Lussier v. Armstrong, No. S0981-01 CnC (Katz, J., A pr. 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, land lord and car dealerbegan experiencing flooding problems. The car deal er filed this suit against

landlord and mall for trespass, nuisance, and negli gence. Landlord counterclaimed against car dealer and mall. Landlo rd 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 ser ies of floods beginning in 1998. Car dealer in turn presents evidence that di sputes the conclusions of Duchesneau and O’Leary. Car dealer’s argument is b asically, “I don’t know who caused the flooding, but it wasn’t me.” T he inference is that Armstrong, one of its upstream neighbors, or someth ing else is to blame. This is enough to create a factual issue and make s ummary judgment inappropriate for landlord’s counterclaims. State Envtl. Bd. v. Chickering

, 155 Vt. 308, 319 (1990) (“ Summary judgment is not a substitute for a determination on the merits, so long as evidence ha s been presented which creates an issue of material fact, no matter what v iew 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 aga inst landlord. The law of riparian rights in Vermont is reciprocal and requir es lower property owners to accept natural drainage from upper property owne rs. Powers v. Judd

, 150 Vt. 290, 292 (1988). As the upper property own er, landlord owes a duty to car dealer not to alter or increase the flo w of water onto dealer’s property in a way that causes damage. Id . Thus to establish liability for flooding damages, a lower property owner must prove that the upper property owner increased the flow of water or alter ed his property in some manner affecting the natural drainage. See Canton v. Graniteville FireDist. , 171 Vt. 551, 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 landlo rd, but his affidavits and evidence provide no substance for these allegations . None of car dealer’s evidence suggests that landlord has altered his pro perty in any way that would change the drainage of surface water. In fac t 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 unrel ated to any alterations or

land uses.

Summary judgment will take as true all of car deal er’s allegations supported by evidence, but allegations alone do not create issues of material

fact. Lucas v. Hahn , 162 Vt. 456, 458 (1994). The purpose of summary judgment is to “smoke out” the evidence and support for a party’s claims. Donnelly v. Guion , 467 F.2d 290, 293 (2d Cir.1972). Summary judgmen t is appropriate when a party fails to make a showing sufficient to establish

an element of his case on which he has the burden o f proof at trial. Poplaski v. Lamphere , 152 Vt. 251, 254–55 (1989). Here car dealer had a greater burden than to merely muddy the factual wat ers. He also had the burden of showing facts which would demonstrate tha t landlord had altered the upper property or increased the drainage by art ificial means. By failing to do so, car dealer has failed to demonstrate a tr iable claim against landlord. Without such evidence of alteration, the re is no liability. Therefore, we conclude that summary judgment is app ropriate for car dealer’s claims against landlord and should be gran ted 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

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________________________ Judge