149 Conn. App. 630
Conn. App. Ct.2014Background
- JMS Newberry, LLC sues Kaman Aerospace Corp. and Kaman Corp. over runoff from a large Bloomfield property separated by East Newberry Road.
- Defendants own about 86 acres; plaintiff owns six parcels on the north side of East Newberry Road across the road from defendants’ land.
- Flight line meadow along the road has remained largely undeveloped without impervious material since the 1980s; water reportedly flows toward plaintiff’s property via East Newberry Road.
- Plaintiff alleges defendants’ alleged alteration caused increased water flow and erosion, seeking relief under § 22a-16 and other tort theories; defendants move for summary judgment.
- Trial court granted summary judgment for defendants; plaintiff appealed, arguing alternate grounds for liability under § 22a-16 and related theories; appellate court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 22a-16 requires proof of an alteration or just impairment. | Plaintiff contends no detailed alteration proof is needed—protectable natural resource suffices. | Defendants contend alteration must be shown to divert water; mere impairment is not enough. | Alteration proof required; plaintiff failed to identify alteration. |
| Whether plaintiff showed defendants’ property was altered to discharge water onto plaintiff’s land in a different course. | Plaintiff argues Falco authority permits recovery for failure to repair alteration. | Court must find actual alteration and maintenance of that alteration. | No evidence of such alteration; no duty breach proven. |
| Whether the trespass claim survives absent an affirmative act increasing water flow. | Failure to remediate constitutes intentional trespass under Falco. | No act increasing flow; omission not actionable under theory. | No genuine issue of material fact; no trespass under the presented theory. |
| Whether expert affidavits created a factual question on alteration. | Pryor affidavits suggest historical alteration and higher runoff. | Affidavits are conclusory and do not establish a material fact. | Affidavits insufficient to create triable issue; record shows no alteration. |
Key Cases Cited
- Falco v. James Peter Associates, Inc., 165 Conn. 442 (Conn. 1973) (landowner cannot increase surface water flow onto others’ land or discharge in a different course without liability)
- Ferri v. Pyramid Construction Co., 186 Conn. 682 (Conn. 1982) (no liability for natural surface water flow onto others’ land)
- Fort Trumbull Conservancy, LLC v. Alves, 140 Conn. App. 155 (Conn. App. 2012) (requires more than de minimis impairment to prove § 22a-16 claim)
- Romprey v. Safeco Ins. Co. of America, 310 Conn. 304 (Conn. 2013) (summary judgment standard; plenary review of denial or grant)
- Shukis v. Board of Education, 122 Conn. App. 555 (Conn. App. 2010) (burden under § 22a-16; environmental redress through litigation)
- Macellaio v. Newington Police Dept., 145 Conn. App. 426 (Conn. App. 2013) (affidavits alone may be insufficient to create triable issue)