Hohorst v. Easton

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Hohorst v. Easton

ROBIN HOHORST v. TOWN OF EASTON ET AL.

(AC 47671)

Cradle, C. J., and Westbrook and Bishop, Js.

Syllabus

The plaintiff homeowner appealed from the trial court’s judgment grant-

ing the defendants’ separate motions for summary judgment in her action

sounding in negligence and nuisance. She alleged that the defendant town,

which held two storm drain easements on her property, and the defendant

water company, A Co., were liable for the damages the property sustained

as a result of flooding during a heavy rainstorm. The plaintiff claimed, inter

alia, that the court erred in concluding that her claims against the town were

barred by governmental immunity. Held:

The trial court properly determined that the town was entitled to summary

judgment as to the plaintiff’s negligence claim, as the manner in which the

town was to discharge its duty to maintain the storm drain easements involved

the exercise of judgment and discretion, and, therefore, was discretionary in

nature, and, as such, did not abrogate the town’s governmental immunity.

The trial court improperly granted the town’s motion for summary judg-

ment as to the plaintiff’s nuisance claim on the ground that it was barred

by governmental immunity, as, on the basis of the materials presented to

the court, there was a genuine issue of material fact regarding whether the

town, by positive act, either created or participated in creating a nuisance

resulting in damage to the plaintiff.

The trial court improperly granted the town’s motion for summary judg-

ment as to the plaintiff’s nuisance claim on the alternative ground that it

was time barred by the statute of limitations (§ 52-577), as the town waived

its statute of limitations defense by having failed to plead it.

The trial court properly granted A Co.’s motion for summary judgment, as

there were no genuine issues of material fact as to whether A Co.’s conduct

contributed to the flooding of the plaintiff’s property on the day of the storm.

This court declined to review the plaintiff’s claim that the trial court abused

its discretion in denying her motion for reconsideration of the granting of A

Co.’s motion for summary judgment, as this court concluded that the trial

court properly granted that motion.

Argued September 2, 2025—officially released February 17, 2026

Procedural History

Action to recover damages for, inter alia, negligence,

and for other relief, brought to the Superior Court in the

judicial district of Fairfield, where the court, Clark, J.,

granted the motion for summary judgment filed by the

Hohorst v. Easton

defendant Aquarion Water Company; thereafter, the

court, Clark, J., granted the named defendant’s motion

for summary judgment; judgment for the defendants;

subsequently, the court denied the plaintiff’s motion for

reconsideration, and the plaintiff appealed to this court.

Reversed in part; further proceedings.

John C. Turner, Jr., for the appellant (plaintiff).

Alan R. Dembiczak, for the appellee (named defen-

dant).

Thomas M. Noniewicz, for the appellee (defendant

Aquarion Water Company).

Opinion

BISHOP, J. This appeal arises out of an action by the

plaintiff, Robin Hohorst, in which she alleges that the

defendants, the town of Easton (town) and Aquarion

Water Company, also known as Aquarion Water Com-

pany of Connecticut (Aquarion), are liable for damage to

her residential property caused by flooding on September

25, 2018. The plaintiff appeals from the trial court’s

judgment granting separate motions for summary judg-

ment filed by each defendant, and from its denial of her

“motion for reargument/reconsideration” of the order

granting summary judgment in favor of Aquarion. On

appeal, the plaintiff claims that the court improperly

rendered summary judgment in favor of the town because

it erroneously concluded that her negligence and nuisance

claims were barred by governmental immunity and that

her nuisance claim also was barred by the statute of limi-

tations set forth in General Statutes § 52-577. She fur-

ther claims that the court improperly rendered summary

judgment in favor of Aquarion because it erroneously

concluded that there were no genuine issues of material

fact as to whether Aquarion’s conduct contributed to the

flooding of her property, and that it abused its discretion

when it denied her motion for reargument. We reverse

the judgment of the trial court as to the plaintiff’s nui-

sance claim against the town, and we affirm the judgment

in all other respects.

Hohorst v. Easton

The record before the court, viewed in the light most

favorable to the plaintiff as the nonmoving party on the

prevailing motions for summary judgment, reveals the

following facts and procedural history. The plaintiff owns

and resides in a home located in the town at 60 Ferndale

Drive (property). The property is part of a watershed,1

and it is subject to two storm drainage easements that

were granted to the town before the plaintiff purchased

the property in March, 1993. Aquarion is the public water

supply company that provides water service to the town.

On September 25, 2018, a storm system that dropped a

significant amount of rain during a short period of time

passed through the town. Nearly six inches of rain fell

onto the watershed area where the property is located,

and flash flooding occurred. The town’s drainage system

was overwhelmed by the excessive surge of water and

could not contain it. More specifically, the capacity of the

catch basins and pipes at the neighboring intersection of

Marsh Road and Morningside Road, where the watershed

culminates, was exceeded, and overland flooding onto the

property occurred. This flooding destroyed the plaintiff’s

driveway and ruined the basement of her home.

The plaintiff commenced this litigation in July, 2019.

The second amended complaint was filed on April 13,

2021, and it contained three counts. Counts one and two

were brought against the town and sounded in negligence

1

Our research has revealed that “[n]o generally accepted definition of

watershed exists beyond the merely geographical notion that a watershed

is an area drained by a river or stream.” G. Coggins, “Watershed as a

Public Natural Resource on the Federal Lands,” 11 Va. Envtl. L.J. 1,

1 (1991). “According to one court, a watershed ‘is the whole gathering

ground of a river system; i.e., the geographic area from which any river

or creek draws its flow. The New Shorter Oxford English Dictionary

3636 (Thumb Index ed. 1993).’ Lands Council v. Powell, 395 F.3d 1019,

1024 n.1 (9th Cir. 2005).” R. Glicksman, Public Natural Resources Law

(2d Ed. 2025) § 35:1 n.3. The plaintiff’s expert, Robert J. Wheway,

a licensed professional engineer, testified at his deposition that “[a]

watershed would be representative of the water as it falls from the sky,

lands on the ground, the containment of that water and where it would

ultimately discharge to.”

Hohorst v. Easton

and nuisance, respectively. Count three was brought

against Aquarion and sounded in negligence. In count

one, the plaintiff alleged that the flooding of her prop-

erty occurred as a result of the town’s negligence in

failing (1) to properly maintain the two storm drain-

age easements that ran through the property and (2) to

properly construct, design and/or maintain the catch

basins and drainage system at the Morningside Road

and Marsh Road intersection, which sits to the north of

the property. She further alleged that the town’s duties

in these regards “were ministerial in nature.” In count

two, the plaintiff alleged that the flooding occurred as

a result of a nuisance that the town affirmatively cre-

ated by diverting a “tremendous amount” of water into

the improperly maintained easements and failing to

“properly design and maintain the catch basins at the

corner of Morningside Road and Marsh Road.” Finally,

in count three, the plaintiff alleged that the flooding

occurred as a result of Aquarion’s negligence in failing

(1) to properly maintain the town reservoirs it owned or

controlled so as “to ensure the proper amount of water

was released and conveyed through the watershed” dur-

ing the September 25, 2018 storm, (2) “to adequately and

properly maintain the water flow and supply to [town]

residents . . .” and (3) “to act in a reasonably prudent

manner given the dangerous conditions caused by the .

. . rainstorm in the area.”

On May 6, 2021, Aquarion filed a request to revise

the second amended complaint which sought to have

the plaintiff offer more specificity as to the allegations

against it. The court, Jacobs, J., granted Aquarion’s

request, and the plaintiff filed a revised complaint on

October 1, 2021. On October 7, 2021, the town filed an

answer to the revised complaint in which it raised several

special defenses, including common-law and statutory

governmental immunity as to counts one and two. The

town did not, however, raise a statute of limitations

special defense to the plaintiff’s nuisance claim.

On April 14, 2023, Aquarion filed a motion for sum-

mary judgment as to count three of the second amended

Hohorst v. Easton

complaint and a memorandum of law in support of that

motion.2 It attached three exhibits to the memorandum of

law: (1) a report prepared by the plaintiff’s expert, Robert

J. Wheway; see footnote 1 of this opinion; regarding his

investigation into the cause of the September 25, 2018

flooding (Wheway report);3 (2) a copy of the transcript

of Wheway’s deposition; and (3) a sworn affidavit by

Robert “Jeff” Ulrich, who was employed by Aquarion

as vice president of Connecticut operations. Aquarion

argued that it was entitled to summary judgment as a

matter of law because, on the basis of the allegations

and evidence presented, no reasonable fact finder could

determine that Aquarion “cause[d] or ha[d] any role in

the plaintiff’s water damage incurred in [the] flooding

on September 25, 2018.”

Aquarion highlighted the opinions set forth in the

Wheway report, which “refer to faults in the design,

installation and maintenance of the [town’s] drainage sys-

tem,” and emphasized that the report does not mention

Aquarion at all. Further, it recounted that, when asked

at his deposition if he had any opinions as to whether

Aquarion bore any responsibility for the flooding,

Wheway testified that he had not “seen any indication

with regards to the storm of [September 25, 2018] being

2

Although Aquarion’s motion for summary judgment references the

second amended complaint dated April 13, 2021, the October 7, 2021

revised complaint was the operative complaint at the time Aquarion filed

its motion for summary judgment. We discern no appreciable distinction

between these iterations of the complaint insofar as Aquarion and its

motion for summary judgment are concerned; see, e.g., Metropolitan

District v. Mott, 235 Conn. App. 449, 463, 346 A.3d 1064 (2025) (“[i]t

is well established that the interpretation of pleadings is always a ques-

tion of law for the court” (internal quotation marks omitted)); and no

party has claimed otherwise in this appeal. We also note that the record

does not reflect that Aquarion filed an answer to any iteration of the

plaintiff’s complaint before filing its motion for summary judgment, but

further recognize that it is well established that the pleadings need not

be closed prior to doing so. See Practice Book § 17-44; Emmerson v. Super

8 Motel-Stamford, 59 Conn. App. 462, 468–69, 757 A.2d 651 (2000).

3

Four watershed maps and three arial photographs of the area in

which the property is located, from different years, are included in

the Wheway report.

Hohorst v. Easton

attributable to Aquarion.” He also testified that, based on

his research, all of the reservoirs Aquarion controlled in

the town sat at elevations “below” the property. Finally,

Aquarion posited that Ulrich’s affidavit established that

none of the water that flooded the plaintiff’s property

could be linked to Aquarion. Specifically, Ulrich averred

that the Easton Reservoir was the closest reservoir to the

property, that the water released therefrom went to the

Mill River, which was located 150 feet below the elevation

of the property, and that, consequently, water from the

Easton Reservoir could not have reached the plaintiff’s

home on September 25, 2018. Moreover, Ulrich attested

that there were no water main breaks in the area of the

property on September 25, 2018, and that Aquarion

had no responsibility for the town’s storm drains or for

any water runoff from other properties that would have

crossed the plaintiff’s property.

The plaintiff filed an objection to Aquarion’s motion

for summary judgment, to which she attached a number

of exhibits, including her own sworn affidavit; excerpts

from the transcript of Wheway’s deposition; an incident

report regarding flooding due to a dam breach in the

town on September 25, 2018; a June 19, 2007 correspon-

dence from Aquarion to the first selectman of Fairfield

describing the terms of a water release plan under which

Aquarion would make releases primarily from the Easton

Reservoir; an Aquarion water diversion summary that

lists dates between August 1 and October 10, 2018; and a

map. The plaintiff argued that there were genuine issues

of material fact that precluded granting summary judg-

ment. Specifically, she argued that a factual question

existed “as to whether Aquarion, through the release

or diversion of water from the reservoirs it maintains

or through other means, contributed to the flood on

[her] property on September 25, 2018.” The plaintiff

recounted “evidence of a dam breach that day . . . and that

Aquarion released water from its reservoirs” and, relying

primarily on her own affidavit, argued that “there are a

multitude of waterways at an equal or higher elevation

that come through the easement on [her] property.” She

Hohorst v. Easton

maintained that “[a] map of the topography of [the town]

can be misleading” and that she “believes, through her

research, that the convergence of waters from various

sources contributed to the flooding, and that Aquarion

is responsible, in part, for the water that crossed her

property” on September 25, 2018.4

The court, Clark, J., heard oral argument on Aquar-

ion’s motion for summary judgment and, on December

21, 2023, issued a memorandum of decision granting

the motion. The court concluded that “there is no dis-

pute that the plaintiff cannot establish that Aquarion

has [done] anything negligent, or that any Aquarion

related conduct caused any of the plaintiff’s damages on

September 25, 2018.” It described the “unprecedented

rain event that took place on September 25, 2018,” and

determined that the summary judgment evidence “estab-

lished that Aquarion’s reservoirs are all located lower

than the plaintiff’s property and thus could not play

a role in the damages claimed in this case.” Moreover,

the court noted that “[t]he plaintiff’s expert testified

that he has no reason to believe that Aquarion had any-

thing to do with” the damage the property sustained. It

deemed the plaintiff’s opinion regarding the cause of the

damage, as set forth in her affidavit, “[c]onclusory and

self-serving,” and determined that it did “not create a

genuine issue of material fact in light of the corroborated

evidence presented.”

On January 9, 2024, the plaintiff filed a “motion for

reargument/reconsideration” of the court’s decision in

which she argued that the court did “not reference any

of the documentary evidence” she submitted. Although

4

The plaintiff also argued that “discovery is incomplete,” that addi-

tional depositions had been scheduled and that “[m]ore facts about the

cause of the flooding on [her] property will be developed through those

depositions.” The plaintiff did not, however, before filing her objection,

file a motion for extension of time pursuant to Practice Book § 17-47 that

sought a “continuance to permit . . . discovery to be had,” and she does

not claim in this appeal that the court ruled prematurely on Aquarion’s

motion. See, e.g., Joseph v. Commissioner of Correction, 153 Conn. App.

570, 574, 102 A.3d 714 (2014) (deeming claims not briefed on appeal

to be abandoned), cert. denied, 315 Conn. 911, 106 A.3d 304 (2015).

Hohorst v. Easton

she acknowledged that “these documents do not provide

direct evidence that Aquarion’s release of water, or other

actions, contributed to the flooding of [her] property,”

she argued that when “read in concert with [her] affida-

vit, [they] do create a genuine issue of material fact as to

whether Aquarion may have contributed to the flooding

condition.”

On November 30, 2023, the town filed a motion for

summary judgment as to counts one and two of the plain-

tiff’s complaint and a memorandum of law in support

thereof.5 Attached to the motion were exhibits including

excerpts from interrogatory responses by the plaintiff; a

sworn affidavit by Edward Nagy, who was both the town

engineer and public works director for the town; and

excerpts from the transcript of the plaintiff’s deposition.

The town claimed that the negligence count set forth in

count one was barred by governmental immunity because

it was predicated on acts or omissions that required the

exercise of judgment or discretion.6 Relying, in part, on

this court’s decision in Silberstein v. 54 Hillcrest Park

Associates, LLC, 135 Conn. App. 262, 41 A.3d 1147

(2012), the town argued that the “maintenance of road

drainage systems and catch basins, absent a specific

policy, is a discretionary task” and that there was no

5

The town’s motion for summary judgment references the original

complaint filed on July 19, 2017. The operative complaint as of November

30, 2023, however, was the May 1, 2023 third amended complaint. We

discern no appreciable distinction between the iterations of the complaint

insofar as the town and its motion for summary judgment are concerned;

see footnote 2 of this opinion; and no party has claimed otherwise in this

appeal. We also note that the town filed an answer and special defenses

to the third amended complaint. As it had when it answered the revised

complaint, the town raised statutory and governmental immunity as

special defenses to counts one and two of the third amended complaint

but did not raise a statute of limitations defense to count two.

6

In advancing this argument, the town pointed out that the plaintiff

had not cited in her complaint “any statute that abrogates the immu-

nity afforded to the defendant at common law,” and maintained that

it was entitled to governmental immunity for this reason alone. Even

so, the town also analyzed General Statutes § 52-557n, “the statute

abrogating immunity,” and argued that it was entitled to immunity

thereunder, as well.

Hohorst v. Easton

policy or directive that rendered its duty to maintain

the drainage system in this case ministerial in nature.

The town also claimed that the nuisance count set forth

in count two failed as a matter of law because (1) the

alleged nuisance, i.e., the flooding of the property, was

not created by a positive act of the town and thus, it too

was barred by governmental immunity, and (2) it was

barred by the applicable statute of limitations.

The plaintiff filed an objection to the town’s motion for

summary judgment on January 12, 2024, arguing with

respect to the negligence count that the town had “a direct

(or nondiscretionary) duty” because it held easements on

the property and that governmental immunity was there-

fore “immaterial” to the analysis. (Emphasis in original.)

Alternatively, the plaintiff argued that there remained

genuine issues of material fact as to whether the town

was exercising ministerial or discretionary duties with

respect to its maintenance, inspection and/or design of

the drainage system. With regard to the nuisance count,

the plaintiff pointed to evidence regarding the town’s

design and execution of improvements it made to the

drainage system that were deemed inadequate, and the

town’s diversion of water into that inadequate system,

and argued that a genuine issue of material fact existed

as to whether the town created, or participated in the

creation of, the alleged nuisance. She also argued that

her nuisance claim was not “time-barred as the flooding

nuisance, which can be abated by [the town’s] repair or

renovation of its drainage system that runs through

its easement, continues to this day.”7 The town filed a

7

The plaintiff attached several exhibits to her objection, including a

copy of a warranty deed recorded in the Easton Land Records at volume

145, page 303, transferring the property from Arline M. Fritz to the

plaintiff; sworn affidavits by Wheway and the plaintiff; excerpts from

transcripts of depositions by Nagy and the town’s expert, Thomas H.

Fenton, P.E.; the Wheway report; a copy of an October 26, 1953 map

depicting Ferndale Drive, Morningside Road and Marsh Road; a copy

of an August 12, 1957 revised map depicting Ferndale Drive, Morn-

ingside Road and Marsh Road; a copy of June 16, 1975 correspondence

from Griswold and Fuss, Inc., consulting engineers and surveyors, to

the town’s first selectman, regarding “Drainage—Morningside Drive

Hohorst v. Easton

reply memorandum, and the plaintiff filed a surreply

memorandum.8

The court, Clark, J., heard oral argument on the town’s

motion for summary judgment on January 22, 2024,

and, on May 9, 2024, issued a memorandum of decision

in favor of the town as to counts one and two of the sec-

ond amended complaint.9 With respect to the negligence

count, the court explained that, as a general rule, “the

maintenance of storm drains is discretionary in nature”

and concluded that, given the absence of a legal directive

that prescribed the manner in which the town was to

design, construct, inspect, maintain and repair its storm

water drainage systems, “[a]ny actions or inactions by

the town, such as those alleged in counts one and two of

the amended complaint, are purely discretionary and

to Sturbridge Road”; a copy of January 5, 1981 correspondence from

the town’s first selectman to Larry Edwards, P.E., awarding Edwards

a contract for construction of a drainage system between “Morningside

Drive and Sturbridge Road”; a copy of a February 20, 1981 map “showing

easement to be acquired by” town; a copy of an easement on the property

granted to the town on May 11, 1981, by Brian P. Maher and Arline F.

Maher; a copy of “Drainage Computations, Morningside to Sturbridge,

dated [January 20, 1982]” prepared by Larry Edwards Associates; a

copy of August 19, 1982 correspondence from the town’s first selectman

awarding Pace Construction, Inc., the bid for the “Morningside Drive to

Ferndale Drive” storm drainage improvement project; a copy of March

8, 1983 correspondence from Nagy to Pace Construction Company, Inc.

(Pace), detailing items Pace needed to correct following the drainage

improvements it made at “Morningside [Road] and Ferndale Drive”;

copies of photographs depicting flooding of the property, property

damage, and drainage pipes; copies of several pieces of correspondence

by and between the plaintiff and local government officials regarding

the September 25, 2018 flooding; a copy of the town’s subdivision

regulations effective February 14, 1989; a copy of the town’s subdivi-

sion regulations effective October 1, 2023; excerpts from the October,

2000 Department Of Transportation Drainage Manual; and case law.

8

The plaintiff attached to her surreply memorandum two additional

copies of a map that depicts, inter alia, portions of Marsh Road, Morn-

ingside Road and Ferndale Drive.

9

As previously noted, the town referenced the original complaint in

its motion, although the operative complaint at that time was the third

amended complaint. See footnote 5 of this opinion. No party has raised

an issue in this appeal as to these discrepancies, which in this case are

technical in nature. See Metropolitan District v. Mott, 235 Conn. App.

449, 463, 346 A.3d 1064 (2025).

Hohorst v. Easton

entitled to governmental immunity.”10 In doing so, the

court expressly rejected the plaintiff’s argument that the

existence of the storm drainage easement that referenced

the town’s “right, privilege and authority to maintain a

storm drainage pipe, including the right to lay, maintain,

operate, construct, alter, repair and replace the same and

its appurtenances, including appropriate headwalls and

manholes in, over or through [the] property” called for a

different conclusion. The court determined that “[t]he

maintenance responsibility under the easements11 . . . is

aligned with the general nature of discretionary main-

tenance for [the town] with respect to all drainpipes.”

(Footnote added.)

With respect to the nuisance count, the court acknowl-

edged that “[a] municipality may be liable for a nuisance

that it creates and maintains” but concluded that, in this

case, the plaintiff “failed, as a matter of law, to show

that there was a positive act by [the town] that caused

the flooding.” In reaching this conclusion, however, the

court recited and relied on various allegations by the

plaintiff, which included alleged “affirmative acts,” and

described them as sounding in “negligent malfeasance,

whether in the construction or maintenance of the pipes

in the easement area and surrounding storm drains.” As

such, the court determined that “[t]he alleged conduct

or inaction/nonfeasance of the [town] as alleged is all

within its protected discretionary authority,” that the

town was “entitled to assert governmental immunity

to the nuisance count,” and it granted summary judg-

ment in the town’s favor as to count two for this reason.

(Emphasis added.)

10

The court had noted, at the outset, that, because both parties focused

on General Statutes § 52-557n in their arguments, it would assume that

the plaintiff had cited that statute in her complaint, and it assessed her

claim as if she had. No party has challenged the propriety of the court

having done so in this appeal.

11

The record reflects that the first easement was granted to the town

“over the lot that would eventually be Plaintiff’s property” in or about

August, 1957. The record does not indicate what language, if any, is

associated with that easement.

Hohorst v. Easton

The court also addressed the town’s claim that the

plaintiff’s nuisance count was barred by either the two

year statute of limitations set forth in General Statutes

§ 52-584 or the three year statute of limitations set forth

in § 52-577. In doing so, the court stated that “[t]he only

positive act that has been alleged by the plaintiff is that

the town diverted the water into storm water drain-

age systems and related easements. The alleged actions

creating the easements took place in the 1980s (per the

complaint), and therefore, took place more than three

years before the plaintiff brought her nuisance claims.

Accordingly, the nuisance claims are time barred under .

. . § 52-577,” and the court granted summary judgment in

the town’s favor as to count two for this reason, as well.12

Also on May 9, 2024, the court, Clark, J., issued an

order denying the plaintiff’s “motion to reargue/recon-

sider” the granting of summary judgment in favor of

Aquarion. The plaintiff then filed the present appeal,

challenging the summary judgments in favor of the

defendants and the denial of her motion for reargument/

reconsideration.13 Additional facts and procedural his-

tory will be set forth as necessary.

Before we address the plaintiff’s specific claims, we set

forth our standards of review. “Our standard of review

with respect to a court’s ruling on a motion for summary

judgment is well settled. Practice Book § [17-49] provides

that summary judgment shall be rendered forthwith if

the pleadings, affidavits and any other proof submitted

show that there is no genuine issue as to any material

12

The court did not address the town’s alternative argument that the

plaintiff’s nuisance count was barred by § 52-584 and, with respect to

what it deemed the plaintiff’s “claim under the continuing course of

conduct doctrine” that would have tolled the statute of limitations,

the court determined that because she had not pleaded the doctrine “in

either her complaint or reply to special defenses, [she] cannot argue

said doctrine at this time.”

13

Thereafter, on May 30, 2024, the plaintiff filed a motion for articu-

lation with respect to the denial of her “motion to reargue/reconsider”

the summary judgment rendered in favor of Aquarion, which the court

denied. The plaintiff then filed with this court a motion for review of

that denial. This court granted review but denied the relief requested.

Hohorst v. Easton

fact and that the moving party is entitled to judgment

as a matter of law. . . . In deciding a motion for summary

judgment, the trial court must view the evidence in the

light most favorable to the nonmoving party. . . . The

party seeking summary judgment has the burden of

showing the absence of any genuine issue [of] material

facts which, under applicable principles of substantive

law, entitle him to a judgment as a matter of law . . .

and the party opposing such a motion must provide an

evidentiary foundation to demonstrate the existence of a

genuine issue of material fact. . . . [I]ssue-finding, rather

than issue-determination, is the key to the procedure. .

. . [T]he trial court does not sit as the trier of fact when

ruling on a motion for summary judgment. . . . [Its] func-

tion is not to decide issues of material fact, but rather to

determine whether any such issues exist. . . . Our review

of the decision to grant a motion for summary judgment

is plenary. . . . We therefore must decide whether the

court’s conclusions were legally and logically correct and

find support in the record.” (Internal quotation marks

omitted.) Adams v. Aircraft Spruce & Specialty Co., 215

Conn. App. 428, 440–41, 283 A.3d 42, cert. denied, 345

Conn. 970, 286 A.3d 448 (2022).

“[T]ypically [d]emonstrating a genuine issue requires

a showing of evidentiary facts or substantial evidence

outside the pleadings from which material facts alleged

in the pleadings can be warrantably inferred. . . . More-

over, [t]o establish the existence of a material fact, it is

not enough for the party opposing summary judgment

merely to assert the existence of a disputed issue. . . .

Such assertions are insufficient regardless of whether

they are contained in a complaint or a brief. . . . Further,

unadmitted allegations in the pleadings do not consti-

tute proof of the existence of a genuine issue as to any

material fact. . . . Mere statements of legal conclusions .

. . and bald assertions, without more, are insufficient to

raise a genuine issue of material fact capable of defeating

summary judgment. . . .

Hohorst v. Easton

“[I]t [is] incumbent upon the party opposing summary

judgment to establish a factual predicate from which it

can be determined, as a matter of law, that a genuine

issue of material fact exists. . . . [M]aterial facts are

those that will make a difference in the case, and they

must be pleaded.” (Citation omitted; internal quotation

marks omitted.) Begley v. State, 234 Conn. App. 820,

827–28, 344 A.3d 982 (2025), cert. granted, 354 Conn.

902, A.3d (2026).

Our standard of review with respect to the court’s

ruling on the plaintiff’s motion for reargument/recon-

sideration is abuse of discretion. Kuselias v. Zingaro &

Cretella, LLC, 224 Conn. App. 192, 222, 312 A.3d 118,

cert. denied, 349 Conn. 916, 316 A.3d 357 (2024). “As

with any discretionary action of the trial court . . . the

ultimate [question for appellate review] is whether the

trial court could have reasonably concluded as it did.”

(Internal quotation marks omitted.) Id.

I

The plaintiff first claims that the court improperly

rendered summary judgment in favor of the town on

the basis of its determination that her claims for negli-

gence, as alleged in count one of her complaint, and for

nuisance, as alleged in count two of her complaint, both

were barred by the doctrine of governmental immunity.

We disagree with the plaintiff insofar as her negligence

claim is concerned, and we affirm the court’s judgment as

to count one of her complaint. We agree with the plaintiff

insofar as her nuisance claim is concerned, and we reverse

the court’s judgment as to count two of her complaint.

At the outset, we set forth the well settled law of this

state regarding the liability of municipalities. “Accord-

ing to our Supreme Court, [a] municipality itself was

generally immune from liability for its tortious acts at

common law . . . . [The court has] also recognized, how-

ever, that governmental immunity may be abrogated by

statute.” DiMiceli v. Cheshire, 162 Conn. App. 216, 223,

131 A.3d 771 (2016). General Statutes § 52-557n (a) (1)

Hohorst v. Easton

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 . . . and

(C) acts of the political subdivision which constitute the

creation or participation in the creation of a nuisance .

. . .” “[Our Supreme Court] previously [has] concluded

that [t]his language clearly and expressly abrogates

the traditional common-law doctrine in this state that

municipalities are immune from suit for torts commit-

ted by their employees and agents. . . .14” (Footnote in

original; internal quotation marks omitted.) DiMiceli v.

Cheshire, supra, 223; see also Doe v. Petersen, 279 Conn.

607, 614, 903 A.2d 191 (2006) (§ 52-557n “abandons the

common-law principle of municipal sovereign immunity

and establishes the circumstances in which a municipal-

ity may be liable for damages”).

We now address, in turn, the plaintiff’s claims that the

court improperly rendered summary judgment in favor

of the town with respect to her negligence and nuisance

causes of action.

A

In count one of her complaint, which sounds in neg-

ligence against the town, the plaintiff alleged that the

town had been granted two storm drain easements on the

property that it used to “divert, channel and/or drain

water through the property by way of a forty-eight inch

wide diameter pipe” it “owned, controlled and/or main-

tained . . . .” This pipe ran from the corner of Morningside

Road to Ferndale Drive. The plaintiff further alleged

that the town “had the duty to maintain the easements,

14

“Our Supreme Court has cautioned that ‘[s]tatutes that abrogate or

modify governmental immunity are to be strictly construed’ because

if ‘a statute is in derogation of common law or creates a liability where

formerly none existed, it should receive a strict construction and is not to

be extended, modified, repealed or enlarged in its scope by the mechanics

of construction.’ . . . Rawling v. New Haven, 206 Conn. 100, 105, 537

A.2d 439 (1988).” DiMiceli v. Cheshire, supra, 162 Conn. App. 223 n.5.

Hohorst v. Easton

by way of the easements pipe, in such a manner as to pre-

vent the overflow, deterioration and destruction of the

easements passageways, by way of the easements pipe,

and, in turn, prevent flooding of . . . [the] property,” and

that it failed to do so. The town’s “duties” in this regard

were alleged to be “ministerial in nature.” Although the

plaintiff included language from one easement in her

allegations, she did not expressly allege any possible

sources for the town’s ministerial duties.15

“Subdivision (2) of § 52-557n (a) . . . contains two

significant limitations to the statutory abrogation of

governmental immunity. [One exception] provides as

follows: Except as otherwise provided by law, a political

subdivision of the state shall not be liable for damages

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. General Statutes

§ 52-557n (a) (2) (B). The statutory scheme of § 52-557n,

accordingly, distinguishes between discretionary and

ministerial acts, with liability generally attaching to a

municipality only for negligently performed ministe-

rial acts, not for negligently performed discretionary

acts.16” (Footnote in original; internal quotation marks

15

Specifically, she alleged that the easement “provides [the town] with

the right to ‘maintain a storm drainage pipe, including the right to lay,

maintain, operate, construct, alter, repair and replace the same and

its appurtenances . . . over or through property of the Grantors. . . .’ ”

16

“ ‘Even if a municipal defendant’s conduct is discretionary in nature,

our courts have identified three exceptions to discretionary act immu-

nity. Each of these exceptions represents 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. . . . First, liability may be imposed

for a discretionary act when the alleged conduct involves malice, wan-

tonness or intent to injure. . . . Second, liability may be imposed for a

discretionary act when a statute provides for a cause of action against a

municipality or municipal official for failure to enforce certain laws. . . .

Third, liability may be imposed 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.’ . . . Northrup v. Witkowski,

175 Conn. App. 223, 234, 167 A.3d 443 (2017), aff’d, 332 Conn. 158,

210 A.3d 29 (2019).” Ready v. New Canaan, 232 Conn. App. 487, 494

Hohorst v. Easton

omitted.) Ready v. New Canaan, 232 Conn. App. 487,

493–94, 336 A.3d 1252 (2025).

“The hallmark of a discretionary act is that it requires

the exercise of judgment. . . . In contrast, [m]inisterial

refers to a duty which is to be performed in a prescribed

manner without the exercise of judgment or discretion.

. . . In order to create a ministerial duty, there must be

a city charter provision, ordinance, regulation, rule,

policy, or any other directive [compelling a municipal

employee] to [act] in any prescribed manner. . . .

“In general, the exercise of duties involving inspec-

tion, maintenance and repair of hazards are considered

discretionary acts entitled to governmental immunity. .

. . A municipality necessarily makes discretionary policy

decisions with respect to the timing, frequency, method

and extent of inspections, maintenance and repairs. . . .

Although the determination of whether official acts or

omissions are ministerial or discretionary is normally

a question of fact for the fact finder . . . there are cases

where it is apparent from the complaint. . . . [W]hether

an act or omission is discretionary in nature and, thus,

whether governmental 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

omissions necessarily involved the exercise of judgment,

and thus, necessarily were discretionary in nature, sum-

mary judgment is proper.” (Citations omitted; emphasis

in original; internal quotation marks omitted.) DiMiceli

v. Cheshire, supra, 162 Conn. App. 224–25.

In Silberstein v. 54 Hillcrest Park Associates, LLC,

supra, 135 Conn. App. 273, this court concluded that a

n.1, 336 A.3d 1252 (2025). The plaintiff does not argue, however, that

any of these exceptions apply to her negligence claim against the town

and, thus, we need not address them. See, e.g., Joseph v. Commissioner

of Correction, 153 Conn. App. 570, 574, 102 A.3d 714 (2014) (deeming

claims not briefed on appeal to be abandoned), cert. denied, 315 Conn.

911, 106 A.3d 304 (2015).

Hohorst v. Easton

municipality’s duty to maintain storm drains was dis-

cretionary in nature. The plaintiffs in Silberstein were

the owners of a property located in the Hillcrest Park

neighborhood of Old Greenwich. Id., 264. They brought

an action against the defendants, a tax association and a

private tax district for the Hillcrest Park neighborhood,

alleging, inter alia, that the defendants were negligent

in failing to properly maintain the roads and drainage

systems in the neighborhood, resulting in the periodic

flooding of the plaintiffs’ property. Id., 265. The defen-

dants moved for summary judgment on grounds that the

plaintiffs’ negligence claim was barred by governmental

immunity, and the trial court rendered summary judg-

ment in favor of the defendants. Id., 266–67. In affirm-

ing the judgment of the trial court, this court explained

that, although the tax district’s bylaws clearly stated

that one of its purposes was “to construct and maintain

roads . . . drains, [and] storm sewers,” the bylaws did not

“prescribe the manner in which the roads and drainage

systems are to be maintained, and there is no evidence

in the record of any procedure or directive governing

the manner of their maintenance. Given this lack of

directive, the manner in which the defendants discharge

their duty to maintain the roads and drainage systems

plainly involves the exercise of judgment and discre-

tion.” (Emphasis in original; internal quotation marks

omitted.) Id., 273.

Thereafter, in Northrup v. Witkowski, 332 Conn. 158,

161, 185, 210 A.3d 29 (2019), the plaintiff property own-

ers brought an action against the borough of Naugatuck

and several town officials to recover for flooding damage

to their property that allegedly occurred “because the

single catch basins in the area routinely became clogged or

inadequately redirected water away from the property.”

Our Supreme Court discussed this court’s decision in

Silberstein and explained that, in order to determine

whether a municipality’s duty with respect to its storm

drains and sewers is ministerial or discretionary, “the

relevant consideration under well established modern

principles of governmental immunity remains whether

Hohorst v. Easton

the duty was a general one or, instead, whether there

was a city charter provision, ordinance, regulation, rule,

policy or any other directive [requiring the government

official to act in a] prescribed manner.” (Internal quota-

tion marks omitted.) Id., 185. The court thus concluded

that a municipal defendant charged with negligently

maintaining storm drains and sewers “may be held liable

to the plaintiffs only if there was some legal directive pre-

scribing the specific manner in which they were required

to maintain and repair the town’s storm sewer system.”

Id. In Northrup, as in Silberstein, because there was no

such directive, the court held that the municipal “defen-

dants’ duty to maintain and repair the town’s storm

drains and sewers was discretionary,” and it upheld this

court’s determination that the trial court had properly

granted the defendant’s motion for summary judgment

on the ground of governmental immunity. Id., 190. In

reaching this conclusion, the court also made clear “that

neither the creation of a schedule for cleaning all catch

basins at least once per year, nor the practice of attempt-

ing to respond to every complaint about malfunctioning

storm drains, constitutes a ‘policy or rule’ converting the

discretionary duty to carry out the functions mandated

by [ordinance] into a clear ministerial duty.” Id., 188.

In the present case, Nagy averred in his affidavit that

“[t]here is no charter provision, ordinance, regulation,

rule, policy, or any other directive that prescribes the

manner in which the [town] designs, constructs, inspects,

maintains and repairs storm water drainage systems

in the [t]own.” Rather, such actions are “left up to the

judgment and discretion of [t]own employees and per-

formed on a case-by-case basis.” The plaintiff, in turn,

neither alleged, nor provided evidence of, any directive

that prescribes the manner in which the town’s “duty to

maintain the easements by way of the easements pipe .

. . [to] prevent flooding of” her property was to be per-

formed. See Adams v. Aircraft Spruce & Specialty Co.,

supra, 215 Conn. App. 441. Thus, in accordance with

the “well established modern principles of governmental

immunity” that apply in Connecticut, and the reasoning

Hohorst v. Easton

of Silberstein and Northrup in particular, the town’s duty

to do so was discretionary. See Northrup v. Witkowski,

supra, 332 Conn. 185.

The plaintiff argues, however, that reliance “upon the

likes of Silberstein . . . and Northrup . . . to enunciate the

. . . law” that applies in this case is misplaced because “no

easements were involved in Northrup or Silberstein.”

She maintains that the town’s status as an easement

holder over her property renders its duty to maintain

the easement and the drainage system included within

the easement “inherent (or heightened)” and argues that

the “discretionary-ministerial” duty distinction is not

implicated. Alternatively, although along similar lines,

she posits that the town’s duty is ministerial in nature

because of “its inherent responsibilities and duties as

easement holder.” Finally, although she does not argue

that the language of the easement constitutes an express

directive that compels a municipal employee to act in a

prescribed manner with respect to maintaining the ease-

ments and the drainage system, she maintains that, if

the “discretionary-ministerial” duty distinction applies

in this case, there is a genuine issue of material fact as

to whether there are “legal directives that prescribe the

way [the town] should design, inspect and maintain the

drainage system.”

The town argues, in response, that the plaintiff’s

negligence claim is predicated on the alleged breach of

duties that fall squarely within the ambit of the doctrine

of governmental immunity. The town maintains that

the fact that it is an easement holder does not alter this

conclusion and that “all of the alleged negligen[t] acts

in this case are discretionary acts for which the [town]

has governmental immunity.” We agree with the town.

Stated simply, the plaintiff offers no support for the

novel proposition that because the town is an easement

holder, the principles of governmental immunity set

forth in Silberstein and Northrup should not be applied in

this case. Although she relies primarily on our Supreme

Court’s decision in Center Drive-In Theatre, Inc. v. Derby,

166 Conn. 460, 352 A.2d 304 (1974), to support her

Hohorst v. Easton

argument, Center Drive-In Theatre, Inc., did not involve

a claim of governmental immunity. Id.

In Center Drive-In Theatre, Inc., the plaintiff property

owner granted the city of Derby (city) an easement for the

construction of sewer pipelines. Id., 462. While installing

the pipelines, the city’s contractor breached a dike on the

plaintiff’s property that had been providing it with flood

control protection. Id., 461–62. Because the easement,

which was set forth in a written agreement, included

no provision for the restoration of the dike, the city did

not repair the dike, and it instructed its contractor not

to do so. Id., 462. The plaintiff had the dike repaired by

an independent contractor and then brought an action

against the city and its contractor to recover for the cost

it incurred for doing so. Id., 462. The plaintiff prevailed

in a trial against both defendants, and the defendants

appealed. Id., 461.

Our Supreme Court, in affirming the judgment ren-

dered against the city,17 enunciated the general rule

that “[w]here the instrument is silent, the owner of an

easement has a duty to make such repairs as are neces-

sary for the owner of the land to have the reasonable use

of his estate.” Id., 464; see also Beneduci v. Valadares,

73 Conn. App. 795, 807, 812 A.2d 41 (2002). Moreover,

it stated that “[t]he owner of an easement may be held

liable for damages caused by his negligent use of the

easement, and this liability extends to damages to the

servient estate.” Center Drive-In Theatre, Inc. v. Derby,

supra, 166 Conn. 464. And, because “part of the use

to which the . . . city . . . subjected the plaintiff’s land

was the removal of a portion of the flood control dike,”

which allowed “the land to remain exposed to a greater

risk of harm from flooding,” the court determined that

the city was responsible for the cost of the repairs to the

dike even though the easement it had been granted did

not expressly say so. Id., 465–66. As we previously have

17

The court set aside the judgment against the contractor because “no

basis [had] been shown for recovery from the defendant contractor.”

Center Drive-In Theatre, Inc. v. Derby, supra, 166 Conn. 468.

Hohorst v. Easton

noted, however, governmental immunity was not at issue

in Center Drive-In Theatre, Inc., and, thus, the nature

of the city’s duty to repair the dike did not factor into

the court’s analysis. Because governmental immunity

is the issue in the present case, and it is the nature of

the town’s duty to maintain the storm drainage system

that is the relevant consideration; see Northrup v. Wit-

kowski, supra, 332 Conn. 185; Center Drive-In Theatre,

Inc., is inapposite, and the plaintiff’s reliance thereon

is misplaced.

Even so, the storm drain easements the town held on

the property do inform our analysis. Specifically, the

easement that expressly references the town’s “right,

privilege and authority to maintain a storm drainage

pipe, including the right to lay, maintain, operate,

construct, alter, repair and replace the same and its

appurtenances, including appropriate headwalls and

manholes in, over or through” the property is germane.

That easement, similar to the bylaws in Silberstein, does

not prescribe the manner in which the town’s “duty to

maintain” the easements is to be carried out. See Silber-

stein v. 54 Hillcrest Park Associates, LLC, supra, 135

Conn. App. 273. As such, we agree with the trial court’s

conclusion that “[t]he maintenance responsibility under

the easements is no different and is aligned with the

general nature of discretionary maintenance for [the

town] with respect to all storm drainpipes.” Although

the plaintiff argues that there is a genuine issue of mate-

rial fact as to whether there are “legal directives that

prescribe the way [the town] should design, inspect and

maintain the drainage system” that should negate this

conclusion, there simply is no evidence in the record of

any procedure or directive from which such a material

fact can properly be inferred. See Begley v. State, supra,

234 Conn. App. 827–28. To the extent that the plaintiff

argues that “it can be inferred from the language [of

the easement] that the town . . . had such a duty,” we

reiterate that it is the nature of the duty that is at issue,

not the existence thereof; see Northrup v. Witkowski,

supra, 332 Conn. 185; and, in the absence of an express

directive that says otherwise, the nature of the town’s

Hohorst v. Easton

duty to maintain the storm drainage system within the

easements in this case is discretionary. See Silberstein

v. 54 Hillcrest Park Associates, LLC, supra, 135 Conn.

App. 273. Moreover, the plaintiff’s argument that the

town’s practice of sending crews out to clear catch basins

in advance of rainstorms evinces a “routine, or ‘pre-

scribed manner’ ” that transformed the town’s duty to

maintain the storm drainage system into a ministerial

duty cannot be reconciled with our Supreme Court’s

conclusion in Northrup. See Northrup v. Witkowski,

supra, 188. Finally, although the plaintiff asserts that

“it is arguable that the town’s subdivision regulations

provide directives as to the design, construction and

inspection of storm drainage systems” in general, there

is no language within those regulations that ties those

regulations to the property or prescribes the manner

in which the maintenance of the systems to which they

apply shall be performed. (Emphasis added.) As such, the

plaintiff has done nothing more than assert the existence

of a disputed issue in this regard, which is insufficient.

See Begley v. State, supra, 827–28.

For the foregoing reasons, we conclude that the manner

in which the town was to discharge its “duty to maintain

the easements, by way of the easements pipe . . . [to] pre-

vent flooding of” the property involved the exercise of

judgment and discretion and was discretionary in nature.

We further conclude, therefore, that the discretionary

act exception to the statutory abrogation of governmen-

tal immunity applies to the plaintiff’s negligence claim

against the town and that the court properly determined

that the town was entitled to summary judgment as to

count one of the complaint as a matter of law.

B

In count two of her complaint the plaintiff alleged that

the town affirmatively created a nuisance that caused

the flooding and the damages the property sustained as

a result thereof. “[Our Supreme Court] has stated often

that a plaintiff must prove four elements to succeed in

a nuisance cause of action: (1) the condition complained

Hohorst v. Easton

of had a natural tendency to create danger and inflict

injury [on] person or property; (2) the danger created was

a continuing one; (3) the use of the land was unreason-

able or unlawful; [and] (4) the existence of the nuisance

was the proximate cause of the plaintiffs’ injuries and

damages. . . . In addition, when the alleged tortfeasor is a

municipality, our common law requires that the plaintiff

also prove that the defendants, by some positive act, cre-

ated the condition constituting the nuisance. (Citation

omitted; internal quotation marks omitted.) Picco v.

Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010).

In this case, the plaintiff expressly alleged that “[t]he

diversion of the tremendous volume of water into . . . the

easements, by way of the easements pipe, on the property,

which was not properly inspected or maintained, as well

as [the town’s] failure to properly design and maintain

the catch basins at the corner of Morningside Road and

Marsh Road, was an affirmative act of [the town]” that

constituted an invasion of her interest in, and unreason-

ably interfered with, her private use and enjoyment of

her property. Although the town raised governmental

immunity as a special defense to this claim, it did not

raise a statute of limitations special defense. The plaintiff

claims on appeal that the court improperly granted the

town’s motion for summary judgment as to her nuisance

claim because she demonstrated that a genuine issue of

material fact existed as to whether the town, by some

positive act, created the condition(s) constituting the

nuisance. She also claims that the court improperly

granted summary judgment in the town’s favor as to her

nuisance claim on the alternative ground that it was time

barred by the statute of limitations set forth in § 52-577.

We agree with both of the plaintiff’s claims.

1

We begin our analysis of the plaintiff’s claim that

there are genuine issues of material fact that should have

precluded summary judgment as to her nuisance cause

of action by recounting the following procedural his-

tory. To support its claim that the plaintiff’s “nuisance

Hohorst v. Easton

claim fails . . . as the alleged nuisance was not created by

some positive act of the municipality,” the town argued

that the “plaintiff has failed to allege that a positive act

by the [town] caused the flooding. Instead, she alleges

negligent nonfeasance.” It characterized the plaintiff’s

allegations as “claiming that there was a failure to take

remedial steps,” posited that it could not be held liable for

nuisance under such circumstances and, focusing solely

on those allegations, argued that “the plaintiff cannot,

as a matter of law, show that there was a positive act by

the municipal defendant that caused the flooding.” 18

In response, the plaintiff filed an objection in which

she disputed the town’s characterization of her allega-

tions and argued, inter alia, that there exists a genuine

issue of material fact as to whether the town created or

participated in creating a nuisance. In support of her

objection, the plaintiff submitted evidence that detailed

the evolution of and development within the watershed

area where the property sits. Included in the Wheway

report are several maps and aerial photographs that

illustrate changes made, over time, to the watershed

area. These changes included the development of roads

and subdivisions and alterations to the watershed area.

Wheway explained in his report that this “development

within the watershed area modified drainage areas and

discharge points.” He opined therein that “[m]anmade

interactions and developments within the current water-

shed area, reviewed and approved by the [town], [led] to

the flooding of the . . . property on September 25, 2018,”

because these approvals for “various subdivisions and

roadway construction within the watershed area failed to

adequately account for runoff, allowing it to be diverted

to the intersection of Marsh and Morningside Roads.”

18

The town attached to the memorandum of law it filed in support of

its motion for summary judgment certain responses the plaintiff gave

to interrogatories it had served on her. It recounted in its memorandum

that the plaintiff responded to interrogatory number 46, which read “[i]n

addition to the allegations in the complaint, state with particularity

all facts upon which you base the contention in your complaint that the

town . . . created a nuisance on the property,” by stating “[o]bjection, the

interrogatory calls for legal conclusions; the complaint speaks for itself.”

Hohorst v. Easton

This inadequately accounted for diversion, Wheway

explained, “resulted in an undersized [t]own . . . drain-

age system. The catch basins and pipes at the intersec-

tion of Marsh and Morningside Roads are incapable of

conveying the design flows to the downstream storm

sewers. This resulted in overland flow conditions onto

the [plaintiff’s] property.”

Wheway also noted in his report that Griswold & Fuss

Consulting Engineers and Surveyors had made recom-

mendations to improve the design of the system in a

June 16, 1975 report (1975 report) to the town and that

certain of these recommendations were not implemented

when the town had subsequent upgrades to the drainage

system made. The 1975 report, which the plaintiff sub-

mitted as a separate exhibit in support of her objection

to the town’s motion for summary judgment, specified

that the recommendations were intended “to alleviate the

flooding problems in [the Morningside Drive] area” that

existed at that time. Among other things, the 1975 report

recommended that an additional pipe running to Fern-

dale Road be added to the existing pipe, that “a double

grate catch basin [be constructed] at the intersection of

Morningside Drive and Marsh Road to give ample grate

capacity at this low point and [to] lay an 18-inch pipe to

the junction box east of Morningside Drive.” Wheway

specifically averred in his report, however, that, “[w]hile

upgrades to the pipe system through the [t]own . . . ease-

ment were made in the 1980’s, the [t]own . . . knew from

the [1975 report] that in addition to the undersized pipe

running through the easement, that there was insuf-

ficient grate capacity at the intersection of Marsh and

Morningside Roads. The lack of proper analysis and

design for the catch basins and pipes at the intersection

of Marsh and Morningside Roads which are connected

to the easement piping, facilitated the bypass overflow

from the intersection and the subsequent loss of property

to [the plaintiff].” He further opined that, “[h]ad the . .

. drainage upgrade . . . been properly designed, analyzed

and implemented along with provisions for overflow and

by-pass containment within the [town’s] . . . easement,

Hohorst v. Easton

the flood waters from the [September 25, 2018] storm

would not have had the devastating impact on the . . .

property.” Indeed, in suggesting ways to remediate

the present day flooding problems, Wheway averred in

his affidavit that “[t]he construction of a double grate

catch basin at the intersection of Marsh and Morningside

Roads referenced in [the 1975 report] would substantially

reduce the amount of overland flow and flooding directed

to the . . . property.”

In its reply to the plaintiff’s objection, with respect

to the substance of the nuisance claim, the town argued

that the “only [issue] to be decided [is] . . . whether the

plaintiff has ‘evidence’ that the town engaged in some

positive act that created the alleged nuisance.” To this

end, the town posited that “[f]or the plaintiff to over-

come summary judgment, she must come forward with

admissible evidence, not allegations, showing that the

defendant is not entitled to summary judgment. She

cannot do so in this case.

“There is no ‘evidence’ of a positive act that created the

alleged nuisance. To be clear, it is not any positive act.

Instead, the plaintiff must come forward with ‘evidence’

that the town engaged in some positive act that created

the nuisance. In this case, the nuisance is water flowing

over the plaintiff’s property. There is no evidence in the

record that the town created that condition. Instead,

the plaintiff is claiming that the town was engaged in

malfeasance in its design, construction, maintenance and

repairs of its drainage system, which led to the alleged

flood.”19 (Emphasis in original.)

Although the trial court acknowledged in its memo-

randum of decision that “[a] municipality may be liable

for a nuisance that it creates and maintains,” it did not

reference the evidence the plaintiff presented, let alone

analyze that evidence to determine whether it created

a question of material fact in this regard. Instead, it

twice stated that a municipality is “not liable where

19

We note that the town includes this exact same language in its brief

to this court.

Hohorst v. Easton

its sole fault is a failure to take remedial steps,” and,

focusing solely on the plaintiff’s allegations, explained

that “[t]he plaintiff alleges negligent nonfeasance or

failure to perform maintenance, inspection, and repair

acts in such a way so as to cause a nuisance.” The court

determined, for this reason, that the plaintiff “failed,

as a matter of law, to show that there was a positive act

by [the town] that caused the flooding,” held that “[t]he

alleged conduct or inaction/nonfeasance of the [town] as

alleged is all within its protected discretionary authority

and thus reasonable” and that the town was “entitled to

assert governmental immunity to the nuisance count,”

and it granted summary judgment in the town’s favor

as to count two.

At the outset, we note that the court’s determination

that “[t]he alleged conduct or inaction/nonfeasance of

the [town] as alleged is all within [the town’s] protected

discretionary authority and thus reasonable” and that

the town “is entitled to assert governmental immunity

to the nuisance count” as a result, reflects a misappli-

cation of the law. Our Supreme Court has held that “a

municipality may be liable for a nuisance . . . even if [its]

misfeasance or nonfeasance also constitutes negligence

from which the municipality would be immune because

the municipality was engaged in a discretionary func-

tion.” (Internal quotation marks omitted.) Northrup

v. Witkowski, supra, 332 Conn. 182. In other words, if

the town, by positive act, either created or participated

in the creation of a nuisance that caused damage to the

plaintiff, it will be liable regardless of whether the posi-

tive act is discretionary or ministerial in nature. See,

e.g., id., 183 (explaining that “our more recent cases

have treated nuisance and the violation of a ministerial

duty as entirely distinct theories of municipal liability”).

Moreover, we disagree with the court’s interpretation

of the plaintiff’s nuisance cause of action. “The inter-

pretation of pleadings is always a question of law for the

court. . . . Our review of the trial court’s interpretation

of the pleadings therefore is plenary. . . . Furthermore,

Hohorst v. Easton

we long have eschewed the notion that pleadings should

be read in a hypertechnical manner. Rather, [t]he modern

trend, which is followed in Connecticut, is to construe

pleadings broadly and realistically, rather than narrowly

and technically. . . . [T]he complaint must be read in its

entirety in such a way as to give effect to the pleading

with reference to the general theory [on] which it pro-

ceeded, and do substantial justice between the parties.

. . . Our reading of pleadings in a manner that advances

substantial justice means that a pleading must be con-

strued reasonably, to contain all that it fairly means, but

carries with it the related proposition that it must not

be contorted in such a way so as to strain the bounds of

rational comprehension.” (Emphasis in original; inter-

nal quotation marks omitted.) Stewart v. Old Republic

National Title Ins. Co., 218 Conn. App. 226, 242, 291

A.3d 1051 (2023). We must also construe the allega-

tions of the complaint in a manner most favorable to

the plaintiff. See Rubin v. Brodie, 228 Conn. App. 617,

654, 325 A.3d 1096 (2024).

In her complaint, the plaintiff collectively identified

“[t]he diversion of the tremendous volume of water into

the easements” and the “failure to properly design . . .

the catch basins at the corner of Morningside Road and

Marsh Road” as “an affirmative act” by the town. The

fact that she also referenced the town’s alleged nonfea-

sance in failing to properly inspect or maintain portions

of the storm drainage system cannot reasonably be read

to negate her express allegation in this regard. See, e.g.,

Dreier v. Upjohn Co., 196 Conn. 242, 245, 492 A.2d 164

(1985) (“[u]nder our pleading practice, a plaintiff is

permitted to advance alternative and even inconsistent

theories of liability against one or more defendants in a

single complaint”).

In other words, the plaintiff did not, as the town argued

and the trial court determined, predicate her nuisance

claim solely on allegations that the town failed to take

remedial steps to combat the nuisance after its creation.

Rather, our plenary review of count two of the complaint

Hohorst v. Easton

reveals that the plaintiff properly alleged that the town,

by some positive act, created the alleged nuisance. Stew-

art v. Old Republic National Title Ins. Co., supra, 218

Conn. App. 242; see also Picco v. Voluntown, supra, 295

Conn. 146. Moreover, in responding to the town’s motion

for summary judgment, the plaintiff came forward with

evidence to support this allegation, but the court did not

consider it, let alone view it in the light most favorable

to her. See Adams v. Aircraft Spruce & Specialty Co.,

supra, 215 Conn. App. 441. Our review of this evidence

reveals that it suffices to raise a genuine issue of material

fact regarding whether the town’s “conduct in directing

the water onto [the] property, by virtue of its easement

rights . . . by way of a faulty, poorly designed and main-

tained drainage system” were positive acts that created,

or participated in creating, a nuisance.

“A positive act is conduct that intentionally created the

conditions alleged to constitute a nuisance. . . . [F]ailure

to remedy a dangerous condition not of the municipal-

ity’s own making is not the equivalent of the required

positive act. . . . Similarly, permissive continuation of the

alleged nuisance is not a positive act.” (Internal quota-

tion marks omitted.) Rodriguez v. Hartford, 224 Conn.

App. 314, 331, 312 A.3d 85, cert. denied, 349 Conn. 907,

313 A.3d 512 (2024), and cert. denied, 349 Conn. 907,

313 A.3d 512 (2024). Even so, our Supreme Court has

held that, “[i]f the town, by positive act, either created

or participated in the creation of a nuisance resulting in

damage to the plaintiffs, it is liable.” (Emphasis added.)

Brennan v. West Haven, 151 Conn. 689, 693, 202 A.2d

134 (1964).

In Brennan, the plaintiffs brought a nuisance claim

against a town in connection with damage to their prop-

erty caused by inadequate drain pipes the developer of

an adjoining property had installed and over which the

town had constructed a road. Id., 690–91. There was con-

flicting evidence presented at trial regarding the town’s

participation in the planning and construction related

to the pipes and the road. Id., 690–92. The plaintiffs

Hohorst v. Easton

claimed that the town had furnished and paid for the

pipes and that the town engineer and other employees

aided and assisted in planning, laying out and supervis-

ing the work. Id. Our Supreme Court held that the trial

court properly refused the town’s request to charge

the jury that it could not be held liable unless the jury

found “that the men who actually laid the pipe and did

the construction work were acting as agents of the town

within the scope of their authority”; id., 693; because

the request did not account for the possibility that the

town might be liable if it otherwise participated in the

creation of the condition claimed to be a nuisance. Id.,

693–94. The court explained that, “[i]f the town assisted

or participated in the laying of the drainage pipes and if

these pipes constituted a nuisance, the town could be held

responsible for the damage resulting to the plaintiff’s

property.” Id., 694.

Similarly, in the present case, the plaintiff produced

evidence that, over time, the town reviewed and approved

changes to the watershed area in which the property is

located, which, in turn, increased the runoff to more than

its existing storm drainage system could handle during

storms, that the town approved and implemented, or

had implemented, purported upgrades or improvements

to the storm drainage system that were inadequate and

failed to alleviate the runoff problems they were intended

to address and that the town diverted water, or allowed

water to be diverted into the inadequate storm drainage

system it created and/or participated in creating. This

evidence plainly raises questions of material fact as to

whether and to what extent the town participated in or

created the condition giving rise to the alleged nuisance,

namely, the “water flowing over the plaintiff’s property.”

As such, factual issues exist concerning the town’s cre-

ation of a nuisance that preclude summary judgment.

We therefore conclude, on the basis of the materials

presented to the trial court, that there is a genuine issue

of material fact regarding whether the town, by positive

act, either created or participated in creating a nuisance

Hohorst v. Easton

resulting in damage to the plaintiff. Accordingly, the

trial court improperly granted the town’s motion for

summary judgment as to count two of her complaint on

grounds that it was barred by governmental immunity.

2

The plaintiff also claims in her appellate brief that the

court erroneously determined that her nuisance claim

was time barred by the statute of limitations set forth in

§ 52-577. In support of that claim, she argues, inter alia,

that the town waived its statute of limitations defense

by failing to raise it as a special defense to her nuisance

claim. See, e.g., Commissioner of Mental Health & Addic-

tion Services v. Saeedi, 143 Conn. App. 839, 854, 71

A.3d 619 (2013) (“[w]here a particular statute of limita-

tions . . . is not jurisdictional and has not been pleaded,

[the opposing party] is entitled to conclude that it was

waived” (internal quotation marks omitted)). During oral

argument before this court, the town’s counsel conceded

this argument by the plaintiff and abandoned the town’s

challenge thereto. Our review of the summary judgment

record reveals that this concession is well taken and that

the town waived its statute of limitations defense to the

plaintiff’s nuisance claim by failing to plead it. See, e.g.,

Cue Associates, LLC v. Cast Iron Associates, LLC, 111

Conn. App. 107, 112, 958 A.2d 772 (2008) (“the limita-

tions period found in § 52-577 is procedural rather than

jurisdictional, and, thus, may be waived by the party

entitled to the defense”). We therefore conclude, for

this reason, that the court also improperly rendered

summary judgment in favor of the town as to count two

on the alternative ground that the plaintiff’s nuisance

claim was time barred by the statute of limitations set

forth in § 52-577.

II

We now turn to the plaintiff’s claim that the court

improperly rendered summary judgment in favor of

Aquarion. She argues that, in opposing Aquarion’s

motion for summary judgment, she provided an

Hohorst v. Easton

evidentiary foundation that demonstrated that a genuine

issue of material fact existed “as to whether Aquarion’s

release of water on September 25, 2018, contributed to

the flooding on her property” and that the court errone-

ously determined otherwise. The crux of her argument is

that the court, in its ruling, considered only the evidence

Aquarion presented in support of its motion and did “not

give any weight to [her] affidavit or the exhibits produced

in support of her opposition, including topography maps

and other official town and state documents.” She con-

cedes, however, that “these documents do not provide

direct evidence that Aquarion’s release of water directly

contributed to the flooding on [the] property” but main-

tains that, “read in concert with [her] affidavit, [they]

do create a genuine issue of material fact as to whether

Aquarion may have contributed to the flooding condi-

tion.” We disagree.

The record reveals that the plaintiff’s expert, Wheway,

who was tasked with investigating “the flash flooding

event of September 25, 2018,” and offering opinions

regarding the causes thereof, testified at his deposition

that he had not “seen any indication” that Aquarion bore

any responsibility for the flooding of the property. He

stated that his research revealed that all of the reservoirs

Aquarion controlled in the town sat at elevations “below”

the property, and he agreed that he did not “ha[ve] an

opinion at all that Aquarion had any role whatsoever in

this incident.” Moreover, in his report, Wheway faulted

the town with respect to the design, installation and

maintenance of its storm drainage system and makes no

reference to Aquarion, whatsoever. Indeed, he opined in

his affidavit, “that the flooding at the intersection was

caused by insufficient inlet capacity of the existing catch

basin grates to intercept the surface flow of stormwater

runoff and convey it to the piping system.”

In addition, Ulrich averred in his affidavit that none of

the town’s reservoirs or “water impound facilities” that

it controlled “could have caused water to drain over the

. . . property on September 25, 2018.” In particular, he

Hohorst v. Easton

attested to the fact that the Easton Reservoir is the clos-

est reservoir to the property and that the water released

therefrom flows into the Mill River, which sits 150 feet

below where the property is located.

Although the plaintiff acknowledges in her principal

brief to this court that “Wheway did not link Aquarion

to the property damage on [the] property,” she notes that

he qualified his testimony in this regard by stating that

it was “based upon information that we’ve accumulated

at this point in time.” (Emphasis in original; internal

quotation marks omitted.) To the extent the plaintiff is

suggesting by this that the court acted prematurely in

acting on and granting Aquarion’s motion, we previously

have noted that she has not raised this claim on appeal.

See footnote 4 of this opinion. Even so, the record does

not reflect that Wheway procured additional information

following his deposition that changed his opinions as to

Aquarion in any way. The mere fact that he may have

left the door open to that possibility is not sufficient to

call into question his testimony that all of the reservoirs

Aquarion controlled in the town sat at elevations below

the elevation of the property and that he had not “seen

any indication” that Aquarion bore any responsibility for

the flooding of the property, let alone create a genuine

issue of material fact in these regards. See, e.g., Adams

v. Aircraft Spruce & Specialty Co., supra, 215 Conn. App.

441. The plaintiff misapprehends the summary judg-

ment standard. She must demonstrate with evidence,

not supposition, the existence of a disputed material

fact. See, e.g., Cazenovia Creek Funding I, LLC v. White

Eagle Society of Brotherly Help, Inc., Group 315, Polish

National Alliance, 351 Conn. 722, 731, 333 A.3d 508

(2025) (“[t]o oppose a motion for summary judgment

successfully, the nonmovant must recite specific facts . . .

[that] contradict those stated in the movant’s affidavits

and documents” (internal quotation marks omitted)).

The plaintiff also maintains that she has established,

by way of her own affidavit, that such a question exists

“by stating that water from Aquarion’s other facilities

Hohorst v. Easton

does cross [the] property” and “stat[ing] that the topog-

raphy map of the area is misleading as it doesn’t clearly

show the contours of the surface in the area. The fact is

that [the town’s] reservoir is above [the property], not

below it.” These conclusory statements by the plaintiff,

however, do not constitute evidence sufficient to estab-

lish the existence of disputed material facts. See Gupta

v. New Britain General Hospital, 239 Conn. 574, 583,

687 A.2d 111 (1996); see also Begley v. State, supra, 234

Conn. App. 828 (“[m]ere statements of legal conclusions

. . . and bald assertions, without more, are insufficient to

raise a genuine issue of material fact capable of defeating

summary judgment”); Bozelko v. Webster Bank, N.A.,

159 Conn. App. 821, 829, 123 A.3d 1250 (“plaintiff’s

self-serving affidavit insufficient to surmount motion

for summary judgment”), cert. denied, 320 Conn. 910,

128 A.3d 954 (2015). We conclude, therefore, that there

were no genuine issues of material fact as to whether

Aquarion’s conduct contributed to the flooding of the

property on September 25, 2018.

III

The plaintiff also claims that the court abused its dis-

cretion in denying her motion to reconsider the granting

of Aquarion’s motion for summary judgment. She argues

that the court “overlooked or misapprehended the facts”

by failing to give weight to her affidavit and reading it

“in concert” with the other exhibits she submitted in sup-

port of her opposition to Aquarion’s motion for summary

judgment. Because we conclude that the court properly

granted Aquarion’s motion for summary judgment, we

need not review the propriety of its denial of the plain-

tiff’s motion for reconsideration. See Bozelko v. Web-

ster Bank, N.A., supra, 159 Conn. App. 830 (“[b]ecause

we conclude that the defendant’s motion for summary

judgment properly was granted, there is no need for us

to review the appropriateness of the court’s denial of

the plaintiff’s motion for reconsideration”); Valentine

v. LaBow, 95 Conn. App. 436, 452–53, 897 A.2d 624

(“[b]ecause we conclude that [the] motion for summary

Hohorst v. Easton

judgment properly was granted, the court did not abuse

its discretion in denying the defendant’s motion to recon-

sider or her motion to reargue”), cert. denied, 280 Conn.

933, 909 A.2d 963 (2006); Vogel v. Maimonides Academy

of Western Connecticut, Inc., 58 Conn. App. 624, 631,

754 A.2d 824 (2000) (“[b]ecause we conclude that the

motion for summary judgment properly was granted,

the court did not abuse its discretion in denying the

plaintiff’s motion to reargue and for reconsideration”).

In sum, we conclude that the court properly deter-

mined that the plaintiff’s negligence claims against

the town and Aquarion failed as a matter of law and,

accordingly, properly rendered summary judgment as

to counts one and three of the plaintiff’s complaint. We

further conclude, however, that the court improperly

determined, at this stage of the proceedings, that there

was no genuine issue of material fact as to whether the

plaintiff’s nuisance claim against the town is barred by

the doctrine of governmental immunity.

The judgment is reversed with respect to count two of

the third amended complaint and the case is remanded

with direction to deny the town’s motion for summary

judgment as to count two and for further proceedings

on that count according to law; the judgment is affirmed

in all other respects.

In this opinion the other judges concurred.