DocketNumber: No. CV01 0811944 S
Citation Numbers: 2002 Conn. Super. Ct. 786, 31 Conn. L. Rptr. 275
Judges: BEACH, JUDGE. CT Page 787
Filed Date: 1/14/2002
Status: Non-Precedential
Modified Date: 4/17/2021
The court heard evidence for a day and a halt; on January 4 and January 8, 2002. The town presented testimony tending to show that Schlicht, in the general time frame in question, rebuilt a wall which had been in disrepair. The town's evidence suggested that the wall as rebuilt was several feet closer to the pavement of Cooley Road than the old wall. Schlicht had been asked informally by Fran Armentano, a town planning official, to refrain from continuing with the construction after he had completed roughly ten feet of the wall, according to the town's evidence. Schlicht did refrain for roughly two weeks, but after conferring with his lawyer and hearing nothing further from the town, he continued with the reconstruction. Mr. Nasiatka, a town employee who was a public works foreman, testified that the construction of the wall made plowing more difficult, but he was able to get the job done. Armentano testified that the presence of the wall within the town's right of way also was detrimental to traffic safety. The town introduced a surveyor's map which tended to show that the wall as rebuilt was slightly within the town's right of way.
Schlicht, through cross examination and several witnesses of his own, introduced evidence that tended to show that the reconstructed wall was not substantially closer to the pavement than the old wall had been and that there were a number of locations in Granby where walls or other obstructions were close to the pavement. I allowed the evidence not on the issue of selective enforcement or motive of the town, but rather on the issue of reasonableness.
The decisive issue for the purpose of the issuance of a temporary injunction is the test to be applied. The general rule is that a party seeking a temporary injunction needs to show the establishment of a legal right, which involves both the probability of success on the merits and the lack of an adequate remedy at law, as well as the imminence of substantial and irreparable injury to the plaintiffs, all in the context CT Page 788 of weighing the benefits and harms to both parties. ConnecticutAssociation of Clinical Laboratories v. Connecticut Blue Cross, Inc.,
The town, however, relying on cases such as Johnson v. Murzyn,
The only case I have found which addresses the issue of the standards for a temporary injunction in the context of municipal action isKwiatkoski v. Johnson,
The traditional standards have not been satisfied in this instance. Most compellingly, there has been no showing of irreparable harm, which CT Page 789 in this case would mean a substantial and reasonably imminent danger to the public. The plowing, though slightly more difficult according to the town's evidence, could be accomplished relatively easily, and the situation is not particularly unusual. In closing argument, the town suggested that the irreparable injury is the next fatality when someone runs into the wall. This argument is, of course, somewhat speculative and overlooks the fact that there apparently has never been a first accident, and the wall has been in very close to the same position for many many decades. If the defendant's evidence is ultimately believed, the wall has not been moved at all. In sum, I find significant harm to the defendant if he is forced to move the wall at this stage of the proceedings, and he would effectively lose the case without a full trial. The potential harm to the public is speculative. Under the reasonableness standard advanced by the plaintiff see, e.g., Yale University v. NewHaven,
The motion for a temporary injunction is denied.
___________________, J. Beach
Olcott v. Pendleton , 128 Conn. 292 ( 1941 )
Yale University v. New Haven , 104 Conn. 610 ( 1926 )
Bridgeport Herald v. Lower Fairfield County , 22 Conn. Super. Ct. 111 ( 1960 )
Covenant Radio Corporation v. Ten Eighty Corporation , 35 Conn. Super. Ct. 1 ( 1977 )
Conn. Assn., Clinical Labs v. Conn. Blue Cross , 31 Conn. Super. Ct. 110 ( 1973 )