Brusby v. Metropolitan District ( 2015 )

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JUDY BRUSBY v. THE METROPOLITAN
DISTRICT ET AL.
(AC 36560)
Lavine, Beach and Alvord, Js.
Argued May 20—officially released October 20, 2015
(Appeal from Superior Court, judicial district of
Hartford, Hon. Richard M. Rittenband, judge trial
referee.)
Justin R. Clark, for the appellant (plaintiff).
Jack G. Steigelfest, with whom, on the brief, were
Thomas P. Cella and Christopher Harrington, for the
appellee (named defendant).
Opinion
ALVORD, J. The plaintiff, Judy Brusby, appeals from
the summary judgment rendered by the trial court in
favor of the defendant The Metropolitan District.1 On
appeal, the plaintiff claims that the court improperly
(1) granted the defendant’s motion for summary judg-
ment on the ground of governmental immunity, (2)
granted the defendant’s motion for summary judgment
on the basis of the applicable statute of limitations for
negligence claims, and (3) concluded that the plaintiff’s
contract claims were actually tort claims for purposes
of determining the applicable statute of limitations. We
affirm in part and reverse in part the judgment of the
trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff owns and resides in a
house located on Newport Avenue in West Hartford.
The defendant is a municipal corporation that provides
potable water and sewerage services to its customers,
including the plaintiff, on a regional basis. On October
15, 2005, and March 7, 2011, raw sewage entered into
and flooded the plaintiff’s partially finished basement.
The plaintiff commenced this action against the defen-
dant on August 2, 2011, alleging that its negligent acts
caused her to suffer personal injuries and damages to
her property as the result of those two incidents. The
alleged negligence included, inter alia, the failure to
properly install backflow safety features at her property
and the failure to ‘‘properly build, maintain, construct,
design, inspect, test, service and maintain the sewer
system . . . .’’ In her complaint, the plaintiff included
counts for negligence, negligent infliction of emotional
distress, negligent misrepresentation, breach of con-
tract, breach of the implied covenant of good faith and
fair dealing, and quantum meruit.
The defendant filed an answer with six special
defenses on October 1, 2012. In its special defenses,
the defendant alleged that the plaintiff’s claims were
barred by ‘‘the immunity afforded to it by [General
Statutes] § 52-557n’’; by ‘‘the doctrines of common law
governmental and/or municipal immunity or by quali-
fied governmental immunity’’; and by ‘‘the applicable
statute of limitations for [each] claim.’’ The plaintiff
filed a general denial to the allegations of the special
defenses on October 16, 2012.
On December 9, 2013, the defendant filed a motion
for summary judgment as to all of the counts directed
against it. The defendant made the following claims:
(1) governmental immunity barred the plaintiff’s negli-
gence claims; (2) all of the plaintiff’s claims were time
barred by the applicable statute of limitations; and (3)
the plaintiff’s contract claims were, in reality, tort
claims recast as contract claims. In support of its
motion, the defendant filed a memorandum of law,
excerpts from deposition transcripts and five affidavits.
The plaintiff filed a memorandum in opposition to the
defendant’s motion for summary judgment on January
21, 2014. In her memorandum, the plaintiff argued that
the defendant’s ‘‘negligent acts were a part of [its] pro-
prietary function,’’ that the negligent acts were ministe-
rial in nature, that the defendant was ‘‘liable based upon
the identifiable person imminent harm exception’’ if the
acts were deemed to be discretionary in nature, that the
applicable statute of limitations was ‘‘equitably tolled by
the continuing course of conduct doctrine,’’ and that
she had alleged viable contract claims in her complaint.
Accompanying her memorandum, the plaintiff filed
excerpts from deposition transcripts, one affidavit, a
copy of the 1929 special act creating The Metropolitan
District, and a compilation of the defendant’s sewer
ordinances. On January 27, 2014, the defendant filed a
reply to the plaintiff’s opposition.
A hearing on the defendant’s motion for summary
judgment was held on January 27, 2014.2 At that time,
the defendant’s counsel repeated the arguments set
forth in the defendant’s memorandum of law. Addition-
ally, he argued that the proprietary function exception
to governmental immunity was not applicable in this
case. The plaintiff’s counsel argued that ‘‘sewer utilities
are engaged in proprietary conduct because they are
making money in exchange for their water services.’’
He claimed that the complaint properly alleged that
the defendant was engaged in a proprietary function
because it included allegations that the plaintiff ‘‘was
a customer of the [defendant]’’ and that ‘‘the [defendant]
provided potable water and sewerage services to the
property.’’ He also stated that the defendant had admit-
ted those allegations in its answer.
With respect to the defendant’s claim that the plain-
tiff’s action was time barred, the plaintiff argued that
the applicable statute of limitations was tolled by the
continuing course of conduct doctrine. According to the
plaintiff’s counsel, ‘‘[t]he continuing course of conduct
was the defective sewer that remained defective from
2006 throughout 2011.’’ Additionally, the plaintiff’s
counsel argued that the contract claims were viable
independent claims that arose from the fact that the
plaintiff paid the defendant for its sewer services. Fol-
lowing concluding remarks by counsel, the court indi-
cated that it would ‘‘take [the matter on] the papers.’’
On January 30, 2014, the court sent a computer gener-
ated notice to the parties advising them that it had
granted the defendant’s motion for summary judgment.
The notice, which contained the entire decision of the
court,3 provided: ‘‘The plaintiff’s action violates the stat-
ute of limitations, [General Statutes §] 52-584, for the
same reasons described in the ruling on [the town’s]
motion [for summary judgment].4 The court further
finds that the alleged contract complaints are really tort
claims. The actions or inactions of the [defendant] are
discretionary under . . . [§] 52-557n. The exception
of an identifiable person subject to imminent harm does
not apply because the conversation between Mr. God-
bout [a municipal public official] and the plaintiff
occurred after the flooding of 2011. Therefore, prior
thereto, the plaintiff was not an identifiable person. All
other claims are issues of fact, but the immunity and
the statute of limitations defeat [the] plaintiff’s claims.’’
This appeal followed.
‘‘The law governing summary judgment and the
accompanying standard of review are well settled. Prac-
tice Book § [17-49] requires that judgment shall be ren-
dered 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 plead-
ings. . . .
‘‘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. . . .
‘‘The party opposing a motion for summary judgment
must present evidence that demonstrates the existence
of some disputed factual issue . . . . The movant has
the burden of showing the nonexistence of such issues
but the evidence thus presented, if otherwise sufficient,
is not rebutted by the bald statement that an issue of
fact does exist. . . . To oppose a motion for summary
judgment successfully, the nonmovant must recite spe-
cific facts . . . which contradict those stated in the
movant’s affidavits and documents. . . . The opposing
party to a motion for summary judgment must substanti-
ate its adverse claim by showing that there is a genuine
issue of material fact together with the evidence disclos-
ing the existence of such an issue. . . . The existence
of the genuine issue of material fact must be demon-
strated by counteraffidavits and concrete evidence.
. . . Our review of the trial court’s decision to grant a
motion for summary judgment is plenary.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Deutsche Bank National Trust Co. v. Shivers,
136 Conn. App. 291, 295–96, 44 A.3d 879, cert. denied,
307 Conn. 938, 56 A.3d 950 (2012).
I
GOVERNMENTAL IMMUNITY
‘‘The general rule is that governments and their agents
are immune from liability for acts conducted in perfor-
mance of their official duties. The common-law doctrine
of governmental immunity has been statutorily enacted
and is now largely codified in . . . § 52-557n.’’5 (Inter-
nal quotation marks omitted.) Martin v. Westport, 108
Conn. App. 710, 729, 950 A.2d 19 (2008).
The plaintiff’s first claim is that the court improperly
granted the defendant’s motion for summary judgment
on the ground of governmental immunity. Specifically,
the plaintiff argues that the defendant cannot avail itself
of the immunity afforded by § 52-557n because (1) the
alleged acts of negligence were connected with the
defendant’s proprietary function of operating a sanitary
sewer system, (2) the alleged acts of negligence were
ministerial in nature, and (3) if the alleged acts of negli-
gence were discretionary in nature, the defendant is
nevertheless liable because of the imminent harm to
identifiable persons exception to governmental
immunity.
A
Proprietary Function
In her opposition to the defendant’s motion for sum-
mary judgment and at the January 27, 2014 hearing
before the trial court, the plaintiff claimed that the
defendant could not avail itself of the immunity afforded
by § 52-557n because all of the alleged acts of negligence
were connected with the defendant’s proprietary func-
tion of providing sanitary sewer services to paying cus-
tomers.6 The plaintiff argued that she had alleged that
the defendant provided potable water and sewerage
services to her property and that she was the defen-
dant’s customer. She stated that the defendant had
admitted those allegations in its answer to the com-
plaint. The plaintiff maintained that, if the defendant’s
operation was proprietary as she claimed, then it was
irrelevant whether the alleged acts of negligence were
ministerial or discretionary in nature.
The defendant’s motion for summary judgment did
not address the issue of whether it derived a ‘‘special
corporate profit or pecuniary benefit’’; General Statutes
§ 52-557n (a) (1) (B); from the operation of its water
and sewer systems. Similarly, none of the affidavits or
other attachments to the defendant’s motion expressly
addressed that issue.7 In the defendant’s reply to the
plaintiff’s opposition to its motion, it argued that the
plaintiff did not properly allege a proprietary function
claim in her complaint and that she had provided no
evidence to show that the defendant derived a corporate
profit or other pecuniary benefit in providing sanitary
sewer services. The court concluded that the defendant
was not engaged in a proprietary function8 ‘‘because
the revenue is used only to pay current and long range
expenses . . . .’’9
In determining whether a municipality’s activity is
proprietary in nature, we look to Considine v. Water-
bury, 279 Conn. 830, 905 A.2d 70 (2006), in which our
Supreme Court provided a thorough analysis of § 52-
557n (a) (1) (B). After determining that § 52-557n (a)
(1) (B) codified the common-law rule that municipali-
ties are liable for their negligent acts committed in their
proprietary capacity, the court discussed the meaning
of ‘‘ ‘special corporate profit’ ’’ and ‘‘ ‘pecuniary bene-
fit.’ ’’ Id., 845. ‘‘If a municipality is acting only as the
agent or representative of the state in carrying out its
public purposes . . . then it clearly is not deriving a
special corporate benefit or pecuniary profit.’’ (Citation
omitted; internal quotation marks omitted.) Id., 845–46.
A municipality may ‘‘charge a nominal fee for participa-
tion in a governmental activity and [that activity] will
not lose its governmental nature as long as the fee is
insufficient to meet the activity’s expenses.’’ Id., 847.
On the other hand, ‘‘a municipality generally has been
determined to be acting for its own special corporate
benefit or pecuniary profit where it engages in an activ-
ity for the particular benefit of its inhabitants . . . or
if it derives revenue in excess of its costs from the
activity.’’ (Citation omitted; internal quotation marks
omitted.) Id. For example, the operation of a water
utility for profit is a proprietary function. Martel v.
Metropolitan District Commission, 275 Conn. 38, 53,
881 A.2d 194 (2005).10 ‘‘When a municipality derives
substantial revenue from its commercial use of munici-
pal property, it has been considered nonetheless to be
engaged in a proprietary function even if it reinvests
that revenue back into the property’s maintenance
expenses or to pay down debt related to the property.’’
Considine v. Waterbury, supra, 279 Conn. 848. If a
municipality is engaged in a proprietary act and not a
governmental act, the distinction between discretionary
and ministerial acts does not apply. Id., 854.
We turn now to the facts of the present case and
provide some background as to the defendant’s history.
‘‘The defendant is a municipal corporation created in
1929 by a special act of the General Assembly. 20 Spec.
Acts 1204, No. 511. It was given broad powers relating
to sewage disposal, water supply and regional planning
as well as powers limited to certain highways.’’ Rocky
Hill Convalescent Hospital, Inc. v. Metropolitan Dis-
trict, 160 Conn. 446, 450, 280 A.2d 344 (1971). As pre-
viously discussed, the defendant is a single entity that
provides both water and sewerage services to custom-
ers within its district.
A recent Supreme Court decision addressed the liabil-
ity of the defendant in a personal injury action com-
menced by a plaintiff who rode her bicycle into a closed
pipe gate on property maintained by the defendant in
connection with its provision of water services. In Blon-
ski v. Metropolitan District Commission, 309 Conn.
282, 284, 71 A.3d 465 (2013), the plaintiff alleged that
the defendant had negligently maintained the gate in
an unsafe and dangerous condition and that the defen-
dant’s conduct was connected to the defendant’s propri-
etary function of operating a water supply company.
As a special defense, the defendant asserted that it was
immune from liability under § 52-557n. Id., 288. Our
Supreme Court concluded that the defendant was liable
pursuant to § 52-557n (a) (1) (B) because the evidence
supported the jury’s finding that the maintenance of
the gate was inextricably linked to the defendant’s pro-
prietary water supply operation.11 Id., 292–93.
If the defendant’s water supply operation is proprie-
tary, is its sewer operation also proprietary? There is
nothing in the record that indicates whether the reve-
nues from the sewer operation are handled differently
or even separately from the revenues generated by the
water supply operation. It is one municipal corporate
entity that provides two different services to customers.
Having carefully reviewed the entire record in this case,
we cannot say at this stage of the proceedings that the
defendant’s provision of sanitary sewer services to its
paying customers is not proprietary as a matter of law.12
Accordingly, the trial court improperly determined that
the defendant was entitled to immunity on that basis.
The defendant argues that ‘‘[t]he plaintiff presented
no evidence to establish special corporate profit or
pecuniary benefit associated with [the] operation of
[the defendant’s] sewer services.’’ More specifically, the
defendant claims that the plaintiff ‘‘presented no evi-
dence to raise . . . triable issues of fact as to whether
the [defendant] profits’’ from its sewer operation. This
argument fails, however, because the defendant, as the
moving party for the summary judgment, was obligated
to demonstrate that there was no genuine issue as to
any material fact. The defendant submitted no evidence
with respect to the proprietary function issue in its
motion for summary judgment, the documents submit-
ted in support of that motion or in its reply to the
plaintiff’s opposition to the motion. Therefore, in the
absence of evidence, it was not incumbent upon the
plaintiff to submit countervailing evidence to show that
the defendant did derive a special corporate profit or
pecuniary benefit from its sewer operation.
‘‘[T]he burden of showing the nonexistence of any
material fact is on the party seeking summary judgment
. . . . It is not enough for the moving party merely to
assert the absence of any disputed factual issue; the
moving party is required to bring forward . . . eviden-
tiary facts, or substantial evidence outside the pleadings
to show the absence of any material dispute.’’ (Internal
quotation marks omitted.) Mills v. The Solution, LLC,
138 Conn. App. 40, 62, 50 A.3d 381, cert. denied, 307
Conn. 928, 55 A.3d 570 (2012). ‘‘[W]hen documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.’’
(Internal quotation marks omitted.) Rockwell v.
Quintner, 96 Conn. App. 221, 229–30, 899 A.2d 738,
cert. denied, 280 Conn. 917, 908 A.2d 538 (2006).
On the basis of the record before us, we conclude that
the court improperly granted the defendant’s motion
for summary judgment on the ground of governmental
immunity because a genuine issue of material fact exists
as to whether the defendant was engaged in a proprie-
tary function in the operation of its sanitary sewer
system.
B
Ministerial Acts
The plaintiff also claims that the court improperly
concluded that the defendant was entitled to immunity
under § 52-557n because the alleged acts of negligence
were not ministerial in nature.13 In her complaint, the
plaintiff alleged that the defendant ‘‘owed a ministerial
duty to [the plaintiff] to properly build, maintain, con-
struct, service, engineer, test, design and inspect the
sewer lines on Newport [Avenue]’’ and that it ‘‘owed a
ministerial duty to [the plaintiff] to make sure that [her]
property was protected from main sewage backflows.’’
The alleged acts of negligence included the failure to
adequately install backflow safety features at her prop-
erty and the failure to properly inspect, service and
maintain the sewer system for her property. The defen-
dant, in its motion for summary judgment, argued that
all of the alleged acts of negligence were discretionary
in nature. The trial court agreed with the defendant.
Section 52-557n (a) (1) sets forth the circumstances
under which a municipality will be held liable for dam-
ages to a complainant. The statute provides in relevant
part: ‘‘Except as otherwise provided by law, a political
subdivision of the state shall be liable for damages to
person or property caused by: (A) The negligent acts
or omissions of such political subdivision or any
employee, officer or agent thereof acting within the
scope of his employment or official duties . . . .’’ Gen-
eral Statutes § 52-557n (a) (1). The statute also specifies
two exceptions to the statutory abrogation of govern-
mental immunity. The exception relevant to this appeal
provides: ‘‘Except as otherwise provided by law, a politi-
cal subdivision of the state shall not be liable for dam-
ages to person or property caused by . . . (B)
negligent acts or omissions which require the exercise
of judgment or discretion as an official function of the
authority expressly or impliedly granted by law.’’ Gen-
eral Statutes § 52-557n (a) (2). ‘‘In contrast, municipal
officers are not immune from liability for negligence
arising out of their ministerial acts, defined as acts
to be performed in a prescribed manner without the
exercise of judgment or discretion.’’ (Internal quotation
marks omitted.) Coley v. Hartford, 312 Conn. 150, 162,
95 A.3d 480 (2014).
The ‘‘determination of whether official acts or omis-
sions are ministerial or discretionary is normally a ques-
tion of fact for the fact finder . . . .’’ (Internal quotation
marks omitted.) Id. Nevertheless, ‘‘there are cases
where it is apparent from the complaint . . . [that]
[t]he determination of whether an act or omission is
discretionary in nature and, thus, whether governmen-
tal immunity may be successfully invoked pursuant to
. . . § 52-557n (a) (2) (B), turns on the character of the
act or omission complained of in the complaint. . . .
Accordingly, where it is apparent from the complaint
that the defendants’ allegedly negligent acts or omis-
sions necessarily involved the exercise of judgment, and
thus, necessarily were discretionary in nature, summary
judgment is proper.’’ (Footnote omitted; internal quota-
tion marks omitted.) Bonington v. Westport, 297 Conn.
297, 307–308, 999 A.2d 700 (2010).
‘‘Determining whether it is apparent on the face of the
complaint that the acts complained of are discretionary
requires an examination of the nature of the alleged
acts or omissions.’’ Violano v. Fernandez, 280 Conn.
310, 322, 907 A.2d 1188 (2006). Significantly, the crux
of the plaintiff’s complaint in this case stems from the
defendant’s alleged failure to properly maintain and
inspect its sewer lines and equipment. The plaintiff
argues that the special act creating the defendant and
the defendant’s sewer ordinances impose the ministe-
rial duty to maintain and to repair its sewer system.
‘‘[W]hat constitutes a reasonable, proper or adequate
inspection involves the exercise of judgment.’’ Evon v.
Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989).
‘‘A municipality necessarily makes discretionary policy
decisions with respect to the timing, frequency, method
and extent of inspections, maintenance and repairs.’’
Grignano v. Milford, 106 Conn. App. 648, 656, 943 A.2d
507 (2008). ‘‘There is a difference between laws that
impose general duties on officials and those that man-
date a particular response to specific conditions.’’ Silb-
erstein v. 54 Hillcrest Park Associates, LLC, 135 Conn.
App. 262, 273, 41 A.3d 1147 (2012). If, after an inspection
of its sewer system, the defendant, in its discretion
determines that repairs are necessary, it then deter-
mines when and in what manner such repairs should
be made and what future maintenance is required.
Neither the act nor the ordinances referenced by
the plaintiff prescribe the manner in which the sewer
system is to be maintained or repaired. Such determina-
tions necessarily involve the exercise of judgment. Our
conclusion is supported by the holding in Silberstein
that the ‘‘maintenance of the roads, storm drains and
sewers was discretionary in nature.’’ Id. Accordingly,
because it is apparent from the complaint that the
alleged negligent acts or omissions necessarily involved
the exercise of judgment, we conclude that the court
properly determined that they were discretionary in
nature as a matter of law.
C
Imminent Harm to Identifiable Persons Exception
The plaintiff next argues that if the alleged acts are
determined to be discretionary in nature, the defendant
is nevertheless liable because of the applicability of
the imminent harm to identifiable persons exception
to governmental immunity. Specifically, she argues that
she falls within that exception because she testified
at her deposition that ‘‘shortly after the 2011 sewage
flooding incident at her home, she was contacted by
Marty Godbout [a public official with the defendant]
and was told that ‘I need to let you know that bad
weather may be coming and you are at risk that this
can happen again.’ ’’
Because we have determined that the defendant’s
alleged acts of negligence were discretionary in nature
as a matter of law, the defendant is shielded from liabil-
ity by governmental immunity as long as the actions
do not fall within any of the ‘‘three exceptions to discre-
tionary act immunity. Each of these exceptions repre-
sents a situation in which the public official’s duty to
act is [so] clear and unequivocal that the policy rationale
underlying discretionary act immunity—to encourage
municipal officers to exercise judgment—has no force.’’
(Internal quotation marks omitted.) Doe v. Petersen,
279 Conn. 607, 615, 903 A.2d 191 (2006). Only one of
those exceptions is relevant in the present appeal, that
of the imminent harm to identifiable persons exception
to governmental immunity.
‘‘[Our Supreme Court] has recognized an exception
to discretionary act immunity that allows for liability
when the circumstances make it apparent to the public
officer that his or her failure to act would be likely to
subject an identifiable person to imminent harm . . . .
This identifiable person-imminent harm exception has
three requirements: (1) an imminent harm; (2) an identi-
fiable victim; and (3) a public official to whom it is
apparent that his or her conduct is likely to subject that
victim to that harm. . . . All three must be proven in
order for the exception to apply. . . . [T]he ultimate
determination of whether [governmental] immunity
applies is ordinarily a question of law for the court . . .
[unless] there are unresolved factual issues material to
the applicability of the defense . . . [where] resolution
of those factual issues is properly left to the jury.’’
(Citation omitted; internal quotation marks omitted.)
Haynes v. Middletown, 314 Conn. 303, 312–13, 101 A.3d
249 (2014).
With respect to the plaintiff’s claim that the alleged
negligently maintained sewer system posed a risk of
imminent harm, we must look to the standard most
recently established in Haynes v. Middletown, supra,
314 Conn. 303. Our Supreme Court held: ‘‘[T]he proper
standard for determining whether a harm was imminent
is whether it was apparent to the municipal defendant
that the dangerous condition was so likely to cause
harm that the defendant had a clear and unequivocal
duty to act immediately to prevent the harm.’’ Id., 322–
23. The plaintiff claims that she was an identifiable
victim because Godbout allegedly contacted her after
the 2011 flooding incident to warn her that bad weather
was in the forecast, and that she was at risk for addi-
tional flooding in her basement. The imminent harm,
according to the plaintiff, was apparent because of the
warning given to her by the defendant’s official.
We note that almost six years elapsed from the date
of the first flooding incident to the date of the second
flooding incident. The alleged facts of this case are very
similar to the circumstances set forth in Silberstein v.
54 Hillcrest Park Associates, LLC, supra, 135 Conn.
App. 262. In Silberstein, the plaintiffs alleged that the
defendant, a quasi-municipal corporation, failed to
properly maintain the roads and drainage systems in
their neighborhood, resulting in the periodic flooding
of their property. Id., 265, 267 n.3. This court determined
that the plaintiffs were not subject to imminent harm
because the flooding was episodic as to occurrence and
happened over a period of years. Id., 275. In Haynes v.
Middletown, supra, 314 Conn. 322 n.14, our Supreme
Court commented on the Silberstein decision and
observed that ‘‘it would have made more sense to hold
that the risk of harm was not imminent because it was
not apparent to the municipal defendant [in Silberstein]
that the risk of harm was so great that the defendant’s
duty to act immediately to prevent the harm was clear
and unequivocal.’’
Additionally, as stated by the trial court in this case,
the only evidence provided in support of the plaintiff’s
argument that the exception applied was the statement
of a public official given after the 2011 flooding incident.
Accordingly, for the foregoing reasons, we agree with
the court that the plaintiff failed to demonstrate that
there was a triable issue of material fact that the plaintiff
was an identifiable person subject to imminent harm.14
II
STATUTE OF LIMITATIONS
The plaintiff next claims that the court improperly
granted the defendant’s motion for summary judgment
on the basis that all of her claims were barred by the
applicable statute of limitations for negligence claims.
The plaintiff commenced the present action on August
2, 2011. She concedes that § 52-58415 provides a maxi-
mum three year limitation period for bringing such
claims.16 Nevertheless, she argues that the continuing
course of conduct doctrine tolls that period with respect
to the 2005 flooding incident and the 2006 installation
of the backflow preventer valve, and that her action
was commenced within the time limitation period of
§ 52-584 with respect to the 2011 flooding incident.
According to the plaintiff, ‘‘[t]he 2011 incident is not
time barred because suit was filed months after the
second flooding incident where there is a genuine issue
of material fact as to whether or not the failure of the
main sewer line caused said incident.’’
The defendant claims that the continuing course of
conduct doctrine is not applicable in this case, so that
all claims related to the 2005 flooding incident and the
2006 installation of the backflow preventer valve are
time barred. The defendant further claims that any dam-
ages sought for the 2011 incident are precluded
‘‘because the last act or omission of the defendant iden-
tified by the plaintiff, the supposedly faulty installation
of the backflow preventer valve, occurred more than
three years before this action was instituted by service
of process in 2011.’’
We first address the claim that the trial court improp-
erly failed to conclude that the continuing course of
conduct doctrine tolled the time limitation period with
respect to the 2005 flooding incident and the alleged
negligent installation of the backflow preventer valve
in 2006.17 The plaintiff relies solely upon the continuing
course of conduct doctrine in her argument that her
claims are not time barred with respect to those two
incidents. If the continuing course of conduct doctrine
is not applicable under the circumstances of this case,
the statute of limitations bars those claims.
‘‘[I]n the context of a motion for summary judgment
based on a statute of limitations special defense, a
defendant typically meets its initial burden of showing
the absence of a genuine issue of material fact by dem-
onstrating that the action had commenced outside of
the statutory limitation period. . . . When the plaintiff
asserts that the limitations period has been tolled by
an equitable exception to the statute of limitations, the
burden normally shifts to the plaintiff to establish a
disputed issue of material fact in avoidance of the stat-
ute.’’ (Internal quotation marks omitted.) Flannery v.
Singer Asset Finance Co., LLC, 312 Conn. 286, 310, 94
A.3d 553 (2014). ‘‘The question of whether a claim is
barred by the statute of limitations is a question of
law over which we exercise plenary review.’’ Sinotte
v. Waterbury, 121 Conn. App. 420, 431, 995 A.2d 131,
cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010).
The parties agree that § 52-584 is the applicable stat-
ute of limitations for the plaintiff’s negligence claims.
Section 52-584 ‘‘imposes two specific time requirements
on plaintiffs. The first requirement, referred to as the
discovery portion . . . requires a plaintiff to bring an
action within two years from the date when the injury
is first sustained or discovered or in the exercise of
reasonable care should have been discovered . . . .
The second provides that in no event shall a plaintiff
bring an action more than three years from the date of
the act or omission complained of . . . . The three
year period specifies the time beyond which an action
under § 52-584 is absolutely barred, and the three year
period is, therefore, a statute of repose.’’ (Citation omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Rosato v. Mascardo, 82 Conn. App. 396, 401–402,
844 A.2d 893 (2004). ‘‘The statutory clock on this three
year time limit begins running when the negligent con-
duct of the defendant occurs. . . . Consequently, an
action may be time barred even if no injury is sustained
during the three years following a defendant’s act or
omission.’’ (Citation omitted; internal quotation marks
omitted.) Johnson v. North Branford, 64 Conn. App.
643, 648, 781 A.2d 346, cert. denied, 258 Conn. 926, 783
A.2d 1028 (2001).
The continuing course of conduct doctrine has no
application after the plaintiff has discovered the harm;
the doctrine applies only to the repose portion of the
statute and not to the discovery portion. Rosato v. Masc-
ardo, supra, 82 Conn. App. 405. ‘‘When the wrong sued
upon consists of a continuing course of conduct, the
statute does not begin to run until that course of con-
duct is completed.’’ (Internal quotation marks omitted.)
Sinotte v. Waterbury, supra, 121 Conn. App. 440. ‘‘[I]n
order [t]o support a finding of a continuing course of
conduct that may toll the statute of limitations there
must be evidence of the breach of a duty that remained
in existence after commission of the original wrong
related thereto. That duty must not have terminated
prior to commencement of the period allowed for bring-
ing an action for such a wrong. . . . Where we have
upheld a finding that a duty continued to exist after the
cessation of the act or omission relied upon, there has
been evidence of either a special relationship between
the parties giving rise to such a continuing duty or some
later wrongful conduct of a defendant related to the
prior act.’’ (Internal quotation marks omitted.) Saint
Bernard School of Montville, Inc. v. Bank of America,
312 Conn. 811, 835, 95 A.3d 1063 (2014).
In the present case, the plaintiff claimed that the
negligent actions of the defendant caused raw sewage
to flood her basement on October 15, 2005. The plaintiff
alleged that she made repeated telephone calls to the
defendant concerning this incident and, consequently,
was accepted into the defendant’s ‘‘backflow preventer
program.’’ At the plaintiff’s request, a backflow preven-
ter valve was installed at her property on June 22, 2006.
The valve, according to the plaintiff’s expert, was
improperly installed. On March 7, 2011, raw sewage
again flooded her basement. This second incident of
flooding occurred more than five years after the first
flooding incident and more than four and one-half years
after the installation of the backflow preventer valve.
The plaintiff commenced this action approximately five
months after the second flooding incident.
Considering these allegations, we address the plain-
tiff’s claim that the statute of limitations was tolled by
the defendant’s continuing course of conduct. The act
or omission relied upon, which would be the October
15, 2005 flooding incident and the June 22, 2006 installa-
tion of the backflow preventer valve, occurred more
than three years from the time of the commencement
of this action. It is time barred unless there is evidence
of a special relationship between the parties or there
is evidence of the defendant’s later wrongful conduct
related to the prior act. The plaintiff has not claimed
the existence of a special relationship. Instead, she
claims that the defendant’s later wrongful conduct con-
sisted of its ‘‘failure to repair the sewer line’’ in front
of the plaintiff’s house that continued through 2011.
The plaintiff argues: ‘‘[T]he 2005 flooding incident was
tolled by the continuing course of conduct doctrine as
the installation of a backflow preventer did not solve
the flooding problem although the [defendant] claimed
it had.’’18 The plaintiff’s claim fails.
‘‘[T]he continuing course of conduct doctrine reflects
the policy that, during an ongoing relationship, lawsuits
are premature because specific tortious acts or omis-
sions may be difficult to identify and may yet be reme-
died. . . . As to what constitutes a continuing violation
of a breach, [our Supreme Court] cited with approval
the following explanation: In between the case in which
a single event gives rise to continuing injuries and the
case in which a continuous series of events gives rise
to a cumulative injury is the case in which repeated
events give rise to discrete injuries . . . . [In such a
case] the damages from each discrete act . . . would
be readily calculable without waiting for the entire
series of acts to end. There would be no excuse for
the delay. And so the violation would not be deemed
continuing.’’ (Citation omitted; internal quotation marks
omitted.) Id., 837–38.
The plaintiff consistently has described the 2005
flooding incident and the 2011 flooding incident as sepa-
rate incidents. During her deposition, she testified that
the property damage from the 2005 flooding incident
totaled $47,900, and the property damage from the 2011
flooding incident totaled $23,000. Clearly the damages
attributable to each incident were ‘‘readily calculable.’’
Id., 838. The plaintiff’s claims related to the 2005 flood-
ing incident and the 2006 installation of the backflow
preventer valve are, thus, time barred.
This conclusion is supported by Sinotte v. Waterbury,
supra, 121 Conn. App. 420. In Sinotte, the plaintiff home-
owners experienced a serious sewage backup on June
17, 2001. Id., 423. They commenced their action against
the defendant three years and two months after the
backup, but did not allege any further backup or event
related to the sewer system that occurred after the
June 17, 2001 backup. Id.,424. Their count in negligence
alleged that the defendant was negligent in its construc-
tion and maintenance of the sewer system and that it
should have known of the condition of the system yet
failed to repair it adequately. Id. The defendant claimed
that the statute of limitations, § 52-584, barred the plain-
tiffs’ claims. Id., 427. The plaintiffs argued that the con-
tinuing course of conduct doctrine tolled the statute
because the defendant’s failure to remedy the threat of
sewage backups constituted a breach of a continuing
duty that tolled the period of repose. See Sinotte v.
Waterbury, Superior Court, judicial district of Water-
bury, Docket No. CV-04-4001115 (August 22, 2008). The
trial court rejected the plaintiffs’ argument.19
This court, on appeal, concluded that the trial court
properly held that the plaintiffs’ claims were not saved
by the continuing course of conduct doctrine. ‘‘[T]he
record does not support application of that doctrine in
these circumstances. There was no breach of a duty
that remained in existence . . . after the initial alleged
wrong pleaded in the complaint: the sewage incursion
on June 17, 2001. To hold otherwise essentially would
expand without limit the defendant’s duty toward the
plaintiffs.’’ (Citation omitted; internal quotation marks
omitted.) Sinotte v. Waterbury, supra, 121 Conn. App.
440. The facts alleged in the present case, and the allega-
tions of negligence, mirror those in Sinotte. Accord-
ingly, the continuing course of conduct doctrine is not
applicable under the circumstances of this case.
The defendant claims that the plaintiff’s claims with
respect to the 2011 flooding incident likewise are time
barred by § 52-584. The defendant argues: ‘‘All of the
plaintiff’s claims are barred by the three year period of
repose, because the last act or omission of the defen-
dant identified by the plaintiff, the supposedly faulty
installation of the backflow preventer valve, occurred
more than three years before this action was instituted
by service of process in 2011.’’ The trial court agreed
with the defendant and concluded that ‘‘the statute of
limitations defeat[s] [the] plaintiff’s claims.’’ We dis-
agree with the trial court’s conclusion that the plaintiff’s
claims relating to the 2011 flooding incident are time
barred.
The 2011 flooding incident is a discrete event that the
plaintiff alleged was caused by the defendant’s negligent
acts, including, inter alia, the failure to warn the plaintiff
that her property was exposed to potential sewer back-
flows and the failure to ‘‘properly build, maintain, con-
struct, design, inspect, test, service and maintain the
sewer system for the property . . . .’’ In her opposition
to the defendant’s motion for summary judgment, the
plaintiff included an affidavit by her expert attributing
the incident to the defendant’s conduct. This action was
commenced approximately five months after the 2011
flooding incident. At this stage of the proceedings, we
cannot conclude from the record that the plaintiff’s
claims with respect to the 2011 flooding incident are
time barred.
III
CONTRACT CLAIMS
The plaintiff’s final claim is that the court improperly
concluded that her contract claims were actually tort
claims and, therefore, time barred by § 52-584, the appli-
cable statute of limitations for negligence claims. She
argues that, as pleaded, her contract claims ‘‘are sepa-
rate and distinct claims that have their own separate and
distinct measure of damages.’’20 We are not persuaded.
As previously noted, the plaintiff’s complaint
included counts that alleged breach of contract, breach
of the covenant of good faith and fair dealing, and quan-
tum meruit. All three of those counts incorporated by
reference the thirty-three paragraphs in the first count,
which alleged negligence. An additional allegation in
the count for breach of contract provided: ‘‘At all rele-
vant times pertinent to this complaint, the [defendant]
had a contractual obligation to [the plaintiff] to maintain
the sewer system for the property free from defects,
utilizing its best skills and efforts and without creating
risk of harm . . . .’’ The plaintiff alleged that those
actions also constituted a breach of the covenant of
good faith and fair dealing. With respect to the quantum
meruit count, the plaintiff alleged that the defendant
accepted payment in exchange for providing services,
that the defendant received a benefit from those pay-
ments, and that it was inequitable for the defendant to
accept and retain those benefits without exchange for
its value. In her prayer for relief, the plaintiff sought
monetary damages, punitive damages, costs and reason-
able attorney’s fees.
‘‘Construction of pleadings is a question of law. Our
review of a trial court’s interpretation of the pleadings
therefore is plenary.’’ Kovacs Construction Corp. v.
Water Pollution & Control Authority, 120 Conn. App.
646, 659, 992 A.2d 1157, cert. denied, 297 Conn. 912,
995 A.2d 639 (2010). The gravamen of the plaintiff’s
complaint is that she suffered personal injuries and
property damage as the result of the defendant’s failure
to maintain, inspect and repair a sewer line in front
of her property from 2005 through 2011, and that the
defendant failed to properly install a backflow preven-
ter valve in 2006. The injuries she sustained, as refer-
enced in all of the counts directed against the defendant,
were described as the ‘‘complete and total loss in her
basement,’’ which included ‘‘[f]urnishings, appliances
[and] electronics,’’ and ‘‘severe’’ emotional distress
resulting from her being placed at ‘‘serious risk [by
exposure] to hazardous wastes, bacteria [and] viruses,’’
making ‘‘her susceptible to disease.’’
We acknowledge that the counts alleging breach of
contract, breach of the covenant of good faith and fair
dealing, and quantum meruit, do include some language
sounding in contract. Nevertheless, reading the com-
plaint in its entirety, it is clear that the liability of the
defendant to the plaintiff, if any, is based on principles
of tort law. As stated in Gazo v. Stamford, 255 Conn.
245, 262, 765 A.2d 505 (2001), ‘‘the plaintiff may not
convert that liability into one sounding in contract
merely by talismanically invoking contract language in
[her] complaint.’’
In the present case, the plaintiff is requesting tort
damages, not contract damages. She expressly seeks
compensation for her emotional distress and for medi-
cal conditions described in her deposition testimony
that she claims were caused by her exposure to the raw
sewage. ‘‘The usual recovery for breach of a contract is
the contract price or the lost profits therefrom’’; id.,
265; whereas a cause of action in negligence arising
from tortious conduct ‘‘subjects the tortfeasor to
responsibility for the payment of money damages for
the injuries sustained by the plaintiff because of the
tortious conduct . . . .’’ (Internal quotation marks
omitted.) Meyers v. Livingston, Adler, Pulda, Mei-
klejohn & Kelly, P.C., 311 Conn. 282, 299, 87 A.3d 534
(2014). ‘‘[W]hen the claim is one for personal injury,
the decision usually has been that the gravamen of the
action is the misconduct and the damage, and that it
is essentially one of tort, which the plaintiff cannot alter
by his pleading.’’ (Internal quotation marks omitted.)
Bross v. Hillside Acres, Inc., 92 Conn. App. 773, 783–84,
887 A.2d 420 (2006).
‘‘Just as [p]utting a constitutional tag on a nonconsti-
tutional claim will no more change its essential charac-
ter than calling a bull a cow will change its gender . . .
putting a contract tag on a tort claim will not change
its essential character.’’ (Citation omitted; internal quo-
tation marks omitted.) Gazo v. Stamford, supra, 255
Conn. 263. ‘‘The law should not permit [a plaintiff] to
recast what is essentially a tort claim as a contract
claim solely to gain the potential advantage of a longer
statute of limitations.’’ Id., 266. ‘‘[W]here . . . the plain-
tiff’s allegations of both liability and damages sound in
tort, and the only practical effect of permitting a con-
tract claim to lie would be to extend the tort statute
of limitations, and common sense strongly counsels
otherwise, the plaintiff may not be permitted to trans-
form his tort claim into a contract claim merely by
alleging that it is such a claim.’’ Id.
For the foregoing reasons, we conclude that the plain-
tiff’s allegations sound in tort rather than in breach of
contract, and that the trial court properly determined
that § 52-584 was applicable to the plaintiff’s claims.
The judgment is reversed only with respect to the
plaintiff’s claims that the defendant was engaged in a
proprietary function in the operation of its sanitary
system and that her claims relating to the 2011 flooding
incident were not time barred, and the case is remanded
with direction to deny the defendant’s motion for sum-
mary judgment with respect to those claims and for
further proceedings according to law. The judgment is
affirmed in all other respects.
In this opinion the other judges concurred.
1
The town of West Hartford (town) also was named as a defendant in
this action. The town filed its own motion for summary judgment with
respect to the counts directed against it. The court rendered summary
judgment in favor of the town on January 27, 2014, and the plaintiff has not
appealed from that judgment. Because The Metropolitan District is the only
defendant involved in the present appeal, we refer to it as the defendant in
this opinion.
2
The court also heard the town’s motion for summary judgment at the
January 27, 2014 hearing. See footnote 1 of this opinion.
3
No separate memorandum of decision was issued by the court.
4
On January 27, 2014, the same day as the argument on the motions for
summary judgment, the court sent the following computer generated notice
to the parties advising them that it had granted the town’s motion for
summary judgment: ‘‘Under Connecticut General Statutes [§] 52-557n, the
town of West Hartford has immunity because its actions or lack of action
are discretionary and there is no evidence that the plaintiff was an identifi-
able person subject to imminent harm. In addition, the negligence and results
thereof, of 2005, have been conceded by the plaintiff as violative of the
statute of limitations under [§] 52-584. The court finds that the contract
claims are in reality negligence claims and the 2006 defect violates the
statute of repose in [§] 52-584. Contrary to the plaintiff’s claim, the actions
of the town are not proprietary. Finally, there is no evidence that the town
was required to supervise the [defendant]. Plaintiff has cited Considine v.
Waterbury, 279 Conn. 830, [905 A.2d 70] (2006), to the effect that a municipal-
ity is engaged in a proprietary function and is, therefore, not entitled to
immunity. However, this case is not applicable because the revenue is used
only to pay current and long range expenses, which is not to produce
pecuniary profit.’’ (Emphasis added.)
At the January 27, 2014 hearing before the court, the defendant’s counsel
had argued that Considine was distinguishable from the present action:
‘‘[I]f the income derived from the activity substantially exceeds any expenses,
such as rent and occupational cost, then it’s proprietary in nature. If, how-
ever, the revenue generated from the activity is only used to pay current
and long range expenses involved in operating the activity, this could indi-
cate that the primary purpose of the activity was not to produce a pecuniary
profit.’’ (Emphasis added.) None of the supporting documentation submitted
by the defendant with its motion for summary judgment, however, stated how
the defendant’s revenue is expended. One affidavit, signed by the defendant’s
manager of customer service, averred that the defendant ‘‘is a nonprofit,
political subdivision which maintains approximately 1400 miles of sewer
and approximately 1600 miles of water mains throughout the city of Hartford
and the surrounding towns including the town of West Hartford.’’ This
reference to the defendant’s nonprofit status is the only statement that
approaches an issue that could be considered financial in nature.
5
General Statutes § 52-557n (a) provides: ‘‘(1) Except as otherwise pro-
vided by law, a political subdivision of the state shall be liable for damages
to person or property caused by: (A) The negligent acts or omissions of
such political subdivision or any employee, officer or agent thereof acting
within the scope of his employment or official duties; (B) negligence in the
performance of functions from which the political subdivision derives a
special corporate profit or pecuniary benefit; and (C) acts of the political
subdivision which constitute the creation or participation in the creation
of a nuisance; provided, no cause of action shall be maintained for damages
resulting from injury to any person or property by means of a defective
road or bridge except pursuant to section 13a-149. (2) Except as otherwise
provided by law, a political subdivision of the state shall not be liable for
damages to person or property caused by: (A) Acts or omissions of any
employee, officer or agent which constitute criminal conduct, fraud, actual
malice or wilful misconduct; or (B) negligent acts or omissions which require
the exercise of judgment or discretion as an official function of the authority
expressly or impliedly granted by law.’’
6
When a municipality is engaged in proprietary conduct, it ‘‘is not clothed
with [the state’s] immunities and is liable to be sued for injuries inflicted
through its negligence in the performance of such an act.’’ (Internal quotation
marks omitted.) Mazurek v. East Haven, 99 Conn. App. 795, 798, 916 A.2d
90, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).
7
The only reference to the defendant’s financial situation is contained in
the affidavit of the defendant’s manager of customer service, which states
that the defendant is ‘‘a nonprofit, political subdivision . . . .’’
8
In this appeal, the defendant argues that the plaintiff’s proprietary func-
tion claim ‘‘is not properly before [this] court’’ because (1) ‘‘the plaintiff did
not plead special corporate profit or pecuniary benefit in the complaint’’
and (2) the plaintiff did not plead ‘‘this exception to governmental immunity
in avoidance of the [defendant’s] special defenses.’’ We do not address the
second claim because the defendant did not raise it before the trial court.
See Cedar Mountain, LLC v. D & M Screw Machine Products, LLC, 135
Conn. App. 276, 293, 41 A.3d 1131 (2012).
With respect to the defendant’s first claim, ‘‘[c]onstruction of pleadings
is a question of law. Our review of a trial court’s interpretation of the
pleadings therefore is plenary.’’ Kovacs Construction Corp. v. Water Pollu-
tion & Control Authority, 120 Conn. App. 646, 659, 992 A.2d 1157, cert.
denied, 297 Conn. 912, 995 A.2d 639 (2010). The statute at issue, § 52-557n
(a) (1), provides that ‘‘[e]xcept as otherwise provided by law, a political
subdivision of the state shall be liable for damages . . . caused by . . .
(B) negligence in the performance of functions from which the political
subdivision derives a special corporate profit or pecuniary benefit . . . .’’
The plaintiff was not required to use those precise words in her complaint.
By alleging that she, as the defendant’s customer, paid the defendant for
its sewer services, the plaintiff sufficiently apprised the defendant of its
claim. Moreover, the plaintiff clearly put the proprietary function claim at
issue when she filed her opposition to the defendant’s motion for summary
judgment. The defendant, in its reply to the opposition, responded to the
plaintiff’s proprietary function claim, although it filed no additional docu-
mentation that indicated how the defendant’s revenues were expended.
When the court ruled on the defendant’s motion for summary judgment, it
considered the plaintiff’s proprietary function claim and rejected it in the
notice of its ruling. Accordingly, we conclude that this claim is properly
before us on appeal.
9
As discussed in footnote 4 of this opinion, the defendant’s counsel made
the statement about the defendant’s revenue at the January 27, 2014 hearing.
The defendant submitted no evidence to support that statement in its motion
for summary judgment, in the documentation submitted with the motion,
or in its reply to the plaintiff’s opposition to its motion.
10
In footnote 13 of Martel v. Metropolitan District Commission, supra,
275 Conn. 55 n.13, our Supreme Court stated: ‘‘[T]he plaintiff failed to
produce any evidence demonstrating the existence of an inextricable link
between the [Metropolitan District Commission’s] allegedly negligent super-
vision and maintenance of the trail on which the plaintiff was injured and
the [Metropolitan District Commission’s] proprietary maintenance of the
property for purposes of preserving water purity.’’
11
In footnote 6 of Blonski v. Metropolitan District Commission, supra,
309 Conn. 290 n.6, the court noted: ‘‘In addition, we observe that the defen-
dant appears to have adopted the plaintiff’s dual characterization of its
functions—those in relation to its supply of water being proprietary and
those in relation to its provision of recreational space being governmental—
although it disagrees as to which function the plaintiff’s allegations of negli-
gence relate. The defendant therefore has [not] challenged this court’s prior
decisions that the supply of water is proprietary whenever revenues are
generated thereby . . . .’’ (Citations omitted.)
12
We do not consider the comment of the defendant’s counsel at the
January 27, 2014 hearing to be evidence that the defendant’s revenue gener-
ated from its sewer operation is used only to pay current and long range
expenses. ‘‘This court, as well as our Supreme Court, repeatedly has stated
that representations of counsel are not evidence. See, e.g., State v. Sauris,
227 Conn. 389, 404, 631 A.2d 238 (1993), overruled in part on other grounds
by Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 309, 852 A.2d
703 (2004); Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d
476 (1985); Baker v. Baker, 95 Conn. App. 826, 832, 898 A.2d 253 (2006);
Irizarry v. Irizarry, 90 Conn. App. 340, 345, 876 A.2d 593 (2005); Prial v.
Prial, 67 Conn. App. 7, 14, 787 A.2d 50 (2001); Tevolini v. Tevolini, 66 Conn.
App. 16, 26, 783 A.2d 1157 (2001); Constantine v. Schneider, 49 Conn. App.
378, 397, 715 A.2d 772 (1998); Martin v. Liberty Bank, 46 Conn. App. 559,
562–63, 699 A.2d 305 (1997).’’ (Internal quotation marks omitted.) Dionne
v. Dionne, 115 Conn. App. 488, 493–94, 972 A.2d 791 (2009).
13
If it is subsequently determined that the defendant was not engaged in
a proprietary function in the operation of its sewer system, it then becomes
critical as to whether the alleged acts of negligence were ministerial or
discretionary in nature for purposes of governmental immunity.
14
In her appellate brief, the plaintiff makes the additional argument that
‘‘[p]ublic policy concerns dictate abrogating government immunity in this
case.’’ The plaintiff fails to cite any case law that supports this claim, and
we conclude that it is without merit.
15
General Statutes § 52-584 provides: ‘‘No action to recover damages for
injury to the person, or to real or personal property, caused by negligence,
or by reckless or wanton misconduct, or by malpractice of a physician,
surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be
brought but within two years from the date when the injury is first sustained
or discovered or in the exercise of reasonable care should have been discov-
ered, and except that no such action may be brought more than three
years from the date of the act or omission complained of, except that a
counterclaim may be interposed in any such action any time before the
pleadings in such action are finally closed.’’
16
It is not necessary to determine whether the action should have been
commenced within two or three years because the plaintiff’s claims for the
2005 incident, and the installation of the backflow preventer valve in 2006,
are barred using the maximum allowable three year limitation period unless
the period is tolled by the continuing course of conduct doctrine.
17
The trial court did not expressly address the plaintiff’s argument with
respect to the continuing course of conduct doctrine, even though the parties
briefed the issue and argued it at the January 27, 2014 hearing. Nevertheless,
it can be concluded that the court rejected that argument because it held
that § 52-584 barred all of the plaintiff’s claims.
18
Similarly, at the January 27, 2014 hearing on the defendant’s motion
for summary judgment, the plaintiff’s counsel stated that ‘‘[t]he continuing
course of conduct was the defective sewer that remained defective from
2006 throughout 2011.’’
19
According to the trial court, ‘‘[t]o hold that the city’s mere operation and
maintenance of the sewer line constitutes a ‘continuing course of conduct’ to
toll a limitations period indefinitely would obviate the repose periods of
[General Statutes] §§ 52-577 and 52-584.’’ Sinotte v. Waterbury, supra, Supe-
rior Court, Docket No. CV-04-4001115.
20
A six year statute of limitations applies to contract claims. General
Statutes § 52-576 (a) provides in relevant part: ‘‘No action for an account,
or on any simple or implied contract, or on any contract in writing, shall
be brought but within six years after the right of action accrues . . . .’’ The
present action was commenced within six years of the 2005 flooding incident.