Violation of CEPA's Standard of Care Constitutes Negligence Per Se

The Connecticut Appellate Court's decision in Shukis v. Board of Education, 122 Conn. App. 555 (2010) will put some teeth into the Connecticut Environmental Protection Act, Conn. Gen. Stat. §§22a-14 to 22a-20 ("CEPA"). The remedies available to plaintiffs in actions brought under CEPA to protect the "air, water and other natural resources" of the state are limited to injunctive and declaratory relief; no private cause of action for damages is authorized under CEPA. Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 44 (1987). In Shukis, however, the Appellate Court held that § 22a-16 of CEPA imposes on defendants a standard of care, the violation of which constitutes negligence per se. Shukis, at 582. The Court determined that the "regulatory permit standard of care" applied under CEPA to determine whether there has been unreasonable pollution should also be grafted onto negligence (and nuisance) claims. Plaintiffs who prove a breach of this standard of care and that such breach was the proximate cause of their injuries, will now have a money damage remedy. This ability to recover money damages, albeit under a negligence theory, will provide a powerful new tool for the protection of the environment and the state's natural resources.

The Facts
Shukis v. Board of Education

The plaintiff in Shukis brought suit alleging CEPA violations and negligence and nuisance claims. His property, with a two acre pond on it, was located adjacent to the building, grounds and athletic fields of the regional district high school. The 40+ acre high school facility was directly uphill from the pond. When the plaintiff purchased his property, the pond was clear and its surface was free of vegetation; it was used for swimming, fishing and other recreation. The school board then undertook the renovation and construction of athletic fields on the high school grounds. After the renovation commenced, significant amounts of sediment began to flow into the plaintiff's pond due to the failure of the school's contractors to maintain adequate erosion and sediment controls. Large quantities of storm water containing silt, rocks and bacteria flowed from the school property into the plaintiff's pond and surrounding wetlands. The town's zoning and wetlands enforcement official issued a notice of violation of the zoning regulations and a cease and desist order for violation of the wetlands regulations to the school board and its contractors. When none of these violations were remedied, the plaintiff brought suit asserting claims under CEPA as well as negligence and nuisance claims.

The trial court issued summary judgment for the defendants, agreeing with them that the plaintiff had failed to adduce expert evidence to support liability (i.e. that his property suffered unreasonable pollution, impairment or destruction of the public trust in the air, water or natural resources in the state) or to establish causation (i.e. that the siltation was the proximate cause of the added plant growth and murky water in the pond). The Appellate Court reversed, holding that genuine issues of material fact existed as to whether the defendants had unreasonably polluted the plaintiff's pond and whether the damage to the pond was proximately caused by the defendants' negligent acts. In reaching this conclusion, the Appellate Court agreed with the plaintiff that the trial court had erred in failing to: (1) apply the appropriate "regulatory permit standard of care" under CEPA and the Inland Wetlands and Watercourses Act, §§22a-36 et seq; ("IWWA"); (2) to graft this "regulatory permit standard of care" onto the plaintiff's negligence and nuisance counts; and (3) to find sufficient evidence of a breach of the standard of care and the subsequent causation of harm to allow the case to proceed to trial on its merits. Shukis at 558.

CEPA'S Regulatory Permit Standard of Care

To explain the "regulatory permit standard of care" for liability under CEPA, the Appellate Court looked to Conn. Gen. Stat. §22a-16 which provides, in relevant part:

[A]ny person . . .may maintain an action in the superior court . . . for declaratory and equitable relief against . . . any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ." (emphasis added).

It then noted that the Supreme Court, in Waterbury v. Washington, 200 Conn. 506, 557 (2002), had provided guidance as to what constitutes unreasonable pollution.

"[W]hen there is an environmental legislative and regulatory scheme in place that specifically governs the conduct that the plaintiff claims constitutes [unreasonable pollution] under CEPA, whether the conduct is unreasonable under CEPA will depend on whether it complies with that scheme." Id. . . . "[I]n order to read our environmental protection statutes so as to form a consistent and coherent whole, we infer a legislative purpose that those other enactments are to be read together with CEPA, and that, when they apply to the conduct questioned in an independent action under CEPA, they give substantive content to the meaning of the word 'unreasonable' in the context of such an independent action (citation omitted).

Shukis at 576. Finally, the Appellate Court concluded that it was the state's wetlands statutes and the municipal zoning regulations which had to be read in conjunction with CEPA in this case, because they provided the substantive content (and therefore established the "regulatory permit standard of care") for determining what constituted unreasonable pollution. When it did this, the Court concluded that there were genuine issues of material fact as to whether the defendants had unreasonably polluted the plaintiff's pond under CEPA. Shukis at 575-76, 578-79.

The Negligence Counts

The issue of first impression decided by the Appellate Court in Shukis was whether §22a-16 of CEPA imposed a standard of care on the defendants, the violation of which would constitute negligence per se. The Court noted that the existence of a duty of care is an essential element of negligence and that "[a] duty to use care may arise from a contract, a statute or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." Shukis at 579. However, where a claim is based on negligence per se, the finder of fact need not decide whether the defendant acted as an ordinary prudent person would have under the circumstances and merely decides whether the relevant statute or regulation has been violated. Shukis at 580.

In connection with the CEPA count, the Appellate Court had already determined that the state's wetlands statutes and the town's zoning regulations had to be read together with CEPA, in order to determine if there had been a violation of the "regulatory permit standard of care" and hence unreasonable pollution. In analyzing the negligence claim, the Court further looked at the two pronged test used to establish negligence per se, that is whether the plaintiff was within the class of persons intended to be protected by these statutes and regulations and whether the injury suffered by the plaintiff was of the type that CEPA was intended to prevent. It concluded that the plaintiff in Shukis satisfied both prongs, having alleged damage to his pond from erosion, turbidity and siltation, and that the injuries he suffered due to violations of the wetlands statutes and zoning regulations on the school's property were of the type that CEPA was designed to prevent. After this analysis, the Court concluded that CEPA's "regulatory permit standard of care" in §22a-16 should be grafted onto the plaintiff's negligence counts so that a violation of this standard of care would constitute negligence per se." Shukis at 582.

The only remaining issue under the Appellate Court's negligence per se analysis was to determine whether these violations "proximately caused" the damage to the plaintiff's pond. The Court reviewed the plaintiff's substantial evidence from a natural resource specialist, a soil scientist, a professional engineer and a botanist and concluded that a material issue of fact also existed as to whether the damage to the plaintiff's pond was proximately caused by the defendants' alleged negligent acts.

Negligence Per Se Damages for Violating CEPA's Standard of Care

Because the Court did not rule on the merits in Shukis, it also did not determine the proper measure of damages for a violation of CEPA's standard of care, based on negligence per se. However, there is a well developed body of law for damages to real estate caused by torts. "In determining the proper measure of damages for injury to land, [t]he legal effort . . . is to compensate the landowner for the damage done . . ." Centimark Corp. v. Village Manor Associates Ltd. Partnership, 113 Conn. App. 509, 526 (2009) . . . "The basic measure of damages for injury to real property is the resultant diminution in its value . . . There is, however, a well established exception to this formula; such diminution in value may be determined by the cost of repairing the damage, provided of course, that the cost of repairs do not exceed the value of the property over what it was before it was damaged . . . The cost of repairs, therefore, is a proxy for dimunition in value caused by damage to property. . ." Id. at 529-530.

The "cost of repair" measure of damages would seem to be appropriate if damages to real property are claimed in a negligence per se count. For example, if the injuries claimed are from the clear cutting of trees or the destruction of wetlands which are both natural resources under CEPA, Paige v. Town Plan & Zoning Commission, 235 Conn. 448, 454 (1995), the "cost of repair" measure of damages would compensate the landowner for the damage done. However, the resources damaged and protected under CEPA might be something other than real property. For example, if the resource damaged were "wildlife", another measure of damages would have to be fashioned by the courts.

Conclusion

The Appellate Court's decision in Shukis was not a final ruling on the merits. Nevertheless, in holding that the legislature intended to provide for statutory liability under CEPA through the doctrine of negligence per se and thereby including the award of money damages as a remedy, the Court has provided an important new tool for the protection of the environment.