Opinion
No. FST CV 09-50011719 S
October 18, 2010
Memorandum of Decision
In this case the plaintiff claims that she was injured when automatic doors at the entrance to the defendants' retail establishment opened outward and struck her. The first count of the plaintiff's amended complaint, dated January 7, 2010, alleges a dangerous and defective condition in the defendant's premises. The second count is titled "Res Ipsa." That count repeats the essential allegations of the first count and in addition includes an allegation that: "The aforesaid occurrence, condition, and/or situation would not have occurred if the Defendants, their agents, servants, and/or representatives had used proper care." The third count is titled "Nuisance" and includes allegations that the conditions which caused injuries to the plaintiff constituted a public nuisance.
Presently at issue is the defendants' motion to strike the second and third counts of the plaintiff's complaint, dated March 4, 2010. That motion claims that the second count does not state an independent cause of action and therefore must be stricken. The motion also claims that, since the alleged condition which injured the plaintiff was located on private property, one of the essential elements of a public nuisance claim is absent.
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 (2003). "[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . 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.) Violano v. Fernandez, 280 Conn. 310, 318 (2006).
SECOND COUNT — RES IPSA
The defendants correctly point out that res ipsa loquitur is not an independent cause of action. They claim that, in the presence of another count alleging negligence, second count alleging res ipsa loquitur is repetitious and must be stricken. This claim is supported by a number of Superior Court decisions. For example, in Gifford v. Meriden, 49 Conn.Sup. 157 (2004), the plaintiff filed a complaint against a municipality claiming that an overflowing storm drain had damaged her property. In one count the plaintiff alleged that the municipality was negligent; in another count the plaintiff asserted a claim of res ipsa loquitur. In granting the defendant's motion to strike plaintiff's res ipsa loquitur claim, the court noted: "Res ipsa loquitur is not a separate cause of action that must be specifically pleaded. Rather, it is an evidentiary principle which permits the fact finder to infer negligence on the part of the defendant." Gifford v. Meriden, supra, 49 Conn.Sup. 160.
The plaintiff, however, claims that it is premature for the court to strike her res ipsa loquitur count. The plaintiff relies on the case of Greene v. New Haven Parking Authority, Superior Court, judicial district of New Haven, Docket No. CV 03 0473873S (July 9, 2004, Corradino, J.). In that case the plaintiff filed a two-count complaint. The first count, without mentioning res ipsa loquitur, apparently relied on that doctrine. The second count made specific allegations of negligence. The defendant filed a motion to strike the first count claiming that it failed to state a separate tort in and of itself. The court noted that at trial the plaintiff would not be permitted to obtain a res ipsa loquitur jury instruction unless the plaintiff had relied solely on circumstantial evidence. However, the court found that the plaintiff had the right to plead in the alternative even if his claims were contradictory and inconsistent. In denying the motion to strike, the court found the defendant's motion to be "premature."
While this court recognizes that the plaintiff's second count fails to state an independent cause of action, it nevertheless states a cause of action. If the motion to strike were to be granted, there would be no allegations in the complaint supporting a res ipsa loquitur claim, possibly precluding the plaintiff from pursuing such a claim at trial. The court does not perceive that the defendant will suffer any harm if the second count is not stricken. The court agrees with Judge Corradino's reasoning in Greene, supra, and denies the motion to strike the second count.
THIRD COUNT — PUBLIC NUISANCE
In their motion to strike the third count, the defendants claim that the plaintiff does not adequately allege the elements of a public nuisance claim. Specifically the defendants claim that the plaintiff's complaint does not allege that the plaintiff was injured while exercising a right enjoyed by citizens of the public. Doe v. Manheimer, 212 Conn. 748, 755-56 n. 4 (1989). The defendants claim that the plaintiff was injured on private property which she had entered as a business invitee of the defendants. Consequently, they reason, the plaintiff was not acting in exercise of a public right when she was injured. The court agrees with the defendant's analysis. Unfortunately, the allegations of the plaintiff's complaint do not specify that she claims to have been injured on the defendants' private property. The plaintiff claims that she was injured while attempting to enter the defendants' premises. The court cannot determine from this allegation whether the plaintiff was on a public sidewalk at the time she sustained her injuries or on an exterior portion of the defendants' premises. This issue might have been clarified had the defendants requested that the plaintiff revise her complaint to state whether she was on public or private property when she was injured. The court is required to consider the allegations of the plaintiff's complaint in a light most favorable to sustaining the complaint. Accordingly, the motion to strike the third count is denied.