Opinion
No. CV 02 0190604
January 31, 2005
MEMORANDUM OF DECISION
This proceeding involves a motion to strike a claim of public nuisance, and arises out of the alleged sexual assault of the minor plaintiff, Jane Doe, by Abraham "Tito" Gonzalez in the restroom of the pavilion at Cummings Park and Beach in the city of Stamford, in July of 2000. The plaintiffs, Jane Doe, her sister, Joan Doe and Sarah Doe, both as their mother, guardian and next friend, and individually, filed a ten-count complaint against the defendants, the city of Stamford, Laurie Albano and Ralph Tedesco. Counts one and two allege that the defendants were negligent in that they failed to provide sufficient security to prevent the assault, failed to warn patrons of the park that the premises were not secured against intruders or unauthorized users, encouraged or permitted unauthorized users to enter the park and failed to patrol the park to prevent the attack. Counts three through six allege that, as a result of their negligence, the defendants are liable to Joan Doe and Sarah Doe for bystander emotional distress, which they suffered as a result of finding Jane Doe shortly after the attack. Counts seven and eight allege that, as a result of their negligence, the defendants are liable to Jane Doe for negligent infliction of emotional distress. Count nine seeks indemnification from Stamford for the negligence of Albano and Tedesco. Count ten, which is the subject of the motion to strike, alleges that Stamford created a public nuisance by building and maintaining the pavilion and restrooms in that the structures have a natural tendency to attract people who may want to perpetrate criminal activity on lawful patrons of the park and failed to warn patrons about or protect them from the danger.
An assumed name as authorized by Practice Book § 11-20A(h).
Laurie Albano is also named a defendant in the case as she is the superintendent of recreation services division of the city of Stamford and Ralph Tedesco, also a defendant, is named as the supervisor of the parks department for the city of Stamford.
The defendants filed motion #102 to strike count ten on the ground that the complaint fails to allege that the defendant, the city of Stamford, created the danger by a positive act. Instead, they argue that the failure to prevent a crime is a passive act and, therefore, Stamford did not affirmatively contribute to the attack. The plaintiffs counter that Stamford's creation and maintenance of the pavilion and rest rooms, coupled with its failure to warn patrons about and protect them from that danger, amounts to a positive act.
"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 . . . [The court] take[s] the facts to be those alleged in the complaint . . . and . . . construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency." (Citations omitted; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).
A public nuisance cause of action requires that the plaintiff prove the following four 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 plaintiffs' injuries and damages." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002). "In addition, because the plaintiff's injur[ies were] not related to a right which [the plaintiff] enjoys by reason of [her] ownership of an interest in land . . . and therefore, cannot be sustained as a private nuisance, the plaintiff has the additional burden associated with establishing a public nuisance, namely, proving that the nuisance interferes with a right common to the general public." (Citation omitted; internal quotation marks omitted.) Elliott v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998). Where the defendant is a municipality, "[l]iability can be imposed on the municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality." (Internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996). Furthermore, "failure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality." (Internal quotation marks omitted.) Id.
Several cases illustrate the contours of the positive act requirement where, as here, the alleged harm occurs on municipal land. In Elliott v. Waterbury, supra, 245 Conn. 421, the plaintiff's decedent was killed by a hunter while he was jogging on reservoir land owned by the city. The plaintiff claimed that the city had created a nuisance by permitting hunting on private land adjacent to a public roadway that bordered the reservoir. The Supreme Court affirmed the holding that the defendant city was protected from liability by governmental immunity because the plaintiff "offered no evidence that reasonably could be viewed as establishing that the defendants, by some positive act, intentionally created the conditions alleged to constitute a nuisance." In Brown v. Branford, 12 Conn.App. 106, 529 A.2d 743 (1987), the plaintiff was struck by a motorcycle while walking on land owned by the town. The plaintiff claimed that the town's knowledge that the area was used as a motorcycle race course and failure to prevent that activity made the town liable for creating a nuisance. The Appellate Court upheld the granting of the defendant's motion to strike, and held that "the nuisance, if any, was created by the behavior of the youths who congregated in the area where the plaintiff was walking. There is no logical nexus by which to attribute any of the acts of the youths to the defendant." Id., 112-13. In Lukas v. New Haven, 184 Conn. 205, 439 A.2d 949 (1981), the plaintiff was injured when he slipped on ice on the edge of a public road. He alleged that the city intentionally created a nuisance by plowing only the middle of the road. The Supreme Court upheld the judgment for the city and held that "[w]e cannot say that the condition . . . which allegedly caused the plaintiff's injury was of the defendant's own making." Id., 210.
In order to state a legally sufficient claim of common-law public nuisance against a municipal defendant, a plaintiff must allege in his complaint that a municipality through its affirmative acts intentionally created the conditions alleged to constitute a nuisance. See Whitfield, PPA v. Town of Enfield, Superior Court, judicial district of Hartford/New Britain at Hartford, Docket No. 572428 (March 10, 1998, Teller, J.). In Kosbob v. Alvarez, Superior Court, judicial district of Stamford Norwalk at Stamford, Docket No. CV96 0153525 (September 25, 1998, Karazin, J.) (23 Conn. L Rptr. 53), the plaintiff was attacked in the parking lot of a school owned by the city of Stamford at 9:45 p.m. and was beaten into a coma. The plaintiffs alleged that "the premises were dimly lit, secluded, and an unsupervised location where minors congregated and engaged in underage drinking," and that Stamford had created a nuisance by failing to gate the entrance way, patrol, light, monitor and post warning signs at the parking lot. Id., 53. The court granted Stamford's motion to strike the nuisance count and held that the plaintiffs fail to allege that the city of Stamford created a public nuisance through their own affirmative actions Id., 56.
In the present case, the plaintiffs have failed to allege that the criminal attack on Jane Doe was created by some positive act by the defendant, the city of Stamford. There is no logical nexus, in the context of a public nuisance claim, by which to attribute the criminal acts of Gonzalez to the building and maintenance of the pavilion and restrooms by Stamford. Since the complaint does not sufficiently allege a positive and affirmative act by Stamford, the motion to strike count ten is granted.
William B. Lewis, Judge T.R.