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Silva v. Laverty

Supreme Court of Rhode Island

March 22, 2019

Maria Silva et al.
v.
Shawn Laverty et al.

          Providence County PC 10-290 Superior Court Brian Van Couyghen, Associate Justice

          For Plaintiffs: Michael F. Horan, Esq., Monica Horan, Esq.

          For Defendants: Ryan D. Fullerton, Esq., Joseph A. DiMaio, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          William P. Robinson III, Associate Justice

         The plaintiffs, Manuel Silva and Maria Silva, have appealed from a final judgment entered on April 9, 2018 in Providence County Superior Court in favor of the defendants, Jessica Laverty[1] and Shawn Laverty. That judgment was entered following a three-day bench trial in August and September of 2016 and the rendering of a bench decision on November 30, 2016 in the defendants' favor. On appeal, the plaintiffs contend that the trial justice erred because: (1) he overlooked and misconstrued material evidence in determining that the Lavertys owed no duty to the Silvas with respect to their negligence claim and also in determining that the Silvas had not proven a breach of such alleged duty; (2) he improperly determined that the Silvas had not shown causation and damages with respect to the nuisance and negligence claims; and (3) he misapplied the "rule of reasonable use" to the facts of this case in light of the factors set forth in Butler v. Bruno, 115 R.I. 264, 273-74, 341 A.2d 735, 740 (1975).

         For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         I

         Facts and Travel [2]

         The parties agree that, as of 1951, all the land now owned by both parties to this action (said land being located in Cumberland, Rhode Island) was owned by Gerard Tanguay and his then-wife, Giselle. Gerard later conveyed one parcel of that land to his son, Richard Tanguay, and Richard's wife, Carole Tanguay.[3] A separate parcel of Gerard Tanguay's land was conveyed to a trust whose named trustees were Gerard and his second wife, Janet Tanguay. The parties additionally agree that Richard and Carole Tanguay submitted a site plan to the Rhode Island Department of Environmental Management (DEM), proposing the installation of the underground pipe that lies at the core of the dispute between the parties; that pipe runs from a catch basin on the property then owned by Richard and Carole Tanguay (and now owned by defendants) downhill to the property then owned by Gerard Tanguay (and now owned by plaintiffs). The site plan was approved by DEM in May of 1987. The defendants in this case purchased the property at 180 Roland Street from Carole Tanguay in 2009[4] ("the Laverty property"). In 2005, Janet Tanguay conveyed her property at 3 Blissdale Avenue to plaintiffs ("the Silva property").[5] The plaintiffs' essential contention is that the pipe empties water from the Laverty property onto a portion of the Silva property in such a way that the flow of water from the pipe is actionable as a matter of both negligence and nuisance law.

         We shall next summarize the portions of the trial record relevant to issues about which the parties do not agree.

         A

         The Plaintiffs' Witnesses

         1. The Testimony of Maria Silva

         Maria Silva testified that, before purchasing what is now the Silva property at 3 Blissdale Avenue on April 29, 2005, she visited the property more than once and that her husband, Manuel Silva, did so once.[6] She adhered to that testimony when she answered affirmatively to counsel's question: "[B]efore you purchased this property, did you walk the land?"

         Mrs. Silva further testified that, before the purchase, she did not see any water present on the portion of the property that is in dispute and that neither the realtor nor the previous owner told her about water accumulation or the existence of a wetland on the property. She agreed upon cross-examination that the Purchase and Sale Agreement for the property specifically indicated that a wetlands inspection should be conducted and that she had never had such an inspection done.

         Mrs. Silva testified that the accumulation of water on the particular portion of the Silva property at issue became the subject of attention "[a]round September of 2005 * * *." (She stated that, in or around September of 2005, "there was rain, like we had rain for a few days and then we had a major rainstorm," and she said that that storm led to "major flooding.") Mrs. Silva agreed that that portion of the Silva property is located "at the corner of defendants' property."

         Mrs. Silva further testified that, when she first noticed the pipe from which water was flowing onto her property in the September 2005 time frame, she called the Cumberland Fire Department, whose personnel "cleaned up an area so the water would drain more * * *." She added that someone from the Fire Department "said it's coming from this area here and you could actually see [the pipe]." She agreed at trial that the pipe is clearly visible. Mrs. Silva testified that, when she discovered the pipe, she "tried to contact everyone and anyone in the town hall trying to find out where was that [water] coming from * * *." Mrs. Silva further testified that the portion of her property onto which the water from the pipe flows periodically experiences water accumulation. She elaborated: "Only, you know, when we really get major storms, that wherever the water comes from, it starts gushing onto the property."

         Mrs. Silva stated that, at some point in time after she first discovered the pipe on the property, she contacted Scott Rabideau, a wetlands scientist, who came out to observe the Silva property "once [or] twice." Thereafter, the Silvas received a letter from Mr. Rabideau's office stating that "a small forested/shrub wetland is present" on their property. Both Mr. and Mrs. Silva testified that, since purchasing the property, they have been unable to use that portion of the property that contains the wetland. Maria Silva also expressly acknowledged that they have not applied to DEM to alter that portion.

         Mrs. Silva testified that she learned that Carole Tanguay (the eventual grantor to the Lavertys) then owned the property from which the pipe carried water downhill onto the Silva property. She added that, on June 24, 2009, the attorney representing her and her husband sent a certified letter to Carole Tanguay "notif[ying] her of the pipe that was projecting from her property onto [the Silva property] * * * and ask[ing] her to take the necessary steps to correct it * * *." Mrs. Silva testified that she later "happened to drive by [Carole Tanguay's property]" and, at that time, she "saw a for sale sign." She added that, when she and her husband learned that defendants were "the new owners" of the uphill property, the same attorney sent the Lavertys a letter on September 29, 2009, enclosing therewith the above-referenced June 24, 2009 letter.

         2.The Testimony of Carole Tanguay

         Carole Tanguay, the previous owner of what became the Laverty property, was shown by plaintiffs' counsel recent photographs of the Silva property, and she said that she recognized the area but that she "never saw this much water" and that there was substantially more water depicted in the photographs than she had ever observed. She also acknowledged her signature on a certified letter regarding the water discharge issue that plaintiffs' counsel had sent to her in June of 2009, but she added that she did not remember receiving the letter or signing for it.

         3.The Testimony of Brandon Faneuf

         Brandon Faneuf, an expert called by the Silvas who described himself as a "[w]etlands scientist," testified that he first took a view of the Silva property in April of 2013 and did so again on one later occasion. It was his opinion that there were several indicators of the presence of a wetland, including an "impounded area," which he defined as being "[a]n area where water is standing." He further explained that such an area "doesn't so much have observable flow as it's just standing" and has "wetland plants" that indicate "a hydrophytic condition, which means that more likely than not there is water near the surface * * *." When asked to describe "the flow of the water" onto the Silva property, he said: "The water starts at the pipe we've been talking about. It flows downhill into the impounded area * * *."

         Mr. Faneuf opined that "[t]he discharge of water from the subject pipe exacerbates the amount of water entering the Silvas' property;" and he added that, "[i]f there was no pipe present discharging water, that area would be dryer." When asked by the trial justice if he could determine to a reasonable degree of scientific certainty how much wetter the portion of the Silva property at issue was because of the flow from the pipe, Mr. Faneuf said: "It all depends * * *. I'll say from my professional opinion is that during springtime and after the snow melts, rain events, there can be significant amounts of water flowing into that area enough to exceed the limits of the impoundment area * * *." Mr. Faneuf responded affirmatively when asked on cross-examination: "So you have indicated that there's a preexisting wetlands on the Silvas' property, correct?" The following exchange then ensued:

"[COUNSEL FOR DEFENDANTS:] And it's your opinion that, at least your affidavit indicates, that the preexisting - that the pipe exacerbates ...

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