Kostyal v. Cass

• Decision Date: 11 May 1972
• Citation: 302 A.2d 121,163 Conn. 92
• Court: Connecticut Supreme Court
• Parties: Stephen KOSTYAL v. Norman CASS et al.

Page 121

302 A.2d 121

163 Conn. 92

Stephen KOSTYAL v. Norman CASS et al.

Supreme Court of Connecticut.

May 11, 1972.

Robert H. Hall, Waterbury, for appellants (defendants).

James H. W. Conklin, II, Waterbury, for appellee (plaintiff).

Before HOUSE, C.J., and RYAN, SHAPIRO, LOISELLE and FITZ GERALD, JJ.

SHAPIRO, Associate Justice.

This is an action brought by the plaintiff Stephen Kostyal to recover damages from the defendant Norman Cass or, in the alternative, the defendant borough of Bantam, for the contamination of the water of his well alleged to have been caused by the leakage of oil from an aboveground oil tank located on the property of the defendant borough. The case was submitted to the jury on the substituted complaint that was allowed during the trial. The first count, directed solely against Cass, is in negligence; the second count is designed to impose liability on the borough under § 7-465 of the General Statutes for the negligence of Cass while acting in the performance of his duties and within the scope of his employment as a burgess of the borough and in charge of the maintenance of the Bantam borough hall; and the third count purports to state a cause of action against the borough sounding in nuisance. Following a jury verdict for the plaintiff against both defendants, the defendants moved to set aside the verdict and for a judgment notwithstanding the verdict. The motion was denied and a judgment was rendered on the verdict. From the judgment the defendants have appealed, assigning as error, inter alia, (1) the denial of their motion to set the verdict aside and for judgment notwithstanding the verdict, (2) certain portions of the charge to the jury, and (3) the refusal to find facts concerning certain claims of proof.

'In reviewing the decision of the trial court on the motion to set aside the verdict and for judgment notwithstanding the verdict, we must consider the evidence in the light most favorable to the plaintiff. Kopjanski v. Festa, 160 Conn. 61, 63, 273 A.2d 692; Lewis v. Kasimer, 153 Conn. 13, 15, 211 A.2d 837; see 53 Am.Jur., Trial, § 349. We determine whether the trial court, in the exercise of a broad legal discretion, was justified in taking the action it did. Vuono v. Eldred, 155 Conn. 704, 705, 236 A.2d 470; Joanis v. Engstrom, 135 Conn. 248, 251, 253, 63 A.2d 151.' Bartholomew v. Catania, 161 Conn. 130, 132, 285 A.2d 350, 351.

From the evidence presented in the appendices to the briefs and taken in the light most favorable to the plaintiff, the jury could reasonably have found the following: The plaintiff and his family reside in a house on property which he owns on Main Street in the borough of Bantam. The adjacent property on the northeast is owned by the borough of Bantam and on it is situated the borough hall. The borough's property is at an elevation approximately twelve to fifteen feet higher than that of the plaintiff's property. The borough hall is heated by an oil-fired furnace and the fuel oil for the furnace is stored in a 275-gallon aboveground oil tank adjacent to the hall and four or five feet from the plaintiff's property. The tank rests on rocks and is connected to the furnace inside the hall's cellar by means of a three -eighth-inch outside diameter copper tubing which rests on rocks alongside the building. The distance between the outlet of the tank and the point where the tubing enters the hall's foundation is approximately ten to twelve feet. The tank and copper tubing were installed at the direction of the borough by the defendant Norman Cass approximately seventeen years ago at a time prior to his becoming a burgess. On or about August 24, 1967, the plaintiff discovered that his well was contaminated by fuel oil. On inspection of the borough's property, the plaintiff found the copper tubing broken, the oil storage tank empty and the ground saturated with fuel oil. The pollution of his well by the fuel oil required the plaintiff to have a new well drilled on his property and connected at a cost of approximately $2414.76.

While the tank and tubing remained intact for seventeen years before the tubing broke, expert testimony indicated that the system was considered unsafe. It was elicited that it was not customary to support an aboveground oil tank on rocks since it does not afford adequate support against settling and vibration. In addition, the exposed copper tubing, which is naturally soft, should have been sleeved in steel to protect it from normal wear and tear and pedestrian traffic. Ample evidence was introduced to show that the hall is used for various borough activities and, as a result, the presence of children and adults in the vicinity of the tank and tubing had been observed on various occasions. The foregoing facts reasonably support the conclusion that the contamination of the well was caused by seepage of oil from the broken tubing.

We first consider whether the defendant Cass is legally responsible for the leakage of oil. As indicated above, Cass, prior to his becoming a burgess, installed the oil tank and copper tubing in 1952. For the ten years prior to the time of trial he was one of the six burgesses of the borough of Bantam. The plaintiff sought recovery against Cass on the theory that Cass was a burgess and an agent of the borough and in charge of the maintenance of the hall, and that in performing his duties he was negligent by reason of his failure to comply with certain regulations promulgated by the state police commissioner pursuant to § 29-62 of the General Statutes, ¹ and in failing to insure that the oil tank and piping system 'were adequate to take care of all demands made on them under reasonably to be anticipated conditions.' ²

A careful examination of the record, however, reveals that there is no evidence to support the verdict against Cass. The record fails to disclose that he had any control whatsoever over the oil tank and tubing. Nor does the record indicate that he had any duties or responsibilities in connection with the system's maintenance except as an elected burgess. In addition, the claims of negligence based on the alleged violations of certain regulations of the state police commissioner were correctly charged out of the case since the regulations do not apply to systems installed prior to 1955, the system in question having been installed in 1952. ³ Consequently, the verdict against Cass on the first count cannot stand.

The plaintiff, by his allegations in the second count, has invoked the aid of § 7-465 of the General Statutes to require the borough to stand responsible to pay a verdict against the defendant Cass. Section 7-465, entitled 'Assumption of liability for damage caused by employees,' provides that in certain situations a municipality, regardless of the doctrine of governmental immunity, 'shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for physical damages to person or property, . . . if the employee . . . was acting in the performance of his duties and within the scope of his employment, and if . . . (the) injury . . . was not the result of any wilful or wanton act of such employee in the discharge of such duty.' See Martyn v. Donlin, 151 Conn. 402, 404, 198 A.2d 700; Allard v. Hartford, 151 Conn. 284, 286, 197 A.2d 69. As the defendant borough correctly notes, however, recovery against the borough pursuant to the statute is wholly contingent on recovery on the first count against Cass individually. 'Whatever may be the full scope and effect of the statute, in no event may the municipality be held liable under it unless the municipal employee himself 'becomes obligated to pay (sums) by reason of the liability imposed upon . . . (him) by law for physical damages to person or property'.' Martyn v. Donlin, supra, 151 Conn. 405, 198 A.2d 702. While § 7-465 provides an indemnity to a municipal employee from his municipal employer in the event the former suffers a judgment under certain prescribed conditions, it is quite clear that the municipality does not assume the liability in the first instance. Once a plaintiff has successfully pursued a cause of action and obtained judgment against the defendant municipal employee, the latter can (1) pay the judgment and request reimbursement from the municipality or (2) request the municipality to pay the judgment in his behalf. Since we have held that the verdict against Cass on the first count cannot stand, the plaintiff may not prevail on the second count under § 7-465.

The third count, directed solely against the borough, restates the same facts on which the claim of negligence in the first count is based but alleges the maintenance of a nuisance by the borough on the basis of those facts.

' It is well established that a town may be held liable for injury resulting from a nuisance created and maintained by it. Hoffman v. Bristol,113 Conn. 386, 389, 155 A. 499; Mootry v. Danbury, 45 Conn. 550, 556; Wheaton v. Putnam, . . . (126 Conn. 330, 335, 11 A.2d 358); see Carabetta v. Meriden, 145 Conn. 338, 340, 142 A.2d 727; Beckwith v. Stratford, 129 Conn. 506, 510, 29 A.2d 775.' Marchitto v. West Haven, 150 Conn. 432, 437, 190 A.2d 597, 600. 'This liability cannot be avoided on the ground that the municipality was exercising governmental functions or powers, even in jurisdictions where, as here, immunity is afforded from liability for negligence in the performance of such functions.' Hoffman v. Bristol, 113 Conn. 386, 389, 155 A. 499, 500; Prifty v. Waterbury, 133 Conn. 654, 657, 54 A.2d 260; Bacon v. Rocky Hill, 126 Conn. 402, 407, 11 A.2d 399. 'Actions against public authorities founded upon nuisance . . . fall into three general classes: (1) nuisances which result from conduct of the public authority in violation of some statutory enactment; (2) nuisances which are intentional in the sense that the creater...