Filisko v. Bridgeport Hydraulic Co.

• Decision Date: 29 August 1978
• Citation: 176 Conn. 33,404 A.2d 889
• Court: Connecticut Supreme Court
• Parties: George FILISKO et al. v. BRIDGEPORT HYDRAULIC COMPANY et al.

Page 889

404 A.2d 889

176 Conn. 33

George FILISKO et al. v. BRIDGEPORT HYDRAULIC COMPANY et al.

Supreme Court of Connecticut.

Argued April 4, 1978.

Decided Aug. 29, 1978.

John J. Graubard, Stamford, with whom, on brief, were Emanuel Margolis and Howard C. Kaplan, Stamford, for appellant (defendant town of Easton).

Robert K. Lesser, Bridgeport, with whom, on brief, was Stanton H. Lesser, Bridgeport, for appellees (plaintiffs).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and HEALEY, JJ.

LONGO, Associate Justice.

The plaintiffs, George and Elizabeth Filisko, brought suit in three counts claiming damages for injury allegedly caused to their property by polluted water running from the defendant town of Easton's refuse dump, across the defendant Bridgeport Hydraulic Company's property, and onto the plaintiffs' land. The first count of their complaint may be characterized as common-law nuisance; the second as a private right of action under General Statutes § 25-26, pertaining to the authority of the commissioner of environmental protection to regulate discharges of waste into the waters of this state; and the third as "inverse condemnation." The case was tried to a jury and judgment was rendered upon a verdict solely against the town in the amount of $51,000. The questions presented by the town's appeal to this court are whether (1) the evidence was sufficient as a matter of law to find the town liable; (2) certain evidence was properly admitted; and (3) the damages awarded were excessive.

Where a complaint is divided into counts and a general verdict is returned, if any of the counts are good it will be presumed that the damages were assessed as to that count and the verdict will be sustained. Sheeler v. Waterbury, 138 Conn. 111, 114, 82 A.2d 359; Ziman v. Whitley, 110 Conn. 108, 112, 147 A. 370. Since the plaintiffs assert that their first count of common-law private nuisance is the strongest in law and fact, we will examine the sufficiency of the evidence as to that count.

To establish a nuisance four elements must be proven: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages. Kostyal v. Cass, 163 Conn. 92, 99-100, 302 A.2d 121. Whether any of those essentials exist is ordinarily a question of fact. Chazen v. New Britain, 148 Conn. 349, 355, 170 A.2d 891. There was abundant evidence from which the jury could have determined that the plaintiffs had proved the first three elements of their case. A few highlights will suffice to illustrate. The plaintiffs and their children moved into a new home in Easton in 1955, and constructed a pond on the premises in 1957. They used the pond and its environs for a variety of recreational activities with family and friends, such as picnicking, sunbathing, swimming, fishing, boating, ice skating and sledding. Beginning in 1968 and continuing until the time of trial in 1976, polluted water and materials regularly seeped into the pond, rendering it so unsightly and so redolent of "rotten eggs" that the plaintiffs stopped using the pond and filled in some of it every year. An interceptor ditch they dug in 1970 failed to cure the problem. The plaintiffs' well was tested on several occasions and found to be contaminated by sewage-type bacteria; after 1969, the plaintiffs brought in bottled water for drinking and cooking.

In the opinion of qualified witnesses employed by the department of environmental protection, the pollution of the plaintiffs' pond and well was attributable to conditions at the town's refuse dump, located uphill of the plaintiffs' property. Violating regulations of the department of health, the town consistently failed to spread, compact and cover the refuse daily. As a result pollutants infiltrated water collecting at the dump site. The polluted water seeped through two earthen dams constructed and maintained by the town, the second built in 1968, and flowed across the Bridgeport Hydraulic Company's property, on and below the surface, emerging on the plaintiffs' low-lying property.

The town principally argues that the plaintiffs failed to offer sufficient evidence, such as "dye tests or other scientific proof," that the nuisance at the dump was the proximate cause of the plaintiffs' injuries. There is no merit to this claim. The plaintiffs' expert witnesses testified that tests above and below the dam area indicated that surface waters and ground waters became contaminated by materials present in the dump. They observed and traced the flow of polluted water from the dam area to the plaintiffs' property. The flow was so obvious, and the appearance and odor of the water on the plaintiffs' property was so similar to that of the water at the dump, that it was deemed unnecessary to perform dye tests or other tests to identify the nature and source of the contaminants. We conclude there was ample evidence for the jury to find the town liable in nuisance.

Error has been assigned in the admission into evidence of two orders to the town to abate water pollution at the dump: a 1970 order from the water resources commission signed by the chairman of the commission, and a 1973 order from the commissioner of environmental protection signed by a deputy commissioner. There is no dispute that the orders qualified as business entries under General Statutes § 52-180, since they were made in the regular course of business, it was the regular course of business to make such orders, and the orders were made within a reasonable time after inspection of conditions at the dump. Hutchinson v. Plante, 175 Conn. 1, 4, 392 A.2d 488; Mucci v. LeMonte, 157 Conn. 566, 570, 254 A.2d 879. The town takes issue only with the admissibility of the statement contained in both orders that the town through its operations at the dump was "causing pollution to the waters of the State."

We have said that for an item contained in a business record to be admissible under § 52-180 of the General Statutes, it must be based on the personal knowledge of the entrant or on the information of others with personal knowledge who are under a business duty to transmit such information to the entrant. Hutchinson v. Plante, supra; Mucci v. LeMonte, supra, 568-69, 254 A.2d 879. That requirement was satisfied in this case. The witness through whom the orders were offered, Roger Moore, was the state employee who actually made the investigations upon which the orders, which he wrote, were based. The finding of polluting conditions at the dump was derived from his personal observations and he had a business duty to transmit it to his employers. While conclusory in form, the finding of pollution was an opinion which either Moore or his superiors who signed the orders would be qualified to offer in testimony, and Moore did so testify. Cf. Mucci v. LeMonte, supra, 569, 254 A.2d 879. It is of no importance that the subordinate findings underlying Moore's opinion did not appear in the orders. General Statutes § 52-180 directs that such circumstances may be shown to affect the weight of the evidence but not its admissibility. Moreover, Moore was available for cross-examination and defense counsel took full advantage of the opportunity. There was no error in admitting the orders into evidence.

Another evidentiary claim arose when the plaintiffs called as a witness a real estate appraiser, Edwin Haflich, to testify that, on the basis of an appraisal he had made three days before his testimony, the loss of the pond had reduced the property's fair market value by $14,000. The town objected that Haflich should not be allowed to testify because of the prejudicial failure of the plaintiffs' counsel to comply with discovery rules. Pursuant to a pretrial motion for production, the plaintiffs' counsel had revealed only that there was a report from another appraiser showing damages in the amount of $5000; no express...