Opinion
No. CV10 600 71 09 S
September 24, 2010
MEMORANDUM OF DECISION
This is a claim that the plaintiff was injured as a result of falling on an icy walkway located on the premises of a privately owned theater. The defendants have moved to strike the second and fourth counts which claimed that the condition was a public nuisance.
A nuisance has been described as "an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property." R. Newman J. Wildstein, Tort Remedies in Connecticut (1996) § 19-1, p. 277. "An action for nuisance differs from an action in negligence in that the former complains of a harmful condition while the latter complains of a harmful act or failure to act." Id. Because of the elusiveness of a concise definition for this legal theory, our Supreme Court has dubbed it "a catch-all of ill-defined rights." See Carabetta v. Meriden, 145 Conn. 338, 339, 142 A.2d 727 (1958).
At common law, the traditional nuisance claim consists of four essential elements. First, the condition complained of must have had a natural tendency to create danger and inflict injury upon person or property. Second, the dangerous condition must have been a continuous one. Third, the condition must have arisen from an unreasonable or unlawful use of land. Finally, the nuisance must have been the proximate cause of the plaintiff's injury. Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 197, 602 A.2d 1011 (1992). Whether any of these elements exist is ordinarily a question of fact. Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 36, 404 A.2d 889 (1978).
Liability in a nuisance claim hinges not upon one's ownership of the land, but rather, upon one's control of it. "[O]ur 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 . . . [W]hen circumstances show that a defendant exercises de facto control over nuisance-causing property, the fact that title or possession of the property has been transferred to others does not absolve the defendant of liability for the nuisance." State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 184, 527 A.2d 688 (1987).
In an early and influential decision, the Connecticut Supreme Court classified nuisance into two separate legal claims, known as "public" nuisance and "private" nuisance. See Webel v. Yale University, 125 Conn. 515, 524-25, 7 A.2d 215 (1939). "Although there are some similarities between a public and a private nuisance, the two causes of action are distinct." Pestey v. Cushman, 259 Conn. 345, 357, 788 A.2d 496 (2002). A private nuisance exists where there is "conduct that interferes with an individual's private right to the use and enjoyment of his or her land." Id. A public nuisance, on the other hand, is one that "interferes with a right common to the general public." Keeney v. Old Saybrook, 237 Conn. 135, 163, 676 A.2d 795 (1996). While our Supreme Court has abandoned the traditional four-part test for private nuisance, it has not expressly done so for public nuisance. See Pestey v. Cushman, supra, 357-58. Nevertheless, the court has stated that a plaintiff "has [an] additional burden associated with establishing a public nuisance, namely, proving that the nuisance interferes with a right common to the general public." Elliott v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998).
"Nuisances 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." (Citation omitted; internal quotation marks omitted.) Higgins v. Connecticut Light Power Co., 129 Conn. 606, 611, 30 A.2d 388 (1943). "Whether an interference is unreasonable in the public nuisance context depends . . . on (a) [w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by [law] . . ." Shukis v. Board of Education, 122 Conn.App. 555, 587 (2010). In order to recover on a public nuisance cause of action, the plaintiff's injury must have been sustained "in the exercise of any public right . . ." CT Page 18965 Webel v. Yale University, supra, 125 Conn. 524.
"The rights common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake." Shukis v. Board of Education, supra, 122 Conn.App. 587. "It is found and declared that the pollution of the waters of the state is inimical to the public health, safety and welfare of the inhabitants of the state, [and] is a public nuisance . . ." General Statutes § 22a-422. A depression in a busy public sidewalk into which a pedestrian fell was held to be a nuisance. See Beckwith v. Stratford, 129 Conn. 506, 29 A.2d 775 (1942). "If [a dead tree limb overhanging a public street] endangered travel upon the highway it was a public nuisance . . ." Dyer v. Danbury, 85 Conn. 128, 131, 81 A. 958 (1911).
Where a plaintiff's injury did not arise in connection with his or her exercise of a public right, he or she cannot prevail on a public nuisance claim. Workmen injured by a high tension wire while trimming trees on a public highway were not exercising a public right because "[t]here is no claim of proof that the wires were dangerous to the public generally. It is not expected that the general public will climb thirty-foot trees in the highway." Higgins v. Connecticut Light Power Co., supra, 129 Conn. 612. A game official at a school football match who was thrown into an unprotected grandstand by an out of bounds player was not injured in the exercise of a public right, because "he was in the area where he was injured only because of his special status as a game official. To be considered public, the nuisance must affect an interest common to the general public, rather than peculiar to one individual, or several." (Internal quotation marks omitted.) Couture v. Board of Education, 6 Conn.App. 309, 316, 505 A.2d 432 (1986).
An invitee does not exercise any public right in entering privately owned property. Webel v. Yale University, supra, 125 Conn. 524-25 ("[o]ne who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant; and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance"). "The same principles of law apply whether the defendant is the owner of the property or a tenant in possession." Cimino v. Yale University, 638 F.Sup. 952, 955 (D.Conn. 1986). No public right is exercised in entering private property whether the premises is open to members of the general public; Hoffman v. Mohican Co., 136 Conn. 392, 394, 71 A.2d 921 (1950) (business invitee had no public nuisance claim where she slipped and fell at defendant's market); or even when members of the public are "solicited" to come onto the premises. Dahlstrom v. Roosevelt Mills, Inc., 27 Conn.Sup. 355, 357, 238 A.2d 431 (1967) (public nuisance claim stricken where plaintiff was injured by allegedly dangerous condition of vending machine located at defendant's store).
According to an unpublished trial court opinion, a narrow exception to the rule that no public right is exercised in entering private property involves access to privately owned cemeteries, due to "the unique status of cemeteries under Connecticut law." See Avery v. Congregational Church of Greens Farms, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93 308857 (April 6, 1994, Fuller, J.) ( 9 C.S.C.R. 534) [ 11 Conn. L. Rptr. 354].
In Laezzo v. Park Royal of Bridgeport Condominium Assn., Inc., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 09 5023067 (July 13, 2009, Bellis, J.), the plaintiff slipped and fell on an icy walkway located on the defendant's premises, and brought a cause of action based on public nuisance. He alleged that "ice and snow were allowed to accumulate on the walkway which constituted a defective condition, which condition was created by the [d]efendant(s) and had the natural tendency to inflict injury upon the public including the [p]laintiff." Id. This allegation is identical to the pertinent allegation in the present controversy. Noting that the plaintiff failed to allege that the condition of the land interfered with a right common to the public, Judge Bellis granted the defendant's motion to strike because "[t]he allegations fall far short from alleging violation of a public right." Id. See also: Walker v. Derby, Superior Court, judicial district of Ansonia-Milford at Milford, No. CV 09 600 08 23 5 (Dec. 7, 2009, Bellis J.) [ 49 Conn. L. Rptr. 3], Londen v. Mount Southington Ltd. Partnership, Superior Court, judicial district of New Haven, Docket No. CV 09 500-4717 (June 23, 2009, Fischer J.).
Accordingly, the motion to strike the second and fourth counts of the complaint is granted.