Opinion
FSTCV176032575S
01-31-2018
Stephanie CONTE et al. v. TOWN OF WESTPORT et al.
UNPUBLISHED OPINION
OPINION
GENUARIO, J.
I. INTRODUCTION
Plaintiffs originally brought this action in nine counts against the Town of Westport (the Town) and the Westport Rotary Club Foundation, Inc. (the Rotary Club). The plaintiffs allege that the Town owns and is in the possession of a twenty-nine-acre parcel property known as Compo Beach and that Compo Beach was managed by the Town’s Parks and Recreation Department. Plaintiffs further allege that the Rotary Club was the organizer, sponsor and promoter of a publicly advertised event known as the Lobster Fest at Compo Beach to be held on September 17, 2016. Approximately twelve hundred people were expected to attend. On June 17, 2016 the Town granted a permit to the Rotary Club to use Compo Beach for the Lobster Fest on September 17, 2016, which permit granted the Rotary Club access to Compo Beach beginning on September 15, 2017 to set up for the Lobster Fest. The permit also allowed the Rotary Club to set up tents for use during the Lobster Fest. Subsequently the Rotary Club was given permission for its agent to begin setting up tents during the afternoon of September 14, 2016. The Town knew that the Rotary Club would be setting up multiple tents to accommodate the large number of people expected but did not request to receive any information from the Rotary Club about the size of the tents, the number of tents, whether they were safe for use in the area or how they would be set up and secured as to protect the public safety. On September 14, 2016 the Rotary Club began setting up several large tents but the Rotary Club and its agents had left at some point prior to 5:15 p.m. Compo Beach however remained open and the plaintiff Stephanie Conte (Stephanie) and her two children traveled to Compo Beach and gained access to the park with the yearly pass. At approximately 5:00 p.m. it began to rain and Stephanie and her two children took shelter from the rain under one of the large tents when shortly thereafter at approximately 5:15 p.m., the tent the plaintiffs were standing under suddenly came loose from the ground and collapsed. Stephanie was hit by a large metal tent pole and was knocked to the ground still holding her three-year-old son. The first three counts of the complaint allege negligence on the part of the Town and are not involved in this motion. Counts four, five and six of the complaint seek recovery from the Town under a claim of nuisance and are the subject of this motion. Count seven, eight and nine also not involved in this motion assert claims against the Rotary Club. An amended complaint also asserts claims against a third-party defendant who allegedly erected the tents on behalf of the Rotary Club.
The counts which are the subject of this motion to strike, are the fourth count (on behalf of Stephanie) and fifth count (on behalf of the children) which assert claims for liability based upon nuisance based upon a violation of Connecticut General Statute § 52-557n(a)(1)(C). The sixth count is a claim for loss of consortium asserted by plaintiff Mark James Conte (Mark), which is derivative of the fourth count.
The Town moves to strike counts four and five claiming that they are insufficient as a matter of law because they failed to allege " positive acts" by the Town necessary to allege a cause of action against a municipality in nuisance. The defendant Westport seeks to strike the sixth count of the basis that it is derivative of the fourth count and cannot stand if the fourth count is stricken.
II. MOTION TO STRIKE
" The purpose of a motion to strike is to contest ... the legal sufficiency of the allegations of any complaint ... to state a claim upon which relief could be granted. Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498 (2003). It is black letter law that in ruling upon a motion to strike the court must construe the pleadings in a manner most favorable to the non-moving party and, if the facts provable under the pleadings support a claim the motion to strike must fail. Rowe v. Godou, 209 Conn. 273, 278 (1988). " A motion to strike admits all facts well pleaded; it does not admit legal conclusion where the truth or accuracy of opinion stated in the pleadings." Faulkner v. United Technologies Corp., 240 Conn. 576 (1977). " It is fundamental in that determining the sufficiency of a complaint challenged by a [party’s] motion to strike, all well pleaded facts and those facts necessarily implied from the allegations are taken as admitted." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318 (2006). In ruling on motion to strike the court is confined to addressing the grounds for the motion asserted by the moving party. Gazo v. Stamford, 255 Conn. 245, 259 (2001).
III. DISCUSSION
In propounding their claims in count four and count five the plaintiffs rely upon C.G.S. § 52-557n(a)(1)(C) which states " except as otherwise provided by law, a political subdivision of the State shall be liable for damages to personal property caused by ... (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance ..." This statutory provision effectively incorporates the common-law requirement that an action against a municipality sounding in nuisance must include an allegation and eventually proof that the municipality created the claimed nuisance by some " positive act" in order for the normal principle of governmental immunity to be avoided. See Picco v. Town of Voluntown, 295 Conn. 141 (2010). In Picco, the defendant town owned, maintained and controlled an athletic field upon which stood a white ash tree of considerable size bulk and height. The tree had a history of failure and contained numerous structural defects including bark erosion, trunk cracks and major decay. The plaintiff in Picco alleged that it had a natural tendency to pose a danger in light of its size and defects and location on the field in close proximity to areas in which sports where played and visitors stood to watch the same. The Picco plaintiffs further alleged that the defendant town knew or should have known of the tree’s history of failure and dangerous propensities because defendant previously removed from the field and adjacent school grounds large branches that had fallen from the tree, had obtained an estimate for the tree’s removal and had been advised by a tree professional that the tree was dangerous and needed to be removed immediately. The Picco plaintiffs were injured when a large branch fell striking a child who was standing near the tree watching a sporting event. The Picco court reviewed the language of § 52-557n(a)(1)(C) in detail and concluded that the requirement that the municipality be liable for damages caused by " acts of the political subdivision which constitutes the creation or participation in the creation of a nuisance" (Picco at 148 (emphasis in original) ) requires more than a failure to act. The use of the word " acts" in juxtaposition with the phrase " creation or participation in the creation" of a nuisance requires that something be done. The court noted that in other sections of the statute the legislature used the phrase " acts or omissions" but in subsection (C) they did not incorporate the " or omissions" language. The Picco court concluded that the plaintiff’s allegations, no matter how artfully stated, were allegations that the town omitted or failed to act rather than allegations that the town acted in a way to create or participate in the creation of the nuisance.
No court has held that the simple issuance of a permit, in and of itself, can constitute a positive act rendering in municipality liable for a nuisance as a result of the subsequent action of the person receiving the permit and the plaintiff does not so claim. Indeed, one of the cases relied upon by the plaintiff, Esposito v. New Britain Baseball Club, Inc., 48 Conn.Supp. 643 (2004) supports the opposite conclusion. In Esposito the municipality granted a permit for fireworks but the court concluded that the issuance of the permit, in and of it of itself, would not support a claim against the municipality for nuisance. The Esposito court denied a motion to strike a nuisance count only because of the additional allegations that the municipality routinely controls access to the fireworks display and sends its police and fire personnel to the premises during the fireworks display. The plaintiff earnestly attempts to bring itself within the parameters of Esposito by alleging the variety of factors that the plaintiff claims should have been part and parcel of the issuance of the permit allowing the use of Compo Beach and the erection of tents. For example, plaintiffs allege that the permit form used by the town requires that the number and size of tents to be used at the events specified but the Town granted the Rotary Club, the permit to erect tents on Compo Beach without obtaining that information. Additionally, the plaintiff alleges that the Town and the State of Connecticut require that the erection of any temporary structures including the tents for the Lobster Fest must be subject the application to an inspection of the tents by the town building official; the Town did not request or receive any information from the Rotary Club about the size of the tents, the number of the tents, whether they were safe for use in the area or how they would be set up. The Town did not issue a permit for the erection of the tents in accordance with the state building code. The Town building official was not given notice of the erection of the tents and the tents were never inspected or approved by the town building official. The plaintiffs allege the Towns Parks and Recreation Department approved that tents without authority to do so. The Town did not take steps to determine whether these temporary improvements or use of its property constituted a safety hazard to the public.
One needs to look no farther than the plaintiff’s objection when it tries to delineate the town’s positive acts of page two of its objections as follows:
the town’s positives acts included but were not limited to: 1) the issuance of a parks and recreation permit to erect the tent with a requirement that the permitted event and location be monitored by the police; 2) the issuance of the aforesaid tent permit without an accompanying permit and inspection from the town building apartment; 3) opening the park facility without inspection of and limiting access to the tent with barriers and/or signs.
Boiled down to its essence and even reading the complaint in the manner most favorable to the plaintiffs, the plaintiff essentially alleges that the Town issued a permit and then failed to do all the thing it should have done regarding the permit. It failed to require the Rotary Club to acquire an accompanying permit from the building department; it failed to inspect or limit access to the tent with barrier or signs; it failed to require the event and location to be monitored by the police or if it did required it- it failed in fact to have the event and location monitored by the police.
Simply put the plaintiff alleges that the defendant town failed to act as it should have when it issued the permit. Neither the issuance of the permit or the failure to act in certain ways is sufficient to support a cause of action in nuisance. This is so because the issuance of a permit did not create the nuisance; the nuisance was created, if at all, by the manner in which the tents were erected and that was not the positive act of the municipality but the act of the permittee and or its agents.
To hold that the allegations contained in this complaint would satisfy the longstanding common-law and now statutory requirement of a nuisance claim against a municipality that a municipality must engage in some positive act would effectively eviscerate the requirement.
While various superior court cases have dealt with similar claims and each are dependent on the particular allegations contained in a complaint. Similar holding and conclusion can be found in case such as Perry v. Town of Putnam, 2014 WL 1282828 (February 28, 2014) (failure of a municipality to take action eliminating inappropriate conduct and activity in a town owned parking lot adjacent to certain residences). Geanuracos v. Farmington, 2013 WL 1943958 (April 23, 2013) is instructive. In Geanuracos, the town approved a subdivision permitting the developer to construct an underground fuel oil distribution system. The system was closed in 1991 and was to be completely drained of oil. Subsequently another contractor working on the property accidently punctured an old underground fuel line resulting in some oil being released. Further examination lead to the discovery of a larger area of contamination on the plaintiff’s property from oil that had apparently been linking through the line for some time. The court granted the town’s motion for summary judgment notwithstanding the fact the town has issued the permit to construct the underground fuel delivery system, had been aware that the system had been closed, had indicated that it would work with a then insolvent creator of the system to pump out the remaining fuel oil.
Finally, in Rouleau v. Town of Suffield, 2013 WL 593874 (January 26, 2013) the court granted summary judgment on a count against a municipality sounding in nuisance where the plaintiffs alleged that the town failed to design inspect and maintain a structure to prevent or correct a blockage of a bridge that eventually resulted in the flooding of the plaintiff’s property. The plaintiff alleged that the town’s failure to act allowed the structure to be blocked which led to the flooding of the plaintiff’s property. The court held that such failures could not be construed as the positive act necessary to support a claim in nuisance against a municipality. The Rouleau court entered summary judgment in favor of the Town.
In the case at bar the plaintiff does not allege that the municipality or its agent erected the tents. The allegations that the municipality failed to erect safety barriers, monitor the location by police or require the issuance of a permit or authorization of the town building official does not constitute and cannot constitute a positive act that would render the municipality liable for nuisance or liable pursuant to C.G.S. § 52-557n(a)(1)(C). While the plaintiff may allege that the town did numerous things wrong they do not allege the necessary requirements of a positive act by the Town which created or participated in the creation of the nuisance.
COUNT SIX
In the sixth count Mark asserts a claim for loss of consortium arising out of the injuries suffered by his wife Stephanie in count four. Because count six is derivative of count four it cannot stand once the count four is stricken.
CONCLUSION
For all these reasons the defendant’s motion to strike counts four, five and six of the complaint is granted.