Opinion
No. FST CV 07 5005709 S
January 20, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE (164.00)
I. FACTS
On October 31, 2007, the plaintiff, Lynn Alswanger Bush, commenced this action by service of process against the defendants, Encon Construction, Inc. (Encon), Lametta Construction Company, Inc. (Lametta) and the Ferguson Library (Ferguson). On May 6, 2008, defendant Lametta brought an apportionment claim against Rocco V. D'Andrea, Inc. (D'Andrea). Pursuant to General Statutes § 52-102b(d) the plaintiff, Bush, then asserted a direct claim against D'Andrea.
The plaintiff filed a three-count complaint against D'Andrea, dated June 26, 2008, alleging the following facts. On or about November 1, 2005, and for some time prior thereto, Ferguson had retained the services of Encon and Lametta to renovate the library building and site located at 1143 Hope Street in Stamford (library site). D'Andrea was hired as a sub-contractor by Encon to provide certain services, including surveying and staking for the renovation at the library site. Complaint, ¶ 9. During the renovations, and prior to November 1, 2005, the library site was reconfigured to accommodate the construction and D'Andrea hammered low wooden stakes into the ground at various locations on the property, including the public parking areas. During the course of these renovations, the building housing the public library was closed as a result of the renovations and a bookmobile that was open to the public was parked at the library site. In order to reach the bookmobile, it was necessary for members of the public to cross areas of the property that contained the wooden stakes. On November 1, 2005, the plaintiff parked her car at the library site in the parking area located adjacent to the bookmobile. After exiting her motor vehicle, the plaintiff walked towards the bookmobile and tripped and fell on a wooden stake causing her to sustain various injuries. The plaintiff claims that as a result of these injuries, she has incurred, and will continue to incur, medical expenses, losses and disability from employment. In count one, the plaintiff alleges that the actions taken by D'Andrea were negligent; in count two she alleges recklessness; and in count three she alleges nuisance.
Although the plaintiff has labeled this complaint plaintiff's "apportionment complaint" it is a direct complaint against D'Andrea.
On November 3, 2008, D'Andrea filed a motion to strike counts two and three of the plaintiff's complaint and the plaintiff's second prayer for relief of the ad damnum clause as legally insufficient. Specifically, D'Andrea moves to strike the second count on the grounds that it fails to allege: (1) facts sufficient to state a claim for common-law recklessness and/or (2) the requisite state of mind. D'Andrea moves to strike the third count on the grounds that it fails to allege (1) that D'Andrea had an ownership interest and/or control in property or project and/or (2) that D'Andrea's use of the land was unreasonable or unlawful. D'Andrea further alleges that paragraph two of the ad damnum clause seeking punitive damages is legally insufficient because it is predicated on the recklessness claim set forth in the second count. D'Andrea submitted a memorandum of law in support of the motion. The plaintiff filed a memorandum of law in opposition to the motion on November 12, 2008. The matter was heard at short calendar on November 24, 2008.
II. LEGAL STANDARD
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a [pleading] challenged by a [party's] motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 260, 765 A.2d 505 (2001).
"A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "[The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117-18, 889 A.2d 810 (2006). "A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, supra, 262 Conn. 498.
"In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., supra, 240 Conn. 580. The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Broadnax v. New Haven, 270 Conn. 133, 173, 851 A.2d 1113 (2004). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Asylum Hill Problem Solving Revitalization Ass'n. v. King, 277 Conn. 238, 246, 890 A.2d 522 (2006).
III. DISCUSSION A. Count Two — Recklessness
D'Andrea moves to strike count two of the plaintiff's complaint on the grounds that it fails to allege: (1) facts sufficient to state a claim for common-law recklessness and/or (2) the requisite state of mind. Specifically, D'Andrea argues that the plaintiff fails to allege facts showing that it "acted in a highly unreasonable manner in a situation where a high degree of danger is present." Further, D'Andrea asserts that the plaintiff must allege that it "acted with knowledge of a dangerous condition or that the defendant made a conscious choice of a course of action, either with knowledge that it would involve serious injury to other, or with knowledge of facts which would disclose the danger to any reasonable man." It is D'Andrea's position that the plaintiff failed to "plead facts showing that D'Andrea had the requisite state of mind."
The plaintiff counters that "to plead recklessness, it is enough that the defendant realizes, or from the facts which he knows should realize, that there is a strong probability that harm may result." The plaintiff contends that the facts support her claim for recklessness as "evidenced by the obstacle course of wooden stakes that had to be crossed by patrons seeking to use the bookmobile."
In its objection to the motion, the plaintiff cites to the denial of two previous motions to strike counts of recklessness against the defendants Ferguson and Lametta in orders by Downey, J., dated June 2, 2008. The plaintiff states that the court in this matter should likewise deny D'Andrea's motion to strike. "The law of the case doctrine provides that [w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance . . . A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision . . . [O]ne judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." (Citation omitted; internal quotation marks omitted.) Signore v. Signore, 110 Conn.App. 126, 133, 954 A.2d 245 (2008). In the present case, although motions to strike by the defendants, Ferguson and Lametta were previously denied, those motions are distinguishable from the present motion by the defendant D'Andrea. Ferguson is the owner of the library site and Lametta was the contractor for the project at the site, while D'Andrea was a subcontractor hired by Encon for the purpose of performing surveying work at the library site. Further, the plaintiff made additional allegations in her complaint against those defendants, including claims that the defendants failed to suspend public use of the library site, failed to provide a reasonable and safe alternative parking area to the public, and that they located the book mobile in an area that posed a hazard to the public. These allegations are not directed at D'Andrea. Therefore, this court is not bound by the previous denials of defendants Ferguson's and Lametta's motions to strike.
"To determine whether the [plaintiff] . . . states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior . . . While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342-43, 813 A.2d 1003 (2003).
"In order to establish that the defendants' conduct was wanton, reckless, wilful, intentional and malicious, the plaintiff must prove, on the part of the defendants, the existence of a state of consciousness with reference to the consequences of one's acts . . . [Such conduct] is more than negligence, more than gross negligence . . . [I]n order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . [In sum, such] conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent." (Internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998).
In Hawkins v. Handyman Hardware, Superior Court, judicial district of Stamford-Norwalk at Stamford, complex litigation docket, X08 CV 01 0186766 (February 6, 2003) this court found the allegations within the complaint to be insufficient to support a claim of recklessness. "The allegations of the . . . [c]omplaint which [were] the focus of the motions to strike . . . [stated:] The defendant . . . knew or should have known that the Wheelbarrow was defective . . . was dangerous and was not safe for use by the plaintiff . . . and the general public and failed to disclose such information to the plaintiff or the general public." The court found the above allegations insufficient to support a claim for punitive damages based on reckless action. The court reasoned that "[t]he ` knew or should have known language' traditionally connotes negligent behavior and the pleading as stated would allow punitive damages to be imposed even if the lack of knowledge was the result of inadvertence or mere mistake. Similarly, the failure to disclose allegation in the . . . [c]omplaint could result from not having the information at all, or again by inadvertence. Taken as a whole, the . . . [c]omplaint fail[ed] to plead facts that allege the defendants' conduct evinced the state of consciousness with reference to the consequences of one's acts required for recklessness." (Emphasis added.) Id.
In the present case, the plaintiff alleges that D'Andrea "acted in a reckless and wanton manner in that they failed to take any remedial measures to correct the hazardous condition that existed in the parking area, in that when D'Andrea, knew or upon reasonable inspection should have known the condition in the lot as they existed on November 1, 2005, and for some time prior thereto, posed a hazard to the [p]laintiff and other patrons of the library facilities . . ." (Emphasis added.) The plaintiff further alleges in subparagraphs (a) through (h) of paragraph twenty-five, that D'Andrea " knew or upon reasonable inspection should have known" that its use of these stakes and failure to warn of their existence would pose a hazard to the plaintiff and other members of the public. (Emphasis added.) This language is insufficient to allege that the D'Andrea's conduct was "wanton, reckless, wilful, intentional and malicious." The plaintiff has failed to allege facts that allege D'Andrea's conduct "evinced the state of consciousness with reference to the consequences of one's acts required for recklessness." See Hawkins v. Handyman Hardware, supra, Superior Court, Docket No. X08 CV 01 0186766.
In addition, D'Andrea was hired to survey and to stake. There is no allegation that the stakes were put in the wrong place. If there is any fault attached to the fact that the stakes were in a location where people visiting the site to use the facilities provided by Ferguson might encounter them, it was the result of actions or omissions of entities other than D'Andrea, who put the stakes where they belonged. Similarly, the alleged delay in rectifying an alleged dangerous condition was not within the authority of D'Andrea, but of others.
Accordingly, D'Andrea's motion to strike count two is granted. Having found that the plaintiff has insufficiently pleaded a claim for recklessness against D'Andrea, the portion of the prayer for relief seeking punitive damages must also be stricken because it is entirely dependent on the plaintiff's recklessness claim. See Silano v. Exxonmobil Oil Corp., Superior Court judicial district of Fairfield, Docket No. CV 04 0409151 (February 24, 2005, Doherty, J.). Therefore, D'Andrea's motion to strike the second paragraph of the plaintiff's ad damnum clause is granted.
B. Count Three — Nuisance.
D'Andrea moves to strike count three of the plaintiff's complaint on the grounds that the allegations do not support a claim for nuisance as they fail to allege that D'Andrea had an ownership interest and/or control of the library site, or, that in the alternative, that the plaintiff has "failed to allege that D'Andrea somehow used the property in an unreasonable or unlawful fashion to create the nuisance, or that D'Andrea's alleged work done on the project was unreasonable or unlawful creating the nuisance." The plaintiff argues in her objection that by alleging the hammering of low wooden stakes throughout a parking area that was utilized by the public, and which the public was required to navigate to reach a library book mobile, created a condition that had a natural tendency to inflict harm on people utilizing the property.
D'Andrea states in its memorandum of law in support of the motion that "it is unclear from the [t]hird [c]ount whether the [p]laintiff intends to state a cause of action for public nuisance or private nuisance." D'Andrea, thereafter, addresses both public and private nuisance. In her objection, the plaintiff concedes that she has not alleged a private nuisance. Therefore, this court will only address the issue of public nuisance.
"[N]uisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public . . . [I]f the annoyance is one that is common to the public generally, then it is a public nuisance . . . The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence." (Citation omitted; internal quotation marks omitted.) Couture v. Board of Education, 6 Conn.App. 309, 314-15, 505 A.2d 432 (1986). "A public nuisance exists if (1) the condition complained of has a natural tendency to create danger and inflict injury upon person or property; (2) the danger created is a continuing one; (3) the use of the land is unreasonable or unlawful; and (4) the condition or conduct complained of interferes with a right common to the general public." Keeney v. Town of Old Saybrook, 237 Conn. 135, 162-63, 676 A.2d 795 (1996).
"To satisfy the third element, the plaintiff in a [public] nuisance case must allege that the defendant had control of the property in question, either through ownership or otherwise." Baker v. Cheshire, Superior Court, judicial district of New Haven, Docket No. CV 07 5013602 (April 24, 2008, Robinson, J.) (45 Conn. L. Rptr. 452, 454). In State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 184, 527 A.2d 688 (1987), the court stated: "In lieu of a rule of general application, our cases frequently have applied a functional test to determine whether a defendant `uses' property in a manner sufficient to subject him to liability for nuisance. A critical factor in this test is whether the defendant exercises control over the property that is the source of nuisance." In that case, the plaintiff alleged a claim of public nuisance. The court noted that there was nothing in the record suggesting that the defendant, who was a designer and construction supervisor of a bridge that collapsed, had control of the project to make the defendant liable in public nuisance. Id., 185. The court reasoned that even though ownership is not essential to claim control, "nothing in the evidence suggest[ed] that the plaintiff ever relinquished its authority over the bridge to the defendants." Id., 185-86.
Relying on the decision in Tippetts-Abbett-McCarthy-Stratton, the court in Shukis v. Board of Education, Superior Court, judicial district of Middlesex, Docket No. CV 04 0104038 (March 15, 2006, Aurigemma, J.) (41 Conn. L. Rptr. 54) granted the defendant's motion to strike based on the plaintiff's failure to allege in the complaint that the defendant had control of the property in question. The court reasoned that although the plaintiff alleged that the defendant performed work on the property, there was no allegation whatsoever that this defendant was in control of the project. The court stated that "in a case of public nuisance, the plaintiff . . . must also allege and prove that such defendant had control of the property in question." Id., 56.
Similarly, in Mantie v. The Inn at Manchester, Inc., Superior Court, judicial district of Tolland, Docket No, CV 95 0058009 (January 9, 1997, Hammer, J.T.R.) [18 Conn. L. Rptr. 438], the court found that, although the plaintiff made conclusory statements in her brief that the defendant had control over the property in question, a review of the complaint showed no factual basis for this conclusion. In granting the defendant's motion to strike the count of nuisance, the court held: "Where it cannot be determined or it cannot be shown that a person owned, maintained or controlled the premises on which it exists, there can be no liability for nuisance . . . Liability for damage caused by a nuisance turns on whether the defendant was in control over the instrumentality alleged to constitute the nuisance, either through ownership or otherwise." (Citation omitted.) Id.
In the present case, the plaintiff alleges that the premises in question was a public library and that the plaintiff was utilizing the premises as a member of the general public, pursuant to a public right to do so. The plaintiff claims that D'Andrea failed to correct the condition of the parking area where stakes had been imbedded low to the ground in the parking area. The plaintiff asserts that the lack of safeguards in this hazardous area, thereby, created a danger to persons on the property. The plaintiff further alleges that the use of the parking area by D'Andrea in this manner, without the application of any safeguards to avoid subjecting the public to the hazardous condition was unreasonable. The complaint fails to allege that D'Andrea had control of the property in question, through ownership or otherwise. As such, the plaintiff has failed to state a legally sufficient claim for public nuisance.
D'Andrea also argues in the alternative, that the plaintiff has "failed to allege that D'Andrea somehow used the property in an unreasonable or unlawful fashion to create the nuisance, or that D'Andrea's alleged work done on the project was unreasonable or unlawful creating the nuisance." As this count fails to state a legally sufficient cause of action based on the ground discussed supra, this argument need not be addressed.
IV. CONCLUSION
The defendant D'Andrea's motion to strike is granted in its entirety.
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