Opinion
No. CV05-4015076S
June 15, 2007
MEMORANDUM OF DECISION ON MOTION TO STRIKE (NO. 120)
This action arises from the alleged breach of a lease between the plaintiff landlord and defendant Alpha Q, Inc., which involves the alleged environmental contamination of the subject property during defendant's tenancy. The co-defendant, L. Steven Prout, is the president of Alpha Q; plaintiff seeks to impose personal liability on Prout for the conduct of the corporation.
The operative complaint, dated June 23, 2006, contains nineteen counts. Defendants have moved to strike all but the first, tenth and thirteenth counts. Plaintiff has withdrawn counts fourteen and sixteen.
Count Two — Breach of the Covenant of Good Faith and Fair Dealing
Defendants submit that the second count should be stricken because plaintiff has not alleged that they acted in bad faith. The court finds, in construing the factual allegations in the light most favorable to the plaintiff, that he has plead sufficient facts to state a cause of action for breach of the covenant of good faith and fair dealing. The motion to strike is denied as to Count Two.
Count Three — Specific Performance
Defendants submit that the claim for specific performance should be stricken because plaintiff has not stated a factual or legal basis for the imposition of this equitable remedy. Although specific performance is not generally ordered where a plaintiff has an adequate remedy at law, "a plaintiff is permitted to advance alternative and even inconsistent theories of liability against one or more defendants in a single complaint." Dreier v. Upjohn Co., 196 Conn. 242, 245 (1985). The court will therefore permit plaintiff to maintain his claim for specific performance.
CT Page 10615
Count Four — Tortious Breach of Contract
The motion to strike is granted as to the fourth count. In L.F. Pace Sons Inc. v. Travelers Indemnity Co., 9 Conn.App. 30, 48, cert. denied, 201 Conn. 811 (1986), our Appellate Court set forth the pleading requirements for a tortious breach of contract claim. The court reasoned that the plaintiff's complaint properly alleged tortious misconduct because it stated that "the defendant acted outrageously and maliciously toward the plaintiff with wilful disregard for plaintiff's rights under the terms of its implied agreement with the plaintiff, and with the intention of causing it severe economic and financial loss." (Emphasis added.) Id., at 48-49.In the present case, paragraphs 42 and 43 allege that "Alpha Q willfully and intentionally breached its duties under the [l]ease to avoid the expense it would incur if it were to perform the duties under the contract of [l]ease . . . Alpha Q is liable for attorneys fees and punitive costs for its intentional conduct." The complaint alleges that the defendants acted intentionally but fails to allege in substance that the defendants acted with any sort of wanton or malicious behavior, evil motive, or violence. The allegations therefore fail to meet the standard set forth in L.F. Pace Sons, and the count is therefore legally insufficient.
Count Five — Negligence
The defendants argue that count five should be stricken because, whether the claim sounds in contract or in tort, it fails to allege a duty or standard of care.
"The existence of a duty of care is an essential element of negligence . . . A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act." (Internal quotation marks omitted.) Ward v. Greene, 267 Conn. 539, 547 (2004).
In the count under consideration, paragraph 11 alleges that "[the plaintiff] and defendant Alpha Q entered into a [l]ease [a]greement dated October 29, 1986 . . . whereby [the plaintiff], as the [l]andlord, and defendant Alpha Q, as the [t]enant, agreed to lease the [p]roperty on the terms, conditions and limitations set forth in the contract . . ." Plaintiff further alleges, in paragraph 46, that "[t]he discharge, spillage, uncontrolled loss, seepage or filtration was occasioned by the carelessness and/or negligence of Alpha Q in one or more of the following ways . . . Alpha Q failed to take reasonably prudent measures to handle its hazardous waste and chemicals . . . Alpha Q failed to take reasonably prudent measures to store its hazardous waste and chemicals . . . Alpha Q failed to take reasonably prudent measures to dispose of its hazardous waste and chemicals." The court finds that the plaintiff has sufficiently alleged a duty of care arising from contract.
The plaintiff has also properly set forth allegations for a duty of care arising out of circumstances in which a reasonable person would anticipate that the harm suffered was likely to result from the particular actions or omissions. Ward v. Greene, supra, at 547. Paragraph 42 alleges that "Alpha Q owed a duty to [the plaintiff] to comply with the [l]ease and the laws of the [s]tate of Connecticut, to use the [p]roperty in a reasonable manner and to exercise due care in controlling, monitoring, maintaining and operating their facilities on the [p]roperty . . ." Plaintiff has therefore alleged that the defendants had the duty to act as reasonable and prudent tenants in their occupation and maintenance of the land. The motion to strike is therefore denied as to the Fifth Count.
Count Six — Negligence Per Se
The defendants argue that count six of the complaint must be stricken because there is no private right of action under either of the statutes cited. The plaintiff counters that paragraphs nineteen through thirty-two allege specific statutory violations that are incorporated into count six and establish a statutory standard of care.
Plaintiff alleges that "by discharging or causing or allowing the discharge and/or release of hazardous wastes, [the defendants] violated RCRA, 42 USC § 6901 et seq." and "by discharging, leaching, releasing, or causing or allowing the discharge and/or release of hazardous wastes by its inactions, [they] violated [General Statutes] [ §§ 22a-427 and 22a-430] . . ." General Statutes § 22a-427 provides that "[n]o person or municipality shall cause pollution of any of the waters of the state or maintain a discharge of any treated or untreated wastes in violation of any provisions of [the Water Pollution Control Act (WPCA), General Statutes §§ 22a-416 through 22a-484]."
The court agrees with the defendants that there is no private right of action under the WPCA. Andrews v. Caron Brothers, Inc., No. 45136 (Tolland J.D., March 26, 1992) (McWeeny, J.); Michael v. Kenyon Oil Company. Inc., 4 CSCR 337 (March 22, 1989) (O'Connor, J.). The motion to strike is therefore granted as to count six.
Count Seven — Strict Liability
The motion to strike is denied as to the seventh count. Defendant correctly states that in Connecticut, strict liability is currently imposed only for three activities found to be abnormally dangerous: blasting, pile driving, and certain uses of explosives. This does not mean that the doctrine cannot be extended to other activities under the appropriate circumstances.
Such circumstances were present in Green v. Ensign Bickford Co., 25 Conn.App. 479, cert. denied, 220 Conn. 919 (1991), in which the Appellate Court extended strict liability to situations involving explosions resulting from experiments with highly volatile chemicals. After noting that the issue of whether an activity is abnormally dangerous is a question of law, the court discussed sections 519 and 520 of the Restatement (Second) of Torts. Section 520 sets forth the factors a court should consider in deciding whether an activity is abnormally dangerous: "(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes . . ." Id., at 486.
Plaintiff has alleged facts which may warrant extension of strict liability to this situation. More specifically, he has alleged that "Alpha Q released, spilled, or directly disposed of [h]azardous [s]ubstances" (¶ 43), that such "activity is intrinsically dangerous to people and property," (¶ 44), and that "[t]he risk of harm and harm experienced was not capable of being mitigated by the exercise of reasonable care," (¶ 45). The ultimate decision on the viability of plaintiff's strict liability claim should not, and will not be resolved at this stage of the case. The issue may be capable of resolution on a motion for summary judgment following the completion of discovery, or it may have to be resolved in the course of trial. In any event, plaintiff has alleged sufficient facts to warrant deferring this decision to another day.
Count Eight — Nuisance
The defendants claim that count eight is legally insufficient and must be stricken because a claim in nuisance is not intended to be brought by a landlord relating to actions on his property. The plaintiff counters that a landlord may have a cause of action in nuisance because nuisance does not have to occur between strangers to be actionable.
"Historically, the `assize of nuisance' was designed to cover invasions of the plaintiff's land due to conduct wholly on the land of the defendant." Prosser Keeton, Torts, 5th Ed., Ch. 15, 86, p. 617. This principle has been applied in several Superior Court cases. Walker v. Barrett, Docket No. CV 990169673 (Stamford J.D., November 8, 1999) (D'Andrea, J.) [25 Conn. L. Rptr. 665] (finding that actions in nuisance can only be brought against persons occupying neighboring land); Wiehl v. Dictaphone Corp., Docket No. CV 94 306492 (Fairfield J.D. January 13, 1994) (Maiocco, J.) (10 Conn. L. Rptr. 591) (granting the motion to strike a nuisance claim because the defendant tenant is not in control of a neighboring parcel of land); B D Molded Products, Inc. v. Vitek Research Corp., Docket No. CV 97 0060362 (Ansonia-Milford J.D., August 17, 1998) (Corradino, J.) (23 Conn. L. Rptr. 90) (striking an action in private nuisance against former lessee of property purchased by plaintiff because the alleged nuisance did not arise from the improper use of neighboring property).
This court agrees with the foregoing decisions and holds that a tenant's misuse of leased property does not create a right to sue in nuisance for the landlord. The motion to strike is therefore granted as to count eight.
Count Nine — Reckless Misconduct
The defendants seek to strike count nine on the basis that the plaintiff has failed to allege any facts that the defendants' actions were highly unreasonable, that the conduct involved an extreme departure from ordinary care, and that there was a high degree of danger. The plaintiff argues that the claim is legally sufficient because the complaint alleges that the defendants maintained a hazardous condition that it knew involved a risk to others and that the defendants' conduct was more than merely negligent.
"To determine whether the plaintiff['s] . . . complaint states a cause of action sounding in recklessness, we look first to the definitions of wilful, wanton and reckless behavior. Recklessness is a state of consciousness with reference to the consequences of one's acts . . . 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 . . . Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . ." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 342, aff'd, 262 Conn. 312 (2003).
"Simply using the word `reckless' or `recklessness' is not enough . . . Some additional factual allegations are necessary to alter the nature of the conduct complained of from an action for negligence to an action for wilful and wanton conduct . . . If the plaintiff merely reiterates the facts from the negligence count and inserts the word `reckless,' a motion to strike is properly granted . . . If, however, the factual allegations in the negligence count are detailed and specific enough to support a claim of recklessness, the motion to strike may be denied . . . To state a claim of recklessness . . . the [plaintiff] must allege facts demonstrating both egregious conduct and the requisite state of mind . . ." (Internal quotation marks omitted.) Connolly v. Reels, Docket No. CV 05 4004013 (New London J.D., May 2, 2006, (Hurley, J.T.R.).
In the present case, plaintiff alleges that "Alpha Q failed to take steps to comply with the [l]ease, RCRA, and to prevent or remedy the condition of the [p]roperty in reckless disregard of the laws of the [s]tate of Connecticut and the United States, as well as the rights and safety of others." (¶ 43.) This is not enough to sustain a cause of action reckless misconduct. Paragraph 15, however, as alleges that "[a]t various times during the defendants' occupancy of the [p]roperty and building, the [h]azardous [s]ubstances were either discharged, deposited, pumped, poured, spilled, emptied, injected, escaped, dumped, stored, disposed of, placed, released, leaked or leached into building its equipment and fixtures and into the environment." The court finds that these allegations, if proven, would support a reckless misconduct claim, and the motion to strike is therefore denied as to count nine.
Count Eleven — Common-Law Restitution
The defendants claim that count eleven must be stricken because Connecticut does not recognize an action for common-law restitution. In addition, the defendants assert that even if the court construes the action to be one that alleges unjust enrichment, the plaintiff has failed to plead facts that state such a cause of action. The plaintiff argues that restitution may be sought when one prefers to recover the amount the defendant was enriched by her wrongful conduct as opposed to damages.
"A plaintiff may seek restitution if the defendant has committed a civil wrong, usually a tort or breach of contract, and the plaintiff prefers to recover the amount the defendant was enriched by her wrongful conduct as opposed to damages . . . The recovery of restitution may take several forms, including the return of the specific property conveyed or the payment of the monetary value of the defendants gain." (Citations omitted.) Leisure Resort Technology, Inc. v. Trading Cove Associates, 277 Conn. 21, 40 (2006).
In this case, count eleven of the complaint, although entitled "common law restitution," is a cause of action in unjust enrichment for which plaintiff seeks the remedy of restitution. The allegations in the eleventh count are legally sufficient because they specify the fashion in which the defendants have benefited from the plaintiff's actions: "[the plaintiff] has expended money to correct and remedy the conditions on the [p]roperty . . . [and] has expended money on behalf of the legal obligation of Alpha Q to investigate, remediate and monitor the condition of the [p]roperty . . ." (¶ ¶ 42-43.) The motion to strike is therefore denied as to the eleventh count.
Count Twelve — Equitable Indemnity
The motion to strike is granted as to count twelve. At this time, Connecticut does not recognize equitable indemnity as a cause of action. ATC Partnership v. Coates American, Inc., Docket No. CV 05 4010141 (Waterbury J.D., October 26, 2006) (Munro, J.) (42 Conn. L. Rptr. 320).
Counts Seventeen and Eighteen — Individual Responsibility/Piercing the Corporate Veil
The defendants have also moved to strike counts seventeen and eighteen, both of which seek to hold Prout individually liable by piercing the corporate veil. The defendants argue that plaintiff has failed to plead facts alleging that Prout had a unity of ownership with Alpha Q and that he dominated the business in such a manner that the independence of the corporate entity ceased to exist. The plaintiff claims that he has alleged specific facts supporting these claims under either the instrumentality or identity rule.
In Mountview Plaza Associates v. World Wide Pet Supply, Inc., 76 Conn.App. 627, 633 (2003), the Appellate Court explained what a plaintiff has to plead and prove in order to pierce the corporate veil to seek recovery against individuals who control a corporate entity: "Courts will disregard the fiction of separate legal entity when a corporation is a mere instrumentality or agent of another corporation or individual owning all or most of its stock . . . Under such circumstances the general rule, which recognizes the individuality of corporate entities and the independent character of each in respect to their corporate transactions, and the obligations incurred by each in the course of such transactions, will be disregarded, where, as here, the interests of justice and righteous dealing so demand . . . The circumstance that control is exercised merely through dominating stock ownership, of course, is not enough . . . There must be such domination of finances, policies and practices that the controlled corporation has, so to speak, no separate mind, will or existence of its own and is but a business conduit for its principal." (Internal quotation marks omitted.) Id., 633.
The motion to strike is granted as to the seventeenth and eighteenth counts. Although plaintiff alleges that Prout had control of Alpha Q, it is the control which any CEO or president of a small corporation would be expected to have. Plaintiff has failed to allege that Prout's control of the corporation was so complete that Alpha Q was nothing more than a "business conduit."
Count Nineteen — Responsible Corporate Officer Doctrine
The motion to strike is denied as to the nineteenth count. The facts alleged are sufficient to state a cause of action against Mr. Prout personally for the alleged conduct of Alpha Q.