Opinion
No. CV 06 5001197 S
October 15, 2007
MEMORANDUM OF DECISION RE MOTION #122 MOTION TO STRIKE
Facts
The First Count of the plaintiff's amended complaint alleges a violation of § 13a-149 C.G.S., the highway defect statute. She alleges that on or about May 16, 2004 she was walking on a public highway in front of 19 Thornhill Road in the Town of Greenwich, Connecticut when he was caused to trip and fall because of a dangerous and defective condition. She specifically alleges that the highway was uneven and unleveled and had a hole or crack in its surface.
The Third Count of the compliant alleges an "absolute public nuisance." The plaintiff alleges that the defendant Connecticut Natural Gas Corporation created an absolute nuisance in that the conditions alleged by the plaintiff had "a natural tendency to create danger and inflict injury upon persons such as the plaintiff." She alleges that the danger created by the subject defendant was a continuing one and that the defendant's use of the land was unreasonable. She alleges that the condition or conduct interfered with a right common to the general public, specifically the right to use a public highway. The plaintiff alleges that the defendant intentionally created the conditions complained about, and that the condition was the proximate cause of her injuries.
On January 31, 2007 the defendant Connecticut Natural Gas filed a Motion to Strike the Third Count of the plaintiff's complaint. The defendant asserts that said count should be stricken for reason that it is legally insufficient for reason that the plaintiff failed to allege necessary facts to support the legal conclusion that the defendant has committed acts that constitute an absolute public nuisance.
Standards
"A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court's ruling is plenary . . . We take the facts to be those alleged in the complaint that has been stricken 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. (Citations omitted; internal quotation marks omitted.) Vacco v. Microsoft Corp., 260 Conn. 59, 64-65, 793 A.2d 1048 (2002). Thus, we assume the truth of both the specific factual allegations and any facts fairly provable thereunder. In doing so, moreover, we read the allegations broadly, rather than narrowly." Macomber v. Travelers Property Casualty Corp., 261 Conn. 620, 629 (2002).
"A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged." Cavallo v. Derby Savings Bank, 188 Conn. 281, 285, 449 A.2d 986 (1982); Mora v. Aetna Life Casualty Ins. Co., 13 Conn.App. 208, 211, 535 A.2d 390 (1988).
Section 10-39 of the Practice Book concerns the Motion to Strike. This section provides that: "(a) Whenever any party wishes to contest (1) the legal sufficiency of the allegations or any complaint, counterclaim or cross claim, or any one or more counts thereof, to state a claim upon which relief can be granted . . . that party may do so by filing a motion to strike the contested pleading or part thereof."
The standard for considering motions to strike has been well established in our courts: "[A] motion to strike challenges the legal sufficiency of a pleading . . ." (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522, 753 A.2d 927 (2000). In deciding on a motion to strike, the court must "read the allegations of the complaint generously to sustain its viability . . ." Sherwood v. Danbury Hospital, 252 Conn. 193, 212, 746 A.2d 730 (2000). "The court must construe the facts in the complaint most favorably to the plaintiff." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Brackets omitted.) Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626, 749 A.2d 630 (2000). "In deciding on a motion to strike . . . the trial court must take the facts to be those alleged in the [pleadings] . . . and cannot be aided by the assumption of any facts not therein alleged." (Citations omitted; internal quotation marks omitted.) Liljedahl Brothers, Inc. v. Grigsby, 215 Conn. 345, 348, 576 A.2d 149 (1990). "Moreover [w]hat is necessarily implied [in an allegation] need not be expressly alleged." Pamela B. v. Ment, CT Page 16925 244 Conn. 296, 308, 709 A.2d 1089 (1998).
Discussion
The plaintiff alleges in the third count of her amended complaint that the defendant Connecticut Natural Gas created an absolute public nuisance.
[T]o prevail on a claim of nuisance, a plaintiff must prove that: `(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 a proximate cause of the plaintiffs' injuries and damages.' (Internal quotation marks omitted.) State v. Tibbets-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A. (1987). `[W]here absolute public nuisance is alleged, the plaintiff's burden includes two other elements of proof: (1) that the condition or conduct complained of interfered with a right common to the general public; Higgins v. Connecticut Light Power Co., 129 Conn. 606, 611, 30 A.2d 388 (1943); Nolan v. New Britain, 69 Conn. 668, 678, 38 A. 703 (1897); 4 Restatement (Second), Torts § 821B; and (2) that the alleged nuisance was absolute, that is, that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance. Kostyal v. Cass, [ 163 Conn. 92, 98, 302 A.2d 121 (1972)]; Beckwith v. Stratford, 129 Conn. 506, 511, 29 A.2d 775 (1942); Dingwell v. Litchfield, 4 Conn.App. 621, 624, 496 A.2d 213 (1985); 1 F. Harper F. James, Torts (1956) p. 82 n. 2.' State v. Tippits-Abbett-McCarthy-Stratton, supra, 204 Conn. 183.Kelsey v. Connecticut Performing Arts, Judicial District of New Haven, at New Haven, D.N. CV 00 0441464S (Jan. 28, 2002, Zoarski, JTR)
A defendant `intentionally' creates a nuisance when it intentionally creates a condition found to constitute a nuisance, whether or not it intended or understood that by creating that condition it was doing wrong or creating a nuisance. Beckwith v. Stratford, 129 Conn. 506, 511, 29 A.2d 775 (1942) (declaring that the word `intentional,' when used to describe an absolute public nuisance, means `not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance'). Thus, to establish that a defendant intentionally created a public nuisance, the plaintiff need only establish that it was the defendant's conscious objective to create the condition later claimed to constitute a public nuisance essentially as it was when it caused the plaintiff injury.
Cunningham v. Ins. Co. of New York, Judicial District of Hartford, at Hartford, D.N. CV 01 0806941 (Sep. 8, 2004, Sheldon, J.)
The plaintiff's complaint in its current form states conclusory allegations concerning the defendant's intention to create the conditions that the plaintiff alleges are an absolute public nuisance.
For better or worse, we are a fact pleading state and a motion to strike under Practice Book § 10-43 like the old common law demurrer, only admits `well pleaded' facts; it does not admit opinions or mere legal conclusions or conclusory statements. A conclusory allegation cannot be used to avoid a motion to strike. Elliot's Appeal, 74 Conn. 586, 601 (1902); McAdam v. Sheldon, 153 Conn. 278, 282 (1965); Moore v. Bunk, 154 Conn. 644, 649 (1967); Connecticut Civil Procedure, Stephenson. Vol. 1, § 116(c); Connecticut Practice, Horton Knox, Vol. 1, commentary at p. 275. This view necessarily follows from the acceptance of a fact pleading procedural regime because of the following reasoning set forth in Smith v. Furness, 117 Conn. 97, 99 (1933) where the court said: `The adverse party has the right to have the facts appear so that the question whether they support the conclusion may be determined and that he (she) may have the opportunity to deny them . . . A pleading defective in alleging a conclusion without facts to support it is demurrable.'
Wayne Taylor et al. v. Mitchell College, 202 Ct.Sup. 14634 (2002).
For the foregoing reasons the motion to strike the third count of the plaintiff's complaint is granted. So Ordered.