Opinion
No. CV05 5000064S
August 11, 2005
MEMORANDUM OF DECISION RE MOTION TO STRIKE
The defendant has moved to strike the plaintiff's amended complaint dated May 27, 2005. The amended complaint alleges that the defendant, through its maintenance of defective premises, to wit: an internal stairway, created a public nuisance. The plaintiff conceded at oral argument that she has brought this complaint pursuant to "public nuisance" rather than "private nuisance."
Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross-claim, or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint, counterclaim or cross-complaint, or (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party, or (4) the joining of two or more causes of action which cannot properly be united in one complaint, whether the same be stated in one or more counts, or (5) the legal sufficiency of any answer to any complaint, counterclaim or cross complaint, or any part of that answer including any special defense contained therein, that party may do so by filing a motion to strike the contested pleading or part thereof.
The proper method to challenge the legal sufficiency of a complaint is to make a motion to strike prior to trial. Gulack v. Gulack, 30 Conn.App. 305, 309, 620 A.2d 181 (1993).
If a motion to strike is directed to the entire complaint, the motion must fail if any of the plaintiff's claims is legally sufficient. Kovacs v. Kasper, 41 Conn.Sup. 225, 226, 565 A.2d 18 (1989).
"Public nuisance law is concerned with interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety." Pestey v. Cushman, 259 Conn. 345, 357 (2002). To constitute a public nuisance, "the annoyance must be of such a nature as to injure the citizens generally who may be so circumstanced as to come within its influence." O'Neill v. Marulli, 21 Conn.Sup. 373, 374 (1959). The plaintiff argues that since the defendant's premises are open to the public, their use constitutes a public right. This line of reasoning was rejected in Dahlstrom v. Roosevelt Mills, Inc., 27 Conn.Sup. 355 (1967) wherein the plaintiff patron was injured by a vending machine located in a store open to the public. The court in Dahlstrom struck the plaintiff's claim for nuisance, rejecting the plaintiff's claim that since the store "catered to the general public" the allegations gave rise to the establishment of a public nuisance. "Nuisances are public when 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. A nuisance is `common' or `public,' the terms being synonymous, where it effects the rights enjoyed by citizens as part of' the public, that is, the rights to which every citizen is entitled." Dahlstrom, 27 Conn.Sup. at 257.
The courts have recognized a distinction between premises which are open for the general public to enter such as a store, a restaurant or a bar, and a public thoroughfare such as a sidewalk or public place. In Dewing v. Black Point Association, 19 Conn.Sup. 230 (1954), the court similarly held that the plaintiff had not been exercising a "public right" despite her utilizing a swimming raft in public waters.
The plaintiff relies on the decision in Keith v. Prime Hospitality Corporation, 1994 W.L. 443237 (August 5, 1994) in her argument that the court take a more expansive view of the term "public nuisance." In that case, the court ruled that the public parking lot and unenclosed open culvert constituted a public nuisance. The court in Keith v. Prime Hospitality Corporation perhaps expanded the definition of "public nuisance" to its outermost limits. Notwithstanding, the facts presented in the case herein suggests a more confined space, to wit, an interior stairway in a club and, clearly, do not meet the definition of "public nuisance" as has been accepted by the majority of courts addressing this issue.
For the foregoing reasons, the Motion to Strike is granted.
The Court
By Shluger, J. CT Page 11995-a