In August 2005, Bill and Lisa Baker, along with their 2-year-old son, moved into a new home in Cheshire. Roughly two months later, a 30-foot deep, 20-foot wide sinkhole developed in their backyard.

“It was only seven or eight feet from the back door of the Baker house,” said their lawyer, William “Bill” Gallagher, of New Haven. “Thank God nobody was outside that morning or they would’ve been killed.”

Gallagher said bad weather may have precipitated the collapse. “We have another storm like that the whole Baker house could sink in,” said Gallagher.

Across the street, the Ugrin family — who had moved in a year earlier — has the same fears. Their property is also atop the same abandoned mine that caused the sinkhole. Gallagher said no one told either family that their properties sat over old underground mines.

As a result, in 2007 Gallagher filed lawsuits against the town of Cheshire, as well as past property owners, on behalf of both families. Five years later, the case is pending. Most recently, the state Supreme Court ruled that a Superior Court judge incorrectly dismissed one of the counts of the families’ complaint. That could clear the way for a trial.

“I think frankly the town’s conduct has been shameful,” said Gallagher, noting that officials made the Baker’s stabilize the now grass-covered sinkhole at their own expense. “They didn’t cooperate with us in attempting to get a legislative fix on this and I’m upset with the administration turning their back on these people.”

The town’s response is simple. It had inspected the mines and the land above them and found them to be no threat to people or property. It made its written report on the situation available to the public, but had no legal duty to alert potential homebuyers to the existence of the mines or to the report.

In an area of the state that, by one count, has five abanonded barite mines and two abandoned copper mines, the result of the Cheshire cases could affect future claims by homeowners who find themselves in similar situations.

The story begins during the 1800s when several companies began mining for barite and other minerals in Cheshire. One of these operations was the William Peck mine, which was active in the northern part of town from approximately 1866 to 1878.

In 1968, a developer obtained a permit from the town planning commission to build a residential subdivision, which included the properties purchased more than 35 years later by the Baker and Ugrin families. In 1970, the town building inspection department issued certificates of occupancy for both homes.

In 1993, a mine shaft and an adit, which is a horizontal mine tunnel adjacent to the shaft, were discovered on a nearby residential parcel. In light of this discovery, the town hired an engineer and a geologist to conduct a study to determine where abandoned mines existed throughout town and whether there were any public safety conditions that might require remediation.

According to the report completed later that year, the former Peck mine area had previously been sealed and the area could then “be developed as a residential subdivision without danger of collapse…”

With the report was a letter specifically addressing the properties that the Bakers and Ugrins now own. The letter noted that an adit from the shaft continued under those properties and that in 1978 a portion of the road the plaintiffs now live on, Sheridan Drive, collapsed. The letter said the collapse was repaired with concrete and has remained stable since.

The letter concluded by stating that “[w]e believe that this adit and overlying properties are stable at this time.”

In 2004, the town solid waste committee held several meetings to discuss the abandoned barite mines and sought the advice of then town counsel, John K. Knott Jr. Knott encouraged town officials to make the prior report available to the public but advised against placing any information regarding the mines on the land records because he was concerned about potential slander of title claims against the town.

He instead suggested the engineer’s report be filed with the town clerk and available for public viewing. He said a sign could be posted alerting residents to the existence of the report, but he did not specifically order a sign to be posted, and none ever was.

The Bakers and Ugrins contend that such a sign should have been posted. Their lawsuits allege the town of Cheshire, as well as the prior homeowners, were negligent in not informing them of the mines, that the town created a nuisance and negligently inspected the property back when it approved the building of the homes.

Connecticut municipalities are shielded from many types of lawsuits. Specifically, town officials have immunity from actions that are considered discretionary — where an action (or lack of action) is a judgment call. In defending themselves in the lawsuit, Cheshire officials claimed immunity, arguing that the decision to allow construction of the homes, to accept the results of the engineer’s study, and to not post notice about the mine report, were all discretionary.

The lawyer representing Cheshire, Elizabeth Stewart, managing partner at Murtha Cullina, said either through pre-trial motions or summary judgment, the trial court dismissed all the complaints against the town. The claims against prior owners and a real estate agent were allowed to stand.

However, Gallagher appealed the dismissal of the town as a defendant. The state Supreme Court consolidated the cases stemming from the two lawsuits. In a ruling to be officially released this week, the justices said the trial court was correct to dismiss the negligence and nuisance claims, but wrong to get rid of the negligent inspection count.

Under the statute for negligent inspection, a municipality is not liable “unless” certain predicates hold true. In this case, Justice Peter T. Zarerella wrote for the majority, a town is not “shielded from liability in the inspection context when it has notice of a hazardous condition or has engaged in conduct that constitutes reckless disregard of public health and safety…Accordingly, we conclude that the plaintiffs are not precluded from bringing a cause of action against the town.”

And so a trial — which Gallagher says probably won’t occur until 2014 — will focus on that question. “Basically we’re starting over on that one claim and everything else is gone,” said Stewart.

Points For Defense

Stewart noted that the state Supreme Court upheld her side’s position in what she said was the plaintiffs’ main claim, that the town was negligent in not disclosing the mining information. “The Supreme Court agreed with us that any decision as to whether or not to post a notice like that was discretionary,” said Stewart.

She added the same “discretionary” defense might be used on the negligent inspection claim. She said the report provided to the town stated that the work in 1978 remedied the earlier sinkhole on Sheridan Drive. The engineer in charge of the study determined the property “was stable and they didn’t need to do anything so the town relied on that,” said Stewart.

Meanwhile, Gallagher said things have gone downhill since the sinkhole incident for the Baker family. They can’t sell the home, which they purchased for nearly $400,000. The couple has split, and Bill Baker lives in the house. His ex-wife “refuses to let the [son] visit the house because of the danger there,” said Gallagher.

Gallagher, meanwhile, is hopeful he can at least hold the town liable for failing to properly inspect the residence when it was built. He said the other defendants, the former property owners, had few assets. “I think principally the town’s taken a position that ‘Our lawyers say there’s no responsibility, so we’re not liable, period,’” said Gallagher. “They didn’t consider the moral obligation they had.”•