Ugrin v. Town of Cheshire, Nos. 18643

• Decision Date: 30 October 2012
• Docket Number: Nos. 18643,18644.
• Citation: 307 Conn. 364,54 A.3d 532
• Court: Connecticut Supreme Court
• Parties: Craig UGRIN et al. v. TOWN OF CHESHIRE et al. William Baker et al. v. Town of Cheshire et al.

307 Conn. 364

54 A.3d 532

Craig UGRIN et al.

v.TOWN OF CHESHIRE et al.

William Baker et al.

v.Town of Cheshire et al.

Nos. 18643, 18644.

Supreme Court of Connecticut.

Argued April 24, 2012.

Decided Oct. 30, 2012.

William F. Gallagher, with whom, on the brief, was Hugh D. Hughes, New Haven, for the appellants (plaintiffs in each case).

Elizabeth J. Stewart, with whom was Dena M. Castricone, New Haven, for the appellee (named defendant).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH and HARPER, Js.

ZARELLA, J.

In this consolidated appeal, the plaintiffs in the first action (SC 18643), Craig Ugrin and Samantha Ugrin, and the plaintiffs in the second action (SC 18644), William Baker and Lisa Baker, appeal from the judgment of the trial court in favor of the named defendant, the town of Cheshire (town). ¹ The plaintiffs filed virtually identical complaints against the town after a massive sinkhole developed on the Bakers' property less than two months after they purchased it and eleven months after the Ugrins purchased property across the street. The complaints allege that the town failed to disclose information regarding the presence of a discontinued barite mine and a series of sinkholes caused by the mine beneath, and in the vicinity of, the properties prior to their purchase by the plaintiffs. On appeal, the plaintiffs claim that the trial court improperly granted the town's motions to strike counts two and three of their complaints, alleging private nuisance and negligentinspection,respectively, and improperly granted the town's motions for summary judgment on count one of the complaints, alleging negligence for failure to give the plaintiffs notice of the proximity of, and potential hazards posed by, the mine. The town argues that the trial court properly granted the motions. The town also argues that (1) the trial court's decision to strike the private nuisance claims may be affirmed on the alternative ground that the plaintiffs failed to sufficiently allege that the town proximately caused the damages or that the town created the alleged nuisance by some positive act, and (2) the trial court's decision to grant the town's summary judgment motions may be affirmed on the alternative ground that the town had no duty to warn the plaintiffs regarding the allegedly hazardous condition on or near their properties. We reverse in part the judgments of the trial court.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. During the 1800s, several privately owned mining operations for barite and other minerals were established in Cheshire. One of these operations was the William Peck mine, which was active in the northern section of the town from approximately 1866 to 1878. In 1968, a developer applied for and obtained a permit from the town planning commission to develop a residential subdivision that included the properties purchased more than thirty-five years later by the Ugrins at 390 Sheridan Drive and the Bakers at 395 Sheridan Drive. In 1970, the town building inspection department issued certificates of occupancy for 390 and 395 Sheridan Drive.

In 1993, a mine shaft and adit, which is a horizontal mine tunnel adjacent to the shaft, were discovered on a nearby residential subdivision parcel. In light of this discovery, the town hired an engineer, Robert L. Jones, and a geologist, Ronald Hedberg, to conduct a study of abandoned mines throughout the town to determine where former mines existed and whether there were any public safety conditions that might require remediation. In their report dated September 30, 1993, Jones and Hedberg stated that, on May 17, 1993, work had been completed to backfill and seal the vertical shaft and to collapse and backfill the uppermost adit of the Peck mine. The report concluded that “the area of the former Peck [m]ine ... could then be developed as a residential subdivision without danger of collapse from the known barite mining, which ended in ... 1873.”

In response to an inquiry by the town environmental planner, Jones and Hedberg supplemented their report with a letter dated November 5, 1993, specifically addressing the plaintiffs' properties. The letter stated that an “adit extends across lot 24 of the [subdivision] and appears to continue along the property line of [390] and [400] Sheridan Drive, across Sheridan Drive, then through the rear of [395] Sheridan Drive.” The letter added: “No evidence of [sinkholes], collapse or barite mining spoils was found in the above described areas along the north side of Sheridan Drive. A small [sinkhole] which is currently covered by an above ground swimming pool was reported at the rear of [395], which is on the south side of Sheridan Drive. A portion of Sheridan Drive in the area of [390, 395 and 400] Sheridan [Drive] reportedly collapsed in 1978. This collapse was repaired with reinforced concrete and backfill material. It appears to have remained stable since 1979.” The letter concluded by stating that “[w]e believe that this adit and overlying properties are stable at this time.”

In 2004, the town solid waste committee held several meetings to discuss the abandoned barite mines and sought the advice of town counsel, John K. Knott, Jr. In a letter dated July 29, 2004, Knott encouraged town officials to make the report by Jones and Hedberg available to the public but advised against placing any informationregarding the mines on the land records because he was concerned about potential slander of title claims against the town. Knott instead suggested that the report “could be filed in the [t]own [c]lerk's office (not on the [l]and [r]ecords) and be available for public inspection and copying. A sign could be placed in that office referring to the availability of the report.” Knott did not specifically direct, however, that a sign be posted in the clerk's office.

On November 30, 2004, the Ugrins purchased 390 Sheridan Drive. On August 26, 2005, the Bakers purchased 395 Sheridan Drive. On October 15, 2005, a large sinkhole developed in the Bakers' backyard, which the town subsequently ordered the Bakers to remediate. On August 29, 2007, the Bakers filed a nine count complaint against the town and the previous owners of their property. On October 17, 2007, the Ugrins filed a similar twelve count complaint against the town and the previous owners of their property. Both complaints alleged negligence (count one), creation of a nuisance (count two), failure to make an adequate inspection (count three), violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42–110a et seq. (count four), injunctive relief (count five), and class action (count six) against the town. Counts seven through nine of the Bakers' complaint and seven through twelve of the Ugrins' complaint were directed against the other defendants.

Thereafter, the town filed motions to strike counts two, three, four, five and six of both complaints.² The trial court granted the motions as to counts two, three and four but denied the motions as to counts five and six. The town subsequently filed motions for summary judgment on counts one, five and six of each complaint, which the trial court granted. The court thereupon rendered partial judgments for the town. In April, 2009, the plaintiffs appealed to the Appellate Court from the trial court's judgments. On July 19, 2010, we transferred the appeals to this court pursuant to General Statutes § 51–199(c) and Practice Book § 65–1 and consolidated them for briefing purposes.

I

We begin with the plaintiffs' claim that the trial court improperly granted the town's motions to strike count two of their respective complaints, sounding in private nuisance, on the ground that they were required to plead the unlawful use of adjacent property. The plaintiffs claim that a private nuisance complaint need not allege control or ownership of adjacent property but must merely allege causation, which the complaints properly did in asserting that the town issued permits and authorized construction on their properties. The town responds that the history of public and private nuisance law recognizes an overlap between the two causes of action, a defendant's use of property historically has been required for both public and private nuisance, Connecticut case law implies that a defendant's use of property is required in private nuisance actions, and a defendant in a private nuisance action must have control of the property through ownership or other means. The town also argues that the trial court's decision to strike the nuisance claims may be affirmed on the alternative ground that the plaintiffs failed to sufficiently allege that the town proximately caused the damages or that the town created the alleged nuisance by a positive act. We conclude that the trial court properly granted the town's motions to strike count two of the plaintiffs' complaints.

The facts in count one of both complaints are incorporated by reference in count two, alleging nuisance. Count one alleges that the plaintiffs purchased their properties on the subject dates, that the sellers knew that a barite mine shaft or adit was located beneath their properties, that the presence of the mine caused sinkholes or collapses of the ground and street in the vicinity of the properties before they were purchased by the plaintiffs and that the mine caused a massive sinkhole to develop on 395 Sheridan Drive following its purchase by the Bakers. Count one further alleges that the town retained experts to investigate the existence of mines in certain sections of the town, that the experts prepared a report in 1993 disclosing that the main shaft of the Peck mine is located approximately 500 feet from the properties and that one of the shallow adits, approximately twenty-five to thirty feet below grade, likely traversed beneath the properties and residences. In addition, count one alleges that the report disclosed...