Date: 10-13-2015

Case Style: Brusby v. Metropolitan District

Case Number: AC 36560

Judge: Bethany J. Alvord

Court: Connecticut Superior Court

Plaintiff's Attorney: Jack G. Steigelfest, Thomas P. Cella, Christopher Harrington

Defendant's Attorney: Justin R. Clark

Description: The following facts and procedural history are relevant to this appeal. The plaintiff owns and resides in a house located on Newport Avenue in West Hartford. The defendant is a municipal corporation that provides potable water and sewerage services to its customers, including the plaintiff, on a regional basis. On October 15, 2005, and March 7, 2011, raw sewage entered into and flooded the plaintiff’s partially finished basement. The plaintiff commenced this action against the defendant on August 2, 2011, alleging that its negligent acts caused her to suffer personal injuries and damages to her property as the result of those two incidents. The alleged negligence included, inter alia, the failure to properlyinstallbackflowsafetyfeaturesatherproperty and the failure to ‘‘properly build, maintain, construct, design, inspect, test, service and maintain the sewer system . . . .’’ In her complaint, the plaintiff included counts for negligence, negligent infliction of emotional distress, negligent misrepresentation, breach of contract, breach of the implied covenant of good faith and fair dealing, and quantum meruit. The defendant filed an answer with six special defenses on October 1, 2012. In its special defenses, the defendant alleged that the plaintiff’s claims were barred by ‘‘the immunity afforded to it by [General Statutes] § 52-557n’’; by ‘‘the doctrines of common law governmental and/or municipal immunity or by qualified governmental immunity’’; and by ‘‘the applicable statute of limitations for [each] claim.’’ The plaintiff filed a general denial to the allegations of the special defenses on October 16, 2012. On December 9, 2013, the defendant filed a motion for summary judgment as to all of the counts directed against it. The defendant made the following claims: (1) governmental immunity barred the plaintiff’s negligence claims; (2) all of the plaintiff’s claims were time barred by the applicable statute of limitations; and (3) the plaintiff’s contract claims were, in reality, tort claims recast as contract claims. In support of its motion, the defendant filed a memorandum of law,
excerptsfromdepositiontranscriptsandfiveaffidavits. The plaintiff filed a memorandum in opposition to the defendant’s motion for summary judgment on January 21, 2014. In her memorandum, the plaintiff argued that the defendant’s ‘‘negligent acts were a part of [its] proprietary function,’’that thenegligent actswere ministerialinnature,thatthedefendantwas‘‘liablebasedupon theidentifiablepersonimminentharmexception’’ifthe actsweredeemedtobediscretionaryinnature,thatthe applicablestatuteoflimitationswas‘‘equitablytolledby the continuing course of conduct doctrine,’’ and that shehadallegedviablecontractclaimsinhercomplaint. Accompanying her memorandum, the plaintiff filed excerpts from deposition transcripts, one affidavit, a copy of the 1929 special act creating The Metropolitan District, and a compilation of the defendant’s sewer ordinances. On January 27, 2014, the defendant filed a reply to the plaintiff’s opposition. A hearing on the defendant’s motion for summary judgment was held on January 27, 2014.2 At that time, the defendant’s counsel repeated the arguments set forth in the defendant’s memorandum of law. Additionally, he argued that the proprietary function exception to governmental immunity was not applicable in this case.Theplaintiff’scounselarguedthat‘‘sewerutilities are engaged in proprietary conduct because they are making money in exchange for their water services.’’ He claimed that the complaint properly alleged that the defendant was engaged in a proprietary function because it included allegations that the plaintiff ‘‘was acustomerofthe[defendant]’’andthat‘‘the[defendant] provided potable water and sewerage services to the property.’’ He also stated that the defendant had admitted those allegations in its answer. With respect to the defendant’s claim that the plaintiff’s action was time barred, the plaintiff argued that the applicable statute of limitations was tolled by the continuingcourseofconductdoctrine.Accordingtothe plaintiff’s counsel, ‘‘[t]he continuing course of conduct was the defective sewer that remained defective from 2006 throughout 2011.’’ Additionally, the plaintiff’s counsel argued that the contract claims were viable independent claims that arose from the fact that the plaintiff paid the defendant for its sewer services. Following concluding remarks by counsel, the court indicated that it would ‘‘take [the matter on] the papers.’’ OnJanuary30,2014,thecourtsentacomputergenerated notice to the parties advising them that it had granted the defendant’s motionfor summary judgment. The notice, which contained the entire decision of the court,3 provided:‘‘Theplaintiff’sactionviolatesthestatute of limitations, [General Statutes §] 52-584, for the same reasons described in the ruling on [the town’s] motion [for summary judgment].4 The court further findsthattheallegedcontractcomplaintsarereallytort
claims. The actions or inactions of the [defendant] are discretionary under . . . [§] 52-557n. The exception ofanidentifiablepersonsubjecttoimminentharmdoes not apply because the conversation between Mr. Godbout [a municipal public official] and the plaintiff occurred after the flooding of 2011. Therefore, prior thereto, the plaintiff was not an identifiable person. All other claims are issues of fact, but the immunity and the statute of limitationsdefeat [the] plaintiff’s claims.’’ This appeal followed. ‘‘The law governing summary judgment and the accompanyingstandardofreviewarewellsettled.Practice Book § [17-49] requires that judgment shall be renderedforthwithifthepleadings,affidavitsandanyother proof submitted show that there is no genuine issue as toanymaterialfactandthatthemovingpartyisentitled to judgment as a matter of law. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . ‘‘In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that themovingpartyforsummaryjudgmenthastheburden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles ofsubstantivelaw,entitlehimtoajudgmentasamatter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent. . . . ‘‘Thepartyopposingamotionforsummaryjudgment must present evidence that demonstrates the existence of some disputed factual issue . . . . The movant has the burden of showing the nonexistence of such issues buttheevidencethuspresented,ifotherwisesufficient, is not rebutted by the bald statement that an issue of fact does exist. . . . To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents. . . . The opposing partytoamotionforsummaryjudgmentmustsubstantiate its adverse claim by showing that there is a genuine issueofmaterialfacttogetherwiththeevidencedisclosing the existence of such an issue. . . . The existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence. . . . Our review of the trial court’s decision to grant a motion for summary judgment is plenary.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.)DeutscheBankNationalTrustCo.v.Shivers, 136 Conn. App. 291, 295–96, 44 A.3d 879, cert. denied,
307 Conn. 938, 56 A.3d 950 (2012). I GOVERNMENTAL IMMUNITY ‘‘Thegeneralruleisthatgovernmentsandtheiragents are immune from liability for acts conducted in performanceoftheirofficialduties.Thecommon-lawdoctrine ofgovernmental immunityhasbeen statutorilyenacted and is now largely codified in . . . § 52-557n.’’5 (Internal quotation marks omitted.) Martin v. Westport, 108 Conn. App. 710, 729, 950 A.2d 19 (2008). The plaintiff’s first claim is that the court improperly granted the defendant’s motion for summary judgment on the ground of governmental immunity. Specifically, theplaintiffarguesthatthedefendantcannotavailitself of the immunity afforded by § 52-557n because (1) the alleged acts of negligence were connected with the defendant’sproprietaryfunctionofoperatingasanitary sewer system, (2) the alleged acts of negligence were ministerial in nature,and (3) if the allegedacts of negligence were discretionary in nature, the defendant is nevertheless liable because of the imminent harm to identifiable persons exception to governmental immunity. A Proprietary Function In her opposition to the defendant’s motion for summary judgment and at the January 27, 2014 hearing before the trial court, the plaintiff claimed that the defendantcouldnotavailitselfoftheimmunityafforded by§ 52-557nbecausealloftheallegedactsofnegligence were connected with the defendant’s proprietary function of providing sanitary sewer services to paying customers.6 The plaintiff argued that she had alleged that the defendant provided potable water and sewerage services to her property and that she was the defendant’s customer. She stated that the defendant had admitted those allegations in its answer to the complaint. The plaintiff maintained that, if the defendant’s operation was proprietary as she claimed, then it was irrelevant whether the alleged acts of negligence were ministerial or discretionary in nature. The defendant’s motion for summary judgment did not address the issue of whether it derived a ‘‘special corporateprofitorpecuniarybenefit’’;GeneralStatutes § 52-557n (a) (1) (B); from the operation of its water and sewer systems. Similarly, none of the affidavits or other attachments to the defendant’s motion expressly addressed that issue.7 In the defendant’s reply to the plaintiff’s opposition to its motion, it argued that the plaintiff did not properly allege a proprietary function claim in her complaint and that she had provided no evidencetoshowthatthedefendantderivedacorporate profit or other pecuniary benefit in providing sanitary
sewerservices.Thecourtconcludedthatthedefendant was not engaged in a proprietary function8 ‘‘because the revenue is used only to pay current and long range expenses . . . .’’9 In determining whether a municipality’s activity is proprietary in nature, we look to Considine v. Waterbury, 279 Conn. 830, 905 A.2d 70 (2006), in which our Supreme Court provided a thorough analysis of § 52557n (a) (1) (B). After determining that § 52-557n (a) (1) (B) codified the common-law rule that municipalitiesareliablefortheirnegligentactscommittedintheir proprietary capacity, the court discussed the meaning of ‘‘ ‘special corporate profit’ ’’ and ‘‘ ‘pecuniary benefit.’ ’’ Id., 845. ‘‘If a municipality is acting only as the agent or representative of the state in carrying out its public purposes . . . then it clearly is not deriving a specialcorporatebenefitorpecuniaryprofit.’’(Citation omitted; internal quotation marksomitted.) Id., 845–46. Amunicipalitymay‘‘chargeanominalfeeforparticipation in a governmental activity and [that activity] will not lose its governmental nature as long as the fee is insufficient to meet the activity’s expenses.’’ Id., 847. Ontheotherhand,‘‘amunicipalitygenerallyhasbeen determined to be acting for its own special corporate benefit orpecuniary profitwhere itengages inan activity for the particular benefit of its inhabitants . . . or if it derives revenue in excess of its costs from the activity.’’ (Citation omitted; internal quotation marks omitted.) Id. For example, the operation of a water utility for profit is a proprietary function. Martel v. Metropolitan District Commission, 275 Conn. 38, 53, 881 A.2d 194 (2005).10 ‘‘When a municipality derives substantial revenue from its commercial use of municipal property, it has been considered nonetheless to be engaged in a proprietary function even if it reinvests that revenue back into the property’s maintenance expenses or to pay down debt related to the property.’’ Considine v. Waterbury, supra, 279 Conn. 848. If a municipality is engaged in a proprietary act and not a governmentalact,thedistinctionbetweendiscretionary and ministerial acts does not apply. Id., 854. We turn now to the facts of the present case and providesomebackgroundastothedefendant’shistory. ‘‘The defendant is a municipal corporation created in 1929 by a special act of the General Assembly. 20 Spec. Acts 1204, No. 511. It was given broad powers relating to sewage disposal, water supply and regional planning as well as powers limited to certain highways.’’ Rocky Hill Convalescent Hospital, Inc. v. Metropolitan District, 160 Conn. 446, 450, 280 A.2d 344 (1971). As previously discussed, the defendant is a single entity that provides both water and sewerage services to customers within its district. ArecentSupremeCourtdecisionaddressedtheliability of the defendant in a personal injury action com
mencedbyaplaintiffwhorodeherbicycleintoaclosed pipe gate on property maintained by the defendant in connectionwithitsprovisionofwaterservices.InBlonski v. Metropolitan District Commission, 309 Conn. 282, 284, 71 A.3d 465 (2013), the plaintiff alleged that the defendant had negligently maintained the gate in an unsafe and dangerous condition and that the defendant’sconductwasconnectedtothedefendant’sproprietary function of operating a water supply company. As a special defense, the defendant asserted that it was immune from liability under § 52-557n. Id., 288. Our SupremeCourtconcludedthatthedefendantwasliable pursuant to § 52-557n (a) (1) (B) because the evidence supported the jury’s finding that the maintenance of the gate was inextricably linked to the defendant’s proprietary water supply operation.11 Id., 292–93. If the defendant’s water supply operation is proprietary, is its sewer operation also proprietary? There is nothing in the record that indicates whether the revenues from the sewer operation are handled differently or even separately from the revenues generated by the water supply operation. It is one municipal corporate entitythatprovidestwodifferentservicestocustomers. Havingcarefullyreviewedtheentirerecordinthiscase, we cannot say at this stage of the proceedings that the defendant’s provision of sanitary sewer services to its payingcustomersisnotproprietaryasamatteroflaw.12 Accordingly, the trial courtimproperly determined that the defendant was entitled to immunity on that basis. The defendant argues that ‘‘[t]he plaintiff presented no evidence to establish special corporate profit or pecuniary benefit associated with [the] operation of [thedefendant’s]sewerservices.’’Morespecifically,the defendant claims that the plaintiff ‘‘presented no evidence to raise . . . triable issues of fact as to whether the [defendant] profits’’ from its sewer operation. This argument fails, however, because the defendant, as the moving partyfor the summary judgment,was obligated to demonstrate that there was no genuine issue as to anymaterialfact.Thedefendantsubmittednoevidence with respect to the proprietary function issue in its motion for summary judgment, the documents submitted in support of that motion or in its reply to the plaintiff’s opposition to the motion. Therefore, in the absence of evidence, it was not incumbent upon the plaintifftosubmitcountervailingevidencetoshowthat the defendant did derive a special corporate profit or pecuniary benefit from its sewer operation. ‘‘[T]he burden of showing the nonexistence of any materialfactisonthepartyseekingsummaryjudgment . . . . It is not enough for the moving party merely to assert the absence of any disputed factual issue; the moving party is required to bring forward . . . evidentiaryfacts,orsubstantialevidenceoutsidethepleadings to show the absence of any material dispute.’’ (Internal
quotation marks omitted.) Mills v. The Solution, LLC, 138 Conn. App. 40, 62, 50 A.3d 381, cert. denied, 307 Conn. 928, 55 A.3d570 (2012). ‘‘[W]hen documents submitted in support of a motion for summary judgment failtoestablishthatthereisnogenuineissueofmaterial fact, the nonmoving party has no obligation to submit documentsestablishingtheexistenceofsuchanissue.’’ (Internal quotation marks omitted.) Rockwell v. Quintner, 96 Conn. App. 221, 229–30, 899 A.2d 738, cert. denied, 280 Conn. 917, 908 A.2d 538 (2006). Onthebasisoftherecordbeforeus,weconcludethat the court improperly granted the defendant’s motion for summary judgment on the ground of governmental immunitybecauseagenuineissueofmaterialfactexists as to whether the defendant was engaged in a proprietary function in the operation of its sanitary sewer system. B Ministerial Acts The plaintiff also claims that the court improperly concluded that the defendant was entitled to immunity under § 52-557n because the alleged acts of negligence were not ministerial in nature.13 In her complaint, the plaintiff alleged that the defendant ‘‘owed a ministerial duty to [the plaintiff] to properly build, maintain, construct, service, engineer, test, design and inspect the sewer lines on Newport [Avenue]’’ and that it ‘‘owed a ministerialdutyto[theplaintiff]tomakesurethat[her] property was protected from main sewage backflows.’’ The alleged acts of negligence included the failure to adequately install backflow safety features at her property and the failure to properly inspect, service and maintain the sewer system for her property. The defendant, in its motion for summary judgment, argued that all of the alleged acts of negligence were discretionary in nature. The trial court agreed with the defendant. Section 52-557n (a) (1) sets forth the circumstances under which a municipality will be held liable for damages to a complainant. The statute 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 . . . .’’ GeneralStatutes§ 52-557n(a)(1).Thestatutealsospecifies two exceptions to the statutory abrogation of governmental immunity.The exception relevant tothis appeal provides:‘‘Exceptasotherwiseprovidedbylaw,apolitical 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.’’ Gen
eral Statutes § 52-557n (a) (2). ‘‘In contrast, municipal officers are not immune from liability for negligence arising out of their ministerial acts, defined as acts to be performed in a prescribed manner without the exerciseofjudgmentordiscretion.’’(Internalquotation marks omitted.) Coley v. Hartford, 312 Conn. 150, 162, 95 A.3d 480 (2014). The ‘‘determination of whether official acts or omissionsareministerialordiscretionaryisnormallyaquestion of fact for the fact finder . . . .’’ (Internal quotation marks omitted.) Id. Nevertheless, ‘‘there are cases where it is apparent from the complaint . . . [that] [t]he determination of whether 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 omissionsnecessarilyinvolvedtheexerciseofjudgment,and thus,necessarilywerediscretionaryinnature,summary judgmentisproper.’’ (Footnoteomitted;internalquotation marks omitted.) Bonington v. Westport, 297 Conn. 297, 307–308, 999 A.2d 700 (2010). ‘‘Determiningwhetheritisapparentonthefaceofthe complaintthattheactscomplainedofarediscretionary requires an examination of the nature of the alleged acts or omissions.’’ Violano v. Fernandez, 280 Conn. 310, 322, 907 A.2d 1188 (2006). Significantly, the crux of the plaintiff’s complaint in this case stems from the defendant’s alleged failure to properly maintain and inspect its sewer lines and equipment. The plaintiff argues that the special act creating the defendant and the defendant’s sewer ordinances impose the ministerial duty to maintain and to repair its sewer system. ‘‘[W]hat constitutes a reasonable,proper or adequate inspection involves the exercise of judgment.’’ Evon v. Andrews, 211 Conn. 501, 506, 559 A.2d 1131 (1989). ‘‘A municipality necessarily makes discretionary policy decisionswithrespecttothetiming,frequency,method and extent of inspections, maintenance and repairs.’’ Grignano v. Milford, 106 Conn. App. 648, 656, 943 A.2d 507 (2008). ‘‘There is a difference between laws that impose general duties on officials and those that mandate a particular response to specific conditions.’’ Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn. App.262,273,41A.3d1147(2012).If,afteraninspection of its sewer system, the defendant, in its discretion determines that repairs are necessary, it then determines when and in what manner such repairs should be made and what future maintenance is required. Neither the act nor the ordinances referenced by the plaintiff prescribe the manner in which the sewer systemistobemaintainedorrepaired.Suchdeterminations necessarily involve the exercise of judgment. Our
conclusion is supported by the holding in Silberstein that the ‘‘maintenance of the roads, storm drains and sewers was discretionary in nature.’’ Id. Accordingly, because it is apparent from the complaint that the allegednegligentactsoromissionsnecessarilyinvolved the exercise of judgment, we conclude that the court properly determined that they were discretionary in nature as a matter of law. C Imminent Harm to Identifiable Persons Exception The plaintiff next argues that if the alleged acts are determinedtobediscretionaryinnature,thedefendant is nevertheless liable because of the applicability of the imminent harm to identifiable persons exception togovernmentalimmunity.Specifically,shearguesthat she falls within that exception because she testified at her deposition that ‘‘shortly after the 2011 sewage flooding incident at her home, she was contacted by Marty Godbout [a public official with the defendant] and was told that ‘I need to let you know that bad weather may be coming and you are at risk that this can happen again.’ ’’ Because we have determined that the defendant’s alleged acts of negligence were discretionary in nature asamatteroflaw,thedefendantisshieldedfromliability by governmental immunity as long as the actions donotfallwithinanyofthe‘‘threeexceptionstodiscretionary act immunity. Each of these exceptions represents a situation in which the public official’s duty to actis[so]clearandunequivocalthatthepolicyrationale underlying discretionary act immunity—to encourage municipalofficerstoexercisejudgment—hasnoforce.’’ (Internal quotation marks omitted.) Doe v. Petersen, 279 Conn. 607, 615, 903 A.2d 191 (2006). Only one of those exceptions is relevant in the present appeal, that of the imminent harm to identifiable persons exception to governmental immunity. ‘‘[Our Supreme Court] has recognized an exception to discretionary act immunity that allows for liability 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 . . . . This identifiable person-imminent harm exception has threerequirements:(1)animminentharm;(2)anidentifiable victim; and (3) a public official to whom it is apparentthathisorherconductislikelytosubjectthat victim to that harm. . . . All three must be proven in order for the exception to apply. . . . [T]he ultimate determination of whether [governmental] immunity applies is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury.’’ (Citation omitted; internal quotation marks omitted.)
Haynesv. Middletown,314Conn.303,312–13,101A.3d 249 (2014). With respect to the plaintiff’s claim that the alleged negligently maintained sewer system posed a risk of imminent harm, we must look to the standard most recently established in Haynes v. Middletown, supra, 314 Conn. 303. Our Supreme Court held: ‘‘[T]he proper standardfordeterminingwhetheraharmwasimminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm.’’ Id., 322– 23. The plaintiff claims that she was an identifiable victim because Godbout allegedly contacted her after the2011floodingincidenttowarnherthatbadweather was in the forecast, and that she was at risk for additional flooding in her basement. The imminent harm, according to the plaintiff, was apparent because of the warning given to her by the defendant’s official. We note that almost six years elapsed from the date of the first flooding incident to the date of the second floodingincident.Theallegedfactsofthiscasearevery similar to the circumstances set forth in Silberstein v. 54 Hillcrest Park Associates, LLC, supra, 135 Conn. App. 262. In Silberstein, the plaintiffs alleged that the defendant, a quasi-municipal corporation, failed to properly maintain the roads and drainage systems in their neighborhood, resulting in the periodic flooding oftheirproperty.Id.,265,267n.3.Thiscourtdetermined that the plaintiffs were not subject to imminent harm becausethefloodingwasepisodicastooccurrenceand happened over a period of years. Id., 275. In Haynes v. Middletown, supra, 314 Conn. 322 n.14, our Supreme Court commented on the Silberstein decision and observed that ‘‘it would have made more sense to hold that the risk of harm was not imminent because it was notapparenttothemunicipaldefendant[inSilberstein] that the risk of harm was so great that the defendant’s duty to act immediately to prevent the harm was clear and unequivocal.’’ Additionally, as stated by the trial court in this case, the only evidence provided in support of the plaintiff’s argument that the exception applied was the statement ofapublicofficialgivenafterthe2011floodingincident. Accordingly, for the foregoing reasons, we agree with the court that the plaintiff failed to demonstrate that therewasatriableissueofmaterialfactthattheplaintiff was an identifiable person subject to imminent harm.14 II STATUTE OF LIMITATIONS The plaintiff next claims that the court improperly granted the defendant’s motion for summary judgment on the basis that all of her claims were barred by the applicable statute of limitations for negligence claims.
The plaintiff commenced the present action on August 2, 2011. She concedes that § 52-58415 provides a maximum three year limitation period for bringing such claims.16 Nevertheless, she argues that the continuing courseofconductdoctrinetollsthatperiodwithrespect to the 2005 flooding incident and the 2006 installation of the backflow preventer valve, and that her action was commenced within the time limitation period of § 52-584 with respect to the 2011 flooding incident. According to the plaintiff, ‘‘[t]he 2011 incident is not time barred because suit was filed months after the secondfloodingincidentwherethere isagenuineissue of material fact as to whether or not the failure of the main sewer line caused said incident.’’ The defendant claims that the continuing course of conduct doctrine is not applicable in this case, so that all claims related to the 2005 flooding incident and the 2006 installation of the backflow preventer valve are timebarred.Thedefendantfurtherclaimsthatanydamages sought for the 2011 incident are precluded ‘‘becausethelastactoromissionofthedefendantidentified by the plaintiff, the supposedly faulty installation of the backflow preventer valve, occurred more than three years before this action was instituted by service of process in 2011.’’ Wefirstaddresstheclaimthatthetrialcourtimproperly failed to conclude that the continuing course of conduct doctrine tolled the time limitation period with respect to the 2005 flooding incident and the alleged negligent installation of the backflow preventer valve in 2006.17 The plaintiff relies solely upon the continuing course of conduct doctrine in her argument that her claims are not time barred with respect to those two incidents. If the continuing course of conduct doctrine is not applicable under the circumstances of this case, the statute of limitations bars those claims. ‘‘[I]n the context of a motion for summary judgment based on a statute of limitations special defense, a defendant typically meets its initial burden of showing the absence of a genuine issue of material fact by demonstrating that the action had commenced outside of the statutory limitation period. . . . When the plaintiff asserts that the limitations period has been tolled by an equitable exception to the statute of limitations, the burden normally shifts to the plaintiff to establish a disputed issue of material fact in avoidance of the statute.’’ (Internal quotation marks omitted.) Flannery v. Singer Asset Finance Co., LLC, 312 Conn. 286, 310, 94 A.3d 553 (2014). ‘‘The question of whether a claim is barred by the statute of limitations is a question of law over which we exercise plenary review.’’ Sinotte v. Waterbury, 121 Conn. App. 420, 431, 995 A.2d 131, cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010). The parties agree that § 52-584 is the applicable statute of limitations for the plaintiff’s negligence claims.
Section52-584‘‘imposestwospecifictimerequirements on plaintiffs. The first requirement, referred to as the discovery portion . . . requires a plaintiff to bring an action within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . . . The second provides that in no event shall a plaintiff bring an action more than three years from the date of the act or omission complained of . . . . The three year period specifies the time beyond which an action under § 52-584 is absolutely barred, and the three year periodis,therefore,astatuteofrepose.’’(Citationomitted; emphasis omitted; internal quotation marks omitted.) Rosato v. Mascardo, 82 Conn. App. 396, 401–402, 844 A.2d 893 (2004). ‘‘The statutory clock on this three year time limit begins running when the negligent conduct of the defendant occurs. . . . Consequently, an action maybe timebarred evenif no injuryis sustained during the three years following a defendant’s act or omission.’’ (Citation omitted; internal quotation marks omitted.) Johnson v. North Branford, 64 Conn. App. 643, 648, 781 A.2d 346, cert. denied, 258 Conn. 926, 783 A.2d 1028 (2001). The continuing course of conduct doctrine has no application after the plaintiff has discovered the harm; the doctrine applies only to the repose portion of the statuteandnottothediscoveryportion.Rosatov.Mascardo, supra, 82 Conn. App. 405. ‘‘When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conductiscompleted.’’(Internalquotationmarksomitted.) Sinotte v. Waterbury, supra, 121 Conn. App. 440. ‘‘[I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated priortocommencementoftheperiodallowedforbringing an action for such a wrong. . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between thepartiesgivingrisetosuchacontinuingdutyorsome later wrongful conduct of a defendant related to the prior act.’’ (Internal quotation marks omitted.) Saint Bernard School of Montville, Inc. v. Bank of America, 312 Conn. 811, 835, 95 A.3d 1063 (2014). In the present case, the plaintiff claimed that the negligent actions of the defendant caused raw sewage tofloodherbasementonOctober15,2005.Theplaintiff alleged that she made repeated telephone calls to the defendant concerning this incident and, consequently, was accepted into the defendant’s ‘‘backflow preventer program.’’ At the plaintiff’s request, a backflow preventer valvewas installedat herproperty on June22, 2006. The valve, according to the plaintiff’s expert, was
improperly installed. On March 7, 2011, raw sewage again flooded her basement. This second incident of flooding occurred more than five years after the first floodingincidentandmorethanfourandone-halfyears after the installation of the backflow preventer valve. Theplaintiffcommencedthisactionapproximatelyfive months after the second flooding incident. Considering these allegations, we address the plaintiff’s claim that the statute of limitations was tolled by the defendant’s continuing course of conduct. The act or omission relied upon, which would be the October 15,2005floodingincidentandtheJune22,2006installation of the backflow preventer valve, occurred more than three years from the time of the commencement of this action. It is time barred unless there is evidence of a special relationship between the parties or there is evidence of the defendant’s later wrongful conduct related to the prior act. The plaintiff has not claimed the existence of a special relationship. Instead, she claimsthatthedefendant’s laterwrongfulconductconsisted of its ‘‘failure to repair the sewer line’’ in front of the plaintiff’s house that continued through 2011. The plaintiff argues: ‘‘[T]he 2005 flooding incident was tolled by the continuing course of conduct doctrine as the installation of a backflow preventer did not solve the flooding problem although the [defendant] claimed it had.’’18 The plaintiff’s claim fails. ‘‘[T]hecontinuingcourseofconductdoctrinereflects thepolicythat,duringanongoingrelationship,lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied. . . . As to what constitutes a continuing violation of a breach, [our Supreme Court] cited with approval thefollowingexplanation:Inbetweenthecaseinwhich a single event gives rise to continuing injuries and the case in which a continuous series of events gives rise to a cumulative injury is the case in which repeated events give rise to discrete injuries . . . . [In such a case] the damages from each discrete act . . . would be readily calculable without waiting for the entire series of acts to end. There would be no excuse for the delay. And so the violation would not be deemed continuing.’’(Citationomitted;internalquotationmarks omitted.) Id., 837–38. The plaintiff consistently has described the 2005 floodingincidentandthe2011floodingincidentasseparate incidents. During her deposition, she testified that the property damage from the 2005 flooding incident totaled$47,900,andthepropertydamagefromthe2011 flooding incident totaled $23,000. Clearly the damages attributable to each incident were ‘‘readily calculable.’’ Id., 838. The plaintiff’s claims related to the 2005 flooding incident and the 2006 installation of the backflow preventer valve are, thus, time barred. ThisconclusionissupportedbySinottev.Waterbury,
supra,121Conn.App.420.InSinotte,theplaintiffhomeowners experienced a serious sewage backup on June 17, 2001. Id., 423. They commenced their action against the defendant three years and two months after the backup, but did not allege any further backup or event related to the sewer system that occurred after the June17,2001backup.Id.,424.Theircountinnegligence allegedthatthedefendantwasnegligentinitsconstruction and maintenance of the sewer system and that it should have known of the condition of the system yet failedtorepairitadequately. Id.Thedefendantclaimed thatthestatuteoflimitations,§ 52-584,barredtheplaintiffs’ claims. Id., 427. The plaintiffs argued that the continuing course of conduct doctrine tolled the statute because the defendant’s failure to remedy the threat of sewage backups constituted a breach of a continuing duty that tolled the period of repose. See Sinotte v. Waterbury, Superior Court, judicial district of Waterbury, Docket No. CV-04-4001115 (August 22, 2008). The trial court rejected the plaintiffs’ argument.19 This court, on appeal, concluded that the trial court properly held that the plaintiffs’ claims were not saved by the continuing course of conduct doctrine. ‘‘[T]he record does not support application of that doctrine in these circumstances. There was no breach of a duty that remained in existence . . . after the initial alleged wrong pleaded in the complaint: the sewage incursion on June 17, 2001. To hold otherwise essentially would expand without limit the defendant’s duty toward the plaintiffs.’’ (Citation omitted; internal quotation marks omitted.) Sinotte v. Waterbury, supra, 121 Conn. App. 440.Thefactsallegedinthepresentcase,andtheallegations of negligence, mirror those in Sinotte. Accordingly, the continuing course of conduct doctrine is not applicable under the circumstances of this case. The defendant claims that the plaintiff’s claims with respect to the 2011 flooding incident likewise are time barred by § 52-584. The defendant argues: ‘‘All of the plaintiff’s claims are barred by the three year period of repose, because the last act or omission of the defendant identified by the plaintiff, the supposedly faulty installation of the backflow preventer valve, occurred more than three years before this action was instituted by service of process in 2011.’’ The trial court agreed with the defendant and concluded that ‘‘the statute of limitations defeat[s] [the] plaintiff’s claims.’’ We disagreewiththetrialcourt’sconclusionthattheplaintiff’s claims relating to the 2011 flooding incident are time barred. The2011floodingincidentisadiscreteeventthatthe plaintiffallegedwascausedbythedefendant’snegligent acts,including,interalia,thefailuretowarntheplaintiff that her property wasexposed to potential sewer backflows and the failure to ‘‘properly build, maintain, construct, design, inspect, test, service and maintain the
sewer system for the property . . . .’’ In her opposition to the defendant’s motion for summary judgment, the plaintiff included an affidavit by her expert attributing theincidenttothedefendant’sconduct.Thisactionwas commenced approximately five months after the 2011 flooding incident. At this stage of the proceedings, we cannot conclude from the record that the plaintiff’s claims with respect to the 2011 flooding incident are time barred. III CONTRACT CLAIMS The plaintiff’s final claimis that the court improperly concluded that her contract claims were actually tort claimsand,therefore,timebarredby§ 52-584,theapplicable statute of limitations for negligence claims. She argues that, as pleaded, her contract claims ‘‘are separateanddistinctclaimsthathavetheirownseparateand distinct measure of damages.’’20 We are not persuaded. As previously noted, the plaintiff’s complaint included countsthat allegedbreach ofcontract, breach ofthecovenantofgoodfaithandfairdealing,andquantum meruit. All three of those counts incorporated by reference the thirty-three paragraphs in the first count, which alleged negligence. An additional allegation in the count for breach of contract provided: ‘‘At all relevant times pertinent to this complaint, the [defendant] hadacontractualobligationto[theplaintiff]tomaintain the sewer system for the property free from defects, utilizing its best skills and efforts and without creating risk of harm . . . .’’ The plaintiff alleged that those actions also constituted a breach of the covenant of goodfaithandfairdealing.Withrespecttothequantum meruit count, the plaintiff alleged that the defendant accepted payment in exchange for providing services, that the defendant received a benefit from those payments, and that it was inequitable for the defendant to accept and retain those benefits without exchange for its value. In her prayer for relief, the plaintiff sought monetarydamages,punitivedamages,costsandreasonable attorney’s fees. ‘‘Construction of pleadings is a question of law. Our review of a trial court’s interpretation of the pleadings therefore is plenary.’’ Kovacs Construction Corp. v. Water Pollution & Control Authority, 120 Conn. App. 646, 659, 992 A.2d 1157, cert. denied, 297 Conn. 912, 995 A.2d 639 (2010). The gravamen of the plaintiff’s complaint is that she suffered personal injuries and propertydamageastheresult ofthedefendant’sfailure to maintain, inspect and repair a sewer line in front of her property from 2005 through 2011, and that the defendant failed to properly install a backflow preventer valve in 2006. The injuries she sustained, as referencedinallofthecountsdirectedagainstthedefendant, were described as the ‘‘complete and total loss in her
basement,’’ which included ‘‘[f]urnishings, appliances [and] electronics,’’ and ‘‘severe’’ emotional distress resulting from her being placed at ‘‘serious risk [by exposure]tohazardouswastes,bacteria[and]viruses,’’ making ‘‘her susceptible to disease.’’ We acknowledge that the counts alleging breach of contract, breach of the covenant of good faith and fair dealing,andquantummeruit,doincludesomelanguage sounding in contract. Nevertheless, reading the complaint in its entirety, it is clear that the liability of the defendant to the plaintiff, if any, is based on principles of tort law. As stated in Gazo v. Stamford, 255 Conn. 245, 262, 765 A.2d 505 (2001), ‘‘the plaintiff may not convert that liability into one sounding in contract merely by talismanically invoking contract language in [her] complaint.’’ In the present case, the plaintiff is requesting tort damages, not contract damages. She expressly seeks compensation for her emotional distress and for medical conditions described in her deposition testimony thatsheclaimswerecausedbyherexposuretotheraw sewage. ‘‘The usual recovery for breach of a contract is the contract price or the lost profits therefrom’’; id., 265; whereas a cause of action in negligence arising from tortious conduct ‘‘subjects the tortfeasor to responsibility for the payment of money damages for the injuries sustained by the plaintiff because of the tortious conduct . . . .’’ (Internal quotation marks omitted.) Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 299, 87 A.3d 534 (2014). ‘‘[W]hen the claim is one for personal injury, the decision usually has been that the gravamen of the action is the misconduct and the damage, and that it isessentiallyoneoftort,whichtheplaintiffcannotalter by his pleading.’’ (Internal quotation marks omitted.) Brossv.HillsideAcres,Inc.,92Conn.App.773,783–84, 887 A.2d 420 (2006). ‘‘Just as [p]utting a constitutional tag on a nonconstitutional claim will no more change its essential character than calling a bull a cow will change its gender . . . putting a contract tag on a tort claim will not change its essential character.’’ (Citation omitted; internal quotation marks omitted.) Gazo v. Stamford, supra, 255 Conn. 263. ‘‘The law should not permit [a plaintiff] to recast what is essentially a tort claim as a contract claim solely to gain the potential advantage of a longer statute of limitations.’’ Id., 266. ‘‘[W]here . . . the plaintiff’s allegations of both liability and damages sound in tort, and the only practical effect of permitting a contract claim to lie would be to extend the tort statute of limitations, and common sense strongly counsels otherwise, the plaintiff may not be permitted to transform his tort claim into a contract claim merely by alleging that it is such a claim.’’ Id. Fortheforegoingreasons,weconcludethattheplain
tiff’s allegations sound in tort rather than in breach of contract, and that the trial court properly determined that § 52-584 was applicable to the plaintiff’s claims.

Outcome: The judgment is reversed only with respect to the plaintiff’s claims that the defendant was engaged in a proprietary function in the operation of its sanitary system and thather claims relating tothe 2011 flooding incidentwerenottimebarred,andthecaseisremanded with direction to deny the defendant’s motion for summary judgment with respect to those claims and for further proceedings according to law. The judgment is affirmed in all other respects.

Plaintiff's Experts:

Defendant's Experts:

Comments: The plaintiff, Judy Brusby, appeals from the summary judgment rendered by the trial court in favor of the defendant The Metropolitan District.1 On appeal, the plaintiff claims that the court improperly (1) granted the defendant’s motion for summary judgment on the ground of governmental immunity, (2) granted the defendant’s motion for summary judgment on the basis of the applicable statute of limitations for negligenceclaims,and(3)concludedthattheplaintiff’s contract claims were actually tort claims for purposes of determining the applicable statute of limitations. We affirm in part and reverse in part the judgment of the trial court.