Opinion
No. CV 11 6018144
June 2, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE #103
FACTS
The plaintiff, Gwendolyn Edwards, commenced this two-count action by service of process on February 3, 2011, alleging negligence and nuisance against the defendant, Grade A Market-Derby, LLC d.b.a. Shop Rite of Derby. The plaintiff alleges that she tripped over a stick imbedded in ice in the defendant's parking lot on February 7, 2009. Specifically, the plaintiff alleges that "while shopping at the defendant's supermarket . . . the surface of the parking lot near the plaintiff's car . . . was and for more than a reasonable time, had been, in a defective and dangerous condition, in that said parking lot had a stick which was imbedded in ice which was protruding upwards, which condition the defendant . . . knew or in the exercise of reasonable care and inspection should have known." The plaintiff further alleges that "she tripped over the stick . . . and was then caused to lose her balance, causing her to suddenly and violently fall onto the pavement of the parking lot and to sustain . . . personal injuries . . ." Moreover, the plaintiff alleges that "[t]he condition of the parking lot as alleged . . . was likely to cause injury to individuals such as the plaintiff who patronized said establishment and constituted a nuisance."
On March 28, 2011, the defendant filed a motion to strike count two of the plaintiff's complaint on the grounds that the plaintiff fails to plead sufficient facts to support a cause of action for common-law public nuisance or common-law private nuisance. The motion is accompanied by a memorandum of law. The plaintiff did not file a memorandum of law in opposition to the motion to strike. This matter was heard at short calendar on April 25, 2011.
DISCUSSION
Practice Book § 10-39 provides in relevant part: "Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof." In ruling on a motion to strike, the court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, supra, 120.
A
"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word `nuisance.'" (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). "[A] plaintiff must prove four elements to succeed in a [public] nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the [plaintiff's] injuries and damages." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., 300 Conn. 542, 561-62 (2011).
"There is no bright-line test in our case law for determining precisely how long a condition of danger must remain in the location where the defendant erected it before it may properly be classified a nuisance." Cunningham v. Northern Ins. Co. of New York, Superior Court, judicial district of Hartford, Docket No. 01 0806941 (September 8, 2004, Sheldon, J.) ( 37 Conn. L. Rptr. 855). Our Supreme Court has stated, however, that "the danger created must have been a continuing one, as opposed to a single act." (Internal quotation marks omitted.) Kostyal v. Cass, 163 Conn. 92, 100, 302 A.2d 121 (1972). "`Continuing' . . . does not seem to mean and nuisance does not require constant danger . . . without interruption. The danger must at least be continuing in the sense that it recurs." Papp v. Shelton, Superior Court, judicial district of Ansonia-Milford, Docket No. 96 0056489 (August 26, 1999, Corradino, J.) ( 25 Conn. L. Rptr. 318).
"In addition, [a fifth element requires] the plaintiff [to] prove that the condition or conduct complained of interferes with a right common to the general public . . . Nuisances are public where they . . . produce a common injury . . . The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence." (Internal quotation marks omitted.) Shukis v. Board of Education, 122 Conn.App. 555, 587, 1 A.3d 137 (2010); see also Doe v. Manheimer, 212 Conn. 748, 755-56 n. 4, 563 A.2d 699 (1989), rev'd on other grounds, 234 Conn. 597, 662 A.2d 753 (1995) ("[w]here . . . public nuisance is alleged, the plaintiff's burden [also] includes . . . that the condition or conduct complained of interfered with a right common to the general public . . ." [internal quotation marks omitted]). "The rights common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake." Pestey v. Cushman, supra, 259 Conn. 356 n. 5.
"Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety." (Internal quotation marks omitted.) Burton v. Dominion Nuclear Connecticut, Inc., supra, 300 Conn. 561. "Typical examples of public nuisances are: pollution and obstruction of waterways; air and noise pollution; maintenance of a fire or explosion hazard, or other unsafe premises; maintenance of a house of prostitution; obstruction of safe travel on a public highway; and maintenance of a junkyard or dump." Ganim v. Smith Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001).
Importantly, "[o]ne who enters premises at the express or implied invitation . . . does not come upon them in the exercise of any public right . . ." Webel v. Yale University, 125 Conn. 515, 524, 7 A.2d 215 (1939). "The mere fact that private property is being used as a place of business to which members of the public are invited does not convert a nuisance existing thereon into a public nuisance." LaPalme v. Tottle, 16 Conn.Sup. 121 (1949). Therefore, "[a] privately owned retail establishment is not a place in which members of the public are allowed to exercise their public rights." Roman-Santiago v. Wakefern Food Corp., Superior Court, judicial district of New Britain, Docket No. 09 5013138 (January 7, 2010, Pittman, J.); see also Wrighten v. Rapid Car Wash, Inc., Superior Court, judicial district of New London, Docket No. 06 5001056 (November 6, 2007, Hurley, J.T.R.) ( 44 Conn. L. Rptr. 464) ("privately owned parking lots made available to the public by businesses to attract customers do not involve a public right, thereby foreclosing causes of action sounding in public nuisance"); see also D'Angelico v. Live Nation Worldwide, Inc., Superior Court, judicial district of Fairfield, Docket No. 10 6007109 (September 24, 2010, Gilardi, J.T.R.) ( 50 Conn. L. Rptr. 652) (granting the defendants' motion to strike a public nuisance claim on the ground that the plaintiff failed to allege a violation of a public right after the plaintiff fell on the premises of a privately owned theater).
The defendant argues that the second count of the plaintiff's complaint is legally insufficient, as the plaintiff fails to allege facts to support a claim of common-law public nuisance or common-law private nuisance. As to the public nuisance claim, the defendant asserts that the plaintiff fails "to plead facts that show the condition complained of had a natural tendency to create danger and inflict injury upon person or property; the danger created was a continuing one; or the use of the land was unreasonable or unlawful." The defendant does not specify the fifth element as a ground for striking the plaintiff's public nuisance claim, but instead, briefly addresses this issue in its memorandum of law. Moreover, the defendant argues that since the plaintiff alleges "she fell on the defendant's property, [and] not on her own property . . . there is no factual basis to support a claim of private nuisance." As a result, the defendant asserts that the factual allegations within the complaint fail to plead a cause of action of common-law public nuisance or common-law private nuisance.
It is unclear whether the second count of the complaint alleges a claim for common-law public nuisance or common-law private nuisance and therefore, the defendant properly attacks the legal sufficiency of each cause of action. See Carlini v. Country Resorts Ltd., Superior Court, judicial district of New London, Docket No. 08 5008620 (June 19, 2009, Martin, J.) (denying the defendants' motion to strike after the defendants addressed only the issue of public nuisance and failed to set forth a legal insufficiency argument in connection with a private nuisance cause of action. Similar to the present case, in Carlini, the plaintiff's complaint pleaded nuisance generally).
Practice Book § 10-41 states: "Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency." Although the defendant generally states that "the plaintiff's [c]omplaint fails to allege facts sufficient to support a claim for [common-law] public nuisance," it only specifies the first three elements as grounds for striking the public nuisance claim. In its motion, the defendant does not specify the fifth element as a ground for striking the plaintiff's public nuisance claim, but instead, addresses the fifth element in its memorandum of law. The requirement that a motion to strike be accompanied by a memorandum of law; Practice Book § 10-42; "does not dispense with the requirement of [Practice Book § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 861, 927 A.2d 343 (2007). Nevertheless, the plaintiff failed to object to the form of the defendant's motion and therefore, the court will consider the defendant's legal insufficiency argument concerning the fifth element of a public nuisance claim. See Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, 594 A.2d 1 (1991) ("[t]he defendant's motion to strike simply stated that the plaintiff had `failed to state a claim upon which relief can be granted.' . . . [Our Supreme Court], nevertheless, [considered] the defendant's motion in the form presented to the trial court due to the plaintiff's failure to object to its form and the nonjurisdictional nature of § [10-41]"); Morris v. Hartford Courant Co., 200 Conn. 676, 683 n. 5, 513 A.2d 66 (1986).
"[G]rounds other than those specified should not be considered by the trial court in passing upon a motion to strike . . ." (Internal quotation marks omitted.) Gazo v. Stamford, 255 Conn. 245, 259, 765 A.2d 505 (2001). "Simply stating that all of the counts are legally insufficient and that they fail to allege any facts that would indicate [that the] defendant is liable to [the] plaintiffs cannot be considered compliance with Practice Book § 10-41." (Internal quotation marks omitted.) Stuart v. Freiberg, 102 Conn.App. 857, 862, 927 A.2d 343 (2007).
Practice Book § 10-42 provides in relevant part: "Each motion to strike must be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies."
The plaintiff alleges that she was injured after tripping on a stick imbedded in ice in the parking lot of the defendant's privately owned, retail grocery store. The complaint does not allege, however, that the condition of the land caused by the stick interfered with a right common to the general public. Therefore, count two of the plaintiff's complaint fails to allege a violation of a public right. See Ganim v. Smith Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001) ("[n]uisances are public where they violate public rights . . ." [internal quotation marks omitted]). As a result, it is submitted that count two of the plaintiff's complaint is legally insufficient, as it fails to plead sufficient facts in support of a common-law public nuisance claim.
Because the plaintiff fails to plead sufficient facts in support of the fifth element of her public nuisance claim, the court is not required to address the other elements addressed by the defendant's motion to strike.
B
"[A] private nuisance and a public nuisance represent distinct causes of action. [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 . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable." Shukis v. Board of Education, supra, 122 Conn.App. 586; Sinotte v. Waterbury, 121 Conn.App. 420, 431-32, 995 A.2d 131, cert. denied, 297 Conn. 921, 996 A.2d 1192 (2010).
See Pestey v. Cushman, supra, 259 Conn. 357 (expressly stating that "private nuisance claims simply do not fit comfortably within the same analytical rubric as public nuisance claims").
Moreover, a plaintiff must allege an injury in relation to her ownership of an interest in the land to seek relief pursuant to a private nuisance claim. Meizoso v. Bajoros, 12 Conn.App. 516, 518-19, 531 A.2d 943 (1987) (holding that a plaintiff had no ownership of an interest in the defendant's property after being injured during a softball game at a catered picnic event); Webel v. Yale University, supra, 125 Conn. 525 ("[a] private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land"); Elliott v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998) ("because the plaintiff's injury was not related `to a right which [the plaintiff] enjoys by reason of [her] ownership of an interest in land' . . . [it] cannot be sustained as a private nuisance . . ." [internal quotation marks omitted]). "[I]t is generally agreed that anyone who has no interest in the property affected, such as a licensee, an employee or a lodger on the premises, cannot maintain an action based on private nuisance." (Internal quotation marks omitted.) Thomas v. Trudeau, Superior Court, judicial district of Windham, Docket No. 07 5001330 (May 15, 2009, Riley, J.) ( 47 Conn. L. Rptr. 797).
In the present case, the plaintiff alleges that she was injured after tripping over a stick imbedded in ice located on the defendant's property. The plaintiff further alleges that the defendant "owned, controlled, operated, possessed and maintained" the parking lot where her injury occurred. The plaintiff fails to allege, however, that she has ownership of an interest in the parking lot. Therefore, the plaintiff does not allege that the defendant's conduct caused an unreasonable interference with the plaintiff's use and enjoyment of her property. As a result, count two of the plaintiff's complaint is legally insufficient, as it fails to plead the necessary factual predicate to support a cause of action for common-law private nuisance.
CONCLUSION
For the foregoing reasons, the court grants the defendant's motion to strike count two of the plaintiff's complaint.