After an arbitration, Mr. and Mrs. Freeman demanded a trial de novo pursuant to Local R. Civ. The parties agreed to try that issue to the Court rather than to a jury. M. Gagnon was the only witness to testify during this threshold phase. There is no dispute that more than twelve years elapsed between the completion of the Rotoclave and the accident. In fact, twenty-nine years had passed.
Plaintiffs do, however, take issue with the first and third elements.
There is little doubt here that the Rotoclave constitutes an improvement to the Fizzanos' real property. It is not merely attached to the land. Rather, it is incorporated into the land and cannot be removed without destroying the machine and changing the entire structure of the land. M. Gagnon testified that if Fizzano Brothers wanted to get rid of the Rotoclave, its only option would be to fill in the hole. Both the underground and aboveground portions have been in place for more than thirty years and are still in use today, and M. Gagnon stated that no Rotoclave has ever been moved from one location to another.