Sawyers v. Town of East Hampton
Allegations that municipal representatives approved defective sewer designs can be sufficient to allege a cause of action in private nuisance. The plaintiff property owners alleged that grinder floats and pumps on their property did not work properly, because the defendants negligently designed, supervised or constructed a sewer system that violated codes, regulations and statutes. The court found that the plaintiffs adequately alleged a cause of action for private nuisance against the defendant engineer, and it denied the defense motion to strike. "The plaintiffs," wrote the court, "do not need to plead the defendant's use or control of the property in order to set forth a legally sufficient cause of action for nuisance." The court granted the defense motion to strike the plaintiff's count for breach of the implied warranty of fitness against the defendant engineer, because this was covered by the plaintiff's negligence claim. In a separate decision, the court granted the defendant, Town of East Hampton's motion to strike the plaintiff's negligence count. The municipality is entitled to government immunity for discretionary conduct. The plaintiff's complaint did not adequately allege imminent harm to an identifiable victim, to meet an exception to government immunity. The court also found that the plaintiffs' complaint adequately alleged a positive act, because the municipality's representatives allegedly approved the design, although they knew or should have known the design was defective. The court denied the municipality's motion to strike a private nuisance count, pursuant to Elliott v. Waterbury, a 1998 decision of the Connecticut Supreme Court. "The allegations of incompleteness and deficiency in the plans and design, along with the assertion that the Town `approved' these plans," wrote the court, "are sufficient allegations as to factors the Town should have known in regard to a defective sewage system at the time the permits and certificates were issued."