Opinion
CV176068043S
11-27-2017
Gustavo RODRIGUEZ-OYOLA v. WEST SHORE REALTY, INC., et al.
UNPUBLISHED OPINION
OPINION
Wilson, J.
On June 6, 2017, the plaintiff, Gustavo Rodriguez-Oyola, filed a four-count revised complaint against the defendants, Rollers Meadow Condominium Association, Inc. and West Shore Realty, Inc., asserting claims of negligence and private nuisance. The plaintiff’s revised complaint alleges the following facts. The plaintiff rented " property at 107 Meadows Street and had possession of the interior space of a dwelling unit and a common right extending to the usage and of all common areas" (property). Revised Compl., Counts 3 and 4, ¶ 12. Rollers Meadow Condominium Association, Inc. owned, maintained, and controlled the common areas of the property and contracted with West Shore Realty, Inc. for management and related services of the common areas of the property. On March 6, 2015, at about 12:50 p.m., while walking in the common area of the property, the plaintiff fell on ice that had accumulated on the walkway at the bottom of the exterior stairs near his unit, between the area of the stairs and the adjacent garage door. The plaintiff was injured as a result. The icy condition resulted from a broken gutter from which water leaked onto the walkway. The icy, dangerous condition existed for such a length of time that the defendants knew or should have known of it. The condition had a natural tendency to create danger, the danger was a continuing one, and permitting the condition to occur was unreasonable and the proximate cause of the plaintiff’s injuries and/or damages. The defendants were negligent and created a private nuisance in permitting the icy condition to exist and in failing to remedy it.
On August 28, 2017, the court, Wilson, J., granted the defendant’s motion to implead the defendant, Garden Gate Landscape Design, LLC. Garden Gate Landscape Design, LLC is not, however, a relevant party to the present motion and therefore, all references to the defendants are to Rollers Meadow Condominium Association, Inc. and West Shore Realty, Inc.
On June 30, 2017, the defendants filed a motion to strike counts three and four of the plaintiff’s revised complaint, on the grounds that Connecticut does not support a cause of action for private nuisance arising out of personal injury or, in the alternative, that the plaintiff insufficiently alleges that the defendants’ conduct was the proximate cause of an unreasonable interference with the plaintiff’s use and enjoyment of his property. The motion is accompanied by a memorandum of law. The plaintiff filed an objection to the motion to strike on July 14, 2017. Oral argument on the motion was heard at short calendar on August 21, 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). " 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).
" Moreover, [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." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., 322 Conn. 385, 398, 142 A.3d 227 (2016). " If any facts provable under the express and implied allegations in the plaintiff’s complaint support a cause of action ... the complaint is not vulnerable to a motion to strike." Bouchard v. People ’s Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
The defendants argue that counts three and four of the plaintiff’s revised complaint are legally insufficient because Connecticut does not recognize a claim of private nuisance arising only from personal injury, and not land. The defendants acknowledge that there is no appellate authority addressing this issue, and that the trial court is divided on whether claims for private nuisance may arise from personal injury. The defendants cite several Superior Court cases that they claim are better reasoned and on point. Alternatively, the defendants argue that the plaintiff’s claim is legally insufficient because the plaintiff fails to allege that the defendants’ conduct proximately caused an unreasonable interference with the plaintiff’s use and enjoyment of the property.
In response to the defendants’ motion to strike, the plaintiff argues that well-reasoned Superior Court cases do, in fact, support a cause of action for private nuisance arising out of a personal injury claim. In support of its argument, the plaintiff primarily relies on Jullarine v. Briarcliff Realty, LLC, Superior Court, judicial district of New London, Docket No. CV-11-6008370-S (November 25, 2011, Martin, J.) (53 Conn.L.Rptr. 15, 17-18), which analyzed the conflicting Superior Court decisions, and held that a claim for private nuisance can be supported by a claim for personal injury. In response to the defendants’ alternative argument, the plaintiff also argues that when the revised complaint is read as a whole, and in the light most favorable to the plaintiff, the plaintiff’s private nuisance claims clearly arise from the harm caused by the defendants’ interference with his property interest.
A. Private Nuisance and Personal Injury
Our Supreme Court has stated that " [a] private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land. In the modern authorities it [private nuisance] includes all injuries to an owner or occupier in the enjoyment of the property of which he is in possession, without regard to the quality of the tenure." (Emphasis added; internal quotation marks omitted.) Webel v. Yale University, 125 Conn. 515, 525, 7 A.2d 215 (1939). " The original character of private nuisance as an invasion of interests in land has been preserved. Apparently any interest sufficient to be dignified as a property right will support the action ... Thus it will lie in favor of a tenant for a term, or from week to week ... Once the invasion of property interest is established ... consequential damages to the possessor which result from it, such as injuries to his own health ... may be recovered." W. Prosser, Torts (4th Ed. 1971) § 89, pp. 593-94; see Ayala v. B &B Realty Co., 32 Conn.Supp. 58, 63, 337 A.2d 330 (1974) (finding tenant had sufficient property interest to sue landlord for private nuisance).
" The Superior Court decisions are divided regarding the precise issue of whether an individual can recover damages for personal injuries under a private nuisance theory, and there is no appellate authority on the issue." Jullarine v. Briarcliff Realty, LLC, supra, 53 Conn.L.Rptr. 17; compare Tarducci v. CR Oakland Ltd. Partnership, Superior Court, judicial district of New Haven at Meriden, Docket No. CV-12-6005009-S (October 2, 2012, Fischer, J.) (54 Conn.L.Rptr. 801, 802) (" the court finds that personal injuries may arise out of a private nuisance cause of action"), Jubb v. Maslanka, 22 Conn.Supp. 373, 377, 173 A.2d 604 (1961) (" while a tenant cannot bring an action based on nuisance with respect to premises demised to him and completely within his control ... [a tenant may] maintain an action based on nuisance with respect to injuries sustained on a common stairway under the landlord’s control and in which the tenant has a property interest" [citations omitted]), and Roman-Santiago v. Wakefern Food Corp., Superior Court, judicial district of New Britain, Docket No. CV-09-5013138-S (January 7, 2010, Pittman, J.) (" [u]nder a theory of private nuisance, there can be no claim for personal injuries, only for injury to the property of another"), MacLeod v. Gottlieb, Superior Court, judicial district of Fairfield, Docket No. CV-97-0345566-S (July 27, 1998, Lager, J.) (22 Conn.L.Rptr. 456, 459) (" the tort of negligence provides the remedy when the tenant’s claim is for damages for personal injury sustained as a result of a defective condition within the landlord’s control"). The Superior Court is divided between those judges that follow the reasoning of MacLeod and Roman-Santiago, and those that follow the reasoning of Jubb.
This court does not find the reasoning in MacLeod and Roman-Santiago persuasive. According to Jullarine, those cases " rest on the premise that private nuisance actions can only arise from injury to land, not injury to a person. This is accurate only with regard to the initial inquiry of whether a plaintiff has alleged a sufficient property interest that was harmed by the defendant’s conduct ... Once it has been determined, however, that there has been an interference with the use and enjoyment of land, personal injuries and discomfort resulting from that interference are inseparable from the harm caused to the land. Such damages are therefore recoverable under a private nuisance theory." (Citations omitted; emphasis added.) Jullarine v. Briarcliff Realty, LLC, supra, 53 Conn.L.Rptr. 18.
As the court reasoned in Jullarine, which this court finds persuasive, the court in MacLeod incorrectly determined that Schiavone v. Falango, 149 Conn. 293, 179 A.2d 622 (1962) undermined Jubb. See Jullarine v. Briarcliff Realty, LLC, supra, 53 Conn.L.Rptr. 17. In Schiavone, the Supreme Court decided that the child of a tenant that was injured on a common stairway did not have a sufficient property interest, and " [s]ince no interest in land was involved, there could be no recovery on the ground of nuisance." Schiavone v. Falango, supra, 296. Thus, Schiavone " turned on the nature of the plaintiff’s property interest, not on the type of injury the plaintiff suffered. It did not affect the validity of [Jubb] regarding the proposition that a plaintiff with a sufficient property interest alleging private nuisance can recover personal injury damages." Jullarine v. Briarcliff Realty, LLC, supra, 17. In the present case, a sufficient property interest has been alleged. See Revised Compl., Counts 3 and 4, ¶ 12.
Second, the court in MacLeod cited to several Supreme Court cases, which it relied upon to support its opinion that negligence, not nuisance, is the appropriate remedy for personal injuries sustained by a tenant due to a defective condition. All of these cases, however, are distinguishable from both MacLeod and the present case because they turn on the tenant’s ultimate control of the demised property. See Bentley v. Dynarski, 150 Conn. 147, 153, 186 A.2d 791 (1962) (distinguishable because tenant took " exclusive possession of demised premises"); Collette v. Piela, 141 Conn. 382, 386, 106 A.2d 473 (1954) (distinguishable because structural defect in demised premises was under tenant’s control), DesMarchais v. Daly, 135 Conn. 623, 625, 67 A.2d 549 (1949) (distinguishable because stairway containing defect was under tenant’s control, despite potential agreement to repair defects by landlord). In the present case, the defendants’ control over the location of the alleged defect has not been raised as an issue.
The court is also not persuaded by the reasoning in Roman-Santiago, a recent case which followed MacLeod, because it cited to only a portion of a pivotal theory found in W. Keeton, et al., Prosser and Keeton on the Law of Torts (5th Ed. 1984) § 87, p. 619. As the court explained in Jullarine, the court in Roman-Santiago " cited the treatise on the law of torts by Prosser and Keeton for the proposition that [t]he essence of a private nuisance is an interference with the use and enjoyment of land ... However, in their treatise Prosser and Keeton go on to state: And without it, the fact of personal injury, or of interference with some purely personal right, is not enough for such a nuisance." (Citations omitted; emphasis in original; internal quotation marks omitted.) Jullarine v. Briarcliff Realty, LLC, supra, 53 Conn.L.Rptr. 17-18. By not considering the latter portion of the section, the court did not consider the implication that arises from the complete text. See id., 18. That is, while personal injury alone is not sufficient to bring a claim for private nuisance, once a sufficient property interest is established, personal injuries arising from interference with that property interest may be considered. See id. Importantly, the court in Roman-Santiago also did not consider Prosser’s individual treatise, which more clearly indicates that private nuisance claims arising out of personal injury claims can be maintained so long as there is an invasion of a sufficient property interest. W. Prosser, supra, § 89, pp. 593-94.
On the basis of the reasoning as this court notes above, the line of cases relying on MacLeod and Roman-Santiago are not persuasive authority concerning the application of a cause of action sounding in private nuisance, and whether personal injuries can be claimed in such an action. On the other hand, Jubb, and the line of cases that follow it, are consistent with the precedent set forth in Webel, and are therefore more persuasive: that a private nuisance cause of action can be maintained when the plaintiff is injured and has a sufficient property interest in relation to where he was injured. See, e.g., Gesswin v. Beckwith, 35 Conn.Supp. 89, 89-91, 397 A.2d 121 (1978) (minor tenant that sustained personal injuries from falling from allegedly dangerous and defective ladder of tree house " found to have a property interest sufficient to form a basis for an action in private nuisance"). Also, these cases do not run afoul of the aforementioned Supreme Court cases that prohibit a tenant from suing his landlord for nuisance when the defect is contained on the premises controlled by the tenant. See Ayala v. B&B Realty Co., supra, 32 Conn.Supp. 63 (" tenant injured by a defective condition on that part of the premises retained in the control of his landlord may plead a proper cause of action in private nuisance"); see also W. Prosser, supra, § 89, pp. 593-94.
In the present case, the plaintiff properly brings a private nuisance claim against the defendants for personal injuries because the plaintiff alleges a sufficient property interest, and alleges that he fell because of a defective condition that existed in a common area controlled by the defendants. Specifically, the plaintiff pleads that he rented a unit at the property, had possession of the interior space of the unit, and had a common right extending to the usage of all common areas. The plaintiff additionally pleads that he fell on the walkway at the bottom of the exterior stairs of his rental unit and sustained damages as a result of the icy, dangerous condition that amounted to a private nuisance. Therefore, the plaintiff’s cause of action is consistent with the reasoning in Jubb and Julianne.
B. Private Nuisance- Sufficiently Pleaded
As this court will consider a private nuisance cause of action in a personal injury matter, the only issue remaining is whether such a claim for private nuisance was sufficiently pleaded. " A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land ... The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor ... The essence of a private nuisance is an interference with the use and enjoyment of land." (Citations omitted; internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).
" [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. The interference may be either intentional ... or the result of the defendant’s negligence ... Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, 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, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable." (Citations omitted.) Id., 361.
A number of Superior Court cases have denied motions to strike claims for private nuisance where the plaintiff specifically alleged in his complaint that the defendant’s conduct caused " interference with use and enjoyment of the property." See, e.g., Julianne v. Briarcliff Realty, LLC, supra, 53 Conn.L.Rptr. 16 (plaintiff alleged that " condition that caused his injuries ... interfered with the plaintiff’s use and enjoyment of his property"); Radosavljevic v. 175 Realty, LLC, Superior Court, judicial district of Fairfield, Docket No. CV-06-5001303-S (October 3, 2006, Owens, J.T.R.) (42 Conn.L.Rptr. 81, 81-82) (" [t]he plaintiff alleges the worn, broken and deteriorated treads of the common stairway ... invaded upon the plaintiff’s use and enjoyment of the property"). In Hummel v. Elliot, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-12-6009569-S (October 17, 2013, Moran, J.T.R.) (56 Conn.L.Rptr. 922, 922-23), the court denied a motion to strike in a case where the plaintiff’s alleged " interference with the plaintiffs’ use of their property" as well as facts, describing how the defendants’ conduct interfered with the plaintiffs’ use and enjoyment of their property. Specifically, the plaintiff’s alleged that " the defendants’ actions were the proximate cause of an unreasonable interference with and invasion of the plaintiffs’ ownership, use, and enjoyment of their property ..." Id., 922. The plaintiff’s also alleged that the defendants erected a portion of a fence that " interfere[d] with and ... caused the plaintiff’s substantial difficulty in using their own garage and driveway." Id.
There are also a number of cases where the plaintiff failed to explicitly reference an allegation that the defendant’s conduct caused interference with " use and enjoyment of the property" and the court denied a motion to strike. In these cases, however, the courts have relied on facts demonstrating that the plaintiff could not enjoy or use their property as a result of the nuisance. See Ayala v. B&B Realty Co., supra, 32 Conn.Supp. 59 (plaintiff alleged " the only means of ventilation available to the occupants of said apartment was open windows covered by ill-fitting, adjustable screens supplied by the defendant" [emphasis added; internal quotation marks omitted]); Jubb v. Maslanka, supra, 22 Conn.Supp. 374 (" [t]he complaint alleges that the plaintiff, while coming out of his apartment ... was injured ... The stairway in question was necessarily and constantly used by the tenants, including the plaintiff, in going to and coming from the building." [Emphasis added.]).
In the present case, the plaintiff does not specifically allege that the defendants’ conduct interfered with his " use and enjoyment of his property." Instead, the plaintiff alleges that " [p]ermitting the drainage of water from the broken gutter system onto the common walkway was unreasonable and the proximate cause of the plaintiff’s [injuries] and damage as hereinabove more specifically set forth." Revised Compl., Counts 3 and 4, ¶ 15. As discussed above, a plaintiff’s failure to use that key language in its allegations alone does not require that the court grant the motion to strike as long as the plaintiff alleges other facts that demonstrate that an interference with the use and enjoyment of the property occurred. As previously noted, " [i]t 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." (Internal quotation marks omitted.) Geysen v. Securitas Security Services USA, Inc., supra, 322 Conn. 398. Even when read as a whole and construed broadly in favor of the plaintiff, however, the plaintiff’s allegations are not similar enough to those relied on by the court in Ayala, Jubb, or Hummel, and the complaint fails to sufficiently allege any facts that show that the defendants’ conduct interfered with the plaintiff’s use and enjoyment of his property. The complaint does not allege that the plaintiff could not enter or exit his rental unit without walking over the icy walkway, or even that the ice made it harder or more annoying to get to his rental unit. Without a specific allegation that the defendants’ conduct interfered with the plaintiff’s use and enjoyment of the property, or allegations that describe an interference with the use and enjoyment of the rental unit caused by the defect, counts three and four of the revised complaint are legally insufficient.
CONCLUSION
Although the plaintiff may bring a cause of action for private nuisance for personal injuries pursuant to Connecticut case law, the plaintiff does not sufficiently allege that the defendants’ conduct interfered with the use and enjoyment of his property. Accordingly, the defendants’ motion to strike counts three and four of the revised complaint is granted.