Opinion
No. CV 03-0480008 S
December 3, 2004
MEMORANDUM OF DECISION RE: MOTION TO STRIKE ( # 118)
This is a slip and fall personal injury action brought by the plaintiff William DeGioia, against the defendant, LAZ Parking Ltd. The plaintiff's substituted complaint is in two counts — count one alleges negligence and count two alleges nuisance. The defendant has moved to strike count two asserting that it fails to adequately allege a cause of action for public nuisance. For the reasons set forth below, the motion to strike must be denied.
BACKGROUND
As relevant to the present motion, the nuisance count of the substituted complaint makes the following allegations.
On October 5, 2001 at approximately 5:00 p.m., the plaintiff walked on to a public parking lot owned, possessed and controlled by the defendant and located at the corner of Crown and State Streets in New Haven. The plaintiff fell in the parking lot in an area where the pavement was uneven, broken and pocked with potholes. The parking lot was dangerous due to this defective condition of the pavement. Such condition of the pavement was a nuisance which the defendant failed to guard against or remedy. As a result of the defendant's violation of duty, the plaintiff sustained personal injury and damages. Additionally, that the condition of the parking lot interfered with a right common to the general public.
DISCUSSION A. STANDARD
A motion to strike is the proper method to challenge the legal sufficiency of a complaint, or count thereof, to state a claim upon which relief can be granted. Practice Book § 10-39, Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270 (1998). For the purpose of a motion to strike, the moving party admits all facts well pleaded. RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2 (1994). The moving party does not however, admit conclusions of law that are unsupported by the facts alleged. Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).
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. Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997). In ruling on a motion to strike, the court is limited to the facts alleged in the complaint. Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997).
B. PUBLIC NUISANCE
The law of nuisance has generally been divided into categories of private nuisance and public nuisance. Both torts share the same four core elements: (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. Prestey v. Cushman, 259 Conn. 345, 355 (2002). Despite these common core elements, the two causes of action are distinct. Private nuisance is concerned with conduct that interferes with an individual's right to the use and enjoyment of his or her land. Id., 357. Public nuisance, on the other hand, is concerned with interference with a public right. Id., see also 4 Restatement (Second) Torts § 821B (public nuisance is defined as unreasonable interference with a right common to the general public).
In the present case, count two asserts a claim of public nuisance. Resolution of the motion to strike turns on whether the plaintiff has adequately alleged that he was exercising a right common to the general public. Rights common to the general public can include, but are not limited to, such things as the right to use a public park, highway, river or lake. 4 Restatement (Second) Torts, § 821D, comment (c).
In support of its motion to strike, the defendant asserts that: (1) the property in question is private and therefore the plaintiff was not exercising a right common to the general public; (2) at most, the plaintiff was a business invitee who cannot assert a public nuisance claim; and (3) the allegation in the substituted complaint that the plaintiff was exercising a public right is a conclusion of law unsupported by facts. The plaintiff in opposition to the motion, asserts that, when construed in his favor, the substituted complaint adequately pleads public nuisance.
Two venerable Connecticut cases illustrate the tension between the parties' positions. In Webel v. Yale University, 125 Conn. 515 (1939), the plaintiff was a customer of a beauty shop located on premises leased from Yale University. She fell while stepping from the ladies room inside the shop. In considering the nuisance claim, our Supreme Court stated:
One 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.
Webel v. Yale University, supra, 125 Conn. 525.
In Beckwith v. Stratford, 129 Conn. 506 (1942), the plaintiff suffered a fall by stepping in to a depression in a sidewalk. Her action against the town was based on nuisance. The trial courts judgment in favor of the plaintiff was affirmed. Id., 518.
The issue is whether the present complaint alleges (1) a fall on private business premises such that a public nuisance claim is precluded by the holding in Webel v. Yale University; or (2) a fall on public premises, akin to a town sidewalk, such that a public nuisance claim would be permitted under the authority of Beckwith v. Stratford. This is a close question.
As stated above, the substituted complaint affirmatively alleges that the condition of the parking lot interfered with a right common to the general public. Substituted Complaint, Count II, Paragraph 7. While this allegation could be seen as a mere legal conclusion, the substituted complaint also alleges that the parking lot was a "public parking lot." Substituted Complaint, Count II, Paragraph 3. This is an allegation of fact that the court must accept as true. It is noteworthy that this same paragraph also alleges that the parking lot was "owned, possessed and controlled" by the defendant, a private corporation. Notwithstanding such contradictory allegations, the courts role at this stage is to construe the complaint in the plaintiff's favor. When so construed, count two essentially alleges a fall on a public parking lot due to a defect that interfered with a right common to the general public. Whether the plaintiff can prove these allegations is a separate matter, but they are sufficient to survive a motion to strike.
The court's ruling is without prejudice to the defendant's right to move for summary judgment if, for example, the parking lot was not public property.
CONCLUSION
For the reasons set forth above, the motion to strike count two (nuisance) is denied.
So Ordered at New Haven, Connecticut this 3rd day of December 2004.
Devlin, J.