Northrup v. Witkowski

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NORTHRUP v. WITKOWSKI—DISSENT
ECKER, J., dissenting. In Spitzer v. Waterbury, 113
Conn. 84, 88, 154 A. 157 (1931), this court held, consis-
tent with its prior precedent and the prevailing case
law in the majority of our sister states, that the ‘‘[t]he
work of constructing drains and sewers, as well as
that of keeping them in repair, is ministerial, and the
municipality is responsible for negligence in its perfor-
mance.’’ This line of cases imposing liability on munici-
palities for the negligent maintenance and repair of
drains and sewers has been on our books for over a
hundred years without any sign of legislative disap-
proval or criticism from this court. Today we overrule
Spitzer and the well established case law on which it
relied because the majority believes, contrary to
Spitzer, that the maintenance and repair of a storm
water drainage system is not ministerial, but discretion-
ary. I cannot understand why we would choose to over-
turn an established line of cases, which has been
codified by the legislature in General Statutes § 52-557n,
without any compelling reason to do so. The choice
to overrule this long-standing precedent becomes still
more mystifying upon the realization that we are doing
so in favor of an immunity doctrine that can only serve
to encourage municipal carelessness by removing any
financial incentive to act with due care. The immunity
we confer today imposes the entire burden of a munici-
pality’s negligence on the unlucky few who suffer its
direct consequences in the form of property damage or
personal injury, rather than spreading those costs
across the entire community that benefits from the rele-
vant municipal operation. I respectfully dissent.
I begin with a brief review of certain facts that cannot
be ignored at the summary judgment stage. The plain-
tiffs’ opposition to summary judgment included a tech-
nical report dated October, 2009, entitled ‘‘Stormwater
Management Report Nettleton Avenue Neighborhood’’
(drainage study), which was prepared by an engineering
firm at the request of the defendant borough of Nauga-
tuck (town). As the majority notes, the drainage study
indicates that the flooding in the Nettleton Avenue
neighborhood, where the plaintiffs reside, occurs after
periods of particularly heavy rainfall and attributes the
flooding ‘‘to the fact that runoff was required to flow
through relatively narrow drainpipes that were in poor
to fair condition and that the majority of catch basins
in the area were old and had small openings that often
became overgrown with vegetation or obstructed by
trash.’’ (Internal quotation marks omitted.) The majori-
ty’s abridged summary, although accurate, fails to
acknowledge all of the pertinent facts contained in the
drainage study. Additional aspects of the drainage study
warrant further elaboration because they illustrate the
nature and extent of the alleged negligent acts and
omissions at issue in this case.
The drainage study explains that the cause of the
flooding in the Nettleton Avenue neighborhood is not
limited to the outdated and dilapidated condition of the
drainage pipes and catch basins. Rather, ‘‘[t]he street
is used as an overflow channel’’ and ‘‘[w]hen the street’s
capacity is exceeded, water will find and follow the
path of least resistance to reach the watershed’s natural
low point . . . .’’ The street’s ability to act as an over-
flow channel had been compromised by the town’s role
in repaving the neighborhood streets and curbs. The
repaving had thickened the asphalt and reduced ‘‘the
height of the curbs above the asphalt . . . decreas[ing]
the curb’s ability to carry storm water runoff.’’ The
excess storm water runoff ‘‘adds to the flow already in
Trowbridge Place and accumulates at the low point in
Trowbridge Place (about [fifty] feet east of Nettleton
Avenue) where it overflows the curb and drains through
the yards between Trowbridge Place and Moore Ave-
nue.’’ The plaintiffs’ home is located at the low point on
Nettleton Avenue, near the intersections of Trowbridge
Place and Moore Avenue.
According to the drainage study, residents on Net-
tleton Avenue between Trowbridge Place and Moore
Avenue ‘‘described being flooded by surface waters that
overflow the drainage system in the adjacent streets.
The resident at 75 Goodyear Avenue described water
backing up into the basement from Trowbridge Place
during heavy storms. Residents along the east side of
Nettleton Avenue and the north side of Moore Avenue
describe water flowing over the curbs on the south
side of Trowbridge Place and then through their yards
causing water damage during heavy rainfall events.
Such flooding was reported to have occurred every one
or two years.’’
The drainage study reflects that the town was aware
of the defective condition of the storm water drainage
system and the need for maintenance and repairs to
prevent flooding in the Nettleton Avenue neighborhood.
Additionally, the plaintiffs submitted an affidavit in
which Helen M. Northrup averred that she ‘‘repeatedly’’
informed the defendants, James Stewart, the town’s
director of public works, and Robert A. Mezzo, the
town’s mayor, that her home continued to flood and
asked them to ‘‘[take] measures to protect’’ her home.
Her requests were ignored and her home, as well as
those in the surrounding neighborhood, continued to
flood during periods of heavy rainfall with ‘‘rain surface
water, black water, and storm water mixed with sew-
age . . . .’’
In my view, the evidence supports a reasonable infer-
ence that the defendants were negligent in constructing,
maintaining, and repairing all of the components of the
storm water drainage system—municipal streets, curbs,
catch basins, and drainage pipes—serving the plaintiffs’
neighborhood. The evidence further supports a reason-
able inference that the plaintiffs’ property was damaged
by the repeated flooding caused by the defendants’ neg-
ligent construction, repair, or maintenance of the storm
water drainage system. I believe that the defendants’
motion for summary judgment should have been denied
on this factual record.
The majority affirms the grant of summary judgment
in favor of the defendants because, in its view, the
construction, maintenance and repair of a storm water
drainage system requires the exercise of judgment or
discretion under § 52-557n (a) (2) (B).1 In arriving at
this conclusion, the majority overrules this court’s hold-
ing in Spitzer v. Waterbury, supra, 113 Conn. 88, that
‘‘[t]he work of constructing drains and sewers, as well
as that of keeping them in repair, is ministerial, and the
municipality is responsible for negligence in its perfor-
mance.’’ The majority characterizes Spitzer as an aber-
rant case without support elsewhere in Connecticut
case law and rooted in an antiquated line of out-of-state
cases which relied on ‘‘outmoded’’ distinctions between
public and corporate duties, the law of negligence and
nuisance, and duties assumed versus duties imposed.
I disagree. Spitzer was anything but an outlier when
decided and its fundamental underlying principles
remain vital to this day.
The plaintiffs in Spitzer alleged that ‘‘after a heavy
rainfall, [a] stream overflowed through a catch basin
in front of the plaintiffs’ house, discharging water into
the street which ran into the plaintiffs’ cellar, causing
damage to their property.’’ Id., 85. This court noted that
the defendant city was ‘‘bound to exercise due care in
the construction of its storm water sewers, and would
be liable for its failure to do so though the work was
done in the performance of a public and governmental
duty. . . . The work of constructing drains and sewers,
as well as that of keeping them in repair, is ministerial,
and the municipality is responsible for negligence in its
performance. . . . If, apart from any defect in the plan,
the city’s employees had so negligently and improperly
constructed the outlet of this storm water sewer that,
under conditions reasonably to be anticipated, it would
not carry off the water collected by it, the city would
be responsible for damage directly resulting to the plain-
tiffs’ property.’’ (Citations omitted.) Id., 88. The plain-
tiffs’ complaint in Spitzer foundered only because it
was not predicated on a claim that the city was negligent
in the construction, maintenance, and repair of the
storm water drainage system, but rather on a claim of
negligent design—i.e., that ‘‘the failure of the city, in
planning a storm water disposal system, to adopt a plan
which provided an outlet of sufficient size adequately
to dispose of the water discharged by the storm water
sewer into the covered stream.’’ Id., 88–89. This court
held that ‘‘[s]uch a defect in the plan upon which the
system was constructed, if one existed, was the result
of an error of judgment on the part of the officers of
a public corporation on which has been cast the burden
of discharging a governmental duty of a quasi-judicial
character,’’ and, therefore, ‘‘the defendant is not liable.’’
Id., 89.
Spitzer holds that the design of a storm water drain-
age system is discretionary and, therefore, protected
by municipal immunity, whereas the construction,
maintenance, and repair of such a system is a ministerial
duty for which the municipality may be held liable in
negligence. Id. The majority contends that Spitzer
stands alone in this view, but it has not cited a single
decision of this court inconsistent with Spitzer regard-
ing the subject at issue, i.e., municipal liability for prop-
erty damage caused by the negligent construction,
maintenance, and/or repair of a storm water drainage
system.2 To the contrary, there is extensive authority
demonstrating that Spitzer accurately states the law
governing this field of municipal operations. See Phelan
v. Waterbury, 97 Conn. 85, 90–91, 115 A. 630 (1921)
(reversing judgment in favor of plaintiff because there
was no evidence that city negligently failed to clean
and maintain catch basins; instead, plaintiff’s injury was
due to alleged inadequate design of storm water drain-
age system); Katzenstein v. Hartford, 80 Conn. 663,
666–67, 70 A. 23 (1908) (reversing judgment in favor of
plaintiffs because trial court’s charge to jury ‘‘entirely
overlook[ed] the element of negligence’’ and city was
liable for property damage caused by flooded sewer
only ‘‘upon proof of such negligence’’); Rudnyai v. Har-
winton, 79 Conn. 91, 95, 63 A. 948 (1906) (‘‘The statute
imposing upon towns the duty of building and repairing
necessary highways within their respective limits, does
not authorize them, in the discharge of that duty, for
the purpose of protecting their highways from surface
water, to make use of the adjoining private property
by constructing sluices and drains upon it, or by dis-
charging upon it, by means of sluices or ditches or other
structures designed for that purpose, the surface water
which has accumulated because of the manner in which
the road has been constructed, or has been collected
by means of gutters or ditches on the sides of the roads.
. . . When a municipality directs the performance of
such an act, not within the scope of the imposed govern-
mental duty, it becomes liable like any other [wrong-
doer] for the resulting injury.’’ [Citations omitted.]);
Judd v. Hartford, 72 Conn. 350, 354, 44 A. 510 (1899)
(Holding city was liable for flooding caused by obstruc-
tions negligently left in sewer because ‘‘its duty . . .
to clean up, and remove any temporary appliances
which, if left where they were, would render the sewer
unserviceable or inadequate, was a new and ministerial
one. It was a simple and definite duty arising under
fixed conditions, and implied by law.’’); Bronson v.
Wallingford, 54 Conn. 513, 520–21, 9 A. 393 (1887)
(Holding municipal defendant was not liable for prop-
erty damage caused by storm water runoff because
‘‘[t]he defendant is accused of no negligence . . . it is
not accused of a faulty construction or repair of the
highway by reason of which the plaintiff has been
injured . . . [nor is it] accused of improperly discharg-
ing the surface water on the plaintiff’s premises in such
a manner as to expose her property unnecessarily to
special damage . . . . It is only in special cases, where
wanton or unnecessary damage is done, or where dam-
age results from negligence, that [towns, cities, and
boroughs] can be held responsible.’’ [Citations
omitted.]).
Despite its age, the rule announced in Spitzer is nei-
ther vestigial nor forgotten. Rather, it has continued
vitality and routinely is cited by trial courts for the cen-
tral proposition ‘‘that the construction, maintenance,
and repair of sewer and drainage systems is ministe-
rial.’’ See Leone v. Portland, Superior Court, judicial dis-
trict of Middlesex, Docket No. CV-XX-XXXXXXX-S (May
9, 2014) (58 Conn. L. Rptr. 201, 203); see also DeMarco
v. Middletown, Superior Court, judicial district of Mid-
dlesex, Docket No. CV-XX-XXXXXXX-S (April 3, 2014) (58
Conn. L. Rptr. 4, 6) (‘‘given that the Supreme Court in
Spitzer did not limit its holding only to sewer water
systems, numerous trial courts have applied [its] hold-
ing toward sewage systems, and the plaintiff’s com-
plaint clearly alleges that the defendant’s conduct has
risen out of its construction and repair of sewers, the
defendant’s actions are deemed ministerial and govern-
ment[al] immunity does not apply’’); Donahue v. Plym-
outh, Superior Court, judicial district of New Britain,
Docket No. CV-XX-XXXXXXX, 2013 WL 1943951, *5 (April
22, 2013) (citing Spitzer and noting that ‘‘[t]he city is
not immune from suit stemming from the performance
of ministerial acts such as the construction and repair of
sewers’’); Voghel v. Waterbury, Superior Court, judicial
district of Waterbury, Docket No. CV-XX-XXXXXXX, 1999
WL 732984, *4 (September 9, 1999) (holding that defen-
dant city was not immune from liability for property
damage caused by sanitary sewer backup because, pur-
suant to Spitzer, defendant had ministerial duty to
maintain and repair sewer system); but see Pyskaty v.
Meriden, Superior Court, judicial district of New Haven,
Docket No. CV-XX-XXXXXXX-S, 2015 WL 5236948, *10
(August 3, 2015) (relying on Appellate Court’s decision
in Silberstein v. 54 Hillcrest Park Associates, LLC, 135
Conn. App. 262, 41 A.3d 1147 [2012], to hold ‘‘that [the]
logic and . . . holding [in Spitzer] have been limited
and should not be expanded to apply’’ to alleged
improper construction, maintenance, and repair of
detention basin).
Numerous additional authorities confirm that Spitzer
correctly states the law of negligence as it relates to
municipal storm water drainage systems. Contrary to
the majority’s account, the doctrinal analysis contained
in Spitzer—and particularly its assertion that municipal
immunity does not extend to ‘‘ministerial’’ negligence
in the maintenance and repair of drainage systems—
accurately reflects the law as it existed, and still exists,
in most jurisdictions. One of the leading tort law trea-
tises at the turn of the twentieth century describes a
legal framework that perfectly matches the doctrine as
described in Spitzer: ‘‘[T]he act of constructing a bridge
by a county, or of sewers and drains by a municipality,
after the plan is formulated, is regarded as ministerial
in its nature, and if there is any negligence in the
construction and the keeping of the same in repair, the
county (by statute) and the municipality (by common
law) is liable for any injury caused by its neglect.’’
(Emphasis added; footnotes omitted.) 1 E. Kinkead,
Commentaries on the Law of Torts (1903) § 158, p.
364. ‘‘The importance of this distinction [between the
discretionary planning stage and the ministerial con-
struction and repair stage] is obvious. ‘It may well be
the law,’ it is said, ‘that a municipal corporation is not
liable for any error or want of judgment upon which
its system of drainage of surface water may be devised,
nor for any defect in the plan which it adopts. The . . .
council must, from necessity, exercise its judgment and
discretion . . . and should be at liberty to adopt the
best plan to accomplish the end.’ . . . [F]or injury,
occasioned by the plan of improvement, as distin-
guished from the mode of carrying it out, there is ordi-
narily no liability. The true distinction in this matter is
that the obligation to establish and open sewers is a
legislative duty, while the obligation to construct them
with care and not negligently and to keep them in
repair is a ministerial act. Some confusion is found
among the cases touching this matter, due to improper
distinction in the particular cases.’’ (Emphasis added;
footnotes omitted.) Id., pp. 364–65.; see also Recent
Cases, ‘‘Municipal Corporations—Sewer System—Neg-
ligence in Construction—Hart v. City of Neillsville, 123
N.W. 125 (Wis.),’’ 19 Yale L.J. 389, 389 (1910); Recent
Cases, ‘‘Municipal Corporation—Negligence in Main-
taining Drains—Injury to Health and Property,’’ 16 Harv.
L. Rev. 68, 68–69 (1902).
According to contemporary sources, this liability rule
continues to prevail in most jurisdictions. One leading
treatise on municipal corporations observes that
‘‘municipalities are generally liable for negligence in
the construction or failure to repair sewers and drains.
Municipal liability for negligence in failure to repair is
generally the same, in extent, as for negligence in the
construction of sewers, or in the failure to keep sewers
free from obstructions.’’ (Footnotes omitted.) 18A E.
McQuillin, Municipal Corporations (3d Ed. 2018 Rev.)
§ 53:154. Although this is not a uniform rule,3 in general
‘‘[a] municipality must exercise ordinary care to main-
tain in proper manner a system of gutters and drains
constructed by it in its streets, and if due to its negli-
gence they become obstructed so as to overflow and
flood private premises, the city will be liable.’’ Id.
It is true that this court has held in other contexts
that municipal acts or omissions are not ministerial
unless there is a ‘‘city charter provision, ordinance,
regulation, rule, policy, or any other directive’’ requiring
the municipality to act in a ‘‘prescribed manner.’’ Vio-
lano v. Fernandez, 280 Conn. 310, 323, 907 A.2d 1188
(2006); see id., 324 (holding municipal official immune
from liability for alleged negligence in securing plain-
tiffs’ personal property because there was no ‘‘rule,
policy, or directive that prescribed the manner in which
[defendant] was to secure the property’’). Particularly
in light of Spitzer, however, there is no legal or logical
basis to apply this narrow definition in the context
of property damage caused by municipal storm water
drainage systems. Only the municipality can construct
a storm water drainage system and, once constructed,
only the municipality can maintain the system and
repair it to prevent property damage foreseeably
resulting from its malfunction. Because storm water
drainage systems are municipal property and subject
to exclusive municipal control, no one else can perform
the maintenance and repairs necessary to avoid the risk
of harm. See Judd v. Hartford, supra, 72 Conn. 354
(holding municipality had ministerial duty to remove
temporary obstruction because ‘‘[n]o one else could
perform it’’ because ‘‘[t]he sewer was part of the defen-
dant’s property and under its exclusive control’’). The
plaintiffs in the present case were powerless to avoid
the harm to their property, given the immovable nature
of a permanent residential structure and the inevitable
occurrence of heavy rainfalls in the area. Under these
circumstances, ‘‘to permit the city to escape liability
under the cloak of the exercise of a governmental func-
tion [is] unwarranted and unjust.’’ Denver v. Mason, 88
Colo. 294, 299, 295 P. 788 (1931).
Contrary to the majority’s assertion, I do not urge the
creation of ‘‘an exception to the doctrine [of municipal
immunity] in cases in which the dangerous condition
was within the municipality’s control and the municipal-
ity could have prevented the harm . . . .’’ The excep-
tion, rather, was created long ago by Spitzer and scores
of other cases from around the country. Liability is
imposed in these cases because, until today, Connecti-
cut recognized the commonsense proposition that flood
damage to private property caused by negligently main-
tained municipal storm water drainage systems is cate-
gorically different than the usual negligence case
against a municipality. The rule announced in Spitzer
did not ‘‘eviscerate’’ the municipal immunity doctrine;
nor did it ‘‘disregard’’ its purpose. Instead, this court in
Spitzer conducted a thorough analysis of the municipal
immunity doctrine and made a ‘‘value judgment’’; Vio-
lano v. Fernandez, supra, 280 Conn. 319; that the pur-
pose of the doctrine was not served when it came to
the negligent construction, maintenance, and repair of
storm water drainage systems. See Spitzer v. Water-
bury, supra, 113 Conn. 89.
Indeed, my conclusion finds further support in the
legislative codification of the common-law distinction
between ministerial and discretionary acts or omissions
in § 52-557n (a) (2) (B). See Violano v. Fernandez,
supra, 280 Conn. 327. As this court previously has
observed, ‘‘we are bound’’ by the codification of this
distinction and, therefore, ‘‘[i]rrespective of the merits
of [a] competing approach . . . [w]e must resist the
temptation . . . to enhance our own constitutional
authority by trespassing upon an area clearly reserved
as the prerogative of a coordinate branch of govern-
ment.’’ (Internal quotation marks omitted.) Id., 328; see
also Durrant v. Board of Education, 284 Conn. 91, 107,
931 A.2d 859 (2007) (‘‘[s]ince the codification of the
common law under § 52-557n, this court has recognized
that it is not free to expand or alter the scope of govern-
mental immunity therein’’). The majority would have us
believe that the legislature silently intended to overrule
Spitzer, despite no textual indication of any such inten-
tion and no legislative history to support the contention.
The customary rules of statutory construction require
the opposite conclusion; we must presume that when
the legislature enacted § 52-557n in 1986; see Public
Acts 1986, No. 86-338, § 13; it was aware of and intended
to codify the well established common-law principle
expressed in Spitzer that the construction, mainte-
nance, and repair of storm water drainage systems is
a ministerial duty for which municipalities may be held
liable in negligence.4 See Chadha v. Charlotte Hun-
gerford Hospital, 272 Conn. 776, 793 n.21, 865 A.2d 1163
(2005) (‘‘the legislature is presumed to be aware of prior
judicial decisions involving common-law rules’’); Elliott
v. Waterbury, 245 Conn. 385, 406, 715 A.2d 27 (1998)
(‘‘we generally will not interpret a statute as effecting
a change in a fundamental common-law principle . . .
in the absence of a clear indication of legislative intent
to do so’’ [citation omitted]). In light of the codification
of this principle, we are not at liberty to expand the
scope of municipal immunity in § 52-557n (a) (2) (B).
In my view, this case presents the strongest imagin-
able rationale for retaining liability for municipal negli-
gence in the absence of a legislative mandate to the
contrary.5 The plaintiffs here did not sustain damage
caused by a municipal activity from which they could
opt out; nor did they have the ability to engage in self-
help to repair the municipality’s drainage system. They
had no right themselves to repair the cracks, breaks,
and misaligned joints in the existing sewers, or to
replace the pipes with diameters too small to meet
present conditions with larger pipes, or to regrade the
neighborhood streets and raise the curbs to protect
their home against the flooding. If the plaintiffs cannot
come to court for redress under these circumstances,
then they have nowhere to turn to obtain compensation
for the property damage they sustained as a result of
the defendants’ alleged negligence. This court’s own
precedent entitles the plaintiffs to relief if they are able
to prove the elements of their claim. Because we are
not required to overrule that precedent, we should not
do so here. I therefore dissent.
1
General Statutes § 52-557n (a) (1) (A) provides in relevant part that
‘‘[e]xcept as otherwise provided by law, a political subdivision of the state
shall be liable for damages to person or property caused by . . . [t]he
negligent acts or omissions of such political subdivision or any employee,
officer or agent thereof acting within the scope of his employment or official
duties . . . .’’ The statute further provides, however, that ‘‘a political subdivi-
sion of the state shall not be liable for damages to person or property caused
by . . . negligent acts or omissions which require the exercise of judgment
or discretion as an official function of the authority expressly or impliedly
granted by law.’’ General Statutes § 52-557n (a) (2) (B).
2
The majority’s reliance on Appellate Court precedent contrary to Spitzer,
such as Silberstein v. 54 Hillcrest Park Associates, LLC, 135 Conn. App.
262, 41 A.3d 1147 (2012), is misplaced in light of the well settled rule that
‘‘the Appellate Court and Superior Court are bound by our precedent.’’
Stuart v. Stuart, 297 Conn. 26, 45–46, 996 A.2d 259 (2010).
3
A minority of jurisdictions consider the maintenance and repair of storm
water drainage systems to be discretionary. See 18A E. McQuillin, supra,
§ 53:154 (‘‘[h]owever, it [also] has been held that the duty of a city to maintain
its sewerage and drainage system in a good working and sanitary condition
is a governmental function for which no liability against the municipality
exists in an action for negligence’’); see also annot., 54 A.L.R.6th §§ 7 and
8, pp. 247–60 (2010) (citing cases in § 7 for view that maintenance and
operation of drains and sewers is ministerial function negating immunity,
and, in § 8, for view that maintenance is discretionary function protected
by immunity); id., p. 201 (noting, however, that ‘‘[i]n general, a city may be
held liable for damage resulting from the obstruction or clogging of a munici-
pal drain or sewer when it has actual or constructive notice of a problem
and still fails to take action to remedy it’’).
4
In subdivision (2) of § 52-557n (b), the legislature exempted municipali-
ties from liability for ‘‘damages to person or property resulting from . . .
the condition of a reservoir, dam, canal, conduit, drain or similar structure
when used by a person in a manner which is not reasonably foreseeable,’’
but did not do so with respect to damages resulting from the negligent
construction, maintenance, or repair of storm water drainage systems. See
Spears v. Garcia, 263 Conn. 22, 33–34, 818 A.2d 37 (2003) (holding that,
absent evidence to contrary, exceptions listed in § 52-557n [b] were intended
‘‘to be exclusive’’ [internal quotation marks omitted]).
5
It is important to emphasize that the issue on appeal is whether the
plaintiffs’ common-law negligence claims are barred by the doctrine of
municipal immunity. The plaintiffs’ complaint did not contain any claim for
common-law nuisance; nor did it raise a statutory claim under General
Statutes § 13a-138. For this reason, the majority’s discussion of nuisance
law; see footnote 17 of the majority opinion; is dicta. See Cruz v. Montanez,
294 Conn. 357, 376–77, 984 A.2d 705 (2009) (‘‘[d]ictum includes those discus-
sions that are merely passing commentary . . . those that go beyond the
facts at issue . . . and those that are unnecessary to the holding in the case’’
[internal quotation marks omitted]). Unfortunately, the majority’s discussion
implies that a landowner in the plaintiffs’ position would have no ability to
recover against a municipality on a theory of nuisance. I find this assertion
deeply troubling because that issue was not raised in this case, was not
briefed by the parties, and was never litigated or adjudicated. Therefore,
we should not be expressing views on it. Nothing in our decision today, by
implication or otherwise, should be taken to preclude or limit a plaintiff’s
ability to recover on any theory other than the theory of negligence as
pleaded. See, e.g., State v. DeJesus, 288 Conn. 418, 454 n.23, 953 A.2d 45
(2008) (noting that dicta is ‘‘not binding precedent’’ and, therefore, does not
dictate outcome of future cases).