229 Conn. 455 (1994) | Cited 11 times | Supreme Court of Connecticut | May 31, 1994

The sole issue in this environmental case iswhether Statutes 22a-452 (a)1 imposes

[229 Conn. 456]

     strict liability upon a prior landowner for a subsequentlandowner's costs of cleaning up a contaminated landfill.The plaintiff, the Connecticut Resources RecoveryAuthority, brought an action to recover for the costsof cleanup of real property previously owned by thedefendants, Refuse Gardens, Inc., and its officers,directors and shareholders. The plaintiff filed an applicationfor a prejudgment remedy pursuant to GeneralStatutes 52-278 et seq. on count four of its complaint,in which it sought reimbursement from the defendantsunder 22a-452 (a). The trial court, after a hearing,2denied the plaintiff's application and the plaintiffappealed to the Appellate Court pursuant to GeneralStatutes 52-278l.3 We transferred the appeal to thiscourt pursuant to Practice Book 4023 and GeneralStatutes 51-199 (c). We affirm the ruling of the trialcourt.

The issue that divides the parties is the meaning ofthe phrase in 22a-452 (a) that permits a private

[229 Conn. 457]

     person, firm, corporation or municipality to seek reimbursementfrom "any person, firm or corporation" forthe costs of environmental restoration for pollutionresulting "from the negligence or other actions of suchperson, firm or corporation." (Emphasis added.) Bycontrast, General Statutes 22a-451 (a)4 permits thecommissioner of environmental protection to recoverthe costs of environmental restoration from "[a]ny person,firm or corporation which directly or indirectlycauses pollution and contamination of any land orwaters of the state . . . ." (Emphasis added.) The lattersection permits the recovery of enhanced damagesif a defendant's conduct was negligent or wilful. Bothsections derive from No. 765 of the 1969 Public Acts.

[229 Conn. 458]

     The trial court concluded that the legislature intended22a-452 (a) to require a showing of culpability and notmerely causation. Because the plaintiff had not allegedsuch culpability on the part of the defendants, the courtdenied the plaintiff's application for a prejudgmentremedy. Connecticut Resources Recovery Authority v.Refuse Gardens, Inc., 43 Conn. Sup. 83, 642 A.2d 762(1994).

The plaintiff urges us to overturn the trial court'sdecision and to direct the granting of a prejudgmentremedy. Our examination of the record on appeal, andthe briefs and arguments of the parties, persuades us,however, that the decision of the trial court should beaffirmed. The trial court carefully examined the languageand the history of 22a-452 (a) in light of theplaintiff's pleadings in this case. The trial court'sthoughtful and comprehensive memorandum of decisionfully states and meets the arguments raised by theparties on this appeal.5 Accordingly, we adopt the trialcourt's well reasoned decision as a correct statementof the facts and the applicable law on the contestedissue. It would serve no useful purpose for us to repeat

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     the discussion therein contained. See Daw's CriticalCare Registry, Inc. v. Dept. of Labor, 225 Conn. 99,101-102, 622 A.2d 518 (1993); Loeb v. Al-Mor Corp.,224 Conn. 6, 7, 615 A.2d 149 (1992).

The denial of the plaintiff's application for a prejudgmentremedy on count four of its complaint is affirmed.

1. General Statutes 22a-452 provides in relevant part:"REIMBURSEMENT FOR CONTAINMENT OR REMOVAL COSTS. LIABILITY FORCERTAIN ACTS OR OMISSIONS. (a) Any person, firm, corporation ormunicipality which contains or removes or otherwise mitigates theeffects of oil or petroleum or chemical liquids or solid, liquidor gaseous products or hazardous wastes resulting from anydischarge, spillage, uncontrolled loss, seepage or filtration ofsuch substance or material or waste shall be entitled toreimbursement from any person, firm or corporation for thereasonable costs expended for such containment, removal, ormitigation, if such oil or petroleum or chemical liquids orsolid, liquid or gaseous products or hazardous wastes pollutionor contamination or other emergency resulted from the negligenceor other actions of such person, firm or corporation. When suchpollution or contamination or emergency results from the jointnegligence or other actions of two or more persons, firms orcorporations, each shall be liable to the others for a pro ratashare of the costs of containing, and removing or otherwisemitigating the effects of the same and for all damage causedthereby."

2. General Statutes 52-278d provides in relevant part:"HEARING ON PREJUDGMENT REMEDY APPLICATION. DETERMINATION BY THECOURT. SERVICE OF PROCESS. (a) The defendant shall have theright to appear and be heard at the hearing. The hearing shallbe limited to a determination of whether or not there is probablecause to sustain the validity of the plaintiff's claim. If thecourt, upon consideration of the facts before it, finds that theplaintiff has shown probable cause to sustain the validity of hisclaim, then the prejudgment remedy applied for shall be grantedas requested or as modified by the court unless the prejudgmentremedy or application for such prejudgment remedy was dismissedor withdrawn pursuant to the provisions of section 52-278j."This statute was amended effective January 1, 1994, by PublicActs 1993, No. 93-431, 2, 10.

3. General Statutes 52-278l provides in relevant part:"APPEAL. (a) An order (1) granting or denying a prejudgmentremedy following a hearing under section 52-278d or (2) grantingor denying a motion to dissolve or modify a prejudgment remedyunder section 52-278e or (3) granting or denying a motion topreserve an existing prejudgment remedy under section 52-278gshall be deemed a final judgment for purposes of appeal."

4. General Statutes 22a-451 provides in relevant part:"LIABILITY FOR POLLUTION, CONTAMINATION OR EMERGENCY. EMERGENCYSPILL RESPONSE FUND. (a) Any person, firm or corporation whichdirectly or indirectly causes pollution and contamination of anyland or waters of the state or causes an emergency through thedischarge, spillage, uncontrolled loss, seepage or filtration ofoil or petroleum or chemical liquids or solid, liquid or gaseousproducts or hazardous wastes or which owns any hazardous wastesdeemed by the commissioner to be a potential threat to humanhealth or the environment and removed by the commissioner shallbe liable for all costs and expenses incurred in investigating,containing, removing, monitoring or mitigating such pollution andcontamination, emergency or hazardous waste, and legal expensesand court costs incurred in such recovery, provided, if suchpollution or contamination or emergency was negligently caused,such person, firm or corporation may, at the discretion of thecourt, be liable for damages equal to one and one-half times thecost and expenses incurred and provided further if such pollutionor contamination or emergency was wilfully caused, such person,firm or corporation may, at the discretion of the court, beliable for damages equal to two times the cost and expensesincurred. The costs and expenses of investigating, containing,removing, monitoring or mitigating such pollution, contamination,emergency or hazardous waste shall include, but not be limitedto, the administrative cost of such action calculated at ten percent of the actual cost plus the interest on the actual cost at arate of ten per cent per year from the date such costs andexpenses were paid. The costs of recovering any legal expensesand

5. The amicus urges us to construe General Statutes 22a-452(a) to sustain the plaintiff's cause of action in light ofthe desirability of encouraging private parties to clean upenvironmental problems on their own. The amicus notes thatprivate initiatives are especially important to assist thecommissioner of environmental protection in times of strainedpersonnel and financial resources. This argument might wellpersuade the legislature to broaden the scope of 22a-452 (a), butit does not enable us to rewrite the text of the statute.Without clear statutory guidance, we cannot presume that thelegislature intended to impose strict liability on formerlandowners. Even the imposition of liability for negligence onformer landowners is a substantial deviation from the common lawrule of caveat emptor. The common law rule continues to havevitality even though it has given way to liability for negligencein special cases such as those involving the defectiveconstruction of buildings or their appurtenances by builder-vendorsof real property. Coburn v. Lenox Homes, Inc., 186 Conn. 370,375, 441 A.2d 620 (1982); Scribner v. O'Brien, Inc., 169 Conn. 389,400, 363 A.2d 160 (1975); see generally 2 Restatement (Second),Torts 352 and 372 (1965); W. Prosser & W. Keeton, Torts (5th Ed.1984) 64, pp. 446-48.

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