• Connecticut Appellate Court
  • AC 35062
  • Aug 13 2013 (Date Decided)
  • Bear, J.

The distinction drawn between continuing and permanent nuisances and trespasses for statute of limitations purposes, although not previously addressed by Connecticut's appellate courts, has achieved wide recognition in the Superior Court and other jurisdictions and, here, whether alleged nuisance and trespass by underground rhizomes and above ground bamboo were continuing or permanent presented a genuine issue of material fact. The plaintiff, Caryn Rickel, appealed from the trial court's grant of summary judgment to the defendants, Michael and Roberta Komaromi, after finding counts sounding in nuisance and trespass time barred. The plaintiff contended that the court erred in rendering summary judgment because it did not address the plaintiff's allegations and argument that the repeated bamboo encroachment from the defendants' property to her property constituted a continuing nuisance and continuing trespass. The Appellate Court reversed the judgment. The panel agreed that for statute of limitations purposes, each instance of nuisance or trespass in a continuing nuisance or trespass creates a new cause of action, whereas a permanent nuisance or trespass involves a discrete occurrence of nuisance or trespass from which the applicable statute of limitations begins to run. The existence of the factual question of whether a nuisance or trespass is continuing or permanent requires the denial of a motion for summary judgment made solely on statute of limitations grounds. The plaintiff alleged facts in her complaint to support her claims that the defendants' conduct in planting the bamboo and then failing to control its growth resulted in a continuing nuisance and trespass. The defendants referred only to three dates to establish the untimeliness of the claims—the 1997 planting of the bamboo, the 2005 installation of the plaintiff's patio and the 2010 commencement of the action. The court did not address the allegations of the defendants' failure to control the spread of the bamboo on the plaintiff's property. This continuing activity on the plaintiff's property created a genuine issue of material fact about whether C.G.S. §52-577, for trespass actions, and §52-584,  for nuisance claims based on alleged negligent conduct, barred all claims encompassed in the trespass and nuisance counts. Whether the alleged nuisance and trespass by the rhizomes and bamboo were continuing or permanent presented a genuine issue of material fact. The trial court erred in overpruning the multiplicity of facts and issues before it.