Opinion
CV186045340S
12-10-2018
Annette HINES v. TOWN OF SOUTHINGTON
UNPUBLISHED OPINION
PETER EMMETT WIESE, JUDGE
I
DISCUSSION
"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, 620 A.2d 181 (1993). "On a motion to strike, the trial court’s inquiry is to ascertain whether the allegations in each count, if proven, would state a claim on which relief could be granted." (Internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 37, 830 A.2d 240 (2003). "[A] motion to strike ... requires no factual findings by the trial court ... [The court] construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). "In ruling on a motion to strike the trial court is limited to considering the grounds specified in the motion." Meredith v. Police Commission, 182 Conn. 138, 140, 438 A.2d 27 (1980).
"[W]hen the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance." Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010). In Picco, supra, 149-50, the Supreme Court further affirmed and defined this positive act requirement by engaging in statutory interpretation ("the plain meaning of § 52-557n(a)(1)(C) ... leads us to conclude that that provision imposes liability in nuisance on a municipality only when the municipality positively acts (does something) to create (cause) the alleged nuisance" [emphasis in original; footnote omitted]).
In the present case, the plaintiff alleges in count three, paragraph 16 of her complaint that the "defective, deteriorated, improperly illuminated and hazardous condition on the roadway was created and maintained by the defendant ..." Thus, the plaintiff goes beyond the mere allegation that the defendant failed to act on or remedy the alleged nuisance; the plaintiff affirmatively alleges that the defendant created the alleged nuisance. The plaintiff has, thus, sufficiently pleaded the positive act requirement of public nuisance against a municipality. Accordingly, the defendant’s motion to strike count three is denied.
The defendant also moved to strike count one alleging common-law negligence on the ground that General Statutes § 13a-149, which is already pleaded in count two, is the exclusive remedy at law. The parties appeared and argued the motion to strike and opposition at short calendar on December 10, 2018, at which time the defendant acknowledged that the plaintiff allegedly need to take further action regarding the motion to strike count one.