CRAIG UGRIN et al. v. TOWN OF CHESHIRE et al., SC 18643
WILLIAM BAKER et al. v. TOWN OF CHESHIRE et al., SC 18644

Judicial District of New Haven


      Negligence; Nuisance; Municipal Liability; Whether Plaintiffs were Required to Allege Defendant's Control of the Land to State a Cause of Action in Nuisance; Whether § 52-557n (b) (8) Creates a Cause of Action against Town for Negligent Inspection of Property; Whether Town Enjoys Discretionary Act Immunity for Alleged Failure to Warn.  During the mid-nineteenth century, the town of Cheshire was the site of mining for barite, a mineral used as, among other things, a pigment in paint.  The plaintiffs are neighbors who brought these actions after a twenty foot wide sinkhole developed in the Bakers' backyard.  The plaintiffs claimed that, while the town knew, by virtue of a 1993 report it had commissioned on the barite mines, that a horizontal mineshaft ran twenty-five to thirty feet beneath the surface of their properties, it did nothing to warn them of that condition when they purchased their homes.  The plaintiffs also maintained that the town was negligent in permitting the development of their land without requiring that the mineshafts be filled.  The trial court struck counts alleging that (1) the town was liable for the creation of a private nuisance by authorizing construction in the area without warning developers and the general public of the existence of the mineshafts, and (2) the town's failure to inspect the plaintiffs' properties adequately gave rise to liability pursuant to General Statutes § 52-557n (b) (8), which provides that a town shall not be liable for negligent or inadequate inspection of property "unless [the town] had notice of . . . [a hazard to health and safety] or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety. . . ."  The court ruled that the plaintiffs had not stated a cause of action in nuisance because proof of a private nuisance requires a showing that a defendant's use of the land was unreasonable or unlawful, which in turn requires a showing that the defendant had control of the property.  The court found that the nuisance counts failed absent any allegation that the town ever owned or controlled the barite mines or the plaintiffs' properties.  In striking the § 52-557n (b) (8) counts, the court ruled that, while the statutory subsection defines circumstances under which a municipality is not immune from liability, it does not affirmatively create a cause of action.  The plaintiffs appeal, claiming they were not bound to allege that the town controlled the land in order to plead a viable cause of action in private nuisance and that it was enough that they alleged that the town caused the nuisance by permitting building on their properties.  They also argue that, by its plain language, § 52-557n (b) (8) creates a cause of action against a town for not adequately inspecting property containing a hazard to public safety.  Finally, the plaintiffs claim that the trial court wrongly granted summary judgment for the town on their  negligence counts on determining that the town enjoyed discretionary act immunity under General Statutes § 52-557n (a) (2) (B).  The plaintiffs claim that discretionary act immunity did not apply because the town had a ministerial duty to notify them and others of the mines and their potential for grave harm.