Opinion
WWMCV166010934S
04-26-2017
Jane Howeson v. Housing Authority of the City of Willimantic
UNPUBLISHED OPINION
MEMORANDUM OF DECISION (MOTION TO STRIKE #107, SHORT CALENDAR, FEBRUARY 14, 2017)
Harry E. Calmar, J.
The defendant moves to strike count three of the plaintiff's complaint, alleging municipal liability under General Statutes § 52-557n, on the ground that § 52-557n does not create an independent cause of action.
The plaintiff, Jane Howeson, filed the three-count complaint in this action on August 16, 2016. The plaintiff alleges the following facts. The plaintiff was a resident of an apartment building known as John Ashton Towers (housing complex) located at 621 Valley Street, Willimantic, Connecticut. The housing complex provides federally subsidized apartments for elderly and disabled residents. The defendant, Housing Authority of the City of Willimantic, " owned, controlled, maintained and managed" the housing complex, including all of the property surrounding it, such as courtyards, walkways, ramps, and common areas. On March 10, 2015, the plaintiff slipped and fell on a patch of ice and/or snow while taking her dog to the designated courtyard area available for residents to take their pets to relieve themselves. The plaintiff sustained injuries as a result of the fall.
In count one of the complaint, the plaintiff alleges negligence. Specifically, the plaintiff alleges that the defendant violated several statutes due to its failure to maintain the housing complex, failure to seek adequate funding for maintenance, failure to keep the housing complex in a safe and habitable condition, failure to warn the plaintiff and other residents of the dangerous condition, and failure to employ maintenance staff to properly and adequately remove the snow and/or ice. In count two, which is labeled " Private Nuisance, " the plaintiff repeats the allegations of the first count and further alleges that the plaintiff's injuries and damages were directly and proximately caused by the creation and/or maintenance of a private nuisance by the defendant, which interfered with the plaintiff's use and enjoyment of her property and areas surrounding her residence. In count three of the complaint, the plaintiff repeats the previous negligence and private nuisance claims and further alleges that this action is " brought pursuant to General Statutes § § 52-557n(a)(1)(C) and 52-557n(b)(8) for injuries sustained due to the failure of the defendant to carry out adequate inspections of the housing complex."
On December 2, 2016, the defendant filed a motion to strike count three of the complaint on the ground that General Statutes § 52-557n does not create a direct cause of action. The motion is accompanied by a memorandum of law. The plaintiff filed a memorandum of law in opposition to the motion to strike on December 27, 2016. This matter was heard at short calendar on February 14, 2017.
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). " [A] motion to strike challenges the legal sufficiency of a pleading, and consequently, requires no factual findings by the trial court . . ." (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 398, 119 A.3d 462 (2015). " 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). " 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). " A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." (Internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 349, 63 A.3d 940 (2013).
" We have previously determined that governmental immunity must be raised as a special defense in the defendant's pleadings . . ." Violano v. Fernandez, 280 Conn. 310, 321, 907 A.2d 1188 (2006). " Nevertheless, where it is apparent from the face of the complaint that the municipality was engaging in a governmental function while performing the acts and omissions complained of by the plaintiff, the defendant is not required to plead governmental immunity as a special defense and may attack the legal sufficiency of the complaint through a motion to strike." (Internal quotation marks omitted.) Id.
As previously noted, the defendant moves to strike count three of the complaint on the ground that General Statutes § 52-557n does not create a direct cause of action. The defendant argues that while § 52-557n codifies the circumstances under which a municipality may be held liable, it also explicitly shields a municipality from liability for damages to person or property caused by negligent acts or omissions of municipal officers which require the exercise of judgment or discretion.
The plaintiff counters that she clearly alleged facts that are legally sufficient to state a claim for municipal liability. First, the plaintiff contends that despite the defendant's insistence that the case law supports its position, our Supreme Court has specifically held that the language of General Statutes § 52-557n affirmatively creates a direct cause of action. Next, the plaintiff argues that while § 52-557n(b)(8) shields a municipality from liability due to a failure to make an inspection, this immunity is not granted when the failure to inspect constitutes a reckless disregard for health or safety. Last, the plaintiff argues that she has sufficiently alleged that the defendant knew, or in the exercise of reasonable care should have known, that the area where the plaintiff fell was dangerous and hazardous.
Additionally, the plaintiff contends that the allegations as alleged in count three support a cause of action for private nuisance under General Statutes § 52-557n(a)(1)(C) because the defendant's actions had a natural tendency to create danger and inflict injury upon the plaintiff and other residents. The plaintiff argues that this continuing danger was created by the unreasonable and/or unlawful actions of the defendant, which interfered with the plaintiff's use and enjoyment of her property.
I
Municipal Liability
The law is well settled in this state regarding the liability of municipalities. See DiMiceli v. Cheshire, 162 Conn.App. 216, 223, 131 A.3d 771 (2016) . " According to our Supreme court, a municipality itself was generally immune from liability for its tortious acts at common law . . ." (Internal quotation marks omitted.) Id. ; see also Segreto v. Bristol, 71 Conn.App. 844, 849, 804 A.2d 928, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002); Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988). " Governmental immunity may, however, be abrogated by statute." Segreto v. Bristol, supra, 849. " Section 52-557n . . . specifically delineates circumstances under which municipalities and its employees can be held liable in tort and those under which they will retain the shield of governmental immunity." Durrant v. Board of Education, 284 Conn. 91, 105, 931 A.2d 859 (2007). Our Supreme Court has noted that the language of § 52-557n, " clearly and expressly abrogates the traditional common-law doctrine . . . that municipalities are immune from suit for torts committed by their employees and agents." Spears v. Garcia, 263 Conn. 22, 29, 818 A.2d 37 (2003). Therefore, " there may be circumstances under which a municipality is held liable under § 52-557n . . ." (Emphasis in original.) Id., 37.
A
Municipal Liability: Direct Cause of Action
General Statutes § 52-557n(a) provides in relevant part: " (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or implicitly granted by law." (Emphasis added.)
In the present case, the crux of the defendant's argument is that General Statutes § 52-557n does not create a direct cause of action. Our Supreme Court, however, has been clear in finding that § 52-557n affirmatively creates a direct cause of action. See Ugrin v. Cheshire, 307 Conn. 364, 387, 54 A.3d 532 (2012) (finding that § 52-557n(b)(8) creates a direct cause of action); see also Spears v. Garcia, supra, 263 Conn. 25 (finding that § 52-557n creates a direct cause of action).
Accordingly, the issue before the court is not if § 52-557n creates a direct cause of action, but whether the plaintiff sufficiently alleged an exception to municipal immunity under § § 52-557n(b)(8) and 52-557n(a)(1)(C).
B
General Statutes § 52-557n(b)(8)
As previously noted, the defendant argues that General Statutes § 52-557 explicitly shields a municipality from liability for damages caused by negligent acts or omissions of municipal officers which require judgment or discretion. The plaintiff counters that she has sufficiently alleged that the exception provided for in General Statutes § 52-557n(b)(8) applies because the defendant's failure to inspect constitutes a reckless disregard for health and safety.
General Statutes § 52-557n(b)(8) provides in relevant part: " Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from . . . (8) failure to make an inspection or making an inadequate or negligent inspection of any property . . . to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances . . ." (Emphasis added.)
" What the term 'reckless' means in § 52-557n(b)(8) is a question of statutory interpretation and, therefore, a question of law." Williams v. Housing Authority, 159 Conn.App. 679, 692, 124 A.3d 537, cert. granted, 319 Conn. 947, 125 A.3d 528 (2015). " What constitutes a 'reckless disregard for health and safety' is particularly unclear, as the phrase is not defined within § 52-557n, nor is the phrase found anywhere else within our General Statutes." Id. " Without any plain indicia of what this exception means for the purposes of a failure to inspect, we act in accordance with our Supreme Court's conclusion that the statute is ambiguous, and seek extratextual evidence as to the exception's meaning." Id., 692-93. Unfortunately, review of the legislative history " does not provide adequate guidance as to the meaning of a 'reckless disregard for health and safety.' Id., 693. Therefore, " [w]e . . . turn to our common-law jurisprudence for guidance." Id.
" Under Connecticut common law, recklessness requires a conscious choice of action either with knowledge of the serious danger to others involved . . . or with knowledge of facts which would disclose this danger to any reasonable person, and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent . . ." (Emphasis in original, internal quotation marks omitted.) Id. Thus, " [a] failure to inspect that constitutes a reckless disregard for health or safety under § 52-557n(b)(8) . . . must . . . be one in which an individual is aware of the duty to inspect, recognizes the possible impact on public or individual health or safety, and makes the conscious decision not to perform that duty." (Emphasis in original.) Id., 694.
In the present case, the plaintiff alleges in count three that the defendant violated the following statutes: (1) General Statutes § 8-41 by failing to employ contractors, agents and employees competent, skilled, and capable of maintaining the property in a safe condition; (2) General Statutes § 8-44a by failing to seek and obtain adequate funding to support the necessary repair and maintenance, including those required for snow removal; (3) General Statutes § 8-45 by failing to manage and operate the housing complex in an efficient, safe manner; and (4) General Statutes § § 47a-7(a)(2) and 47a-7(a)(3) by failing to keep the housing complex in a safe and habitable condition.
General Statutes § 8-41(a) provides in relevant part: " An authority . . . may employ technical experts and such other officers, agents, and employees, permanent and temporary, as it requires . . ."
General Statutes § 8-44a provides in relevant part: " Each housing authority . . . shall prepare and submit to said commissioner a request for any necessary construction, rehabilitation and major repair with respect to each housing project . . . including the construction or rehabilitation of facilities adjacent to such project which are functionally related to and serve the needs of such project."
General Statutes § 8-45 provides in relevant part: " Each housing authority shall manage and operate its housing projects in an efficient manner so as to enable it to fix the rentals for dwelling accommodations at the lowest possible rates consistent with providing decent, safe, and sanitary dwelling accommodations . . ."
General Statutes § 47a-7(a)(2) provides in relevant part: " A landlord shall . . . make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition . . ."
General Statutes § 47a-7(a)(3) provides in relevant part: " A landlord shall . . . keep all common areas of the premises in a clean and safe condition . . ."
The plaintiff also plead several other allegations including: (1) that the defendant failed to take reasonable precautions to ensure that ice and snow would not accumulate; (2) that the defendant failed to conduct routine inspections; (3) that the defendant failed to remove the snow/ice when the defendant knew, or reasonably should have known, it was dangerous and hazardous to the housing complex residents; and (4) that the defendant failed not only to salt and/or sand or provide any appropriate preventative substance to the ground to render it safe, but also failed to even order such substance.
The plaintiff not only alleges that the defendant violated several statutes pertaining to its duties requiring it to keep the housing complex habitable and safe, but also alleges that the defendant knew, or reasonably should have known, that a failure to inspect and properly maintain the various walkways would constitute a hazardous and dangerous condition to its residents. See Greystone Condominium Assn. v. Boulder Run, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-00-0370368-S (May 7, 2001, Brennan, J.T.R.) (finding that allegations that town knew of hazardous building conditions, but failed to correct were sufficient to state claim of recklessness); Walmsley v. Scotland, Superior Court, judicial district of Windham, Docket No. CV-97-0057039-S, (April 2, 1998, Sferrazza J.) (finding that plaintiff sufficiently alleged an exception to municipal immunity when alleged that defendant knew of dangerous condition of house when issued certificate of occupancy); Lamplugh v. Theratx, Inc., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-97-0161990-S (March 10, 1998, D'Andrea, J.) (finding that allegations that home for elderly residents had knowledge of fire safety code violations but failed to safeguard residents from fire was sufficient to state a claim of recklessness); cf. Macaraeg v. Bryan, Superior Court, judicial district of Waterbury, Docket No. CV-14-6022919-S, (July 21, 2014, Roraback, J.) (granting motion to strike when plaintiff's naked allegation of recklessness failed to provide any facts whatsoever from which the court could infer recklessness).
The allegations in count three of the complaint are sufficient to reasonably infer that the defendant acted with a reckless disregard to the health and safety of its elderly and disabled residents, and if proven, would support a cause of action under General Statutes § 52-557n(b)(8).
C
General Statutes § 52-557n(a)(1)(C)
The court now turns to the defendant's argument that the plaintiff's reliance on General Statutes § 52-557n(a)(1)(C) is misplaced and does not provide support for a legally sufficient cause of action. As previously noted, the plaintiff counters that she has sufficiently alleged that all or some of the defendant's actions had a natural tendency to create danger and inflict injury, and that these unlawful actions interfered with the plaintiff's use and enjoyment of her property and surrounding areas of the housing complex. The plaintiff contends that these allegations, if proven, would support a cause of action for private nuisance under § 52-557n(a)(1)(C).
General Statutes § 52-557n(a)(1)(C) provides in relevant part: " Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by . . . (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . . ."
" The essence of a private nuisance is an interference with the use and enjoyment of land." Ugrin v. Cheshire, supra, 307 Conn. 374; see also Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002). " The interference may be either intentional . . . or the result of the defendant's negligence." Ugrin v. Cheshire, supra, 374.
" [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." Id. " The test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries . . ." (Internal quotation marks omitted.) Id., 374-75. " The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . ." Id., 375. " This causal connection must be based upon more than conjecture and surmise." Id.
Therefore, " the proper focus of a private nuisance claim for damages . . . is whether a defendant's conduct, i.e., his or her use of . . . property, causes an unreasonable interference with the plaintiff's use and enjoyment of his or her property . . ." (Citation omitted, internal quotation marks omitted.) Id., 376. " Whether the interference is unreasonable depends upon a balancing of the circumstances of each individual case." Pestey v. Cushman, supra, 259 Conn. 361. " In balancing the interests, the fact finder must take into consideration all relevant factors, including . . . 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 . . ." Id. " Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated." Id., 362.
This court notes that " [i]t is well established that housing authorities have a duty to maintain premises that they own in a safe and reasonable condition." (Emphasis added.) Roberson v. Khorsandi, Superior Court, judicial district of New Haven, Docket No. CV-13-6036441-S, (May 27, 2015, Blue, J.) . Thus, " [t]he very statute under which the Housing Authority was created was enacted to create 'safe . . . dwelling accommodations.'" (Emphasis omitted.) Id. ; see also General Statutes § 8-40. Moreover, even if a housing authority does not own the premises, it has a " cognizable legal relationship with, and responsibility toward, the decedents." Roberson v. Khorsandi, supra .
In the present case, the plaintiff alleges in count three of the complaint that all or some of the defendant's actions had a natural tendency to create danger and inflict injury upon not only the plaintiff, but also upon the other elderly and disabled residents at the housing complex. The plaintiff specifically alleges that this danger, created by the defendant's failure to comply with various statutes, as well as the defendant's failure to inspect, failure to warn, failure to maintain the premises, and other alleged unlawful actions, was not only the proximate cause of her injuries, but also created a continuing danger that interfered with the use and enjoyment of her property.
The allegations in count three of the complaint are sufficient to reasonably infer that the defendant's actions created an unreasonable interference with the plaintiff's use and enjoyment of her property when it allegedly failed to take all feasible precautions to avoid any unnecessary interference.
Accordingly, the allegations, if proven, would support a cause of action under General Statutes § 52-557n(a)(1)(C). See Policastro v. Property Group of Connecticut, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-6016793-S, (June 7, 2013, Tobin, J.T.R.) (finding that plaintiff's allegation that condominium association allowed dangerous, defective, icy walkway in common area was sufficient to support recklessness and private nuisance claims).
The Court denies the defendant's motion to strike count three of the complaint.