Opinion
No. CV-05-4002290-S
June 14, 2010
RULING ON DEFENDANT'S MOTION TO STRIKE
I. INTRODUCTION
The defendant, Town of Mansfield, has moved to strike Counts Four and Five of the plaintiffs' Third Amended and Revised Complaint (the "Complaint"). In Count Four, the plaintiffs allege that the Town of Mansfield has created a private nuisance through its maintenance of a catch basin and storm drain in front of the plaintiffs' property. In Count Five, the plaintiffs allege that the Town has been negligent in the enforcement of its regulations by allowing the defendant James James to backfill his property, which adjoins the plaintiffs' property, in such a way as to cause flooding of the plaintiffs' property.
As to Count Four, the defendant argues that the complaint is insufficient because it fails to allege any positive act on the part of the Town of Mansfield which brought about the nuisance. As to Count Five, the defendant argues that the statute of limitation precludes the negligence claim as plead. It also argues that the negligence claim cannot be pursued because the Town enjoys governmental immunity as to such a claim.
The plaintiffs filed an objection to the motion arguing that they have in fact alleged in Count Four positive action by the Town of Mansfield, which has caused the nuisance. The plaintiffs have filed no objection to the motion as it relates to Count Five. Furthermore, at oral argument, counsel for the plaintiffs conceded that the motion should be granted as to Count Five.
II. LEGAL STANDARD
The standard for ruling on a motion to strike is well established. "We take the facts to be those alleged in the complaint . . . and we construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Moreover, we note that [w]hat is necessarily implied [in an allegation] need not be expressly alleged . . . 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."(Citations omitted; internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 317-18, 907 A.2d 1188 (2006). Nevertheless, Practice Book § 10-42(b) requires that any party who opposes a motion to strike shall file an objection to the motion.
III. LEGAL ANALYSIS A. COUNT FOUR
Pursuant to Conn. Gen. Stat. § 52-577n(a)(1)(C), "a political subdivision of the state shall be liable for damages to person or property caused by . . . acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . . ." Recently, our Supreme Court restated the elements of a nuisance claim asserted against a municipality. "This court has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (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 plaintiffs' injuries and damages . . . In addition, when 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." (Citations omitted; internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010). In Picco, the Supreme Court specifically held that the common law "positive act" requirement is incorporated into § 52-577n(a)(1)(C). Id., 149-52.
As was the case in Picco, here, the defendant does not claim that the plaintiffs have failed to allege any of the four prima facie elements of nuisance. Rather, its claim is that Count Four must be stricken because it does not meet the positive act requirement. In particular, the defendant points to the fact that the plaintiffs have alleged that the catch basin and storm drain were constructed by the Town of Mansfield before the plaintiffs purchased their property in 1990. Count Four, ¶¶ 2-3. Count Four further alleges that the catch basin "functioned properly prior to James James back-filling on land owned by the Plaintiff." Id., ¶ 9. Count Four then alleges that the Town failed to enforce its regulations "essentially permitt[ing] James James to fill the catch basin and flood Plaintiff's property." Id., ¶ 10. According to the Town, such allegations amount to, at most, claims of nonfeasance and do not set forth any positive acts that must be alleged to support a nuisance claim against a municipality. See, e.g., Stephenson v. Shelton, 2010 Ct.Sup. (LOIS) 5444, 5452-53 (Conn.Super.Ct., February 22, 2010) (Taggart, J.)
The plaintiffs respond by arguing that Count Four does specifically allege that "the Town of Mansfield has had a duty to maintain, and through positive action has maintained the catch basin and storm drain." Count Four, ¶ 4. The plaintiff claims that the court must accept this allegation as fact at this stage of the proceedings, and, consequently, this allegation is sufficient to defeat the defendant's motion to strike.
The problem with the plaintiff's argument is that it is not enough merely to allege that the Town maintained the alleged source of the nuisance. The plaintiffs must allege that the Town's positive acts actually caused the nuisance. Picco, supra, 295 Conn., 151. Here, the plaintiffs have alleged no causal connection between the Town's positive acts of maintaining the catch basin and storm drain and the flooding of their property. To the contrary, their complaint alleges that the Town's maintenance was fine until the defendant James James started back-filling onto the plaintiffs' property. Thereafter, the plaintiffs claim that the catch basin and storm drains stopped working, and that the Town took no steps to stop James' conduct. At most, the plaintiffs have alleged that the Town has allowed the nuisance to occur and continue through its nonfeasance. The court agrees with the defendant that Count Four fails to allege any positive acts by the Town to create or cause the nuisance. Consequently, the motion to strike Count Four is granted.
B. COUNT FIVE
As noted above, the plaintiffs have filed no opposition to the motion to strike Count Five. Nor do they dispute that the negligence claim asserted therein is barred by both the statute of limitations and the doctrine of governmental immunity. The court agrees with the defendant that the allegations of Count Five are insufficient in light of both arguments. Consequently, the motion to strike Count Five is granted.