Hohorst v. Easton

************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopinion
motions and petitions for certification is the “officially
released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is
to be considered authoritative.
The syllabus and procedural history accompanying an
opinion that appear in the Connecticut Law Journal and
subsequently in the Connecticut Reports or Connecticut
Appellate Reports are copyrighted by the Secretary of the
State, State of Connecticut, and may not be reproduced
or distributed without the express written permission of
the Commission on Official Legal Publications, Judicial
Branch, State of Connecticut.
************************************************
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.