Shukis v. Bd. Of Educ. Of Reg'l Dist. No.

122 Conn.App. 555

1 A.3d 137

Edward SHUKIS

v.BOARD OF EDUCATION OF REGIONAL DISTRICT NUMBER 17 et al.

No. 29915.

Appellate Court of Connecticut.

Argued Oct. 22, 2009.

Decided July 20, 2010.

COPYRIGHT MATERIAL OMITTED.

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Keith R. Ainsworth, New Haven, for the appellant (plaintiff).

Kevin M. Godbout, New Haven, with whom were Erin L. Golembiewski, Robert S. Bystrowski and, on the brief, Frank H. Santoro, Jonathan A. Kocienda and Michael R. McPherson, Hartford, for the appellees (named defendant et al.).

DiPENTIMA, GRUENDEL and LAVERY, Js. ^*

LAVERY, J.

This appeal addresses the degree to which expert testimony is required to defeat summary judgment in an environmental pollution case when multiple defendants have violated the underlying wetland regulatory scheme. The plaintiff, Edward Shukis, appeals from the judgment rendered following the trial court's granting of the motions for summary judgment filed by the defendants, Regional District No. 17 Haddam-Killingworth board of education (board), the town of Haddam (town), M.R. Roming Associates, P.C. (Roming), and Sideco Construction Company (Sideco), as to all counts of his complaint. ¹ On appeal, the plaintiff claims that the court improperly granted the defendants' motions for summary judgment because the court failed (1) to apply the appropriate regulatory permit standard of care under the Connecticut Environmental Protection Act of 1971(CEPA), General Statutes § 22a-14 et seq., and the Inland Wetlands and Watercourses Act (wetlands act), General Statutes § 22a-36 et seq., (2) to graft this regulatory permit standard of care onto the complaint's nuisance and negligence counts, and (3) to find sufficient evidence of a breach of the standard of care and the subsequent causation of harm to allow the case to proceed to a trial on the merits. Additionally, the plaintiff claims that the court abused its discretion in not allowing his experts to supplement their disclosures during discovery fifteen months prior to trial. We reverse in part the judgment of the court granting the defendants' motions for summary judgment and, consequently, need not reach the evidentiary issue regarding supplemental expert disclosures.

The record reveals the following facts and procedural history. The plaintiff owns a parcel of real property located at 33 Little City Road in Higganum. A two acre pond is located on the plaintiff's property. Ponset Brook flows into the pond from the south and then continues to flow out over a stonework dam at the northern end of the pond. When the plaintiff purchased the property, the pond was clear, and the surface was free of vegetation. The pond served not only as a visual asset of the plaintiff's property but was also used for swimming, fishing and other recreation.

The buildings, grounds and athletic fields of Regional District No. 17 Haddam-Killingworth High School, located at 91 Little City Road in the town, abut the western boundary of the plaintiff's property and are situated directly uphill from the pond. The school property is comprised of 41.5 acres. The board hired Roming, a landscape architecture and land planning firm, and Sideco, a construction company, to complete the renovation and construction of athletic fields on the high school grounds. Roming was responsible for the planning, monitoring, oversight and remedial action regarding siltation and runoff from the construction site, while Sideco was to perform the actual renovation and construction work. In the summer of 2000, construction activities began on the high school grounds.

Beginning on August 28, 2000, the plaintiff expressed his concerns over the amount of sediment running into his pond from the school construction site. On numerous occasions, the plaintiff contacted Cynthia Williams, a zoning and wetlands enforcement officer for the town, the board and Sideco to complain about failed siltation fences, an ineffective sediment berm, the intentional slitting by Sideco of siltation fabric on storm drain basins and the buildup of iron bacteria in an intermittent stream that flows downhill from the school property into his pond. In response to the plaintiff's complaints, site visits by Williams, engineering firms, Sideco and Roming confirmed that the erosion and sediment control measures were failing. Further investigation revealed a plume of sediments in the pond where the small brook from the school property discharged into the pond. Whether by direct or indirect means, storm water on 36.8 acres of the school property flows into the pond-storm water from seventeen acres of the 36.8 total acres drains directly into the pond.

Despite a notice of violation of the town's zoning regulations issued by Williams to Sideco due to failed erosion and sediment control measures, as well as a subsequent cease and desist order issued to the board, large quantities of storm water runoff containing silt, rocks, bacteria and other waterborne substances continued to flow from the school property into the plaintiff's pond and surrounding wetlands. Since construction activities began, not only has a considerable amount of sediment flowed into the pond, but murky water, iron floc on the pond's surface and sizeable beds of rooted aquatic plants have also appeared.

On June 16, 2005, the plaintiff filed his third amended complaint, alleging sixteen separate counts against the defendants. In response, the defendants filed motions to strike a number of those counts. After the court's granting of Roming's motion to strike, the plaintiff's CEPA and negligence counts against Roming remained. ² After the court's granting of Sideco's motion to strike and the subsequent filing of substitute counts, the plaintiff alleged a violation of CEPA, negligence and private and public nuisance counts against Sideco. Against the board, which did not file a motion to strike, the plaintiff alleged a violation of CEPA, negligence and public and private nuisance counts.

The defendants filed motions for summary judgment as to all remaining counts against them. Roming argued that it was entitled to judgment as a matter of law because the plaintiff failed to adduce requisite expert evidence to support liability-including the plaintiff's failure to disclose an expert who would opine that Roming departed from an applicable standard of care. Alternatively, Roming argued that summary judgment should be granted because the plaintiff failed to adduce requisite expert evidence to establish causation under the plaintiff's legal theories.

Similarly, Sideco argued that the court should grant its motion for summary judgment because the plaintiff failed to disclose an expert to testify as to the standard of care Sideco owed in connection with the design, implementation and maintenance of erosion and sedimentation control measures on the high school grounds-a key point that Sideco argued was the crux of the plaintiff's complex environmental claims. Furthermore, Sideco argued that the plaintiff could not establish that there was any causal relationship between an alleged breach, or unreasonable conduct, and the damage allegedly sustained to the plaintiff's pond and surrounding wetlands.

In support of its motion for summary judgment, the board argued that the plaintiff failed to establish that his property suffered unreasonable pollution, impairment or a destruction of the public trust in the water or natural resources of the state. Because the plaintiff could not produce sufficient evidence to demonstrate that the siltation of his pond was continuous, unreasonable or the proximate cause of any added plant growth, the board asserted that the court should grant its motion for summary judgment on all counts against it. Thus, although the defendants filed separate motions for summary judgment, their grounds coalesce around the assertion that the plaintiff lacked expert testimony to establish a breach of a standard of care owed by the defendants that caused damage to the plaintiff's pond.

The plaintiff filed memoranda in opposition to each of the defendants' motions for summary judgment. The court characterized the plaintiff's evidence accumulated in opposition to summary judgment as vast and expansive. ³ Nonetheless, on July 24, 2008, the court issued a memorandum of decision granting the motions for summary judgment in favor of the defendants. The court disposed of all remaining counts against the defendants by granting these motions.

With respect to Roming, the court determined that the plaintiff had not disclosed expert testimony as to either the standard of care governing its work or the causation of damages required to prove negligence. The court stated that in a case such as this, in which the allegations involve claims of environmental damage due to the failure of the architects to design and to supervise the project properly, expert testimony is essential-especially with regard to causation, because the relationship between Roming's improper design and supervision of the project and the pollution of the pond is a matter beyond the average juror's expertise and understanding. In addressing the CEPA count, the court similarly found insufficient expert testimony to show that Roming's conduct caused or contributed to the alleged pollution of the pond.

The court granted the motion for summary judgment in favor of Sideco on the negligence and CEPA counts for the same reasons it granted Roming's motion for summary judgment. The court then went on to address the plaintiff's public and private nuisance counts against Sideco. The court concluded that none of the evidence offered by the plaintiff was in the form of an expert opinion, and, therefore, he could not establish a genuine issue of material fact as to whether Sideco's use of the land was in fact reasonable and whether its actions interfered with a public right. As a result, the court granted Sideco's motion for summary judgment on the nuisance...