Hohorst v. Easton

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 reconsidera