Friends of Animals, Inc. v. United Illuminating Co.

• Decision Date: 09 November 2010
• Docket Number: No. 30006.,30006.
• Court: Connecticut Court of Appeals
• Parties: FRIENDS OF ANIMALS, INC. v. UNITED ILLUMINATING COMPANY.

6 A.3d 1180

124 Conn.App. 823

FRIENDS OF ANIMALS, INC.

v.UNITED ILLUMINATING COMPANY.

No. 30006.

Appellate Court of Connecticut.

Argued Nov. 20, 2009.

Decided Nov. 9, 2010.

Kathleen Eldergill, Manchester, with whom were Danielle B. Omasta and, on the brief, Bruce S. Beck, Manchester, for the appellant (plaintiff).

Jonathan M. Freiman, with whom was Robert J. Klee, New Haven, for the appellee (defendant).

HARPER, ROBINSON and WEST, Js.

ROBINSON, J.

In this equitable action, the plaintiff, Friends of Animals, Inc., sought a declaration and injunction restraining the defendant, United Illuminating Company, from gassing, killing or capturing monk parakeets (parakeets) that were nesting on power lines and electrical equipment. The plaintiff appeals from the judgment rendered by the trial court when it granted the defendant's motion to dismiss for failure to make out a prima facie case. On appeal, the plaintiff claims that the court (1) abused its discretion by (a) precluding from evidence excerpts from the deposition transcripts of three of the defendant's employees and the defendant's expert witness, (b) precluding the plaintiff from calling the defendant's expert witness as its own expert witness, (2) improperly granted the defendant's motion to dismiss for failure to make out a prima facie case and (3) improperly held that General Statutes § 26-92 (wild bird act) provides the applicable standard for unreasonableness under the Connecticut Environmental Protection Act of 1971(act), General Statutes § 22a-14 et seq. We affirm the judgment of the trial court.

In its complaint, filed January 25, 2006, the plaintiff alleged, in part, that it is an international organization dedicated to the protection and preservation of wildlife. The defendant is a regional utility distributor, providing electricity to the greater New Haven and Bridgeport areas, and is responsible for maintaining electric lines,poles, transformers, substations and other equipment necessary to provide electric power to its customers.

The plaintiff also alleged that the parakeets are pigeon-sized birds that build large communal nests of sticks and other vegetation on elevated sites that exist naturally, such as trees, and commercially, such as utility poles and lines. The parakeets have lived wild in Connecticut for thirty to forty years and are enmeshed in the state's ecosystem.¹ Moreover, the parakeets may increase the number and varietyof wildlife in an otherwise ecologically barren urban environment, and they feed on undesirable species of weed plants.

The plaintiff further alleged that on or about November, 2005, the defendant destroyed parakeet nests on the power lines and utility poles it maintained in West Haven, Milford, Stratford and Bridgeport. The defendant claimed that the nests were a nuisance and a hazard. At the time in question, the plaintiff alleged that the defendant gassed the parakeets in the nests on utility lines and poles to capture and transfer them to be killed. Moreover, the defendant had failed to implement feasible and prudent methods of dissuading the parakeets from nesting on utility poles by routinely inspecting and maintaining equipment, removing pre-nesting structures or installing devices to prevent or dissuade parakeets from nesting on power equipment. In addition, the defendant's failure to implement measures to prevent the parakeets from nesting on utility poles and lines is likely to result in the parakeets continuing to build nests on utility poles, a potential public hazard, resulting in the defendant's lethal removal ofthe parakeets. Finally, the plaintiff alleged that "[t]he killing or removal of [parakeets] from the local ecosystem by the [d]efendant will, unless restrained, constitute conduct which is reasonably likely to unreasonably impair or destroy the public trust in a natural resource of the state, to wit, the [parakeets] and other interdependent local and indigenous species in violation of [General Statutes] § 22a-16 ² ...." (Emphasis added.)

In its prayer for relief, the plaintiff requested that the court declare the defendant's failure to implement routine maintenance and measures to prevent the parakeets from nesting on utility poles and its gassing, killing or capturing the parakeets a violation of § 22a-16. The plaintiff also sought a permanent injunction restraining the defendant from gassing, killing or capturing the parakeets, and requested reasonable costs, attorney's fees and other relief the court may deem just and proper.

The case was tried over three days in May, 2008. The plaintiff presented the testimony of its expert witness, Dwight G. Smith, professor and chair of the biology department at Southern Connecticut State University, Priscilla Feral, the plaintiff's president, and Donna Dwyer, a member and volunteer of the plaintiff. Although the court permitted the plaintiff's counsel to read into evidence portions of the deposition of Robert Manning, the defendant's manager of system integrity,³it ruled that the plaintiff could not put into evidence excerpts of the depositions of William Cook, director of project management, Kathleen Shanley, director of environmental safety and real estate, and Steve Siedzik, project manager, all of whom were employed by the defendant and present in the courtroom waiting to be called to testify. The court encouraged the plaintiff to call the defendant'semployees to testify, noting that counsel would have "a lot of leeway" in questioning them and that their deposition testimony could be used to impeach their courtroom testimony. Counsel for the plaintiff elected not to call the employees because she did not want to give the defendant the opportunity to cross-examine its employees. The court also denied the plaintiff's request to read into evidence excerpts from the deposition transcript of the defendant's expert witness, James R. Newman of Pandion Systems, Inc., a firm involved in environmental science, research, communications and training, and denied the plaintiff's request to call Newman as its expert witness.

After presenting the testimony of Smith, Feral and Dwyer, and marking excerpts of the employees' deposition transcripts for identification, the plaintiff rested. The defendant immediately moved, pursuant to Practice Book § 15-8, to dismiss the action for the plaintiff's failure to make out a prima facie case "that there is no threat to public health or public safety posed by the monk parakeet nests on the electrical equipment." The court granted the motion to dismiss, stating: "Well, it's rare for this court to engage in a personal response to a case that's just been presented. But I have to say ... that this is a unique experience for this court. And I have been on the bench since 1981....

"I took this case on as I try to take every other one, and as I think every Superior Court judge that I know who takes on a delicate public issue case like this takes on, with the thought that this is a serious question thatinvolves a lot of the public, that affects varied interests, and people's feelings are at stake. There is the humane aspect of these poor creatures who look to us for protection and survival. And I wanted to hear what this was all about. And I will be very candid and tell you that I feel disappointed and let down by the way this case has been put on. I don't think I have any alternative, but to dismiss the action. And I dismiss the action with reluctance because I don't feel I've heard the whole story, if there is another side to this story. I haven't heard it from the plaintiff.

"And I think, at this point, I will say no more because it's ... for appellate courts to decide if ... I'm correct in my perception. But I do not feel that you've sustained your burden of proof.... [Y]our expert made no bones about the fact that most of these alternative methods, which had been mentioned, had not been tested. He ... offered no alternatives. And I was hoping to hear from the attack on the [defendant's] people why alternatives didn't exist or ... whatever there might be. I wasn't given the opportunity to hear that. And as counsel has pointed out, the deposition testimony is a lame excuse, or the argument over that is a lame excuse for not putting the people on. They are here. They would have been under the gun. They would have been before the court. I could have registered my response to their responses ... evaluated their answers, maybe even had questions of my own to ask them. You chose not to do that. And I respect counsel's wishes, and decisions of a tactical nature, but you leave me with no alternative but this one. So, the case is dismissed."

The plaintiff subsequently filed a motion for articulation, asking the court to articulate thirteen points. In its articulation, the court stated, in part, that "[w]hat the court found totally lacking was any action by the defendant reasonably likely 'unreasonably to pollute,impair or destroy the public trust in the air, water or other natural resources of the state'," quoting General Statutes § 22a-17 (a). The plaintiffhas appealed from the judgment of dismissal.

I

The plaintiff claims that the court abused its discretion by (1) excluding certain deposition testimony of (a) the defendant's employees and (b) the defendant's expert witness, and (2) failing to permit the plaintiff to call the defendant's expert witness as its own witness. The plaintiff also claims that the exclusion of the evidence was harmful error. We conclude that the court properly exercised its discretion when ruling on the admission of the subject evidence.

"The trial court's ruling on the admissibility of evidence is entitled to great deference.... [T]he trial court has broad discretion in ruling on the admissibility ... of evidence ... [and its] ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial...