLC being hereinafter referred to in this memorandum as " the defendant"), and later brought against Star Cleaners of Bozrah, LLC and Nationwide Mutual Insurance Company.[2] In their complaint, the plaintiffs allege that their property was exposed to hazardous chemicals due to the defendant's failure to properly dispose of chemicals used in the course of its dry cleaning business, resulting in harm to the plaintiffs' property. In their complaint, [3] the plaintiffs specifically allege the following facts: the plaintiffs are owners of real property in Bozrah, Connecticut. (Complaint, Count 1, Paras. 1 and 2.) The defendant, Lake Road Plaza, LLC, is a limited liability company that owns real property, known as Lake Road Plaza, which is leased as commercial space and is adjacent to or nearby the plaintiffs' property. (Id., Paras. 3 and 4.) For all relevant times to the complaint, the plaintiffs allege Lake Road Plaza, LLC, leased a portion of its property defendant to Star Cleaners of Bozrah, LLC (Star Cleaners), a dry cleaning establishment run by Robert Hill. (Id., Para. 8.) The plaintiffs further allege that Star Cleaners used volatile organic compounds (VOCs) in its dry cleaning business, and VOCs were disposed of through the dry cleaner's plumbing and septic systems. (Id., Para. 23.) The plaintiffs claim that due to improper disposal, the VOCs were allowed to leach into the groundwater supply and into the plaintiffs' water supply. (Id., Para. 18.)

         In February 2012, the plaintiffs allege that the Department of Energy and Environmental Protection of the State of Connecticut (DEEP) conducted studies of the plaintiffs' water supply. (Id., Para. 14.) The results of these studies, according to plaintiffs, revealed several different types of VOCs within the plaintiffs' water supply, including tetrachloroethylene, also known as perchloroethylene (PCE). (Id., Para. 15.) In a report dated January 8, 2013, the plaintiffs allege DEEP reported that it had determined that the source of the PCE on the plaintiffs' property was from Star Cleaners. ( Id. , Para. 18.) Throughout 2013, according to the plaintiffs, the DEEP continued testing the groundwater on the plaintiffs' property, (Id., Para. 19), and the samples taken by DEEP revealed that the level of PCE continued to increase through October 31, 2013. (Id. Para. 20.)

         The plaintiffs' original complaint was served on the defendant on October 30, 2015, and filed on November 3, 2015. It consisted of twelve counts. The amended complaint filed December 7, 2016, consists of nineteen counts. The first six counts, in both complaints, are against Robert Hill, owner of Star Cleaners, and are not at issue in this motion. Counts seven through twelve, in both complaints, are against the defendant and are the counts at issue in this motion. Counts thirteen through nineteen, in the amended complaint only, are against Star Cleaners of Bozrah, LLC and are not in issue in this motion. In both versions of the complaint, [4] count seven is a common-law negligence claim; count eight, a trespass claim; count nine, a private nuisance claim; count ten, a claim of liability pursuant to General Statutes § 22a-452; count eleven, a claim of liability pursuant to General Statutes § 22a-16; and count twelve, a negligence per se claim under General Statutes § 22a-430.

         On June 20, 2016, the defendant filed a motion for summary judgment as to counts seven through twelve on the ground that there remains no genuine issue as to any material fact because the plaintiffs' claims are time barred by any relevant statute of limitations. The plaintiffs, in response, argue that there is a genuine issue of material fact as to the applicable date when the statute of limitations began to run because, under the continuous course of conduct doctrine, the statute of limitations was tolled. Oral argument was heard on August 22, 2016.

         DISCUSSION

         " Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted 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." (Internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534, 51 A.3d 367 (2012). " [T]he moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Internal quotation marks omitted.) Id., 535. " [I]n the context of a motion for summary judgment based on a statute of limitations 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." (Citation omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 321, 77 A.3d 726 (2013).

         In the memorandum in support of its motion for summary judgment, the defendant argues that the plaintiffs' claims are time barred under all relevant statutes of limitation based on the plaintiffs' first discovery of the presence of the VOCs on their property in February 2012, or on the later date of the DEEP report dated January 2013. The defendant argues that based on the limitations periods, set forth in General Statutes § 52-577c, General Statutes § 52-577, or General Statutes § 52-584, the plaintiffs were time barred in bringing this action against them because the plaintiffs did not commence it until October 30, 2015.

         The plaintiffs counter that a question remains as to whether the increase in levels of PCE in October 2013, was due to a subsequent release of PCE by the defendant. They argue that under the continuing course of conduct doctrine, the limitations period under any relevant statute would have tolled until the date they received notice of the alleged subsequent release of PCE in November 2013. The plaintiffs submit that tolling the statute would hold off accrual of the statute of limitations period until they were informed of the subsequent release in November 2013, and therefore, the plaintiffs would, under this theory, have had until November 2015, to bring their claims. It is not in dispute that the plaintiffs commenced their action per the Marshal's Return on October 30, 2015.

         Count Seven: Common-Law Negligence

         In claiming protection under the statute of limitations, the defendant relies on three statutes: § 52-577, § 52-577c, and § 52-584. Each imposes different, but similar, time limitations. Section 52-577 provides: " No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." Section § 52-577c(b) provides in relevant part: " Notwithstanding the provisions of sections 52-555, 52-577 and 52-577a, no action to recover damages for personal injury, death or property damage caused by exposure to a hazardous chemical substance or mixture or hazardous pollutant released into the environment shall be brought but within two years from the date when the injury or damage complained of is discovered or in the exercise of reasonable care should have been discovered." And finally, § 52-584 provides in relevant part: " No action to recover damages for injury to the person, or to real or personal property caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but 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, and except that no such action may be brought more than three years from the date of the act or omission complained of . . ."

         At the outset, as a matter of law, it must be decided which statute of limitations applies to this case. " In determining which limitations period should apply, it is noted that § 52-584 [and § 52-577] apply to personal injuries generally, while § 52-577c applies specifically to injuries incurred as a result of contact with harmful chemical substances." Madden v. ACMAT Corp., Superior Court, judicial district of Fairfield, Docket No. CV-06-5005733 (August 21, 2008, Skolnick, J.) [46 Conn.L.Rptr. 220, ]. Although some Superior Court decisions have held in similar circumstances as the present case that either § 52-577 or § 52-577c may apply to claims of personal injury due to exposure to hazardous pollutants in the environment, these courts did not need to choose between the two statutes because the claims at issue in those cases were time barred under either statute. See e.g., Longobardi v. Shree Ram Corp., Superior Court, judicial district of New Haven, Docket No. CV-05-4016755-S, (August 15, 2006, Pittman, J.); Fischer v. Iroquois Gas Transmission Sys., Superior Court, judicial district of Waterbury, Docket No. CV-07-5013792-S, (December 23, 2011, Cremins, J.); Bourbeau v. Alpha Q, Inc., Superior Court, judicial district of Hartford, Docket No. CV-05-4015076-S, (May 20, 2008, Langenbach, J.).

         Nevertheless, our Supreme Court in Greco v. United Technologies Corp., 277 Conn. 337, 890 A.2d 1269 (2006), has noted that the plain language of § 52-577c explicitly preempts § 52-577 to the extent of claims of damages arising from exposure to a hazardous chemical or hazardous pollutant. " [Section] 52-577c(b) provides that it is the applicable limitations period notwithstanding the provisions of [General Statutes § ]52-577, the statute of limitations that pertains to tort actions generally, and [General Statutes § ]52-577a, the statute of limitations that pertains to product liability claims. Thus, to the extent that § 52-577c(b) otherwise may be applicable under the present factual circumstances, that statutory provision expressly preempts § 52-577 . . ." (Internal quotation marks omitted.) Id., 348-49 (ultimately holding that the wrongful death statute, § 52-555, was not preempted by § 52-577c because at the time § 52-555 was not within the preemption language of § 52-577c). Further, the court in Tolchin v. Shell Oil Co., Superior Court, judicial district of New Britain, Docket No. CV-97-0510328-S (July 30, 2004, Peck, J.) (37 Conn.L.Rptr. 575, ), held that § 52-577c " is a specific and free-standing exception to § 52-577 . . ."

         In Tolchin, the plaintiff brought an action against Shell Oil Company which owned and operated a gas station next to the plaintiff's parents' property. Id. The plaintiff alleged the defendant failed to prevent gasoline contamination of the plaintiff's water supply, which caused the plaintiff to contract a serious illness. Id. The defendant moved for summary judgment on the ground that the counts were time barred. Id. The defendant argued that ยง 52-584 applied, and the plaintiff argued ...


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