126 Conn. App. 30
Conn. App. Ct.2011Background
- Plaintiffs Edward and Kathleen Coss sue the town of Waterford and town officials for damage to a stone wall caused by a sewer project along Oswegatchie Road.
- The wall damage allegedly resulted from blasting and heavy equipment used by Baltazar Contractors under the town's direction; plaintiffs claim the town promised to restore properties to equal or better condition.
- Plaintiffs discovered damage in December 2002 and informed the town; Baltazar reportedly repaired only portions by January 2005; plaintiffs allege ongoing misrepresentations and promises to repair through 2007.
- Plaintiffs filed an amended complaint on August 27, 2008 asserting negligence, strict liability, nuisance, and fraud; some counts invoked General Statutes § 52-557n and *52-577 tolling arguments.
- Defendants moved for summary judgment on August 26, 2009, arguing all claims were time-barred or protected by governmental immunity; the court granted summary judgment as to all counts.
- The court concluded plaintiffs knew of the damage in December 2002, found no equitable estoppel, and held the fraud claims were not supported and/or barred by timing or immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equitable estoppel to toll statute of limitations | Coss argues town's continuing assurances lulled timely suit. | Town contends no deception or prejudice; no pre-limit assurances existed before December 30, 2005. | No equitable estoppel; timely notice not produced before 2005; estoppel not proven. |
| Continuing course of conduct tolling | Continuing promises tolled the limitations period. | Promises after October 31, 2005 did not occur within the limitation window to toll. | Continuing course of conduct did not toll; limitations ran by December 2005. |
| Fraud claim timeliness and viability | Fraud relied on ongoing false promises to repair. | Defendants’ actions were discretionary and protected; communications after 2005 show no deceit before expiry. | Fraud claim properly dismissed; no pre-limit deceptive acts evidenced. |
| Discovery protective order and due process | Protective order deprived access to discovery, violating due process. | Court acted within discretion; protective order targeted discovery pending summary judgment. | No due process violation shown; record insufficient to show abuse of discretion. |
| Right-of-way and ministerial vs discretionary conduct | Town officials’ actions interfered with plaintiffs’ remedies and tolled the statute. | Conduct was discretionary, not ministerial; immunity applies to fraud-related conduct. | Actions deemed discretionary; immunity applied; summary judgment affirmed. |
Key Cases Cited
- Rosato v. Mascardo, 82 Conn.App. 396, 844 A.2d 893 (Conn. App. 2004) (discovery and discovery-rule principles; limitations start at harm)
- Prokolkin v. General Motors Corp., 170 Conn. 289, 365 A.2d 1180 (Conn. 1976) (statute of limitations for strict liability actions)
- Sturm v. Harb Development, LLC, 298 Conn. 124, 2 A.3d 859 (Conn. 2010) (fraud elements and reliance; articulated standard of fraud)
- Sallies v. Johnson, 85 Conn. 77, 81 A. 974 (Conn. 1911) (pleading sufficiency for fraud representations prior to summary judgment)
- Jaiguay v. Vasquez, 287 Conn. 323, 363, 948 A.2d 955 (Conn. 2008) (hearsay and admissibility in opposing summary judgment)