Sewage Backup Into Home from City Main Is Not a Public Nuisance

General Statutes § 52-584, not § 52-577, is the applicable statute of limitations barring nuisance claims arising out of negligence. The plain language of § 52-584 makes it applicable to actions “to recover damages for injury to…real or personal property, caused by negligence….” Since the plaintiffs’ claim for private nuisance in Sinotte v. Waterbury, 121 Conn. App. 420 (2010), was clearly predicated on negligence (the allegations of the negligence count were incorporated into the private nuisance count), the two and three year limitations in § 52-584 applied herein.

Facts:

1. The plaintiffs, Delores and Brian Sinotte, purchased their home, located at 82 Old Colony Drive in Waterbury, in October, 1971.
2. It was a single family, ranch with a finished basement that consisted of a family room, laundry room and bathroom.
3. The home was serviced by the defendant’s sanitary sewer.
4. On June 17, 2001, the plaintiffs experienced a serious sewage backup into their basement. (Between 1974 and June 17, 2001, other various backups had occurred.)
5. The next day, on June 18, 2001, Delores Sinotte called the defendant and provided it with notice of the incident; also on June 18, 2001, the plaintiffs filed a claim under their homeowners’ insurance policy for the losses they had sustained as a result of the backup.
6. On December 11, 2001, Delores Sinotte sent the defendant a letter in which she detailed the plaintiffs’ claim for losses due to the June 17, 2001, backup.
7. On June 28, 2004, Delores Sinotte sent the defendant another letter demanding that the defendant pay the plaintiffs’ claim regarding the June 17, 2001, incident and further stating her intention to sue the defendant if it did not.
8. On August 27, 2004, i.e. more than three years after the date of the June 17, 2001, sewage backup, the plaintiffs commenced this action against the defendant for injuries arising out of this incident only.
9. The plaintiffs’ action attempted to state claims sounding in negligence, trespass, private nuisance, public nuisance, inverse condemnation and negligent infliction of emotional distress. The first count claimed that the defendant was negligent in its construction and maintenance of the sewer system. These allegations were incorporated into each of the other counts. The plaintiffs sought monetary damages for the diminution of the value of their property and for emotional distress.
10. The trial court first concluded that the plaintiffs’ tort claims were barred by the statute of limitations and the inverse condemnation claim failed because their property retained economic value and its use as a residence had not been substantially destroyed.
11. Upon a motion for reconsideration, the trial court construed the plaintiffs’ action differently than it had previously and held that the action alleged conditions that constituted a permanent private nuisance. As such, it found that the action was timely filed because the nuisance did not become permanent until February 25, 2002, the date the defendant began to keep detailed records of its periodic cleaning and maintenance of the sewer servicing the plaintiffs’ neighborhood.
12. Both parties appealed; the Appellate Court reversed the trial court and directed judgment for the defendant.

Reasoning:

Because the plaintiffs did not allege any incursion of sewage into or onto their property later than June 17, 2001, this was the latest date of actionable harm pleaded. Therefore, the plaintiffs’ claim of private nuisance must have been commenced within two years of this date. Since the evidence was clear that the plaintiffs had notice of the defendant’s wrongful conduct on this date, their action was not timely commenced.

The continuing course of conduct doctrine did not toll the running of the statute of limitations on the plaintiffs’ negligence, trespass and negligent infliction of emotional distress claims because there was no evidence of the breach of a duty that remained in existence after commission of the original related wrong. In other words, there was neither a special relationship between the parties, nor some later wrongful conduct related to the prior act.

The Appellate Court further held that the plaintiffs had failed to allege claims of public nuisance and inverse condemnation. See the decision for a statement of the elements of these claims.

Practice Note:

1.Note that this is the first case in which an appellate court has describe a doctor-patient relationship as a “special relationship” in the context of the continuing course of conduct tolling doctrine. (“Additionally, there was no special relationship between the plaintiffs and the defendant such as exists between an attorney and his client or a doctor and her patient,” Sinotte, 440-41 (Emphasis added.).)