Opinion
No. CV 04 0486068
May 3, 2007
MEMORANDUM OF DECISION ON THE DEFENDANT TOWN OF MANCHESTER'S MOTION TO STRIKE (#138)
On December 15, 2006, the plaintiff, Joseph Wright, the administrator of the estate of the decedent, Kristie Wright, filed a ten-count fifth amended complaint. The complaint alleges a number of causes of action against several defendants. The court is presently concerned only with courts nine and ten, which allege public nuisance and loss of consortium, respectively, against the defendant, the town of Manchester. The plaintiff alleges that, on January 22, 2002, the plaintiff's decedent was filling the gas tank of her car at a gasoline service station in Manchester, Connecticut, when another car lost control at a nearby intersection, collided with the decedent's car and caused an explosion that resulted in her death.
The defendants are: DB Companies, Inc.; Dorothy L. Thibodeau; James J. Thibodeau; Sohail Lodhi, doing business as DB Mart; and the town of Manchester.
On February 20, 2007, the defendant filed a motion to strike counts nine and ten on the ground that, in both counts, the plaintiff fails to state valid causes of action. More specifically, the defendant moves to strike the ninth count on the ground that the plaintiff fails to allege that the plaintiff's decedent was in the exercise of a public right at the time of the accident and that the plaintiff's claim is barred by the applicable statute of limitations. The defendant moves to strike the tenth count on the ground that it is not viable if the ninth count is stricken. The defendant has submitted a memorandum of law in support of the motion. On March 28, 2007, the plaintiff submitted a memorandum of law in opposition. The matter was heard on the short calendar on April 23, 2007.
"A motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court . . . [The court must] take the facts to be those alleged in the complaint . . . and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied . . . Thus, [the court must] assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, [the court must] read the allegations broadly . . . rather than narrowly." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007).
The defendant argues in its memorandum of law in support of its motion to strike that count nine fails to state a valid cause of action because the plaintiff fails to allege and cannot allege that the plaintiff's decedent was engaged in the exercise of a public right at the time of the accident. The defendant further argues that the plaintiff's public nuisance claim, which was raised for the first time in the fifth amended complaint, dated December 15, 2006, is barred by the three-year statute of limitations governing public nuisance claims and contained in General Statutes § 52-577. The defendant notes that the subject accident occurred on January 22, 2002, and that the plaintiff's filing of the public nuisance claim on December 15, 2006, is a date nearly two years beyond the three year statute of limitations. In addition, the defendant argues that count nine is not saved by the relation back doctrine because the public nuisance claim does not relate back to the original complaint; rather it alleges a new and different set of facts and an entirely new and different cause of action. Finally, the defendant argues that the plaintiff's claim for loss of consortium in count ten is a derivative cause of action that must fail if the ninth count fails.
The plaintiff argues in opposition that the defendant's conduct interfered with the general public's right to be free of the extreme danger of a gasoline explosion and the fact that the plaintiff's decedent was on private property when the explosion occurred does not defeat the public nuisance claim. The conduct of which the plaintiff complains is the approval of the construction and layout of the gasoline service station and the failure to erect or to require the erection of any barriers between the gas pumps and the oncoming traffic. The plaintiff further argues that its public nuisance claim is not barred by the statute of limitations because that claim relates back to the negligence claim asserted against the defendant in the second revised amended complaint. The plaintiff does concede that if the court grants the defendant's motion to strike count nine, then his derivative claim for loss of consortium in count ten should also be stricken.
The court will first address the defendant's statute of limitations arguments. General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." "The three-year limitation of § 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52-577 and enumerated in § 52-584 or another section." Collens v. New Canaan Water Co., 155 Conn. 477, 491, 234 A.2d 825 (1967). "Nuisance is an action founded upon a tort." Mountaindale Condominium Ass'n. v. Zappone, Superior Court, judicial district of Litchfield, Docket No. CV 067279 (May 11, 1998, Pickett, J.), aff'd, 59 Conn.App. 311, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 603 (2000).
As a general rule, a motion to strike may not be used to assert a statute of limitations defense unless the parties agree that the complaint sets forth all pertinent facts. See Girard v. Weiss, 43 Conn.App. 397, 415, 682 A.2d 1078, cert. denied, 239 Conn. 946, CT Page 6562 686 A.2d 121 (1996). The defendant notes in its memorandum of law in support of its motion to strike its reliance on this exception to the general rule as set out in Girard v. Weiss, to which the plaintiff has raised no opposition. In effect, therefore, the parties have agreed that the complaints set forth all pertinent facts. Accordingly, the court should decide this motion on the grounds argued for by the parties. See Doe v. Board of Education, 76 Conn.App. 296, 299 n. 6, 819 A.2d 289 (2003) (deviation from ordinary procedure permitted where nonmovant fails to object to defendant's use of motion to strike for adjudication of otherwise improperly pleaded grounds).
The plaintiff does not dispute that the three-year statute of limitations provided by § 52-577 is the limitation applicable to his public nuisance claim. The plaintiff argues, however, that this claim was made within the applicable limitations period because it relates back to his negligence claim asserted against the defendant in the second revised amended complaint.
Regarding the relation back doctrine, our Supreme Court has stated: "The relation back doctrine has been well established by this court. A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief . . . A right of action at law arises from the existence of a primary right in the plaintiff and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action . . . It is proper to amplify or expand what has already been alleged in support of a cause of action, provided the identity of the cause of action remains substantially the same, but where an entirely new and different factual situation is presented, a new and different cause of action is stated . . . Our relation back doctrine provides that an amendment relates back when the original complaint has given the party fair notice that a claim is being asserted stemming from a particular transaction or occurrence, thereby serving the objectives of our statute of limitations, namely, to protect parties from having to defend against stale claims . . ." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 775, 905 A.2d 623 (2006).
In the present case, a comparison of the allegations contained in count nine of the plaintiff's second revised amended complaint and those contained in count nine of the plaintiff's fifth amended complaint reveals that, but for the addition of several new paragraphs — namely, paragraphs five through eleven and paragraph nineteen — these counts are identical. The allegations in these new paragraphs are that the defendant and/or its planning and zoning commission: intentionally approved the creation and layout of the gasoline service station; did not require the station owners to install protective barriers; granted the station a special exemption permitting commercial use, even though the proximity of the gas pumps and station entrances to the nearby intersecting streets was in violation of the applicable zoning regulations; and granted the exemption without conditioning it on other modifications to the station. The plaintiff further alleges in these new paragraphs that his decedent's death "[was] caused by the nuisance and dangerous condition created and maintained by the [defendant] in that . . . this nuisance interfered with the public's right to be free of extreme and unreasonable danger . . ."
In paragraph twelve of count nine of the plaintiff's second revised amended complaint, the plaintiff alleged that his decedent's death was "caused by the negligence of the defendant . . . in that the roadway was in a dangerous and defective condition in . . . that the defendant failed to maintain an adequately high curb or other barrier between the roadway and the [station and] that the low curb and absence of any barrier made the area unsafe [and] that due to the configuration of the roadway . . . was so made as to be unsafe for travel in violation of [the applicable provisions] of the General Statutes . . ."
The plaintiff's allegations of public nuisance are critically different from the allegations of his previous negligence claim. Stated differently, the plaintiff's negligence claim could not have apprized the defendant of having to defend against a public nuisance claim involving the intentional conduct of town agencies. Had the plaintiff previously alleged that, by intentionally approving the gas service station's location in violation of the applicable zoning regulations, the defendant's actions and those of its Planning and Zoning Commission created a public nuisance, then the defendant would have been required to gather different facts, evidence and witnesses. Sharp v. Mitchell, 209 Conn. 59, 73, 546 A.2d 846 (1988) (no relation back where two "complaints involve two different sets of circumstances and depend on different facts to prove or disprove the allegations of a different basis of liability"). Therefore, to allow the plaintiff's public nuisance claim to relate back in the present case would not serve the purpose behind the statute of limitations, of protecting parties from having to defend against stale claims. Because the plaintiff's public nuisance claim does not relate back to the timely filed negligence claim, it is time barred under § 52-577. On that basis alone this motion to strike Count Nine is granted.
Having concluded that the defendant's motion to strike should be granted on the ground that the plaintiff's public nuisance claim is barred by the applicable statute of limitations, for the sake of judicial economy, the court nevertheless will consider the defendant's argument that the plaintiff has failed to allege a legally sufficient claim of public nuisance. With respect to the tort of public nuisance, our Supreme Court has stated: "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance . . . 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 upon 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 . . .
"Despite its grounding in public nuisance law, this four factor analysis has since been applied without distinction to both public and private nuisance causes of action . . . Although there are some similarities between a public and a private nuisance, the two causes of action are distinct. Indeed, Professors Prosser and Keeton in their treatise on the law of torts have stated: The two have almost nothing in common, except that each causes inconvenience to someone, and it would have been fortunate if they had been called from the beginning by different names . . . Public 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." (Citations omitted; internal quotation marks omitted.) Pesky v. Cushman, 259 Conn. 345, 355-57, 788 A.2d 496 (2002). "Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public . . . [I]f the annoyance is one that is common to the public generally, then it is a public nuisance . . . The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights. A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence . . . Moreover, a private individual may create a nuisance in a public place . . . Typical examples of public nuisances are: pollution and obstruction of waterways; air and noise pollution; maintenance of a fire or explosion hazard, or other unsafe premises; maintenance of a house of prostitution; obstruction of safe travel on a public highway; and maintenance of a junkyard or dump." (Citations omitted; internal quotation marks omitted.) Ganim v. Smith Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001).
"Generally, to prove the existence of a public right, a court looks to whether the alleged condition is one that is common to the public . . . Although most public nuisance claims are directed at governmental entities, there have been cases in which public nuisance claims have been brought on the basis of injuries occurring on private properties. In those situations, our Supreme Court has held that where an individual who enters the subject premises at the express or implied invitation of a tenant (or property owner) does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant, and, if injured, the visitor to the premises cannot base his right to recover on the existence of a public nuisance. Webel v. Yale University, [ 125 Conn. 515, 524-25, 7 A.2d 215 (1939)]; Dahlstrom v. Roosevelt Mills, Inc., 27 Conn.Sup. 355, 357, 238 A.2d 431 (1967)." (Citations omitted; internal quotation marks omitted.) Kelsey v. Schoolground Three, 49 Conn.Sup. 338, 343-44, 877 A.2d 963 (2005).
"Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public . . . A nuisance is common or public, the terms being synonymous, where it affects the rights enjoyed by citizens as part of the public, that is, the rights to which every citizen is entitled." (Citations omitted; emphasis added; internal quotation marks omitted.) Dahlstrom v. Roosevelt Mills, Inc., 27 Conn.Sup. 355, 357, 238 A.2d 431 (1967).
"The typical public nuisance action is brought against a municipality or other governmental entity and involves public areas such as thoroughfares, waterways or parks . . .
"When it comes to private property, [o]ne who enters premises at the express or implied invitation of a tenant does not come upon them in the exercise of any public right, but is there by reason of a right extended to him by the tenant; and, if injured, the visitor to the premises cannot base his right to recover upon the existence of a public nuisance . . .
"[Thus] [a]n unguarded cable, which cut the leg of a child visiting an amusement park, was not a public nuisance. Clark v. Pierce Norton Co., 131 Conn. 499, 40 A.2d 752 (1945). Similarly, a patron who slipped in defendant's market could not claim public nuisance. Hoffman v. Mohican Co., 136 Conn. 392, 71 A.2d 921 (1950). Public nuisance has been found inapplicable to an injury to a patron in defendant's restaurant, LaPalme v. Tottle, 16 Conn.Supp. 121 (1949); at defendant's bathing resort, Arachy v. Schopen, 22 Conn.Sup. 20, 158 A.2d 604 (1960); in defendant's store, Dahlstrom [ v. Roosevelt Mills, Inc., 27 Conn.Sup. 355, 238 A.2d 431 (1967)]; and in defendant's parking garage, Mulcahey v. ITT, 31 Conn.Sup. 1, 318 A.2d 804 (1974)." (Citations omitted; internal quotation marks omitted.) Cimino v. Yale University, 638 F.Sup. 952, 954-55 (D.Conn. 1986).
In the present case, the plaintiff alleges that the plaintiff's decedent was filling the gas tank of her car at the gas station in question on January 22, 2002, when another car lost control at a nearby intersection, collided with the decedent's car and caused an explosion that resulted in her death. The plaintiff also alleges that there had been many accidents at the nearby intersection, "involving many vehicles coming out of Pine Street and crashing into vehicles on Hartford Road." The plaintiff further alleges that his decedent's death "[was] caused by the nuisance and dangerous condition created and maintained by the [defendant] in that . . . this nuisance interfered with the public's right to be free of extreme and unreasonable danger . . ."
According to these allegations, the right that the plaintiff identifies to be a public right, the right to which every citizen is entitled, is to be free of the extreme danger of a gasoline explosion. The nuisance that the plaintiff alleges is the defendant's interference with that right through its approval of the construction and layout of the gas station and its concomitant failure to erect or to require the erection of any barriers between the gas pumps and the oncoming traffic. The claim is atypical in that it is brought against a municipality for an alleged nuisance existing on private rather than public property.
Under the applicable case law, the right to be free of explosion hazards while on commercial property as a business invitee or patron of a gas station does not involve the exercise of a public right. For instance, in Dahlstrom v. Roosevelt Mills, Inc., 27 Conn.Sup. 355, 238 A.2d 431 (1967), the plaintiffs alleged both private and public nuisance causes of action on behalf of a minor plaintiff who allegedly suffered injuries caused by a soft drink vending machine located in a store owned and operated by the defendants. Id., 355-56. The plaintiffs argued that the defendant catered to the general public, that the minor plaintiff was on its premises as a member of the general public, and that by invitation to the general public, the alleged nuisance becomes public in nature. Id., 356. The defendants demurred and the court sustained their demurrer. Id., 357.
"The motion to strike . . . replaced the demurrer in our practice." (Internal quotation marks omitted.) RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994).
The court in Dahlstrom explained its rationale for striking the public nuisance claim, stating that "[a]s a patron, the plaintiff was an invitee while in the defendant's establishment. While members of the general public were unquestionably welcome to enter the store, and even solicited to do so, nevertheless they were not entitled to do so by virtue of any public right enjoyed by citizens as part of the public. The public was invited to enter, but there was no public right to do so, and the defendant's establishment was not a public place where the public had a right to be. The plaintiff was not in the exercise of any public right while on the defendant's premises, and he cannot base his right to recover upon the existence of a public nuisance." (Emphasis added.) Dahlstrom v. Roosevelt Mills, Inc., supra, 27 Conn.Sup. 357.
In the present case, the facts of the cases upon which the plaintiff relies to support his argument that he has sufficiently alleged a cause of action in public nuisance are factually distinguishable. Those cases typically involve water or air pollution damages alleged by downstream or adjacent property owners or damages from the storage or maintenance of explosives. Such allegations are absent here. The public trust in our natural resources is not implicated. There is no storage or use of explosives.
While Ganim recognized the amorphous nature of a public nuisance it did not sail into those murky waters having concluded that the plaintiffs had no standing to raise such a claim.
There still remains the requirement that a public nuisance plaintiff be in the exercise of a public right regardless of the plaintiff's physical location. This requirement is fatal to the claim here. There is nothing in the plaintiff's decision to pump gas at that particular location that translates into the exercise of any legally recognizable public right. To hold otherwise requires a quantum leap in our public nuisance appellate jurisprudence unwarranted by case law to date. Thus, the defendant's motion to strike the ninth count of the plaintiff's fifth amended complaint is also granted on the ground that it fails to state a legally sufficient public nuisance claim.
The defendant's motion to strike the tenth count for loss of consortium is also granted because it is a derivative cause of action that is not viable in the absence of count nine.
So ordered.