Opinion
No. CV03 0348805 S
May 7, 2004
MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS TO COUNT ONE AND COUNT TWO AND DEFENDANT'S MOTION TO DISMISS COUNT TWO
The State's motion for summary judgment as to count one, sounding in negligence (premises liability), is denied.
As to the State's first argument, that the state fully discharged its duty to plaintiff-tenant, it argues that plaintiff was aware of the dangerous or defective avenues of entry to the home and that the State had warned plaintiff not to use said walkway. The plaintiff argues that the State was also aware and, more importantly, agreed to repair it, and failed to do so, and thus neglected an undertaken duty. Surely, a disputed issue of material fact lies within this construct.
Also, the State urges that the plaintiff took the premises "as is" in the lease, prompting the State to urge "caveat emptor." One traditionally sees the "as is" label as intending that a consumer, buyer, or customer intends to become bound to leave himself with no further recourse. This notion is belied by the lease itself which purports to set out various ongoing or prospective responsibilities of the parties, without any specification as to which, if any, assigned duties would be abrogated by the "as is" clause. This arguably renders the "as is" proviso utterly without meaning. As a result, the State's motion for summary judgment as to count one must be denied.
Count two of the complaint sounding in nuisance, suffers a dual attack, which seeks summary judgment and dismissal.
As to the motion to dismiss, the State argues that the legislative resolution authorizing plaintiff to proceed (or, arguably, waiving its immunity) may embrace or constitute authority for a negligence claim, but not a nuisance claim. The short answer is that the authorizing resolution itself contains no such limitation. The State further suggests that an "impact" note given the legislature, characterizes the resolution as authorizing a "negligence" action. While that is so, there is no suggestion that this usage was intended as a limiting device. More likely, of course, it represents the generic and shorthand way one would use to describe a fall-down action. The State's motion to dismiss count two, nuisance, is denied.
Substitute House Joint Resolution No. 145 provides: "[t]hat the recommendation of the Claims Commissioner, file number 17216 of said commissioner, that no award be granted to Pamela Smith on her claim against the state in excess of seven thousand five hundred dollars and that permission to sue be denied, is rejected and Pamela Smith is authorized to institute and prosecute to final judgment an action against the state to recover damages as compensation for personal injury allegedly suffered by her on September 24, 1996. Such action shall be brought not later than one year from the date of the final adoption by the General Assembly of this resolution."
The legislative history to Substitute House Joint Resolution No. 145 does not slice out nuisance. Instead, the legislative history indicates that the plaintiff should be in the same position she would have been had she rented the house from a traditional landlord. See footnote 3, infra.
As to the motion for summary judgment on the Count Two nuisance allegation, the State argues that a private nuisance must originate outside the land that it affects. For that proposition the State relies on Carrol v. Absolute Tank Removal, 48 Conn. Sup. 166, 35 Conn. L. Rptr. 514 (2003), a case which involved contracted services to remove and install an oil tank. The State's reliance is misplaced. The holding in Carroll was premised on Pestey v. Cushman, 259 Conn. 345 (2002). In Pestey, the Supreme Court stated that "[t]he proper focus of a private nuisance claim for damages . . . is whether a defendant's conduct, i.e., his or her use of his or her property, causes an unreasonable interference with the plaintiff's use and enjoyment of his or her property." From this language, the Carroll court determined, on the facts before it, that because the oil tank was on the premises affected by the alleged nuisance, i.e., originated within the premises, the plaintiff was precluded from bringing a private nuisance action against the contracted service provider. The facts of Carroll and the present case are distinguishable.
In the present action, the underlying factual scenario is one of landlord-tenant and not a contract for services with a true outsider. While this court acknowledges the outcome in Carroll, that holding is inapplicable here. The nature of a landlord-tenant relationship is either one where the tenant has exclusive possession of the leased premises or the landlord has retained some form of control over some or all of the leased premises. Where the landlord has retained some form of control, several Superior Courts have allowed a private nuisance cause of action to go forward. In those cases, the material issue of fact was whether the landlord had retained control over the portion of the premises from which the alleged nuisance emanated.
See e.g., Ramirez v. Thames River Associates, Superior Court, judicial district of New London, Docket No. 558580 (January 2, 2002, Hurley, J.T.R.) ( 31 Conn. L. Rptr. 165); Simmons v. Papadopoulos, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 00 0273005 (April 11, 2001, Booth, J.) ( 29 Conn. L. Rptr. 494); Colangelo v. Main Street Development, Superior court, judicial district of Ansonia-Milford at Milford, Docket No. CV 96 0066498 (August 9, 2000, Grogins, J.) ( 27 Conn. L. Rptr. 627); Dehnel v. Licki, Superior Court, judicial district of New Britain at New Britain, Docket No. 494612 (May 22, 2000, Kocay, J.); Goyette v. Abadir, Superior Court, judicial district of Windham at Putnam, Docket No. 061995 (February 15, 2000, Sferrazza, J.) ( 26 Conn. L. Rptr. 507); Roache v. Rogers, Superior court, judicial district of Fairfield at Bridgeport, Docket No. CV 98 0354114 (July 26, 1999, Skolnick, J.); Jubb v. Maslanka, 22 Conn. Sup. 373 (1961).
Unlike the conclusion in Carroll, Pestey does not mandate that the alleged nuisance must originate outside of the affected premises. Pestey only requires that the defendant's use of his or her property unreasonably interfere with the plaintiff's use and enjoyment of his or her property. In the landlord-tenant setting, it is possible for the landlord, defendant, to unreasonably use or manage a controlled portion of the leased premises to create a nuisance, which affects the tenant's use and enjoyment of that interest. Thus, the alleged nuisance can originate within the affected premises. The location of the nuisance is not outcome determinative because the landlord-tenant relationship forces the issue to become whether the landlord controlled the relevant portion of the premises.
As a result, the State's Count Two motion for summary judgment is denied because the lease, by its terms, allows the State to retain some form of control over the leased premises. There remains a material question of fact as to whether the State had retained control over the portion of the leased premises from which the alleged nuisance emanated.
Nadeau, J.