Opinion
No. CV 07 5003715
June 24, 2011
MEMORANDUM OF DECISION RE MOTION TO STRIKE. No. 159
FACTS
The plaintiff, Kenneth Lavoie, commenced this action in June 2007, against the defendants, City of New London Water and Water Pollution Control Authority, the City of New London and Earth Tech, Inc., arising from the discharge of raw sewage and wastewater onto the plaintiff's real property and on Stuart Avenue in New London, Connecticut. On September 20, 2010, the court, Cosgrove, J., granted the plaintiff's motion to cite in Veolia Water North America Operating Services, LLC (Veolia) as a defendant. Accordingly, on October 6, 2010, the plaintiff filed an amended twenty-nine-count complaint, with counts twenty-three through twenty-nine directed against Veolia, sounding in negligence, negligent creation of a private nuisance, absolute creation of a private nuisance, negligent creation of a public nuisance, absolute creation of a public nuisance, negligent infliction of emotional distress and trespass, respectively.
On April 6, 2011, Veolia filed a motion to strike counts twenty-six (negligent creation of a public nuisance), twenty-seven (absolute creation of a public nuisance) and twenty-eight (negligent infliction of emotional distress). The motion is accompanied by a memorandum of law. The plaintiff filed an objection to the motion to strike and memorandum of law in support of his objection on May 25, 2011.
DISCUSSION
"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." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). "It is fundamental that in determining the sufficiency of a complaint challenged by a defendant's motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted . . . Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically." (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). "A motion to strike admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings." (Emphasis in original; internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 588, 693 A.2d 293 (1997). "If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Id., 580.
In the present case, the defendant Veolia argues that the twenty-sixth and twenty-seventh counts, alleging the creation of a public nuisance, fail to allege that the plaintiff was harmed while exercising a right common to the general public. Veolia contends that the absence of such factual allegations is fatal to these public nuisance claims. In addition, the defendant argues that count twenty-eight must be stricken on the ground that Connecticut does not recognize a claim for negligent infliction of emotional distress where the claimed damages are solely to property.
In response, the plaintiff claims that his allegations support a cause of action for both the negligent and intentional creation of a public nuisance because he has alleged an injury on a public right of way and in the exercise of a public right, pursuant to the Connecticut Public Health Code. Furthermore, the plaintiff contends that the defendant has misinterpreted his claim for negligent infliction of emotional distress, arguing that it is not based solely on damage to his property.
"To prevail in a claim for public nuisance . . . a plaintiff must prove the following 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 . . . In addition, the plaintiff must prove that the condition or conduct complained of interferes with a right common to the general public . . . Nuisances are public where they . . . produce a common injury . . . 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." (Citation omitted; internal quotation marks omitted.) Skukis v. Board of Education, 122 Conn. App. 555, 586-87, 1 A.3d 137 (2010).
"Whether an interference is unreasonable in the public nuisance context depends . . . on (a) [w]hether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or (b) whether the conduct is proscribed by [law] . . . The rights common to the general public can include, but certainly are not limited to, such things as the right to use a public park, highway, river or lake." (Citation omitted; internal quotation marks omitted.) Id., 587.
The defendant argues that while the plaintiff alleges that the sewage flooded Stewart Avenue, a public right of way, the injuries allegedly sustained by the plaintiff involve only his ability to use and access his own private property, which has been found not to constitute the exercise of a public right. The court concludes, however, that this argument interprets the allegations in the complaint too narrowly for the purposes of a motion to strike. Admitting all well-pleaded facts, as well as those facts necessarily implied from the allegations, the plaintiff has sufficiently alleged that the defendant's use of Stuart Avenue as a catch basin for raw sewage and wastewater is an unreasonable use of the public right of way. Moreover, according to Connecticut Public Health Code § 19-13-B1(d), one example of a public nuisance is: "The discharge or exposure of sewage, garbage or any other organic filth into or on any public place in such a way that transmission of infective material may result thereby."
In both counts twenty-six and twenty-seven, the plaintiff specifically and repeatedly alleges that the Stuart Avenue Pump Station flooded Stuart Avenue with raw sewage and wastewater. This necessarily inhibited the use of a public right of way and thus interfered with a right common to the general public, namely the ability to travel on a public road free from the potential exposure to raw sewage and infectious disease. Therefore, the plaintiff has sufficiently alleged a valid cause of action for both a negligent and absolute creation of a public nuisance and the defendant's motion to strike is denied with respect to counts twenty-six and twenty-seven.
With respect to count twenty-eight, in order to prevail on a claim for negligent infliction of emotional distress, a plaintiff must plead and prove: "(1) the defendant's conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiff's distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant's conduct was the cause of the plaintiff's distress." Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (2003).
This court recently noted that "[w]hile there is no direct appellate authority dealing with a claim for negligent infliction of emotional distress where the damage alleged is injury to property . . . [e]very Superior Court case that has addressed negligent infliction of emotional distress claims where the only damage was to property . . . has held that Connecticut courts do not recognize a cause of action for negligent infliction of emotional distress based solely on damage to property . . . These courts have reasoned that where the injury alleged is solely to property, it is not foreseeable to the defendant that its conduct could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm." (Citations omitted; internal quotation marks omitted.) Goldstein v. Rapp, Superior Court, judicial district of New London, Docket No. CV 104010224 (October 15, 2010, Martin, J.) ( 50 Conn. L. Rptr. 779, 781).
In Duffy v. Wallingford, 49 Conn.Sup. 109, 123, 862 A.2d 890 (2004), the court denied a motion for summary judgment on an emotional distress claim arising out of an alleged sewage flood, holding that the plaintiffs'" claims of emotional distress [arose] from their responses to the offensive exposure and continuing risk of exposure to raw sewage, not solely from the damage their property allegedly sustained as a result of the invasion of their home.
In the present case, the plaintiff argues that his emotional distress claim is not based solely on injuries to his property but rather from the routine and persistent flooding of the public right of way outside of his home with raw sewage and wastewater and from having to contact such materials with the risk of contracting an infectious disease. Count twenty-eight alleges that the "Stuart Avenue Pump Station frequently discharged raw sewage and wastewater into and on the Plaintiff's Property and surrounding public places" and continues to do so and will likely continue in the future. Further, the complaint alleges that Veolia "knew or should have known that its negligence in allowing raw sewage and wastewater to contact the Plaintiff and his Property involved a high risk of transmitting an infectious disease and an unreasonable risk of causing emotional distress which could result in illness or bodily harm to the Plaintiff." Similar to the plaintiffs in Duffy v. Wallingford, supra, 49 Conn.Sup. 122, the plaintiff's claim for negligent infliction of emotional distress in the present case arises out of his personal exposure to sewage and its effect upon him, as he allegedly "endured tension, distress, embarrassment and humiliation" as a result of the defendant's alleged conduct.
Construing the allegations in the plaintiff's favor, the court finds that the plaintiff has alleged injuries that are beyond those to his property. Accordingly, the court concludes that, by admitting these allegations as true for the purposes of this motion, it would be foreseeable to the defendant that its conduct in allowing raw sewage and wastewater to flood the plaintiff's property and surrounding public places could have caused emotional distress and that distress, if it were caused, might result in illness or bodily harm. Therefore, the plaintiff has alleged a sufficient cause of action for negligent infliction of emotional distress.
CONCLUSION
Based on the foregoing, the court hereby denies the defendant Veolia Water North America Operating Services, LLC's motion to strike counts twenty-six, twenty-seven and twenty-eight.