Opinion
No. CV03 040 23 42
September 27, 2005
MEMORANDUM OF DECISION
FACTS
The plaintiff, Louis Petrucelli, brings this action in two counts against the defendants, Village Square, Inc., and Steiner, Inc.
He claims that he was walking outside in the rear of property known as the Village Square Shopping Center on March 28, 2001, when he fell due to the presence of debris on the ground.
It is alleged that both defendants "owned, controlled, possessed, operated, and/or maintained" the shopping center at the time of the fall.
As a result, the plaintiff claims to have sustained injuries to his right arm and shoulder, including a torn rotator cuff.
Count One claims that the defendants, or either defendant were negligent, while Count Two alleges the creation of a nuisance on the property, and claims that the plaintiff was injured due to a dangerous condition.
The defendants move to strike the Second Count, sounding in nuisance.
They claim, in a Motion to Strike, dated November 10, 2004, that the plaintiff failed to set forth a prima facie claim of nuisance in his complaint, by neglecting to allege all of the necessary elements.
In a supplement to the Motion to Strike, dated July 8, 2005, the defendants maintain that the plaintiff does not allege an ownership interest in the land on which he fell; an indispensable allegation in a claim of private nuisance.
The defendants also contend, in a July 24, 2005 pleading, that the plaintiff, as a tenant in the shopping center complex, cannot sustain a nuisance claim against his landlord, when injury occurred while he was using a common area.
STANDARD OF REVIEW
Because the Motion to Strike challenges the legal sufficiency of a pleading, and requires no factual findings by the trial court, all well pleaded facts are admitted. Ferryman v. Groton, 212 Conn. 138, 142 (1989); Suffield Develonment Associates, Ltd. Partnership v. National Loan Investors, L.P., 64 Conn.App. 192, 196 (2001).
All facts alleged in a pleading must be construed in the manner most favorable to the non-moving party, or in the manner most favorable to sustaining the sufficiency of the pleading attacked. Bohan v. Last, 236 Conn. 670, 674, (1996): Rowe v. Godou, 209 Conn. 273, 278 (1998).
If facts provable in a complaint would support a cause of action, the Motion to Strike must be denied. Waters v. Auturoi, 239 Conn. 820, 825-26 (1996).
PLAINTIFF'S COMPLAINT FAILS TO SET FORTH A CAUSE OF ACTION FOR PRIVATE NUISANCE
In Count Two, the plaintiff attempts to plead a claim of private nuisance. A private nuisance exists only when one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land. This includes all interests of an owner or occupier of land, in the enjoyment of the property of which he is in possession, without regard to the quality of his tenure. Webel v. Yale University, 125 Conn. 515, 525 (1939). Recovery in private nuisance is therefore dependent upon the plaintiff having an interest in land. Higgins v. Connecticut Light Power Co., 129 Conn. 606, 611 (1949).
A public nuisance, on the other hand, is concerned with the interference with a public right, and involves conduct which allegedly interferes with the public health and safety, including the right to use a public park, highway, river or lake. Keeney v. Old Saybrook, 237 Conn. 135, 162-63 (1996); Beckwith v. Stratford, 129 Conn. 506, 507 (1942); 4 Restatement (Second) Torts, § 821B.
Since Louis Petrucelli's claims do not involve any claimed interference with a public right, any recovery in nuisance must be predicated upon proof of a private nuisance.
Distinctions between public and private nuisances have often been blurred and confusing. Historically, courts applied the same four-fold test when evaluating claims of private and public nuisance: 1) the condition complained of has a natural tendency to create danger and inflict injury upon person or property, 2) the danger created is a continuing one, 3) the use of the land by a defendant was unreasonable or unlawful, and 4) the existence of the nuisance was the proximate cause of the plaintiff's injuries and damages. Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36 (1978); Kostal v. Cass, 163 Conn. 92, 99-100 (1972).
In Pesty v. Cushman, 259 Conn. 345 (2002), the Supreme Court highlighted the distinction between a public nuisance and a private nuisance, and abandoned the four-fold test in cases involving claims of private nuisance.
The Court also questioned the continued validity of the test in cases involving claims of public nuisance, but did not decide the issue. Pestey v. Cushman, supra, 358 n. 6.
The Court adopted the basic principles contained in § 822 of the Restatement (Second), which requires that a plaintiff prove that the defendant's conduct was the proximate cause of an unreasonable interference with the use and enjoyment of his property. The nuisance may be intentional, or the result of negligence. Pestey v. Cushman, supra, 360, 361.
To comply with the Pestey test, a plaintiff must plead and prove: 1) there was an invasion of his or her property, 2) the defendant's conduct was the proximate cause of the invasion, 3) the invasion was unreasonable, and 4) the plaintiff sustained damage as a result of the invasion.
During argument on the Motion to Strike, the plaintiff maintained that he was a tenant at the Village Square Shopping Center, pursuant to a written lease, and that the lease gave him a right to use the portion of the common area where he fell.
However, the operative complaint fails to allege the existence of a written lease agreement, or the interest of the plaintiff in the land compromising the common area of the shopping center.
In a case involving private nuisance, it is incumbent upon a plaintiff to allege and prove both that he has an interest in land, and that the conduct of the defendant interfered with his right to use and enjoy the land. Pestey v. Cushman, supra, 357; Walsh v. Stonington, 250 Conn. 443, 446 (1999).
The plaintiff's complaint contains some language which tracks the elements of the four-fold test. However, it fails to allege the necessary elements of a private nuisance as outlined in Pestey v. Cushman, supra.
The defendants also maintain that a tenant cannot maintain a private nuisance action against a landlord, for injuries sustained while using a common area under the control of the landlord. Schiavone v. Falango, 149 Conn. 293 (1962).
Schiavone involved a fall by a minor plaintiff on a wooden stairway under the control of the landlord. The case turned on a finding that the plaintiff did not have an interest in the land, rather than on the status of the defendant as the landlord. Schiavone v. Falango, supra, 296. Other courts, confronting different factual situations, have permitted an action by a tenant or a member of his family against a landlord, for injuries sustained while using a common area. Jubb v. Maslanka, 22 Conn.Sup. 373, 376-77 (1991).
The defendants' status as a landlord, under a written lease, is not sufficient, as a matter of law, to defeat the plaintiff's private nuisance claim.
Although the test announced in Pestey v. Cushman appears to be less hospitable to the plaintiff's private nuisance claim than the four-fold test which it replaced, the plaintiff is not foreclosed from attempting to plead a claim sounding in private nuisance.
However, based on an examination of the complaint in its present form, the defendant's Motion to Strike must be GRANTED.
RADCLIFFE, J.