Crossen v. Diehl

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Crossen v. Diehl
THOMAS J. CROSSEN, JR., ET AL. v.
HEIDI DIEHL ET AL.
(AC 46951)
Elgo, Moll and DiPentima, Js.
Syllabus
The defendants H and M appealed from the trial court’s judgment rendered
for the plaintiffs, T and S, on all counts of their amended complaint brought
as a result of a dispute between the parties, owners of neighboring lakefront
properties, including an incident in which M spit on T. The defendants
claimed, inter alia, that the court improperly considered the impact of the
COVID-19 pandemic on T’s claims of intentional infliction of emotional
distress, negligent infliction of emotional distress, and civil assault. Held:
The trial court’s finding regarding the aggravating nature of the COVID-19
pandemic in support of its decision on the counts alleging intentional inflic-
tion of emotional distress and negligent infliction of emotional distress was
clearly erroneous, as there was no evidence in the record supporting the court’s
finding regarding the aggravating nature of the pandemic on T’s emotional
distress and, because of the potentially mixed perspectives regarding the
risk of contracting COVID-19, the effect of M’s spitting on T, by virtue of it
occurring during the pandemic, was subject to reasonable dispute and could
not be presumed but required testimony to support an emotional distress
finding that was tethered to the pandemic.
The trial court’s factual findings that M had threatened and spat on T in the
count alleging civil assault were not clearly erroneous and were supported by
the record, as, although the court referenced the fact that the spitting was
made worse because it occurred during the COVID-19 pandemic, that finding
was not integral to its conclusion that M had committed an offensive act and
that T was put in imminent apprehension of offensive conduct.
The trial court’s award of compensatory and punitive damages as to the
counts of intentional infliction of emotional distress, negligent infliction
of emotional distress and civil assault, an award that was fashioned to
avoid double recovery in light of its compensatory damages award on the
intentional infliction of emotional distress count, was vacated and the case
was remanded with direction to recalculate the award of compensatory and
punitive damages on the count of civil assault only, considering only evidence
that was submitted at the original trial.
The trial court’s determinations that the plaintiffs had established the bound-
ary line between the neighboring properties in accordance with a certain
survey submitted into evidence and that they had littoral rights privileges
within their property line were not clearly erroneous, as the defendants
offered no evidence to rebut the plaintiffs’ evidence as to the littoral boundary.
The evidence was sufficient for the trial court to find for the plaintiffs on
their trespass count, specifically for interference with the plaintiffs’ littoral

Crossen v. Diehl
rights, as the plaintiffs’ exclusive ownership of the property was undisputed,
the defendants had continuously intruded on the plaintiffs’ property, the
defendants’ intrusions were done intentionally, and such instances of trespass
caused injury and interfered with the plaintiffs’ peaceful use and enjoyment
of their property.
The trial court did not abuse its discretion in its award of damages on the
plaintiffs’ trespass claim, as, based on the claim litigated at trial, the court’s
findings that five years of continued trespass had transpired, the defendants
and their guests had physically trespassed on the plaintiffs’ property, and
that the defendants’ intrusions interfered with the plaintiffs’ peaceful use
and enjoyment of their property were not clearly erroneous.
(One judge concurring in part and dissenting in part)
Argued September 4, 2025—officially released August 4, 2026
Procedural History
Action to recover damages for, inter alia, trespass,
and for other relief, brought to the Superior Court in
the judicial district of Hartford, where Paul F. Diehl
and Amy J. Diehl were cited in as party defendants;
thereafter, the case was tried to the court, Wilkerson
Brillant, J.; judgment for the plaintiffs, from which
the defendants appealed to this court. Reversed in part;
judgment directed; award vacated; further proceedings.
Brandon B. Fontaine, with whom was Meaghan E.
Collins, for the appellants (defendants).
Thomas A. Plotkin, for the appellees (plaintiffs).
Opinion
MOLL, J. This appeal involves a dispute between the
plaintiffs, Thomas J. Crossen, Jr. (Thomas), and Susan
R. Crossen, and the defendants, Heidi Diehl and Michael
Martin, who own neighboring properties on Lake Wang-
umbaug in Coventry.1 The defendants appeal from the
judgment of the trial court rendered in favor of the
plaintiffs on all counts of their amended complaint,
claiming that (1) the court improperly considered the
1Although Paul F. Diehl and Amy J. Diehl were cited in as defendants
in this action, they did not appear at trial and have not participated
in this appeal.

Crossen v. Diehl
impact of the COVID-19 pandemic on Thomas’ claims
of intentional infliction of emotional distress (count
three), negligent infliction of emotional distress (count
four), and civil assault (count five), and (2) the plaintiffs
provided insufficient evidence to support the court’s
findings regarding the counts of quiet title (count one)
and trespass (count two). We affirm the judgment of the
trial court rendered in the plaintiffs’ favor on counts
one and two. We reverse the portion of the trial court’s
judgment rendered in Thomas’ favor on counts three
and four in its entirety, vacate its award of damages on
counts three, four and five, and remand this case with
direction to recalculate the award of damages on count
five only consistent with this opinion.
The following facts and procedural history are relevant
to this appeal. On August 26, 2021, the plaintiffs filed
the operative amended complaint in this action, seeking,
in count one, a declaration quieting title to the bound-
ary between the parties’ properties and a determination
of the littoral rights of the parties pursuant to General
Statutes §§ 47-312 and 52-29.3 In count two, the plaintiffs
sought a temporary and permanent injunction prohibit-
ing the defendants from encroaching on their property.
In addition, Thomas asserted, against Martin only, a
claim of intentional infliction of emotional distress (count
three), a claim of negligent infliction of emotional dis-
tress (count four), and a claim of civil assault (count five).
The plaintiffs sought compensatory damages against
2General Statutes § 47-31 (a) provides in relevant part: “An action
may be brought by any person claiming title to . . . real . . . property . . .
against any person who may claim to own the property, or any part of
it, or to have any estate in it . . . or to have any interest in the property,
or any lien or encumbrance on it, adverse to the plaintiff, or against
any person in whom the land records disclose any interest, lien, claim
or title conflicting with the plaintiff’s claim, title or interest, for the
purpose of determining such adverse estate, interest or claim, and to
clear up all doubts and disputes and to quiet and settle the title to the
property. . . .”
3General Statutes § 52-29 (a) provides: “The Superior Court in any
action or proceeding may declare rights and other legal relations on
request for such a declaration, whether or not further relief is or could
be claimed. The declaration shall have the force of a final judgment.”

Crossen v. Diehl
the defendants as to counts one and two. Additionally,
Thomas sought compensatory damages against Martin
only as to counts three, four, and five and punitive dam-
ages against Martin only as to counts three and five.
In their answer, the defendants admitted that the
plaintiffs are the owners of land located at 231 Standish
Road in Coventry (plaintiffs’ property), and the defen-
dants are the owners of an abutting property located at
Lot R00817 Standish Road in Coventry (defendants’
property). Both properties have Lake Wangumbaug as
a southerly boundary. The defendants stated that they
lacked the requisite knowledge to admit or deny the alle-
gations pertaining to quiet title and trespass and left the
plaintiffs to their proof as to these counts. Martin denied
the allegations of intentional infliction of emotional
distress, negligent infliction of emotional distress, and
civil assault. The court conducted a trial on March 22,
2023, and rendered its decision on July 3, 2023.
In its memorandum of decision, the court set forth the
following relevant facts. “As neighbors, the plaintiffs
and the defendants associated well with each other and
were friendly until 2018 when the defendants began to
use the plaintiffs’ property without permission. Since
that time, their relationship has deteriorated. The defen-
dants have shouted obscenities at and acted aggressively
towards the plaintiffs. The plaintiffs’ property interest
has been negatively impacted due to the ongoing hostili-
ties. . . .
“Beginning in or around 2018, the defendants used
the plaintiffs’ property without permission in the fol-
lowing manners. The defendants placed a paddleboard
rack, a dock, banners, cement block and stone pavers
on the plaintiffs’ property which crossed the property/
boundary line and interfered with the plaintiffs’ use of
their property. Each year, the defendants placed fresh
sand and stones to create a stone wall which ‘crept’ on the
plaintiffs’ property ‘taking away a little more land.’ . . .
Martin destroyed the vegetation and soil on the plain-
tiffs’ property. During the winter . . . Diehl cleared the

Crossen v. Diehl
snow in front of the plaintiffs’ waterfront for ice skating
without the plaintiffs’ permission.
“The defendants have acted hostile toward the plain-
tiffs and their guests and during the trial admitted to
doing such. In June 2018 . . . Thomas . . . hired the first
surveyor, Andrew Bushnell, to survey the plaintiffs’
property to determine the boundary lines. While he was
working . . . Diehl was ‘heckling’ Thomas . . . and the
surveyor. . . . Martin then drove his vehicle onto the
plaintiffs’ property, narrowly avoiding Thomas . . . as
he jumped out of the way of Martin’s van. Bushnell
shouted ‘watch out’ to alert Thomas . . . of Martin’s
vehicle. Martin then exited his vehicle and began to act
belligerently, cursing and screaming at Thomas . . . .
Shortly after this incident Bushnell ceased work on the
property and informed Thomas . . . that he would not
complete the survey. Thomas . . . then engaged Towne
Engineering, Inc., to finish the survey in 2018.
“After the incident with Bushnell in 2018, Martin
began to park his van in front of the plaintiffs’ shed,
despite the fact that there was a no trespassing sign
clearly posted. The defendants also allowed their guests
to park vehicles in areas which obstructed the plain-
tiffs’ driveway. The defendants’ guests would constantly
park on the plaintiffs’ 100 feet [of] frontage situated on
Standish Road. The defendants would taunt Thomas . . .
that he had nowhere to park his vehicle. Thomas . . .
subsequently placed signs prohibiting parking on the
plaintiffs’ property. The defendants’ guests then began
parking across the street but would walk across the plain-
tiffs’ property to get to the defendants’ property. The
defendants’ guests took the paddleboards from the dock
that was on the plaintiffs’ property and would enter the
water through the plaintiffs’ waterfront.
“In August 2021, Thomas . . . hired a different sur-
veyor, Joseph Boucher, to complete another survey.4
4The transcript reveals that Thomas hired Boucher in the spring of
2018. Boucher visited the property again in August 2021 at Thomas’
request to locate the defendants’ dock.

Crossen v. Diehl
Boucher performed a land survey which revealed that
the defendants’ metal roofed paddleboard rack was on
the plaintiffs’ land. The defendants had also affixed ban-
ners to trees that were on the plaintiffs’ property. The
rack and banners encroached on the easterly side of the
plaintiffs’ property. The defendants’ cement pavers/
blocks were also encroaching onto the plaintiffs’ prop-
erty. Boucher’s survey also revealed that the defendants’
dock, a free-floating platform anchored below the lake
surface, extended onto the plaintiffs’ property on the
easterly side. The defendants’ dock had boats stored on
top of it which encroached over the plaintiffs’ property
by 6.3 feet. The boundaries were marked, and the plain-
tiffs placed signage demarcating the property line, but
the defendants still encroached on the plaintiffs’ prop-
erty. The defendants eventually removed the banners
and paddleboard rack shortly before a court hearing.
However, the dock still remains protruding on to the
plaintiffs’ property. . . .
“The defendants intimidated and antagonized the
plaintiffs by placing numerous signs on the trees, chairs,
and cement pavers/blocks facing the plaintiffs’ property.
These signs bore messages such as: ‘Bully, leave us alone,’
‘Bullies,’ ‘Please Leave us alone,’ and ‘Shame on You.’ . . .
The defendants antagonized the plaintiffs by starting
arguments, making derogatory hand gestures, giving
the plaintiffs the middle finger, and yelling profanities
at the plaintiffs in front of the plaintiffs’ grandchildren.
“On another occasion . . .Thomas . . . was attempting
to leave in his vehicle while . . . Martin was sitting in
his vehicle. Martin flashed his car lights at Thomas . . .
left his vehicle, and approached [Thomas’] vehicle, while
shouting obscenities and yelling. . . . Martin has yelled
and cursed at Thomas . . . in front of other people, includ-
ing the plaintiffs’ ten year old granddaughter. When
Thomas . . . is playing with his grandchildren, [Martin]
has tried to instigate a fight with him by belittling [him],
heckling him, and calling him derogatory names. Thomas
. . . purchased a boat for use with his grandchildren and

Crossen v. Diehl
when the grandchildren are getting the water items
from the shed, the defendants have accosted the plain-
tiffs’ grandchildren while the grandchildren were on the
plaintiffs’ property, telling them that their grandfather
is only trying to buy their love and that they need to
know who he is.
“During the COVID-19 pandemic, Martin saw Thomas
. . . recording a video of the defendants’ property and
yelled at him to stay off his property. Thomas . . . was
standing in the road, not on the defendants’ property.
Thomas . . . started recording Martin with his phone at
which time Martin lost his temper, walked directly up
to Thomas . . . within extremely close proximity (nose
to nose) and spit on him twice while challenging him to
a fight, cursing and yelling at him. . . .
“Thomas . . . has stress about the negative situation
with the defendants and his property. Because he is
worried that he cannot resolve these problems with the
defendants, he does not sleep much or well, as he experi-
ences frequent headaches and is constantly taking Advil
medication.” (Footnote added.)
Following trial, the court established the boundary
and determined the littoral rights with respect to the
plaintiffs’ property, expressly crediting the survey map
submitted into evidence by the plaintiffs. The court
found the defendants liable for trespassing on the plain-
tiffs’ property and ordered the defendants to remove all
encroachments on the plaintiffs’ property. The court fur-
ther permanently enjoined the defendants from erecting
similar structures that would encroach on the plaintiffs’
land. Additionally, the court found that Martin was
liable for intentional infliction of emotional distress and
negligent infliction of emotional distress, concluding, as
to the former, that Martin’s act of spitting on Thomas
during the COVID-19 pandemic was an extreme and
outrageous act and, as to the latter, that Martin’s act of
spitting on Thomas during a global health pandemic cre-
ated an unreasonable risk of emotional distress. Finally,
the court found Martin liable for civil assault, relying,

Crossen v. Diehl
in part, on Martin’s act of spitting on Thomas during
the COVID-19 pandemic.
The court awarded the plaintiffs $5000 in compensa-
tory damages on the count alleging trespass. The court
also awarded Thomas $50,000 in compensatory damages
on his intentional infliction of emotional distress count
and nominal damages of $1 on each of his negligent
infliction of emotional distress and civil assault counts.5
Lastly, the court awarded Thomas punitive damages
in the form of attorney’s fees, totaling $2028.75, for
counts three and five, intentional infliction of emotional
distress, and civil assault. Thereafter, the defendants
filed a postjudgment motion for reconsideration and/
or reargument. Following reconsideration, the court
iterated its previous findings and declined to change its
previous decision. The defendants then filed the present
appeal.6
I
On appeal, the defendants first claim that the court
improperly considered the impact of the COVID-19 pan-
demic on Thomas’ claims of intentional infliction of
emotional distress, negligent infliction of emotional
distress, and civil assault without Thomas having raised
that issue or having presented sufficient evidence on
it.7 We agree with the defendants that the court erred
5The court awarded nominal damages on those counts to avoid double
recovery in light of its award of compensatory damages on the intentional
infliction of emotional distress count.
6As set forth in this opinion, the court found the defendants liable
on the first two counts of the complaint. It also found Martin liable
to Thomas on the third, fourth, and fifth counts and, accordingly,
awarded Thomas compensatory and punitive damages on these counts.
For convenience and consistency, we refer to “the plaintiffs” and “the
defendants” in our analysis of the claims on appeal.
7The plaintiffs contend that the defendants’ claim was not raised
at trial and, therefore, was not preserved for appeal. We disagree.
Because the court relied on COVID-19 in its memorandum of decision,
we conclude that this issue is preserved for appellate review. See Prac-
tice Book § 60-5 (“court shall not be bound to consider a claim unless
it was distinctly raised at the trial or arose subsequent to the trial”);
Weiss v. Smulders, 313 Conn. 227, 247–48, 96 A.3d 1175 (2014) (“even

Crossen v. Diehl
in relying on factual findings relating to the pandemic
to conclude that certain elements of Thomas’ emotional
distress claims had been proven. We further conclude
that, although the court made a pandemic related find-
ing in its analysis of Thomas’ civil assault claim, such
finding was not integral to its adjudication of that count.
We, therefore, reverse the judgment of the trial court
rendered in Thomas’ favor on the emotional distress
counts in its entirety and on the civil assault count only
with respect to its award of damages and remand this
case with direction to recalculate the award of damages
on that count consistent with this opinion.
We first set forth the applicable standard of review.
“[When] the factual basis of the court’s decision is chal-
lenged we must determine whether the facts set out in the
memorandum of decision are supported by the evidence
or whether, in light of the evidence and the pleadings in
the whole record, those facts are clearly erroneous. . . .
In other words, to the extent that the trial court has made
findings of fact, our review is limited to deciding whether
those findings were clearly erroneous. . . . A finding of
fact is clearly erroneous when there is no evidence in
the record to support it . . . or when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction
that a mistake has been committed.” (Internal quotation
marks omitted.) Downing v. Dragone, 216 Conn. App.
306, 316, 285 A.3d 59 (2022), cert. denied, 346 Conn.
903, 287 A.3d 601 (2023).
A
We first consider whether the court’s finding regard-
ing the aggravating nature of the COVID-19 pandemic in
support of its decision on the counts alleging intentional
though the defendants did not directly raise this claim at trial, they
are permitted to pursue it on appeal because the trial court addressed
this matter”); Azia v. DiLascia, 64 Conn. App. 540, 558–59 n.13,
780 A.2d 992 (addressing issue on appeal that arose for first time in
court’s memorandum of decision), cert. denied, 258 Conn. 914, 782
A.2d 1241 (2001).

Crossen v. Diehl
infliction of emotional distress and negligent infliction
of emotional distress was clearly erroneous.
The following additional facts are necessary for the
resolution of this claim. In count three of the opera-
tive complaint, Thomas alleged a claim of intentional
infliction of emotional distress against Martin. Specifi-
cally, Thomas alleged, inter alia, that Martin had spat
on Thomas “while challenging him to a fight on two occa-
sions during the summer of 2021 unmasked and during
the COVID pandemic.”8 In count four of the operative
complaint, Thomas alleged a claim of negligent inflic-
tion of emotional distress against Martin. This count
incorporated by reference the allegations set forth in
prior counts of the complaint, including the reference to
the spitting incident alleged in the intentional infliction
of emotional distress count.
In concluding that Thomas had proven his intentional
infliction of emotional distress claim, the court found in
relevant part that Martin’s act of “spitting on Thomas
. . . during the COVID-19 pandemic was an extreme and
outrageous act . . . . The psychic toll of experiencing such
abuse is compounded by the fact that it was done during
the COVID-19 pandemic. Such an action would natu-
rally create feelings of fear and anxiety regarding infec-
tion in addition to feelings of humiliation and anger.”
(Citation omitted; footnote omitted.) In addition, in
concluding that Thomas had proven his negligent inflic-
tion of emotional distress claim, the court stated that,
“[a]lthough the campaign of harassment undertaken by
8Paragraph 13 of the operative complaint states: “On numerous occa-
sions . . . Martin has behaved in the following manner towards . . .
Thomas . . . at or near the boundary of their properties set forth above:
“a. Shouting, screaming and yelling obscenities directed at Thomas . . .
not only when he was alone but also when his immediate family was
present;
“b. Confronting Thomas . . . and challenging him to fight with his
chest right up to [Thomas’] chest on two occasions during the summer
of 2021; and
“c. Spitting on Thomas . . . while challenging him to a fight on two
occasions during the summer of 2021 unmasked during the COVID
pandemic.”

Crossen v. Diehl
the defendants may not have risen to the level required to
prove negligent infliction of emotional distress, spitting
on Thomas . . . during a global health pandemic created
an unreasonable risk of emotional distress.”
The defendants contend that Thomas did not provide
sufficient evidence regarding COVID-19 and its impact
to support the court’s findings regarding his claim of
intentional infliction of emotional distress or his claim
of negligent infliction of emotional distress. We agree.
In order to prevail on a claim of intentional infliction
of emotional distress, a plaintiff must establish four ele-
ments: “(1) that the actor intended to inflict emotional
distress or that he knew or should have known that emo-
tional distress was the likely result of his conduct; (2)
that the conduct was extreme and outrageous; (3) that
the defendant’s conduct was the cause of the plaintiff’s
distress; and (4) that the emotional distress sustained
by the plaintiff was severe.” (Footnote omitted; inter-
nal quotation marks omitted.) Carrol v. Allstate Ins.
Co., 262 Conn. 433, 443, 815 A.2d 119 (2003). Thus, to
establish a claim of intentional infliction of emotional
distress, Thomas was required to prove, inter alia, that
Martin’s conduct was extreme and outrageous and that
this conduct was the cause of Thomas’ distress.
“To establish a claim of negligent infliction of emotional
distress, a plaintiff must prove the following elements:
(1) the defendant’s conduct created an unreasonable risk
of causing the plaintiff emotional distress; (2) the plain-
tiff’s distress was foreseeable; (3) the emotional distress
was severe enough that it might result in illness or bodily
harm; and (4) the defendant’s conduct was the cause of
the plaintiff’s distress.” (Internal quotation marks omit-
ted.) Stohlts v. Gilkinson, 87 Conn. App. 634, 645, 867
A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000
(2005). Thus, to establish a claim of negligent infliction of
emotional distress, Thomas was required to prove, inter
alia, that Martin’s conduct created an unreasonable risk

Crossen v. Diehl
of causing him distress and that Martin’s conduct was
the cause of his distress.
Contrary to the court’s conclusion, however, our
review of the record reveals no evidence to support the
court’s finding that the fact that the spitting incident
occurred during the pandemic contributed to Thomas’
emotional distress. The only evidence presented at trial
regarding the pandemic was Thomas’ chronological tes-
timony that the spitting incident “was right at the tail
end of [the pandemic] . . . .” Neither that testimony, nor
any reasonable inferences drawn therefrom, establishes
that Thomas’ emotional distress was affected by the
pandemic at all. The trial court merely speculated as
to the impact of the pandemic on Thomas’ mental state
without “some basis of definite facts to enable the [trier
of fact] reasonably to infer” such an impact. (Internal
quotation marks omitted.) Theodore v. Lifeline Systems
Co., 173 Conn. App. 291, 320, 163 A.3d 654 (2017);
see also Paige v. St. Andrew’s Roman Catholic Church
Corp., 250 Conn. 14, 34, 734 A.2d 85 (1999) (“[d]rawing
logical deductions and making reasonable inferences
from facts in evidence, whether that evidence be oral or
circumstantial, is a recognized and proper procedure
in determining the rights and obligations of litigants,
but to be logical and reasonable they must rest upon
some basis of definite facts, and any conclusion reached
without such evidential basis is a mere surmise or guess”
(internal quotation marks omitted)).
In its decision, the trial court compared the present case
to Prescott v. Gilshteyn, Docket No. CV-22-5071036-S,
2023 WL 2582700 (Conn. Super. March 15, 2023), aff’d,
227 Conn. App. 553, 322 A.3d 1060, cert. denied, 350
Conn. 926, 326 A.3d 248 (2024). In Prescott, the plain-
tiff testified, and the trial court found credible, that
“she experienced severe emotional distress as a result
of being spat upon by [the defendant]. [The plaintiff]
testified that she experienced severe emotional distress
over increased concerns that she may contract COVID-
19, emotional distress over concerns that COVID-19

Crossen v. Diehl
might worsen her [multiple sclerosis], humiliation over
being spat upon in public, and that the bodily violation
of being spat upon reawakened the trauma of her past
sexual assault.” (Footnote omitted.) Id., *3. Prescott is
distinguishable, however, because the plaintiff in that
case presented extensive testimony regarding how the
risk of contracting COVID-19, among other factors,
exacerbated her emotional distress stemming from the
defendant spitting on her during the pandemic. Id. In
contrast, in the present case, Thomas presented no tes-
timony that the pandemic contributed to his emotional
distress.
Notwithstanding the absence of any relevant evidence
regarding the COVID-19 pandemic, the plaintiffs con-
tend that the trial court properly took judicial notice of
the existence of the virus and its transmission through
saliva. They further contend that it is a matter of ordi-
nary common sense for the trial court to find that spitting
on someone during the pandemic aggravated the inherent
offensiveness of the act.9 The plaintiffs cannot prevail
on either of these contentions.
The plaintiffs rely on footnote 6 of the court’s memo-
randum of decision in support of their contention that
the court properly took judicial notice of the existence
of the virus and its transmission through saliva. In foot-
note 6, the court quoted Casey v. Lamont, 338 Conn.
479, 482, 258 A.3d 647 (2021), for the proposition that
“[COVID-19] is a respiratory disease caused by a virus
that is transmitted easily from person to person and
can result in serious illness or death. According to the
Centers for Disease Control and Prevention . . . the virus
9The plaintiffs further contend that, because the complaint alleged
that the spitting incident occurred during the pandemic; see footnote
8 of this opinion; the defendants were on notice that COVID-19 was an
aggravating factor in the emotional distress counts. As to this conten-
tion, we note that the defendants denied this allegation in their answer
to the operative complaint. Furthermore, it is a “well settled proposition
that a plaintiff bears the burden of proving the allegations contained in
the complaint.” (Emphasis added.) Rivera v. Meriden, 72 Conn. App.
766, 769, 806 A.2d 585 (2002).

Crossen v. Diehl
is primarily spread through respiratory droplets from
infected individuals coughing, sneezing, or talking while
in close proximity to other people.” Although the plain-
tiffs are correct that the trial court quoted this passage,
it is not clear that the court took judicial notice of the
fact that the pandemic was in effect in the summer of
2021 and that the virus is transmitted by saliva. The
plaintiffs did not request that the court take judicial
notice of any facts and the court did not reference taking
judicial notice in its opinion.
“A judicially noticed fact must be one not subject to
reasonable dispute in that it is either (1) within the knowl-
edge of people generally in the ordinary course of human
experience, or (2) generally accepted as true and capable
of ready and unquestionable demonstration.” Conn. Code
Evid. § 2.1 (c). “Our . . . cases have attempted to draw a
line between matters susceptible of explanation or con-
tradiction, of which notice should not be taken without
giving the affected party an opportunity to be heard . . .
and matters of established fact, the accuracy of which
cannot be questioned, such as court files, which may be
judicially noticed without affording a hearing.” (Internal
quotation marks omitted.) Scalora v. Scalora, 189 Conn.
App. 703, 714, 209 A.3d 1 (2019). The plaintiffs contend
that the fact that the pandemic was in effect in the sum-
mer of 2021 and the fact that the virus is transmitted by
saliva fall within the category of “ ‘matters of established
fact, the accuracy of which cannot be questioned . . . .’ ”
See id. Even assuming that the plaintiffs are correct
and the court took judicial notice of the existence of the
pandemic in the summer of 2021 and its transmission by
saliva, those facts do not establish that Thomas himself
suffered increased emotional distress because the spit-
ting incident occurred during the pandemic. In order
for the court to find that Thomas’ emotional distress
was affected by the pandemic, Thomas was required to
present evidence to that effect.
Finally, we disagree with the plaintiffs that, as a
matter of ordinary common sense, spitting on someone

Crossen v. Diehl
during the pandemic aggravated the inherent offensive-
ness of the act. “[Triers of fact] are not required to leave
common sense at the courtroom door . . . nor are they
expected to lay aside matters of common knowledge or
their own observations and experience of the affairs of
life, but, on the contrary, to apply them to the facts in
hand . . . .” (Internal quotation marks omitted.) Ony-
ilogwu v. Onyilogwu, 217 Conn. App. 647, 657, 289 A.3d
1214 (2023). “[F]acts [that] are of common knowledge,
that is, facts so well known that evidence to prove them
is unnecessary are proper subjects of judicial notice.”
(Internal quotation marks omitted.) Commissioner of
Transportation v. Bakery Place Ltd. Partnership, 83
Conn. App. 343, 348, 849 A.2d 896 (2004); see also State
v. Tomanelli, 153 Conn. 365, 368, 216 A.2d 625 (1966)
(“proof by evidence concerning a proposition may be
dispensed with where the court is justified, by general
considerations, in declaring the truth of the proposition
without requiring evidence from the party”).
Our analysis is guided by this court’s decision in Autry
v. Hosey, 200 Conn. App. 795, 239 A.3d 381 (2020).
In Autry, the plaintiff was struck by the defendant’s
police cruiser while crossing the street. Id., 796. The trial
court awarded noneconomic damages to the plaintiff for
emotional trauma that she suffered from being hit by
the defendant’s vehicle. Id. The defendants claimed on
appeal that the trial court’s calculation of such damages
was improper because it “lacked the necessary evidence
to find that pedestrians suffer greater emotional trauma
when struck by a vehicle than occupants of a vehicle.”
Id. In awarding the plaintiff such damages, the trial
court stated that, “[p]erhaps more importantly . . . the
emotional trauma suffered by pedestrians struck by
vehicles is generally greater than that suffered by per-
sons involved in auto accidents as drivers or passengers
. . . .” (Emphasis omitted; internal quotation marks
omitted.) Id., 799.
This court agreed with the defendants’ claim, reason-
ing that the trial court’s factual statement comparing

Crossen v. Diehl
pedestrians to drivers or passengers in auto accidents,
which “explicitly provided an important basis for the
court’s award of $30,000 in noneconomic damages,”
was “not supported by any evidence presented to the
[trial] court.” Id. Further, this court disagreed with
the plaintiff’s assertion that the trial court’s statement
was a matter of common knowledge because “whether
a pedestrian who is struck by a motor vehicle generally
suffers greater emotional trauma than a driver or pas-
senger of a vehicle that is struck, is something that would
not be within the knowledge of people generally in the
ordinary course of human experience and is subject to
reasonable dispute.” (Internal quotation marks omitted.)
Id., 799–800. Ultimately, this court held that, because
the plaintiff presented no evidence at trial supporting
the trial court’s factual finding and such finding was
“not a matter of common knowledge,” it was clearly
erroneous. Id., 801.
Similarly, in the present case, whether the pandemic
was necessarily an aggravating factor with respect to
Thomas’ emotional distress was not “within the knowl-
edge of people generally in the ordinary course of human
experience and is subject to reasonable dispute.” (Internal
quotation marks omitted.) Id., 800. Like the plaintiff in
Prescott v. Gilshteyn, supra, 2023 WL 2582700, it is
conceivable that some people would be affected mentally
by the lingering presence of the pandemic and the poten-
tial risk of contracting COVID-19, thereby exacerbating
their emotional distress. Conversely, it also is conceivable
that other individuals would not share this sentiment
and would not be as affected mentally such that it would
sufficiently exacerbate their emotional distress in con-
nection with an instance such as the spitting incident
in the present case. Because of the potentially mixed
perspectives regarding the risks of contracting COVID-
19, the effect of a spitting incident on any plaintiff, by
virtue of it occurring during the pandemic, is subject
to reasonable dispute and would require testimony to
support an emotional distress finding that is tethered
to the pandemic. In sum, because there was no evidence

Crossen v. Diehl
in the record supporting the court’s finding regarding
the aggravating nature of the pandemic on Thomas’
emotional distress and because such a fact cannot neces-
sarily be presumed, we conclude that the court’s finding
was clearly erroneous.
We now address whether the court’s improper finding
would warrant reversal of the judgment on Thomas’
emotional distress claims. “[W]here . . . some of the facts
found are clearly erroneous and others are supported
by the evidence, we must examine the clearly erroneous
findings to see whether they were harmless, not only
in isolation, but also taken as a whole. . . . When the
judgment of the trial court is based entirely on a clearly
erroneous finding, and without that finding judgment
would have entered for the other party, it is appropri-
ate to reverse the judgment and remand the case with
direction to render judgment for that party.” (Citation
omitted; internal quotation marks omitted.) NRT New
England, LLC v. Longo, 207 Conn. App. 588, 600–601,
263 A.3d 870, cert. denied, 340 Conn. 906, 263 A.3d
821 (2021).
In its intentional infliction of emotional distress analy-
sis, the court found that the fact that the spitting inci-
dent occurred during the pandemic “compounded” the
“psychic toll” of the abuse that Thomas sustained and
that “[s]uch an action would naturally create feelings
of fear and anxiety regarding infection in addition to
feelings of humiliation and anger.” Further, in analyz-
ing the first element of negligent infliction of emotional
distress, the court relied solely on the impact of the
pandemic on Thomas’ emotional distress, stating that,
“[a]lthough the campaign of harassment undertaken by
the defendants may not have risen to the level required to
prove negligent infliction of emotional distress, spitting
on Thomas . . . during a global health pandemic created
an unreasonable risk of emotional distress.” (Emphasis
added.) Because the court’s improper factual findings
related to the pandemic were integral to its adjudication
of Thomas’ emotional distress claims, we conclude that

Crossen v. Diehl
the court’s error was harmful, requiring reversal of its
judgment on those counts and a remand with direction
to render judgment for Martin on those counts. See NRT
New England, LLC v. Longo, supra, 207 Conn. App. 601;
see also Shelton v. Statewide Grievance Committee, 277
Conn. 99, 111, 890 A.2d 104 (2006) (“[i]t is well estab-
lished that in administrative, civil and criminal cases,
when the party charged with the burden of proof fails
to satisfy that burden, it is not entitled to a second ‘bite
at the apple’ on remand”).
B
We next consider whether the court’s factual finding
regarding the aggravating nature of the COVID-19 pan-
demic in the count of civil assault was clearly erroneous.
“A civil assault is the intentional causing of imminent
apprehension of harmful or offensive contact in another.
1 Restatement (Second), Torts [§ 21 (1965)].” Maselli v.
Regional School District No. 10, Superior Court, judicial
district of Hartford, Docket No. CV-15-6062402-S (June
11, 2018) (reprinted at 198 Conn. App. 648, 659–60,
235 A.3d 599), aff’d, 198 Conn. App. 643, 235 A.3d
599, cert. denied, 335 Conn. 947, 238 A.3d 19 (2020).
According to § 21 of the Restatement (Second) of Torts,
“(1) [a]n actor is subject to liability to another for assault
if (a) he acts intending to cause a harmful or offensive
contact with the person of the other or a third person, or
an imminent apprehension of such a contact, and (b) the
other is thereby put in such imminent apprehension.” 1
Restatement (Second), supra, § 21 (1).
In its memorandum of decision, the court found that
Martin “intended to cause a harmful or offensive con-
tact, or an imminent apprehension of such contact, with
[Thomas]. Martin threatened [Thomas], approached him,
and spat on him. Although threats and insults alone
would be insufficient to sustain a claim of civil assault,
Martin spitting on [Thomas] establishes the requisite ele-
ments. . . . In the present case, Martin purposefully spit
on [Thomas]. . . . [S]pitting on a person is an offensive

Crossen v. Diehl
act. The act was made worse due to the ongoing COVID-19
pandemic. Such an action would put a reasonable person
in imminent apprehension of offensive contact. The
court also finds that [Thomas] was put in such imminent
apprehension.” On the basis of our review of the record,
we agree with the court that Thomas had established the
elements necessary to prevail on a claim of civil assault.
In particular, the court admitted into evidence a video
that clearly showed Martin becoming aggressive toward
Thomas and twice spitting on him.
The defendants contend, as they did with the counts
alleging intentional infliction of emotional distress
and negligent infliction of emotional distress, that the
court’s conclusion was based on its erroneous pandemic
related factual findings. We disagree. Although the
court referenced the fact that the spitting was made
worse because it occurred during the COVID-19 pan-
demic, that finding was not integral to its conclusion
that Martin had committed an offensive act and that
Thomas was put in imminent apprehension of offensive
conduct. Prior to referencing the pandemic, the court
stated that, “[a]lthough threats and insults alone would
be insufficient to sustain a claim of civil assault, Martin
spitting on [Thomas] establishes the requisite elements.”
Contrary to the defendants’ contention, the court’s find-
ings that Martin had threatened and spat on Thomas are
supported by the record and are not clearly erroneous.
The defendants, therefore, cannot prevail on this claim.
C
We next consider the court’s award of compensatory
and punitive damages to Thomas on the civil assault
count in light of our reversal of the judgment in favor
of Thomas on the counts of intentional infliction of emo-
tional distress and negligent infliction of emotional dis-
tress.
As previously set forth in this opinion, the court
awarded Thomas $50,000 in compensatory damages
on his intentional infliction of emotional distress claim

Crossen v. Diehl
and nominal damages of $1 on his negligent infliction
of emotional distress and civil assault claims. The court
indicated that it awarded nominal damages on the counts
of negligent infliction of emotional distress and civil
assault to avoid double recovery in light of its compen-
satory damages award on the intentional infliction of
emotional distress count. Lastly, the court awarded
Thomas punitive damages in the form of attorney’s fees,
totaling $2028.75, for counts three and five, i.e., inten-
tional infliction of emotional distress and civil assault.
The court’s award of compensatory and punitive dam-
ages on the civil assault count, therefore, was tethered
to its award of compensatory and punitive damages on
the intentional infliction of emotional distress count.
Having concluded in part I A of this opinion that the
court’s reliance on clearly erroneous findings of fact
regarding the pandemic requires reversal on the count of
intentional infliction of emotional distress, this case must
be remanded with direction to recalculate the award of
compensatory and punitive damages on the count of civil
assault, considering only evidence that was submitted
at the original trial. See Palkimas v. Quilli, 238 Conn.
App. 586, 605, 	A.3d 	(2026).10
II
The defendants next claim that the court’s factual
findings regarding the counts of quiet title and trespass
were clearly erroneous. Specifically, the defendants con-
tend that the plaintiffs failed to present any evidence
10We note the defendants’ contention that the court lacked an eviden-
tiary basis to award punitive damages on either the intentional infliction
of emotional distress count or the civil assault count. Specifically, the
defendants contend that the fee schedule and affidavit of the plaintiffs’
counsel were never admitted as full exhibits at trial. As to this conten-
tion, we note that, during closing argument, counsel for the plaintiffs
requested punitive damages and provided an affidavit of attorney’s fees
and costs to the court. When asked if he had shared the affidavit with the
defendants, counsel responded, “Yes, they have it.” The defendants did
not contradict counsel’s representation. On remand, the record should
clearly reflect whether the affidavit of attorney’s fees and itemized bill
reflecting the fees were admitted into evidence as full exhibits.

Crossen v. Diehl
of a littoral boundary area upon which the defendants
could have trespassed. They also contend that, even if
the evidence established a littoral boundary, the plain-
tiffs presented no evidence demonstrating that they
interfered with the plaintiffs’ littoral rights within the
littoral area. Finally, the defendants claim that, even
if the court properly decided that they had trespassed,
the court improperly calculated the plaintiffs’ damages
award. We consider each of these claims separately.
A
The defendants contend that the plaintiffs failed to
introduce sufficient evidence of littoral boundaries. We
disagree.
The following additional facts are necessary for the
resolution of this claim. In count one of the operative
complaint, the plaintiffs alleged that the location of
the easterly boundary of the plaintiffs’ property and
the westerly boundary of the defendants’ property was
in dispute. The plaintiffs attached to their complaint,
as exhibit C, a boundary map dated September 7, 2018,
prepared by Towne Engineering, Inc., an engineering and
surveying firm, which they alleged set forth the easterly
boundary of the plaintiffs’ property and the westerly
boundary of the defendants’ property. The deed to the
plaintiffs’ property described the southerly boundary as
“by Lake Wangumbaug, one hundred (100) feet, more or
less,” and the deed to the defendants’ property described
the southerly boundary as “by Lake Wangumbaug, fifty
feet, more or less . . . .” The plaintiffs’ complaint fur-
ther alleged that they also had littoral rights extending
from the edge of Lake Wangumbaug waterward along
the boundary line set forth in exhibit C until navigable
waters.
At trial, the court admitted into evidence, as full exhib-
its: a survey prepared by Boucher, a surveyor with Towne
Engineering, Inc., dated October 19, 2021, delineating
the boundaries of the plaintiffs’ property; the deed to
the plaintiffs’ property; the deed to the defendants’

Crossen v. Diehl
property; and several photographs of the boundary line
area. Boucher testified as to the methodology of sur-
veying, the survey’s accuracy, and the plaintiffs’ land
boundaries and littoral rights. The defendants offered
no evidence to rebut the plaintiffs’ evidence.11 In its
decision, the court held that the property line as put
forward by the plaintiffs’ exhibit C and testified to by
Boucher was the correct boundary. Additionally, the
court concluded that the plaintiffs had exclusive littoral
rights and privileges within their property line.
On appeal, the defendants first contend that the court
improperly relied on exhibit C to establish the bound-
ary line. According to the defendants, although exhibit
C was attached to the plaintiffs’ complaint, it was not
admitted into evidence at trial. The defendants’ claim,
however, is not supported by the record. It is true that
the plaintiffs attached to their complaint, as exhibit C,
a boundary map dated September 7, 2018, prepared by
Towne Engineering, Inc. Plaintiffs’ exhibit 15, admit-
ted into evidence at trial, was a revision of the 2018 map
prepared by Towne Engineering, Inc. The revised survey
map is dated October 19, 2021. Boucher testified that the
boundary line in the 2021 survey had not changed since
the original survey in 2018. Notably, the court later
admitted the September 7, 2018 survey into evidence
as a full exhibit at the defendants’ request. Because
the survey map dated September 7, 2018, was properly
admitted into evidence at the defendants’ request, the
defendants cannot prevail on their claim that the court’s
consideration of that survey was improper.
The defendants next contend that, even if the court
used the correct map, neither the September 7, 2018
survey nor the revised survey dated October 19, 2021,
contains any littoral rights analysis. We disagree and
conclude that the evidence was sufficient for the court
to establish the plaintiffs’ littoral boundary rights.
11Rather, the defendants offered to “give” the plaintiffs the disputed
portions of the property.

Crossen v. Diehl
“Littoral rights are the rights that shoreline owners
possess to make exclusive use of the land lying seaward
of the mean high water mark. . . . [O]wners of . . . upland
[appurtenant to bodies of water] have the exclusive, yet
qualified, right and privilege to . . . wharf out from the
owner’s land in a manner that does not interfere with
free navigation.” (Internal quotation marks omitted.)
Cohen v. Dept. of Energy & Environmental Protection,
215 Conn. App. 767, 833, 285 A.3d 760, cert. denied,
345 Conn. 968, 285 A.3d 1126 (2022), and cert. denied,
345 Conn. 969, 285 A.3d 737 (2022). “[W]hen a deed
generally describes the abutting property as bounded
by the body of water, title to the bed is based on littoral
ownership, and each littoral owner impliedly owns the
land under the water to the center of the body and each
abutting owner is entitled to common use of the entire
body.” Ace Equipment Sales, Inc. v. Buccino, 273 Conn.
217, 227 n.8, 869 A.2d 626 (2005).
The deed to the plaintiffs’ property described the south-
erly boundary as “by Lake Wangumbaug, one hundred
(100) feet, more or less . . . .” At trial, Boucher testified
regarding photos of the staked boundary line between
the properties with a hand drawn line extending into
the lake to establish the littoral boundary. When asked
if the photos accurately represented the boundary line
if it extended out into the water, Boucher responded
that “it is as close as you’re going to get in a photo . . . .”
He described littoral rights as “the rights of a property
owner, adjacent to a water body, to that water body.” The
survey map dated September 7, 2018, states: “Littoral
rights to a portion of the submerged area likely exist but
have not been fully explored for the preparation of this
survey.” Plaintiffs’ exhibit 15, the revised survey map
dated October 19, 2021, however, states: “Littoral rights
to Coventry Lake exist in favor of [the plaintiffs] fol-
lowing extension of easterly and westerly property lines
including the unrestricted access from the property to the
lake including the unrestricted right to install docks and

Crossen v. Diehl
wharves along the lake frontage.”12 Plaintiff’s exhibit
15 describes the lake as “Coventry Lake aka Lake Wang-
umbaug.” The defendants offered no evidence to rebut
the plaintiffs’ evidence as to the littoral boundary.13 On
the basis of this evidence, we cannot say that the court’s
determinations that the plaintiffs had established the
boundary line in accordance with plaintiffs’ exhibit C
and that they had littoral rights privileges within their
property line were clearly erroneous.14
B
Even if the court properly established the littoral
boundary, the defendants contend that the plaintiffs
12We note that the copy of exhibit 15 reproduced in the appendix to
the defendants’ brief is an unsigned version of the survey map that
does not contain the surveyor’s license number and certification. This
version of exhibit 15 states that “[l]ittoral rights to a portion of the
submerged area likely exist but have not been fully explored for prepa-
ration of this survey.”
The exhibit admitted into evidence at trial contains Boucher’s origi-
nal signature and license number and is stamped with the surveyor’s
certification as an original. This version of the survey provides that
“[l]ittoral rights exist in favor of [the plaintiffs] following extension of
easterly and westerly property lines including the unrestricted access
from the property to the lake including the unrestricted right to install
docks and wharves along the lake frontage.”
13As noted in the court’s memorandum of decision, the defendants
attempted to submit what they claimed was a “proposed” or “prelimi-
nary” survey, but the court declined to admit the survey into evidence in
the absence of any corroborating testimony by the author of the survey.
14We note that, as part of this claim on appeal, the defendants contend
that the methodology employed by the court to establish the littoral
boundaries is inconsistent with Rochester v. Barney, 117 Conn. 462, 169
A. 45 (1933). The defendants cite Rochester for the proposition that,
“[w]here the general course of the shore is a straight line, the division
of riparian rights between adjoining landowners is along a perpendicu-
lar to the straight line from the intersection of the upland boundary
line between the parties with the high-water mark.” Id., 469–70. The
defendants contend that the plaintiffs introduced no evidence regarding
the shape of the parties’ shorelines, or any testimony that the littoral
boundary was determined using the shape of the parties’ shoreline. At
trial, the defendants did not present any evidence to rebut the littoral
boundary line set forth in the plaintiffs’ survey map, nor did they argue
that the court should follow the methodology set forth in Rochester v.
Barney, supra, 469–70, to establish the littoral boundary line. “Our

Crossen v. Diehl
failed to present evidence of interference with littoral
rights. We disagree.
“The essentials of an action for trespass are: (1) owner-
ship or possessory interest in land by the plaintiff; (2)
invasion, intrusion or entry by the defendant affect-
ing the plaintiff’s exclusive possessory interest; (3)
done intentionally; and (4) causing direct injury. . . .
Additionally, an action for trespass may be maintained,
in appropriate circumstances, to protect against the
encroachment on littoral rights.” (Citation omitted;
internal quotation marks omitted.) Murphy v. EAPWJP,
LLC, 123 Conn. App. 316, 330, 1 A.3d 1171 (2010),
appeal dismissed, 306 Conn. 391, 50 A.3d 316 (2012).
The plaintiffs’ evidence establishing their ownership or
possessory interest in the land included Boucher’s testi-
mony as to the boundaries of the plaintiffs’ property and
their littoral rights; the plaintiffs’ deed; the defendants’
deed; and the plaintiffs’ survey map. The plaintiffs’
evidence establishing an invasion, intrusion, or entry
by the defendants included Boucher’s testimony that, as
of August 20, 2021, the defendants’ dock extended 6.3
feet over the shared boundary line. Thomas testified that
the defendants “had boats and stuff on top of that dock
that extend even further” and that the defendants and
their guests “will take paddleboards, canoes, you name
it, and take it off of that dock that is already in front
of my property, and go out in the water in front of my
property, which interferes or makes it so that I can’t use
my waterfront.” The photographs admitted into evidence
showed various encroachments made by the defendants
into the plaintiffs’ littoral area. Finally, the survey map
appellate courts, as a general practice, will not review claims made for
the first time on appeal. We repeatedly have held that [a] party cannot
present a case to the trial court on one theory and then seek appellate
relief on a different one . . . . [A]n appellate court is under no obligation
to consider a claim that is not distinctly raised at the trial level. . . .
[B]ecause our review is limited to matters in the record, we [also] will
not address issues not decided by the trial court.” (Citation omitted;
internal quotation marks omitted.) White v. Mazda Motor of America,
Inc., 313 Conn. 610, 619–20, 99 A.3d 1079 (2014).

Crossen v. Diehl
admitted into evidence reflected encroachments made by
the defendants onto the plaintiffs’ property, including
the dock encroaching on their littoral area.
On the basis of the record before it, the court found
that the plaintiffs’ exclusive ownership of the property
was undisputed. The court also concluded that the defen-
dants have “continuously intrud[ed] on the plaintiffs’
property by constructing a dock . . . .” The court found,
and the defendants do not contest, that the defendants’
intrusions were done intentionally. Lastly, the court
found that such instances of trespass caused injury and
interfered with the plaintiffs’ peaceful use and enjoy-
ment of their property. We cannot conclude that the
court’s findings were clearly erroneous. As such, on the
basis of our review of the record, we conclude that there
was sufficient evidence for the court to find in favor of
the plaintiffs on the trespass count, specifically, for
interference with the plaintiffs’ littoral rights.
C
Finally, the defendants contend that, even if the court
properly found the defendants liable for trespass, it
improperly calculated the damages award. We disagree.
We first set forth our standard of review. “Normally,
we review a court’s determination of damages under
an abuse of discretion standard. . . . When, however, a
damages award is challenged on the basis of a question of
law, our review [of that question] is plenary.” (Internal
quotation marks omitted.) Robert v. Scarlata, 96 Conn.
App. 19, 22, 899 A.2d 666 (2006).
The following additional facts are necessary for the
resolution of this claim. In its decision, the court noted
that the plaintiffs were seeking, inter alia, compensa-
tory damages for the diminution of their property value
resulting from the defendants’ trespasses. Because the
plaintiffs had failed to submit evidence to support such
an award, the court awarded “zero dollars ($0) for the
diminution in value.” The court did, however, award
compensatory damages of $5000 to the plaintiffs due

Crossen v. Diehl
to the defendants’ interference with the plaintiffs’ use
and enjoyment of their land and littoral rights. The court
indicated that this award was based on its calculation
of $1000 per year for five years. The defendants claim
that the evidence was insufficient to support this award.
“Whenever a harm to land occurs from an invasion of
property rights, the measures of damage to be considered
are the difference in the value of the land before and after
the harm, the loss of the use of the land, and the discom-
fort and annoyance to the party harmed as an occupant.”
(Emphasis in original; internal quotation marks omitted.)
Robert v. Scarlata, supra, 96 Conn. App. 23.
The defendants cite Boyne v. Glastonbury, 110 Conn.
App. 591, 955 A.2d 645, cert. denied, 289 Conn. 947,
959 A.2d 1011 (2008), for the proposition that damages
for interference with use and enjoyment can only be
recovered under a nuisance claim and the plaintiffs did
not allege a nuisance claim.15 This court stated in Boyne
that “recent case law treats trespass cases as involving
acts that interfere with a plaintiff’s exclusive posses-
sion of real property and nuisance cases as involving
acts interfering with a plaintiff’s use and enjoyment
of real property.” Id., 599–600. We disagree with the
defendants that this language compels the conclusion
that loss of use and enjoyment is an improper measure
of damages in an action for trespass. In this regard, this
court further stated in Boyne that “claims of nuisance
may include an instance of trespass in that a physical
entry onto land possessed exclusively by another also may
affect, in the abstract, the possessor’s use and enjoyment
of the land. . . . The two actions, trespass and private
nuisance, are thus not entirely exclusive or inconsistent,
15The defendants further assert that the plaintiffs never requested
damages for loss of the use and enjoyment of the property but, rather,
sought only compensatory damages for the diminished value of the
property. We disagree. Although the court’s decision states that the
plaintiffs were seeking “compensatory damages for the diminution of
their property value due to these trespasses,” the plaintiffs’ complaint
more broadly sought compensatory damages against the defendants on
the count of trespass.

Crossen v. Diehl
and in a proper case in which the elements of both actions
are fully present, the plaintiff may have his choice of
one or the other, or may proceed upon both.” (Citations
omitted; internal quotation marks omitted.) Id., 600.
The defendants’ reliance on Boyne in support of their
claim that the court improperly calculated the damages
award, therefore, is misplaced.
The defendants further contend that, even if dam-
ages are allowed based on loss of use and enjoyment, the
court erred by including facts in its decision that were
beyond the scope of the plaintiffs’ complaint. Specifi-
cally, although the complaint alleged that the defendants
had trespassed on their property in certain respects
beginning in the summer of 2021, the court awarded
damages for incidents that occurred in 2018 or 2019.
“[O]rdinarily a court may not grant relief on the basis
of an unpleaded claim. . . . That does not necessarily
mean, however, that the absence of a particular claim
from the pleadings automatically precludes a trial
court from addressing the claim, because a court may,
despite pleading deficiencies, decide a case on the basis
on which it was actually litigated and may, in such an
instance, permit the amendment of a complaint, even
after the trial, to conform to that actuality. . . . Indeed,
[our Supreme Court has] recognized that, even in the
absence of such an amendment, where the trial court
had in fact addressed a technically unpleaded claim that
was actually litigated by the parties, it was improper for
[this court] to reverse the trial court’s judgment for lack
of such an amendment.” (Citations omitted.) Stafford
Higgins Industries, Inc. v. Norwalk, 245 Conn. 551,
575, 715 A.2d 46 (1998). “[V]ariations between facts or
issues alleged in a complaint and facts or issues raised
at trial do not necessarily preclude a court from basing
its decision on facts or issues actually litigated at trial.”
Maloney v. PCRE, LLC, 68 Conn. App. 727, 747, 793
A.2d 1118 (2002).
On the basis of the claim litigated at trial, the court
found that five years of continued trespass had trans-
pired, which included encroachments by the defendants

Crossen v. Diehl
in the form of a paddleboard rack, cement blocks, vehicles,
signs and banners, a dock, moorings, and the destruction
of vegetation and soil.16 Additionally, the court found
that the defendants and their guests had physically tres-
passed on the plaintiffs’ property and that the defen-
dants’ intrusions on the plaintiffs’ property interfered
with the plaintiffs’ peaceful use and enjoyment of their
property. The court’s findings in this regard are sup-
ported in the record and are not clearly erroneous. The
court, therefore, did not abuse its discretion in its award
of damages on the plaintiffs’ claim of trespass.
The judgment is reversed only as to counts three and
four of the plaintiffs’ amended complaint and the award
of compensatory and punitive damages on counts three,
four and five of the plaintiffs’ amended complaint is
vacated and the case is remanded with direction to render
judgment for Martin on counts three and four and for
further proceedings to recalculate the award of dam-
ages on count five; the judgment is affirmed in all other
respects.
In this opinion DiPENTIMA, J., concurred.
16The court acknowledged that the paddleboard rack and the banners
had been removed.