Raspberry Junction Holding, LLC v. Southeastern Connecticut Water Authority

• Decision Date: 23 December 2016
• Docket Number: KNLCV166027335S
• Court: Connecticut Superior Court
• Parties: Raspberry Junction Holding, LLC v. Southeastern Connecticut Water Authority

Raspberry Junction Holding, LLC v. Southeastern Connecticut Water Authority

No. KNLCV166027335S

Superior Court of Connecticut, Judicial District of New London, New London

December 23, 2016

UNPUBLISHED OPINION

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Robert F. Vacchelli, J.

This case is an action by the plaintiff, Raspberry Junction Holding, LLC. The plaintiff operates The Bellissimo Grande Hotel at 411A Norwich Westerly Road in North Stonington, CT. It alleges that it lost water service for several days starting on June 23, 2015, due to the explosion of a hydro-pneumatic tank at a pumping station operated by the defendant, Southeastern Connecticut Water Authority (" Water Authority"). It alleges that the defendant was negligent in its construction, operation, inspection or maintenance of the tank, causing the plaintiff to loose revenue due to its inability to rent rooms, or the need to give refunds, to hotel guests due to the water outage. Pending before the court is a motion for summary judgment filed by the defendant arguing, inter alia, that pursuant to rules promulgated by the Water Authority in accordance with its enabling legislation, it is not liable for damages for such service outages as alleged in this case. For the following reasons, the court finds that the material facts are not in dispute and the defendant is entitled to judgment as a matter of law. Therefore, the motion for summary judgment is granted and judgment shall enter in favor of the defendant, accordingly.

I

The law governing summary judgment is well-settled. As our Appellate Court has summarized:

Practice Book § [17-49] requires that judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case . . . The facts at issue are those alleged in the pleadings." (Citation omitted; internal quotation marks omitted.) Gohel v. Allstate Ins. Co., 61 Conn.App. 806, 809 768 A.2d 950 (2001).

In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. (Citations omitted; internal quotation marks omitted.) Allstate Ins. Co. v Barron, 269 Conn. 394, 405, 848 A.2d 1165 (2004).

It is frequently stated in Connecticut's case law that pursuant to Practice Book § § 17-45 and 17-46, a party opposing a summary judgment motion " must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Harvey v. Boehringer Ingelheim Corp., 52 Conn.App. 1, 4, 724 A.2d 1143 (1999). As noted by the trial court in this case, typically " [d]emonstrating a genuine issue requires a showing of evidentiary facts or substantial evidence outside the pleadings from which material facts alleged in the pleadings can be warrantably inferred." (Internal quotation marks omitted.) New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). Moreover, " [t]o establish the existence of a material fact, it is not enough for the party opposing summary judgment merely to assert the existence of a disputed issue . . . Such assertions are insufficient regardless of whether they are contained in a complaint or a brief . . . Further, unadmitted allegations in the pleadings do not constitute proof of the existence of a genuine issue as to any material fact." (Citations omitted; internal quotation marks omitted.) Id., 244-45.

Rockwell v. Quintner, 96 Conn.App. 221, 227-29, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006)

The Practice Book further mandates that " [a]ny adverse party shall at least five days before the date the motion is to be considered on short calendar file opposing affidavits and other available documentary evidence. Affidavits, and other documentary proof not already part of the file, shall be filed and served as are pleadings." Practice Book § 17-45. " Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto." Practice Book § 17-46.

II

In support of its motion, the defendant filed a copy of the Special Act creating the Southeastern Connecticut Water Authority and a copy of its Rules Governing Service.^[1] The plaintiff supplies the court with an affidavit of Patrick M. Levantino, a member of the plaintiff limited liability company.

Based on the admissible materials supplied and undisputed facts, and viewing the evidence in the light most favorable to the opponent as required, the court finds that the following pertinent, material facts are not in dispute: The plaintiff, Raspberry Junction Holding, LLC, is the operator of the Bellissimo Grand Hotel, located at 411A Norwich Westerly Road in North Stonington, CT. It alleges, but does not offer proof, that it lost water service for several days starting on June 23, 2015, due to the explosion of a hydro-pneumatic tank at a pumping station operated by the defendant. It alleges that the defendant was negligent in its construction, operation, inspection or maintenance of the tank, causing the plaintiff to loose revenue due to its inability to rent rooms, or the need to give refunds, to hotel guests due to the water outage. It seeks money damages for those losses.

The defendant admits that on June 23, 2015, a pumping station that it maintains experienced a problem that resulted in a water outage at the Bellissimo Grand Hotel. The submissions show that the defendant was created by a 1967 Special Act of the Connecticut General Assembly. Its powers are enumerated in Section 14 of that Special Act. The Act provides, in pertinent part, as follows:

The authority shall have the power: (a) to sue and be sued; . . . (d) to purchase, in the name of the authority, any water supply system or parts thereof situated within or outside the district . . . for the purpose of supplying water for domestic, commercial and public purposes at retail to individual consumers within the district . . . (i) to make bylaws for the management and regulation of its affairs and for the use of its properties and, subject to the provisions of any bond issue, rules for the sale of water and the collection of rents and charges therefor . . . (m) to fix rates and collect charges for the use of the facilities of, or services rendered by, or for any commodities furnished by the authority such as to provide revenues sufficient at all times to pay, as the same shall become due, the principle and interest on the bonds or notes of the authority together with proper reserves, in addition to paying, as the same shall become due, the expenses of operating and maintaining the properties of the authority together with proper reserves for depreciation, maintenance and contingencies and all other obligations and indebtedness of the authority; . . . (p) to do all things necessary or convenient to carry out the powers expressly given in this act . . .

33 Spec. Acts 381, § 14 (1967) (emphasis added).

Pursuant to that authority, the defendant promulgated certain rules setting forth the basis on which its services are provided, and which constitute part of the contract between it and its customers existing upon commencement of service. In particular, it promulgated a rule respecting the supply of water, which provides, in pertinent part, as follows:

The Authority undertakes to use reasonable care and diligence to provide a constant supply of water at reasonable pressure to customers but reserves the right at any time, without notice, to shut off the water in its mains for the purpose of making repairs or extension or for other purposes. The Authority shall whenever possible, notify customers of anticipated interruptions in service, such notification being made through local newspapers and/or radio stations. It is expressly agreed that the Authority shall not be liable for a deficiency or failure in the supply of water or the pressure thereof for any cause whatsoever, or for any damage caused thereby, or for the bursting or breaking of any main or service pipe or any attachment to the Authority's property.

Rules Governing Service § 5 (emphasis added).

Mr. Levantino attests that at no time was there any negotiation of the terms of the provision of water service to the hotel, and that if he did not agree to the terms dictated by the Water Authority, the Water Authority would not provide water to the hotel. He also attests that he owns another hotel of the same size, and with the same amount of water usage, in Preston, CT serviced by a different water company, and that the defendant's bills are double the amount he pays in Preston, CT. The defendant does not dispute those statements.

III

The defendant seeks summary judgment arguing that judgment should enter in its favor as a...