Opinion
No. CV 96 0136342 S
March 15, 2005
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO STRIKE
I. BACKGROUND
The plaintiffs are residents of property located in Naugatuck, Connecticut. The plaintiffs consist of two homeowners and their two children. The defendants are the Borough of Naugatuck, the Naugatuck Water Pollution Control Board, and the Executive Director of the Water Pollution Control Board. The plaintiffs allege, in their revised complaint dated September 1, 2004, that the defendants caused sewage to back up into their home which resulted in emotional and mental distress, loss of personalty and a diminution in the value of the house. The complaint alleges, inter alia, that the defendants are liable in absolute nuisance, negligent nuisance, and public nuisance, and are responsible for attorneys fees incurred by the plaintiffs. On February 2, 2005, the defendants moved to strike several counts of the plaintiffs' complaint. The grounds for the Motion To Strike are as follows: (1) Counts 3, 6, and 9 allege public nuisance, but are insufficient in that they do not allege an unreasonable interference with a right common to the general public and that the nuisance was not a continuing one; (2) Counts 1, 4, and 7 allege absolute nuisance, but are insufficient in that they do not allege an unreasonable interference with a right common to the general public; (3) Counts 2, 5, and 8 allege negligent nuisance as to the children, but such claims are legally insufficient because the children do not have a property interest in the property in question; and (4) the plaintiffs have not alleged any theory under which attorneys fees are recoverable. Plaintiffs claim that the allegations of nuisance are sufficient and that the children should be allowed to sue in nuisance, even if they are not the homeowners. They further contend that attorneys fees should be allowed because they allege intentional and willful conduct. The matter was argued before the court on March 14, 2005, wherein the court took the papers.
II. DISCUSSION
A motion to strike tests the legal sufficiency of a pleading. Ferryman v. Groton, 212 Conn. 138, 142 (1989); Connecticut Practice Book Section 10-39. A motion to strike may be used to challenge the legal sufficiency of a complaint or of any one of the counts thereof. Connecticut Practice Book Section 10-39(a)(1); Ivey, Barnum O'Meara v. Indian Harbor Properties, Inc., 190 Conn. 528 (1983). In ruling on a motion to strike, the trial court may only consider those grounds raised in the motion. Blancato v. Feldspar Corp., 203 Conn. 34, 44 (1987). The applicable standard of review on a motion to strike is whether, assuming the truth of all well-pleaded facts, the facts provable under the allegations would support a cause of action. Green v. Metals Selling Corp., 3 Conn.App. 40, 41 (1985). The moving party, for the purposes of the motion, admits all well-pleaded facts in the challenged pleading. Verdum v. Transamerica Insurance Co., 187 Conn. 363 (1982).
In the case of Pestey v. Cushman, 259 Conn. 345 (2002), the Connecticut Supreme Court clarified the Connecticut Law of private and public nuisance. The court noted in the opinion, at page 355, that "a thorough review of the law of nuisance reveals that this area of the law has been prone to confusion, and our case law has been no exception. Our nuisance jurisprudence has become muddled and is in need of clarification." The court proceeded to change the law regarding private nuisance, but left the current law on public nuisance unchanged. In a footnote on page 358 of the decision, however, the court suggests that an adjustment to the law of public nuisance may be necessary, but that issue was beyond the scope of the opinion. Therefore, the law of public nuisance still requires a four-prong test, namely: (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 plaintiffs' injuries and damages. Although not specifically mentioned as part of the test, it is axiomatic that a public nuisance is an unreasonable interference with a right common to the general public. Id. at page 357. "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." Higgins v. Connecticut Light and Power Co., Conn. 606, 611 (1943). Defendants argue that since the claims herein relate to one house, they cannot be considered as public nuisance claims. They claim that since a common injury was not produced there can be no claim of public nuisance. Further, they argue that, since the claim of absolute nuisance is based upon public nuisance, and must satisfy the same underlying claims, the absolute nuisance counts must also be stricken.
Defendants moved to strike counts 3, 6, and 9 of the plaintiffs' complaint on the grounds that said counts did not allege an interference with rights in common to the public and did not allege that the nuisance was a continuing one. The court notes that paragraph 35 of said counts does allege that the nuisance was a continuing one. Further, said count alleges a continuing public nuisance. The court holds that the allegations of public nuisance are sufficient to withstand the grounds of the motion to strike. The allegation of public nuisance, while not one of the elements of the four-pronged test of the elements of proof of public nuisance, infers, by its very definition, an interference with a right held by the public. The allegation of a public nuisance, in and of itself, is enough to survive the particular ground of common public right raised by defendants' motion to strike. Further, the grounds for absolute nuisance also rely upon the allegations of public nuisance in this particular case. Therefore, the defendants' motion to strike counts 3, 6, 9, 1, 4 and 7 is denied.
Defendants have also moved to strike counts 2, 5 and 8 as they relate to the children. They claim that since the children have no ownership interest in the property they do not meet the requirements for a private nuisance claim. In Pestey, supra, the Supreme Court held that in order to establish a claim for private nuisance, 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 question raised by the defendants is whether the reference to the phrase "his or her property" means that one must own the property in order to recover, or merely be an occupant who uses the property. Defendants cite Conlon v. Town of Farmington, 29 Conn.Sup. 230 (1971), in support of their position. They also cite Webel v. Yale University, 125 Conn. 515 (1939), for the general proposition that a private nuisance claim 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 Conlon case, supra, the Superior Court denied the right of children to sue in a case with a fact pattern almost identical to the instant action. The court opined that the children did not own an interest in the property, therefore, could not sue pursuant to a nuisance theory. Plaintiffs cite the case of Gessin v. Beckwith, 35 Conn.Sup. 89 (1978), wherein the Superior Court allowed children to sue in nuisance, where the plaintiffs were children of a tenant. The court held that since the plaintiffs were members of the family of a possessor of a property interest, they had a property interest sufficient to form a basis of a nuisance action.
It is noteworthy that the Conlon Court based its decision on the Third Edition of Prosser, Torts. Whereas, the Gessin Court based its decision on the Fourth edition of Prosser, Torts. In the Fourth edition Prosser notes that "the greater number of cases have regarded members of the family of the possessor as sharing the possession with him, and hence as entitled to recover damages which they have sustained on the basis of nuisance." Prosser, Torts (4th Edition). This view seems to be the most logical to this court. There would appear to be no rational basis for protecting the possessor of the property interest in a nuisance action, while not protecting the members of his or her family. The argument of the defendants in this regard seems draconian at best. The motion to strike counts 2, 5, and 8 of the complaint as they relate to the minor children is denied.
The last ground raised by the defendants is that there is no ground for a claim of attorneys fees in the prayer for relief. Plaintiffs claim that, in certain circumstances, punitive damages are allowed in nuisance actions or in negligence actions where the facts are tantamount to willful and wanton misconduct. The plaintiffs cite the language in Nair v. Thaw, 156 Conn. 445, 453 (1968) and the commentary in Newman and Wildstein, Tort Remedies in Connecticut, Section 19-3, for their position. The complaint does allege that the actions of the defendants were willful and intentional. Viewing the complaint in a light most favorable to the plaintiffs, the motion to strike the prayer for attorneys fees is denied.
III. CONCLUSION
Based upon the foregoing reasons, the defendants' motion to strike the various counts of the complaint and prayer for relief is hereby denied.
THE COURT
Dennis G. Eveleigh, Judge