Lussier v. Armstrong, No. S0981-01 CnC (Katz, J., Apr. 12, 2004)



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STATE OF VERMONT
Chittenden County, ss.:



LUSSIER

v.

ARMSTRONG

v.

ESSEX REALTY CORP.




                               ENTRY
               (Armstrong Motion for Summary Judgment)

       Third party plaintiff is a landlord with property between a shopping
mall and a car dealership. Beginning in 1998, landlord and car dealer
began experiencing flooding problems. The car dealer filed this suit against
landlord and mall for trespass, nuisance, and negligence. Landlord
counterclaimed against car dealer and mall. Landlord now requests
summary judgment against car dealer on all claims. This would effectively
settle liability between the two parties and leave landlord as sole plaintiff.

        Landlord’s motion relies on two expert witnesses, Paul Duchesneau
and Paul O’Leary, to settle the issue of causation. Their affidavits opine
that car dealer through construction caused the series of floods beginning in
1998. Car dealer in turn presents evidence that disputes the conclusions of
Duchesneau and O’Leary. Car dealer’s argument is basically, “I don’t
know who caused the flooding, but it wasn’t me.” The inference is that
Armstrong, one of its upstream neighbors, or something else is to blame.
This is enough to create a factual issue and make summary judgment
inappropriate for landlord’s counterclaims. State Envtl. Bd. v. Chickering,

, 319 (1990) (“ Summary judgment is not a substitute for a
determination on the merits, so long as evidence has been presented which
creates an issue of material fact, no matter what view the court may take of
the relative weight of that evidence.”).

       On the other hand, car dealer’s response does not support his prima
face case of trespass, nuisance, and negligence against landlord. The law of
riparian rights in Vermont is reciprocal and requires lower property owners
to accept natural drainage from upper property owners. Powers v. Judd,

, 292 (1988). As the upper property owner, landlord owes a
duty to car dealer not to alter or increase the flow of water onto dealer’s
property in a way that causes damage. 

establish liability for
flooding damages, a lower property owner must prove that the upper
property owner increased the flow of water or altered his property in some
manner affecting the natural drainage. See Canton v. Graniteville Fire
Dist., 

, 552 (2000) (quarry owners liable for the alteration it
made to the natural drainage patterns and resulting flooding). Car dealer
has alleged as much in his complaint against landlord, but his affidavits and
evidence provide no substance for these allegations. None of car dealer’s
evidence suggests that landlord has altered his property in any way that
would change the drainage of surface water. In fact car dealer’s evidence,
such as the fact that 1998 was an exceptional year for rain, tends to
supports the conclusion that the flooding was unrelated to any alterations or
land uses.

       Summary judgment will take as true all of car dealer’s allegations
supported by evidence, but allegations alone do not create issues of material
fact. Lucas v. Hahn, 

, 458 (1994). The purpose of summary
judgment is to “smoke out” the evidence and support for a party’s claims.
Donnelly v. Guion, 

, 293 (2d Cir.1972). Summary judgment
is appropriate when a party fails to make a showing sufficient to establish
an element of his case on which he has the burden of proof at trial.
Poplaski v. Lamphere, 

, 254–55 (1989). Here car dealer had a
greater burden than to merely muddy the factual waters. He also had the
burden of showing facts which would demonstrate that landlord had altered
the upper property or increased the drainage by artificial means. By failing
to do so, car dealer has failed to demonstrate a triable claim against
landlord. Without such evidence of alteration, there is no liability.
Therefore, we conclude that summary judgment is appropriate for car
dealer’s claims against landlord and should be granted in favor of landlord.

      For the foregoing reasons, Armstrong’s motion for summary
judgment is denied in part and granted in part; the claims of Lussier against
Armstrong are dismissed.
Dated at Burlington, Vermont________________, 2004.




                               ________________________
                               Judge