Opinion
No. CV07-5001250
November 5, 2007
MEMORANDUM OF DECISION
FACTS
On April 4, 2007, the plaintiffs, Theresa Fanion, Ronald Fanion, Autumn Fanion and Joshua Fanion, filed a twelve-count complaint against the defendant, Ruth Radei. This action arises out of injuries and losses allegedly sustained as a result of the contamination of the water supply located at the premises known as 33 Ward Avenue in the Village of Moosup, Town of Plainfield, Connecticut (the premises). The defendant is the owner of the premises. The plaintiffs allege that on or about December 5, 2005, they entered into an oral agreement with the defendant to lease the premises to be used as a bakery. The plaintiffs allege that on or about January 1, 2006, the plaintiffs began making improvements to the premises in order to adapt the premises so it could be used as a bakery. On or about November 30, 2006, the plaintiffs received a letter from the Northeast District Department of Health stating that it would not permit the bakery to open because the water supply at the premises was contaminated with petrochemicals.
Count one alleges breach of contract; count two alleges foreclosure of a mechanic's lien; count three alleges unjust enrichment; count four alleges quantum meruit; count five alleges negligent misrepresentation; count six alleges intentional misrepresentation; count seven alleges fraudulent misrepresentation; count eight alleges intentional infliction of emotional distress; count nine alleges negligent infliction of emotional distress; count ten alleges nuisance; count eleven alleges a claim under CUTPA; and count twelve alleges personal injury.
On April 21, 2007, the defendant filed a motion to strike counts three (unjust enrichment), four (quantum meruit), and ten (nuisance) of the complaint. The defendant moves to strike counts three and four of the complaint on the grounds that both counts incorporate breach of contract allegations from the first and second counts and these must be set forth in separate counts. The defendant moves to strike count ten on the ground that case law does not support a nuisance claim for an injury to property that originated on that same property. The defendant also moves to strike count ten on the ground that this count fails to allege sufficient facts to state a cause of action in private nuisance or public nuisance. On May 31, 2007, the plaintiffs filed a memorandum in opposition.
DISCUSSION
"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 can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). In ruling on a motion to strike, the trial court examines the complaint "construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "[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).
Unjust Enrichment and Quantum Meruit
The defendant moves to strike counts three and four on the grounds that they incorporate breach of contract allegations from counts one and two, and alternative pleadings must be in separate counts. In support of the motion, the defendant argues that according to Practice Book § 10-26, separate and distinct causes of action must be separately pleaded. The defendant argues that in count three, the plaintiffs incorporate breach of contract allegations from the first and second counts into the unjust enrichment allegations of count three. The defendant also argues that in count four, the plaintiffs incorporate breach of contract allegations from counts one, two and three, into the quantum meruit allegations of count four.
The plaintiffs counter that the applicable paragraph in count one that pleads a breach of contract is paragraph seven, which is not incorporated into the third count or fourth count.
"Where separate and distinct causes of action, as distinguished from separate and distinct claims for relief founded on the same cause of action or transaction, are joined, the statement of the second shall be prefaced by the words Second Count, and so on for the others; and the several paragraphs of each count shall be numbered separately beginning in each count with the number one." Practice Book § 10-26.
"The lack of a remedy under a contract is a precondition to recovery based on unjust enrichment or quantum meruit . . . [W]hile a plaintiff may claim alternative relief based upon an alternative construction of the cause of action . . . pursuant to Practice Book § 10-26, alternative pleading must be set forth in separate counts . . . It has been held in several recent Superior Court cases that allegation of an express contract between the parties incorporated into a count stating a claim for unjust enrichment causes a violation of the rule that those alternative causes of action must be pleaded in separate counts . . . This logic has similarly been applied to bar the pleading of an express contract within a count stating a claim for quantum meruit." (Citations omitted; internal quotation marks omitted.) Advanced Environmental Interface, Inc. v. Archer Cissell Associates, LLC, Superior Court, judicial district of Middlesex, Docket No. CV 05 4003437 (June 20, 2006, Dubay, J.) (41 Conn. L. Rptr. 525); see also Rosenberg v. Langdon, Superior Court, judicial district of New Haven, Docket No. CV 064018350 (May 24, 2007, Skolnick, J.T.R.).
In count one of the plaintiffs' complaint, paragraphs one through six allege facts that occurred while the plaintiffs were occupying the premises. Paragraph seven of count one alleges a breach of contract claim against the defendant. Count two of the complaint incorporates paragraphs one through six of count one. Paragraph seven of count two alleges the amount the plaintiffs' expended in improving the premises. Count three of the complaint incorporates paragraphs one through seven of count two. Paragraph eight of count three alleges the value of improved premises to the defendant. Count four of the complaint incorporates paragraphs one through eight of count three.
In count one of the complaint, the breach of contract claim against the defendant is not alleged until paragraph seven. Paragraph seven is not incorporated into count two, and therefore not into counts three and four either. The defendant's motion to strike regarding counts three and four is denied because the plaintiffs have pleaded their causes of action separately and distinctly, according to Practice Book § 10-26.
Nuisance
The defendant moves to strike count ten on the ground that case law does not support a nuisance claim for an injury to a property that originated on the same property, and it should therefore be stricken as legally insufficient. The defendant also moves to strike count ten on the ground that the plaintiffs cannot maintain a claim for public nuisance, and it should therefore be stricken as legally insufficient. The defendant argues that if the plaintiffs are seeking damages related to the maintenance of a public nuisance, their claim must fail because public nuisance is concerned with the interference with a public right, usually relating to the public health and safety.
The plaintiffs counter that they and the defendant both have separate real property interests on the premises to permit them to maintain a nuisance claim. The plaintiffs also counter that they are not making a claim of public nuisance, but rather a claim of private nuisance.
"A nuisance . . . describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property." (Internal quotation marks omitted.) Heritage Village Master Ass'n., Inc. v. Heritage Village Water Co., 30 Conn.App. 693, 708, 622 A.2d 578 (1993). A nuisance may be either private or public. Private nuisance is "concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land." Pestey v. Cushman, 259 Conn. 345, 357, 788 A.2d 496 (2002). "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." Id. The Supreme Court has stated that "private nuisance claims simply do not fit comfortably within the same analytical rubric as public nuisance claims." Id. The Supreme Court has also stated that "[a]lthough there are some similarities between a public and a private nuisance, the two causes of action are distinct." Id. Therefore, each requires a different set of elements. For a public nuisance claim, the Supreme Court has often stated "that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon 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 plaintiffs' injuries and damages." (Internal quotation marks omitted.) Id., 355. For a private nuisance claim, "in order to recover damages . . . 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." (Citations omitted.) Id., 361. "The 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." Id., 360.
The present case involves only one property, owned by the defendant and leased by the plaintiffs. The plaintiffs argue that because they have a separate real property interest from that of the defendant, this permits them to maintain a nuisance claim. The Supreme Court has held that "[a] lease is, in effect, a conveyance of an interest in the leased premises. There is no warranty on the part of the landlord that they are safe or fit for habitation." (Internal quotation marks omitted.) Webel v. Yale University, 125 Conn. 515, 518, 7 A.2d 215 (1939). "When a tenant takes exclusive possession of demised premises, he ordinarily takes them as he finds them, and the landlord is not liable for structural defects therein except those which the tenant could not discern with reasonable diligence and with knowledge of which the landlord was chargeable." Bentley v. Dynarski, 150 Conn. 147, 153, 186, A.2d 791 (1962). In Bentley, the Supreme Court held that a tenant could not bring a nuisance claim against the landlord because the structural defect was not in an area controlled by the landlord, but in an area controlled by the tenant. "A landlord's liability for nuisance caused by a defective condition on leased property is determined, in part, by whether a portion of the property on which the condition exists is in the landlord's control or the tenant's." State v. Tippetts-Abbett McCarthy-Stratton, 204 Conn. 177, 184, 527 A.2d 688 (1987). The Superior Court has held in multiple decisions that a tenant may bring a claim against a landlord in nuisance if the purported defective condition is located in a common area under the control of the landlord. Goyette v. Abadir, Superior Court, judicial district of Windham, Docket No. CV 99 0061995 (February 15, 2000, Sferrazza, J.) [26 Conn. L. Rptr. 501].
The plaintiffs allege in their complaint that the defendant had notice of the existing water contamination, as evidenced in a letter sent to the defendant by the Northeast District Department of Health. The plaintiffs allege in their opposition to the defendant's motion to strike that the water contamination was within the defendant's knowledge and control. The plaintiffs have alleged sufficient facts to support a claim of nuisance by a tenant against a landlord; they have properly stated a cause of action for common-law nuisance.
For the foregoing reasons, the defendant's motion to strike counts three, four and ten of the plaintiffs' complaint is denied.