Opinion
FSTCV186038843S
07-09-2019
Henriette RIEFFEL et al. v. Peter GRIFFIN et al.
UNPUBLISHED OPINION
OPINION
SOMMER, J.
Pursuant to Practice Book § 10-39 et seq., the defendants, Peter Griffin and Eileen Griffin (hereinafter the "Defendants"), have moved to strike the First, Second and Third Counts of the plaintiffs, ’ Henriette and Marc A. Rieffel (the "Plaintiffs"), complaint dated October 29, 2018, on the grounds that these three counts are legally insufficient as a matter of law. In their motion the defendants argue that the first two counts should be stricken because Connecticut does not recognize a cause of action between private land owners for damage attributable to a tree which falls on private property. They further argue that count three is legally insufficient because it fails to allege conduct required to state a claim for recklessness.
I. Plaintiffs’ Complaint
The plaintiffs initiated this action by way of Summons and Complaint with a return date of November 10, 2018. The complaint alleges that the defendants allowed a "heavily wooded" wetlands portion of their land, which is adjacent to the plaintiffs’ property, to grow to great heights with overgrown branches. Plaintiffs allege that this growth caused the trees to become "top heavy" with the result that their root structures were unable to support them. The plaintiffs contend that it was the duty of the defendants to care for said trees to prevent them from falling on the plaintiffs’ property. The plaintiffs further claim that the defendants’ alleged breach of such duty caused damage to the plaintiffs’ property after a storm struck the area on March 2, 2018.
The complaint consists of three counts against the defendants. In Count One, the plaintiffs contend that the defendants’ alleged failure to inspect the wooded area and to take remedial measures, despite their actual notice of the allegedly defective conditions on their property, caused the damage to the plaintiffs’ property. Count Two repeats the allegations of Count One asserting that defendants had constructive notice of the allegedly defective conditions on their property. In Count Three, the plaintiffs repeat the allegations of Count One, adding that the defendants’ alleged failure to inspect and take remedial measures was intentional, willful, wanton, and reckless. Plaintiffs’ recklessness claim is based solely on an alleged statement by the defendant, Peter Griffin, when he said to the plaintiff, Henriette Rieffel, "They are my trees, they are your problem." The plaintiffs do not allege any facts as to when or under what circumstances this statement was made, nor are there any further factual allegations that support plaintiffs’ recklessness claim in Count Three.
II. Applicable Law and Analysis Motion to Strike
Practice Book § 10-39 provides,
Whenever any party wishes to contest (1) the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or 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 ... that party may do so by filing a motion to strike the contested pleading or party hereof.
A motion to strike admits all facts well pleaded but does not admit the conclusions or accuracy of opinions stated in the pleading. Mingachos v. CBS, Inc., 196 Conn. 91, 108 (1985). When ruling on a motion to strike, courts are limited to the facts alleged in the complaint. King v. Board of Education, 195 Conn. 90, 93 (1985), and "cannot be aided by the assumption of any facts not therein alleged." Liljedahl Brothers, Inc. v. Grigsby, 215 Conn. 345, 348 (1990). The motion to strike admits neither conclusions of law nor the truth or accuracy of opinions stated in the pleadings. Faulkner v. United Technologies Corp., 240 Conn. 576, 588 (1997).
The function of a motion to strike is to test the legal sufficiency of the allegations of a complaint to state a claim upon which relief can be granted. Vacco v. Microsoft Corp., 260 Conn. 59, 64-65 (2002). Conclusory statements or statements of legal effect not supported by allegations of fact will not enable a complaint to withstand a motion to strike. Mingachos, 196 Conn. at 108. "A motion to strike may be used to contest the legal sufficiency of any prayer for relief in any complaint." Dean v. Nowacki, No. CV 9900810044, 2001 WL 51832, at *2 (Conn.Super.Ct. Jan. 2, 2001). "Practice Book ... § 10-39 allows for a claim for relief to be stricken only if the relief sought could not be legally awarded." Pamela B. v. Ment, 244 Conn. 296, 325 (1998).
III. Plaintiffs’ Allegations
a. Whether Defendants Are Liable For Damage Caused by Natural Conditions Such as a Fallen Tree as Alleged in Counts One and Two
The defendants rely on Restatement (Second) of Torts § 363 (1965) to argue that Connecticut does not recognize a cause of action between private landowners for damage claims attributed to a falling tree where that tree has fallen on private property. Under the common law as applied in this state, there can be no liability between private landowners for damages caused by natural conditions on the land. Restatement (Second) of Torts § 363 (1965) provides,
(1) Except as stated in Subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.
Comment (b) to the Restatement explains that a "natural condition of the land" means,
that the condition of land has not been changed by any act of a human being, whether the possessor or any of his predecessors in possession, or a third person dealing with the land either with or without the consent of the then possessor. It is also used to include the natural growth of trees, weeds, and other vegetation upon land not artificially made receptive to them.Id. According to the Restatement, a private landowner will not be liable for damages caused by a tree when a tree which is naturally growing falls on a neighboring private landowner’s property. Connecticut has not enacted any statute which would legislatively establish such liability.
Defendants rely on Sawicki v. Connecticut R&L, Co., 129 Conn. 626, 634-35 (1943), in which the Supreme Court noted that the rule in Restatement § 363 is "logically sound." This is accurate although the facts in Sawicki, and thus, the court’s analysis therein, differ from the case at bar. Sawicki involved a claim for injury where the defendant had constructed a sidewalk with a stone wall and a railing. Nothing in the facts of Sawicki suggests that the court was looking at a "natural condition of the land," which the condition is presented by the tree which fell on the plaintiff’s property in this case. "Connecticut courts continue to refer to the reference to Sawicki for the premise that, although the Restatement (Second) of Torts is not binding precedent, our appellate courts have frequently looked to it in outlining the contours of Tort law in this state." Kenneson v. Eggert, 176 Conn.App. 296, 308, 170 A.3d 14, 22 (2017).
Trial courts similarly have relied on the Restatement. See, for example, Herrera v. City of Bridgeport, No. 387059, 2004 WL 1926113, at *4 (Conn. Super. Ct. July 30, 2004) , where the court held, "This court holds that Restatement (Second), Torts, § 363 as recognized in its earlier version by the Supreme Court in Sawicki v. Connecticut Ry. & Lighting Co., supra, 129 Conn. at 634-35, and followed in its current version by the Superior Court in Toomey v. State, supra, is the law of Connecticut." Whether a cause of action for damage attributable to a falling tree exists between private landowners was recently addressed in two cases Corbin v. HSBC Bank USA, N.A., No WWMCV 156009704S, 2016 WL 3536424 (Conn.Super.Ct. June 3, 2016) , and New London Cty. Mut. Ins. Co. v. Playhouse Condo. Ass’n, Inc., No. FBTCV 156052947S, 2017 WL 1334280 (Conn.Super.Ct. Mar. 24, 2017) . In both cases, the Court followed the analysis of Restatement (Second) 363 in Sawicki and found that no such cause of action exists in Connecticut.
In Corbin, at *1, a severely decayed tree on the defendant’s property which the defendant admittedly knew to be decayed, fell on the neighboring plaintiff’s shed, causing property damage. Id. According to the facts in Corbin, there was no dispute that the defendant was aware that the tree on his property was decayed and in a dangerous and unsafe condition. Four weeks before the tree fell, the plaintiffs had notified the defendants’ real estate agent of the condition of the tree. The agent inspected the tree and took pictures which documented the decaying condition of the tree. In Count One the plaintiff alleged negligence, i.e., that the defendants knew or should have known of the dangerous condition of the tree and failed to exercise reasonable care by not removing it. Applying section § 363 of the Restatement (Second) of Torts the court concluded that no cause of action exists and granted the defendant’s motion to strike both counts of the plaintiff’s complaint. Id. at *3.
In New London Cty. Mut. Ins. Co. the facts were similar to those in Corbin and the Superior Court there reached the same conclusion. In granting the defendant’s motion for summary judgment, the Superior Court cited § 363 of the Restatement (Second) of Torts and concluded that Connecticut does not recognize a cause of action for damage caused by a tree that was nothing more than a natural condition of the land. Id. at *3. In the present case, much like in Corbin and New London, the plaintiffs allege that the defendants allowed a portion of their land to become overgrown, and that this over growth caused the alleged damage to the plaintiff’s property when a storm struck the neighborhood. Plaintiffs make no allegations that these trees were anything other than "natural conditions of the land." The allegations of the complaint do not support any finding other than the tree in question is "a natural condition of the land." Accordingly, applying Restatement (Second) of Torts § 363 as the Connecticut Superior Court has done previously, Counts One and Two of the plaintiffs’ complaint are legally insufficient. The Court grants the motion to strike Counts One and Two of the plaintiff’s complaint.
b. Whether Count Three Alleges Facts Sufficient to Support a Recklessness Claim
The defendants assert that Count Three is legally insufficient because it fails to allege any specific conduct by defendants that could rise to the level of reckless conduct. It is well established in Connecticut that simply using the words reckless or recklessness is not enough to support a claim for recklessness. Kostiuk v. Queally, 159 Conn. 91, 94 (1970). "[A] brief reference to recklessness, contained within a count which is otherwise clearly limited to ordinary negligence is [not] sufficient to raise a claim of reckless and wanton misconduct. Simply using the work reckless or recklessness is not enough." Id. (internal citations omitted). As our Connecticut Supreme Court has emphasized:
Recklessness is a state of consciousness with reference to the consequences of one’s acts. It requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater than that which is necessary to make his conduct negligent. It is more than negligence, more than gross negligence. The state of mind amounting to recklessness may be inferred from conduct. But, in 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.Mooney v. Wabrek, 129 Conn. 302, 308 (1942) (citations and internal quotation marks omitted). According to the Supreme Court in Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1988)," ‘Willful, ‘wanton, ’ or ‘reckless’ conduct is highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent ..." The allegations of the complaint simply do not state such facts. A "plaintiff cannot transform a negligence count into a count for willful and wanton misconduct merely by appending a string of adjectives to allegations that clearly sound in negligence." Brown v. Branford, 12 Conn.App. 106, 110, 529 A.2d 743 (1987). "There is no dispute that a complaint must set forth specific factual allegations which would support a finding of wanton or reckless misconduct. Willful, wanton or reckless conduct all refer to the same type of conduct ... It is highly unreasonable conduct which involves an extreme departure from ordinary care." Klimas v. Connecticut Health Associates, Inc., 2002 WL 31760190, at *3 (Conn.Super.Ct. Nov. 20, 2002). "One is guilty of reckless misconduct when knowing or having reason to know of facts which would lead a reasonable [person] to realize that the actor’s conduct not only creates an unreasonable risk of bodily harm to the other but also involves a high degree of probability that substantial harm will result ..." Wasilewski v. Raymond Corp., 2012 WL 2190779, *4-5 (D.Conn. 2012) (quoting McKnight v. Electric Services, Inc., Superior Court, JD New Haven, 2007 WL 1599831, *4 (May 16, 2007, Holden, J.) ).
To survive a motion to strike, therefore, a plaintiff must plead actual facts that support a finding of recklessness and not mere legal conclusions. See Chonko v. Kennynick, LLC, 2006 WL 2847913, at *2 (Conn.Super.Ct. Sep. 26, 2006); Zublena v. Carrozzo, 2002 WL 1335946, at *2 (Conn.Super.Ct. May 20, 2002). Passive behavior, such as the failure to clear snow and ice, do not turn a negligence action into a reckless action. See Pera v. Young Men’s Christian Ass’n of Greenwich, No. FSTCV 116008362S, 2011 WL 3891042, at *5 (Conn.Super.Ct. July 29, 2011). See also, Jiminez v. Am. Steak House, LLC, No. CV 106001715S, 2010 WL 5030129, at *1-2 (Conn.Super.Ct. Nov. 15, 2010). In that case the court granted the defendant’s motion to strike the plaintiff’s recklessness count where, in addition to pleading negligence, the plaintiff alleged that the defendant was reckless because it consciously chose not to inspect the premises, warn customers or repair the damaged dining booth that caused plaintiff’s injuries and that it made a willful and conscious decision not the dangerous condition created by the damaged booth.
Based on a review of the complaint the court concludes that Count Three of the complaint does not plead any facts that would support a finding of recklessness. Specific allegations speaking to highly unreasonable conduct which involves an extreme departure from ordinary care. In Count Three, plaintiffs repeat the allegations in Counts One and Two. They allege that the defendants’ recklessness is evidenced by the "conduct and the mein" of the defendant, Peter Griffin, when he said to the plaintiff, Henriette Rieffel, "They are my trees, they are your problem." Taking this allegation as true for purposes of the motion to strike, this statement, while impolite, does not constitute reckless conduct under any reasonable assessment. Just as a failure to "clear snow and ice" was insufficient in Pera, an alleged failure of defendants to care for their trees in such a way to prevent them from falling on plaintiff’s property in a storm does not state a claim of recklessness.
The plaintiffs claim that the defendants were reckless in failing to remove trees which were part of "the natural conditions of the land." Such allegation, standing alone, does not rise to the level of recklessness which the plaintiffs’ claimed damages.
Based on the application of the facts as alleged by the plaintiffs in their complaint to the established law of this state, the court concludes that the plaintiff has failed to state a claim for recklessness in Count Three. The defendant’s motion to strike Count Three is granted.
The court therefore grants the motion to strike as to all counts.