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

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

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, 

155 Vt. 308, 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, 

150 Vt. 290, 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. 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 altered his property in some 

manner affecting the natural drainage. See Canton v. Graniteville Fire 
Dist., 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 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, 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 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, 152 Vt. 251, 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