Opinion
No. CV 07 6001200 S
January 20, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #116
FACTS
The plaintiffs, Steven and Paula Donaghy, bring this action against the defendant, City of Bristol, seeking compensation and other relief for damage allegedly sustained to their real and personal property as well as to the environment caused by the defendant's alleged failure to take and maintain adequate flood control measures in the City of Bristol. The plaintiffs allege that the defendant constructed berms along the Coppermine Brook and the adjacent properties in 1982 and that since then the defendant has let the berms and the Frederick Street bridge fall into disrepair, thereby causing their property to be flooded. The plaintiffs' amended complaint sounds in negligence (count one), private nuisance (count two), a violation of General Statutes § 13a-138 (count three), inverse condemnation (count four), and a violation of the Connecticut Environmental Protection Act, General Statutes § 22a-14 et seq. (count five). The defendant filed an answer and twelve special defenses.
The first special defense as to counts one, three, four and five alleges that the plaintiffs' complaint fails to state a claim upon which relief may be granted. The first special defense to count two makes the same allegation but further states that the plaintiffs are unable to satisfy the elements of a private nuisance claim. The second special defense to counts one, three, four, and five asserts that the plaintiffs' claims are barred by the doctrine of governmental immunity. The second special defense to count two asserts the defense of assumption of the risk. The third and fourth special defenses to count four allege respectively that the plaintiffs' takings claim is unripe and that it is barred by the plaintiffs' failure to exhaust other available remedies.
DISCUSSION
"A party wanting to contest the legal sufficiency of a special defense may do so by filing a motion to strike." Barasso v. Rear Still Hill Road, LLC, 64 Conn.App. 9, 13, 779 A.2d 198 (2001). "In ruling on a motion to strike, the court must accept as true the facts alleged in the special defenses and construe them in the manner most favorable to sustaining their legal sufficiency." Id., citing Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992). "Moreover . . . [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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, 907 A.2d 1188 (2006). "A motion to strike . . . does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "A motion to strike is properly granted if the [pleading] alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
A
The parties have agreed that defendant's first special defense to counts one, three, four and five and its third and fourth special defenses to count four may be stricken.
B First Special Defense to Count Two
The defendant's first special defense to count two of the plaintiffs' amended complaint reads: "Plaintiffs' complaint fails to state a claim upon which relief may be granted, as the plaintiffs are unable to satisfy the elements of a private nuisance action." The plaintiffs argue that this special defense is legally insufficient because it is a legal conclusion devoid of any supporting facts.
"The purpose of a special defense is to plead facts that are consistent with the allegations of the complaint but demonstrate, nonetheless, that the plaintiff has no cause of action." (Internal quotation marks omitted.) Danbury v. Dana Investment Corp., 249 Conn. 1, 17, (1999). Moreover,"[t]he fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway." (Internal quotation marks omitted.) Almada v. Wausau Business Ins. Co., 274 Conn. 449, 456 (2005).
The plaintiffs cite Pagoni v. Kreider, Superior Court, judicial district of Waterbury, Docket No. CV 05 4004373 (November 1, 2005, Matasavage, J.) and Pozoukidis v. Bridgeport, Superior Court, judicial district of Fairfield, Docket No. CV 97 0346988 (February 12, 1998, Mottolese, J.) (21 Conn. L. Rptr. 382) for the proposition that the defendant's first special defense to count two is legally insufficient. In Pagoni and Pozoukidis, the challenged special defense merely alleged that the complaint failed to state a claim upon which relief may be granted. Pagoni v. Kreider, supra, Superior Court, Docket No. CV 05 4004373; Pozoukidis v. Bridgeport, supra, 21 Conn. L. Rptr. 382. Both courts held such a special defense to be legally insufficient because "not only [did] it not allege any facts but it [did] not even allege a cognizable legal conclusion." Pozoukidis v. Bridgeport, supra, 21 Conn. L. Rptr. 382; Pagoni v. Kreider, supra, Superior Court, Docket No. CV 05 4004373. Unlike the defendants in Pagoni and Pozoukidis, the defendant in the present case has gone beyond merely asserting that the complaint fails to state a claim upon which relief may be granted, but the defendant adds that the plaintiffs cannot establish the elements of an action for private nuisance against it. The reason asserted is merely a legal conclusion, and the reasoning is a tautology. Essentially, the defendant is asserting the plaintiffs fail to state a claim because the complaint is legally insufficient. That is not the purpose of a special defense. See Danbury v. Dana Investment Corp., 249 supra, 17. "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 (1993).
The motion to strike the defendant's first special defense to count two of the amended complaint is granted.
C Second Special Defense to Count Two
In its second special defense to count two of the plaintiffs' amended complaint, the defendant asserts, "If the plaintiffs sustained the damages as alleged then said damages resulted from the plaintiffs' knowing and voluntary assumption of the risk in living next to a watercourse." The plaintiffs argue that the defense of assumption of the risk does not apply to intentional torts and their claim in count two sounds in private nuisance, an intentional tort. They further note that assumption of the risk is a defense to an action for negligence but contend that their claim in count two is not an action for negligence. The defendant counters that assumption of the risk has been abolished by the legislature as a defense to negligence claims but that it is still a valid defense to nuisance claims. It also questions the plaintiffs' characterization of their private nuisance claim as an intentional tort, pointing out that the plaintiffs have incorporated their negligence claim from count one into their nuisance claim in count two.
"The term nuisance refers to the condition that exists and not to the act or failure to act that creates it. "[I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional . . . or the result of the defendant's negligence." (Citation omitted.) Pestey v. Cushman, 259 Conn. 345, 361 (2002). In a nuisance action against a municipality, "[l]iability can be imposed . . . only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality . . . [F]ailure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." (Citations omitted; internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135 (1996).
"If the creator of the condition intends the act that brings about the condition found to be a nuisance, the nuisance thereby created is said to be absolute and its creator is strictly liable . . . If the condition claimed to be a nuisance arises out of the creator's unintentional but negligent act, i.e., a failure to exercise due care, the resulting condition is characterized as a negligent nuisance." (Citation omitted.) Quinnett v. Newman, 213 Conn. 343, 348-49 (1990), overruled on other grounds by 262 Conn. 312 (2003). "[T]he only practical distinction between an absolute nuisance and one grounded in negligence is that contributory negligence is not a defense to the former but may be as to the latter." (Internal quotation marks omitted.) Id., 349. The defendant is correct; the legislature has abolished the defense of assumption of the risk. "The central purpose of [General Statutes] § 52-572h was to abolish the harsh common law rule that the doctrines of contributory negligence, last clear chance and assumption of risk operated as a complete bar to recovery . . . In lieu of these doctrines, subsection (a) of § 52-572h sets forth a single standard: comparative negligence." (Citation omitted; emphasis in original; internal quotation marks omitted.) Wendland v. Ridgefield Construction Services, Inc., 190 Conn. 791, 797-98, 462 A.2d 1043 (1983). The legislature, however, abolished the defense of assumption of the risk as to negligence cases only. See General Statutes § 52-572h(b) and (1). As asserted by the defendant, assumption of the risk remains a valid defense to nuisance cases. See, e.g., Jewett City Savings Bank v. Canterbury, Superior Court, judicial district of Windham, Docket No. CV 97 0056725 (October 16, 1998, Sferrazza, J.) (23 Conn. L. Rptr. 332, 334) (refusing to extend the legislature's abolition of assumption of the risk in § 52-572h to cover absolute nuisance claims).
The plaintiffs' motion to strike the second special defense to count two is denied.
D Second Special Defense to Counts One, Three, Four and Five
The defendant's second special defense to counts one, three, four and five of the plaintiffs' amended complaint states, "Plaintiffs' claims are barred by the doctrine of governmental immunity, pursuant to both common-law and Conn. Gen. Stat. § 52-557n." The plaintiffs contend that this special defense should be stricken because the defendant has failed to allege any facts sufficient to demonstrate why it is immune from liability. They also argue that 52-557n abrogated common law governmental immunity. The defendant counters that its special defense is legally sufficient because it has admitted it is a municipality as alleged in the plaintiffs' amended complaint. "Governmental immunity is essentially a defense of confession and avoidance similar to other defenses required to be affirmatively pleaded [under Practice Book § 10-50] . . . The purpose of requiring affirmative pleading is to apprise the court and the opposing party of the issues to be tried and to prevent concealment of the issues until the trial is underway." (Internal quotation marks omitted.) Violano v. Fernandez, supra, 280 Conn. 321. "[T]he general rule developed in our case law is that a municipality is immune from liability . . . unless the legislature has enacted a statute abrogating that immunity." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 789 n. 11 (2007). "Section 52-557n contains such a statutory basis for the abrogation of governmental immunity and yet it also contains a partial codification of the common law immunity itself." Caruso v. Milford, 75 Conn.App. 95, 102 cert. denied, 263 Conn. 907 (2003); see also Elliott v. Waterbury, 245 Conn. 385, 408 (1998) ("the section codified at § 52-557n consists of a complex interweaving of provisions that codify the common law and provisions that incorporate new legal notions"). "[The language of § 52-557n(a)(1)] clearly and expressly abrogates the traditional common-law doctrine in this state that municipalities are immune from suit for torts committed by their employees and agents." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 47-48 (2005). General Statutes § 52-577(a)(2), however, provides two exceptions to the statutory abrogation of governmental immunity found in 52-577n(a)(1). As a result, the defendant's second special defense to count one in so far as it asserts a defense of governmental immunity pursuant to 52-577n is legally sufficient. Consequently, the plaintiffs' motion to strike the second special defense to count one is denied.
Section 52-577(a)(2) provides: "Except as otherwise provided by law, a political subdivisions of the state shall not be liable for damages to person or property cause by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or willful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law."
The plaintiffs' motion to strike the defendant's second special defense to counts three, four and five on the ground of governmental immunity is also denied. Having admitted that it is a municipality, the defendant has asserted a legally sufficient special defense of governmental immunity pursuant to both common law and Section 52-577n to counts three, four and five. See 18 Brewer Associates, LLC v. Mormino, Superior Court, judicial district of Hartford, Docket No. CVH 6792 (July 9, 2002, Crawford, J.) ("[s]ince the defendants assert the fact that they are municipal officers in response to the conduct stated by the plaintiffs, the defense as stated is legally sufficient"); see also Elliott v. Waterbury, 245 Conn. 385, 408, 715 A.2d 27 (1998) (§ 52-577n did not completely abrogate common-law governmental immunity).
CONCLUSION
The court GRANTS the plaintiffs' motion to strike (1) the defendant's first special defenses to counts one, two, three, four and five and (2) the defendant's third and fourth special defenses to count four.
The court DENIES the plaintiffs' motion to strike the defendant's second special defenses to counts one, two, three, four and five.
So ordered.