Opinion
No. CV 08 5004879
November 13, 2008
MEMORANDUM OF DECISION RE POSITIVE ACT OF NUISANCE ALLEGED IN SUIT AGAINST MUNICIPALITY
Factual Background
On July 10, 2008, the plaintiff, Mary Monaco, filed a two-count complaint against the town of Old Saybrook (Old Saybrook) and Virginia Plant alleging that she slipped and fell due to an accumulation of ice and snow. The plaintiff alleges that a mound of ice and snow had accumulated between the sidewalk near Virginia Plant's store and an asphalt parking space adjacent to Main Street in Old Saybrook. When attempting to navigate the mound to reach her vehicle, the plaintiff fell on the asphalt and was injured. Count one against Old Saybrook sounds in nuisance under General Statutes § 52-557n. Count two against Virginia Plant sounds in negligence.
The Town of Old Saybrook has moved to strike count one from the complaint on the grounds that the plaintiff has not alleged that the defendant's positive acts caused the nuisance, that the existence of the snow mound was not unreasonable, and that the plaintiff failed to assert that the condition interferes with a right common to the general public. The parties have submitted memoranda in support of their respective positions.
Standard for deciding Motion to Strike
Practice Book § 10-39 provides in part that "Whenever any party wishes to contest the legal sufficiency of the allegations of any complaint . . . 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." Its purpose is to challenge the legal sufficiency of the allegations. However, the challenge must be directed to the words in the allegation. A `speaking' motion to strike (one imparting facts outside the pleadings) will not be granted. Zirinsky v. Zirinsky, 87 Conn.App. 257, 268 n. 9, 865 A.2d 488, cert. denied, 273 Conn. 916, CT Page 18053 871 A.2d 372 (2005); see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988). But "[n]othing in our cases suggests . . . that every argument in a motion to strike is rendered defective by the moving party's allegation of some fact not contained in the pleadings, regardless of whether that fact is relevant for each argument in the motion." Liljedahl Bros., Inc. v. Grisby, 215 Conn. 345, 348-49, 576 A.2d 149 (1990).
In her memorandum in opposition to the motion to strike, the plaintiff correctly asserts that the defendant relies on facts outside of the pleadings to support some of its arguments in the motion to strike. Specifically, the defendant argues that the plaintiff will not be able to prove the elements necessary for a nuisance claim, and furthermore, relies on facts outside of the pleadings to try to show that snow and ice piled on a sidewalk is not an unreasonable condition. As to those arguments, the motion here is a "speaking motion," but the defendant makes two other arguments which the court will address.
The first is that the plaintiff fails to allege a positive act by the defendant to create or contribute to the complained of condition. The second is that the plaintiff fails to allege that the condition complained of interferes with a right common to the general public. The plaintiff responds by arguing that her allegations are sufficient for a public nuisance claim against a municipality because she alleges a failure to act. She also argues that piling up snow and ice trapped her and others of her class and interfered with "the right of the public to pass and repass."
A common-law nuisance claim must allege 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 the proximate cause of the plaintiff's injuries and damages." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002).
"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 . . . [I]f the annoyance is one that is common to the public generally, then it is a public nuisance . . . 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." (Internal quotation marks omitted.) Ganim v. Smith and Wesson Corp., CT Page 18054 258 Conn. 313, 369, 780 A.2d 98 (2001). "[L]iability can be imposed on the municipality only in the event that, if the condition constitute[sj 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). "[I]n order to overcome the governmental immunity of municipal defendants where it applies, the plaintiff must prove that the defendants, by some positive act, intentionally created the conditions alleged to constitute a nuisance." Elliot v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998).
The parties disagree on the meaning of Keeney v. Old Saybrook, supra, 237 Conn. 135, and the application of that case to the facts in the present action. The Supreme Court in Keeney considered whether intentional failure to abate water pollution constituted a positive act by the municipality, concluding that "[w]ithout deciding what the law of municipal liability may be in other contexts, in light of the strong public policy manifested by the environmental protection statutes . . . a municipality may be liable for a public nuisance that it intentionally creates through its prolonged and deliberate failure to act to abate that nuisance." (Emphasis added.) Id., 166. The defendant in Keeney had knowledge of the nuisance and deliberately chose not to act. Indeed, the municipality had been ordered to take action to alleviate the pollution and did not do so.
To determine whether a municipality acts intentionally, the Keeney court adopted the Restatement (Second), Torts definition of intent: "It is the knowledge the actor has at the time [the actor] acts or fails to act that determines whether the invasion resulting from [its] conduct is intentional or unintentional. It is not enough to make an invasion intentional that the actor realizes or should realize that [its] conduct involves a serious risk or likelihood of causing the invasion. [The actor] must either act for the purpose of causing it or know that it is resulting or is substantially certain to result from [the actor's] conduct." Keeney v. Old Saybrook, supra, 237 Conn. 163-64.
Subsequent cases interpreting Keeney require that the plaintiff allege either a positive act or an intentional disregard of known hazards. See, e.g., Lisinski v. New London, judicial district of New London, Docket No. CV 03 056437 (November 1, 2005, Jones, J.) [ 40 Conn. L. Rptr. 227] (plaintiff's claim for public nuisance was sufficient where defendant had prolonged and deliberate failure to act to cure dangerous condition in a parking garage); Bentley v. New Haven, judicial district of New Haven, Docket No. CV 97 0403487 (September 1, 2001, Zoarski, J.) (plaintiff's allegation that defendant participated in creation, construction and maintenance of monument in public park that fell and injured plaintiff sufficient to state claim of public nuisance). But see Picco v. Voluntown, judicial district of New London, Docket No. CV 07 5100814 (April 11, 2008, Martin, J.) [ 45 Conn. L. Rptr. 355] (plaintiff did not assert positive act by the municipality, even though the defendant knew of defect in tree which caused it to be dangerous and failed to remedy defect).
In Lukas v. New Haven, 184 Conn. 205, 439 A.2d 949 (1981), the plaintiff slipped and fell on snow and ice and sued the city for creating a public nuisance because it only plowed the center of the street, thereby allowing snow to pile up over time on the sides of the road and lead to the condition complained of by the plaintiff. The public nuisance claim was insufficient because the plaintiff was unable to show any positive act by the defendant. The court in Keeney distinguishes Lukas by expanding the definition of a positive act to include an intentional failure to act in the fact-specific context of environmental protection statutes, it does not overturn the basic premise of Lukas that some positive act must be alleged by the plaintiff. The plaintiff disputes the applicability of Lukas, arguing that the facts in the present case are distinguishable because the plaintiff in Lukas involved a defective highway claim. This argument ignores the public nuisance claim also made in that case.
In the present case, the plaintiff argues that her claims are sufficient because she states in the complaint that "Old Saybrook created a public nuisance by allowing the snow and ice to pile up in the parking area for shoppers by failing to clear it of ice and snow." This claim is no different than the claim made in Lukas, supra, 184 Conn. 205. The plaintiff does not allege any positive acts by the defendant to contribute to or create the complained of condition, but only the passive act of "allowing" snow to pile up. The plaintiff states in the complaint that the condition existed before her use of the area, but does not allege that the defendant had knowledge of the dangerous condition. The plaintiff only alleges that the defendant failed to act, and, as in Picco v. Voluntown, supra, Superior Court, Docket No. CV 07 5100814, her "allegations do not meet the intentional invasion standard set forth in Keeney v. Old Saybrook," a case that presents the only narrow exception to Lukas.
Conclusion
For the foregoing reasons, the Motion to Strike of defendant Town of Old Saybrook is granted.