Opinion
CV156027853
04-12-2016
Jonathan Horzepa v. City of Waterbury et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE NOs. 118 & 125
Mark H. Taylor, J.
The defendants have filed motions to strike counts three, six, nine, twelve and fifteen of the plaintiff's complaint, asserting liability for public nuisance. Motion No. 118 has been filed by the defendant, Tobacco & Son Builders, Inc., to strike count fifteen of the complaint. Motion to Strike No. 125 has been filed regarding the remaining counts alleging public nuisance: count three as to the City of Waterbury, as well as additional counts against three City employees: count six as to Chris Bogucki, count nine as to Denis Ceuvas and count twelve as to David Simpson.
The defendants assert that the plaintiff's allegations are insufficient to support public nuisance claims, because they fail to plead a common injury or interference with a public right. The plaintiff counters that the defendants' actions of digging and breaking the sewage treatment main would inhibit the use of a public right of way and therefore, would interfere with a right common to the general public. For reasons set forth below, the motions to strike are granted.
Before evaluating the question of the adequacy of the plaintiff's public nuisance pleading, the court will address the timeliness of Tobacco & Son Builders Inc.'s motion to strike, No. 118. The plaintiff accurately asserts that the defendant Tobacco & Son Builders has filed its motion to strike in violation of the sequence of pleadings rule, as set forth in Practice Book § 10-6. It is undisputed that this defendant had previously answered the allegation of public nuisance, which remains unchanged by a subsequent revision of the complaint.
Ordinarily, " where an answer to the original complaint has been filed and where an amendment does not alter the counts previously answered, courts have found that the defendant has waived his right to move to strike the answered counts." Liss v. Milford Partners, Inc., Superior Court, Complex Litigation Docket at Hartford, Docket No. X07 CV 04 4023123 (September 29, 2008, Berger, J.) . See Ainsworth v. Lexington Partners, LLC, Superior Court, judicial district of New Britain, Docket No. CV 98 0489701, (June 29, 2000, Shortall, J.). The problem with automatically imposing this rule of waiver in the present case is that liability for public nuisance, upon the same allegations of fact, would be applicable against one defendant and not the other, which is, coincidentally, a public agency. Auspiciously, imposing the sanction of waiver is discretionary, not mandatory. In Sabino v. Ruffolo, 19 Conn.App. 402, 404-05, 562 A.2d 1134 (1989), the Appellate Court has ruled Practice Book § 10-6 (formerly § 112) to be discretionary, permitting trial courts to liberally interpret the rule because, read in conjunction with Practice Book § 10-7 (formerly § 113), it does not provide for an automatic sanction. Therefore, in the exercise of its discretion, the court rules that the motion to strike may be heard and ruled upon, despite Tobacco & Son Builders' ostensible waiver. Inconsistency and asymmetry in these pleadings may cause contusion, where there should be none regarding the plaintiff's theory of liability, carrying with it the potential for injustice.
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). " The role of the trial court in ruling on a motion to strike is to examine 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.) Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011). " [A] motion to strike . . . requires no factual findings by the trial court . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Coppola Construction Co. v. Hoffman Enterprises Ltd. Partnership, 309 Conn. 342, 350, 71 A.3d 480 (2013).
" [P]ublic and private nuisance law have almost nothing in common because [p]ublic 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, whereas [p]rivate nuisance law . . . is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land." (Internal quotation marks omitted.) Ugrin v. Cheshire, 307 Conn. 364, 374, 54 A.3d 532 (2012).
To successfully plead a public nuisance cause of action, " a plaintiff must prove four elements . . . (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, 23 A.3d 1176 (2011). " In addition, the plaintiff must 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 . . ." (Internal quotation marks omitted.) Sinotte v. Waterbury, 121 Conn.App. 420, 438, 995 A.2d 131 (2010). " Whether an interference is unreasonable in the public nuisance context depends . . . on (a) [w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by [law] . . ." (Internal quotation marks omitted.) Kumah v. Brown, 160 Conn.App. 798, 805, 126 A.3d 598, cert. denied, 320 Conn. 908, 128 A.3d 953 (2015).
In Sinotte v. Waterbury, supra, 121 Conn.App. 420, the plaintiffs alleged that numerous sewage backups into their home were a public nuisance and interfered with rights common to the general public. The court concluded that " [t]he sewage backups in the plaintiffs' basement did not produce a common injury . . . but instead affected only the plaintiffs' property. The incursions do not involve the public's health, safety, peace, comfort or convenience. Although the total number of persons affected is not dispositive, a public nuisance does not exist . . . when the interference alleged was sustained only by the plaintiffs and not by other members of the public." (Internal quotation marks omitted.) Id., 439. See also Febbraio v. Fairfield, Superior Court, judicial district of Fairfield, Docket No. CV-12-6030396-S (February 26, 2015, Radcliffe, J.) (59 Conn. L. Rptr. 841) (granting motion to strike public nuisance counts where the plaintiff failed to show that the sewage backup on his property interfered with a right common to the general public).
The present case is similar to Sinotte, because the plaintiff has failed to allege that the sewage backup interfered with rights common to the general public. The plaintiff alleges that the defendants' actions caused " water and sewage to backup in the vicinity of the plaintiff's property, as well as into the plaintiff's home" and that " the aforesaid actions of the defendant had a natural tendency to create and danger and cause damage to property." There is no allegation in the amended complaint that members of the public were affected by the sewage backup. Accordingly, the plaintiff has failed to allege a common injury resulting from the defendants' actions, and counts three, six, nine, twelve, and fifteen do not sufficiently allege a public nuisance cause of action.