Opinion
No. 08 5005416
April 2, 2009
MEMORANDUM OF DECISION MOTION TO STRIKE NO. 103
I. BACKGROUND
The plaintiff alleges permanent injuries caused by a dog owned and kept by the defendant, Jane Harding. The plaintiff's complaint has been brought in four counts, three of which are the subject of the defendant's motion to strike; namely, the second count alleging recklessness; the third count alleging negligence or "gross negligence;" and the fourth count alleging the defendant's roaming dog created and constituted a public nuisance. The motion to strike is granted as to counts two and three, and is denied as to count four.
II. DISCUSSION A Standard For A Motion To Strike
Practice Book § 10-39 provides in relevant part: "(a) Whenever any party wishe[s] to contest (1) the legal sufficiency of the allegations of any complaint . . . or of any one or more counts thereof, to state a claim upon which relief can be granted, or (2) the legal sufficiency of any prayer for relief in any such complaint . . . that party may do so by filing a motion to strike the contested pleading or part thereof." "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). "[C]onsequently, [it] requires no factual findings by the trial court." (Internal quotation marks omitted.) Batte-Holmgren v. Commissioner of Public Health, 281 Conn. 277, 294, 914 A.2d 996 (2007). "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." (Internal quotation marks omitted.) Violano v. Fernandez, 280 Conn. 310, 318, 907 A.2d 1188 (2006). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991). In ruling on a motion to strike, "[t]he role of the trial court [is] to examine the [complaint], construed in favor of the plaintiffs, to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997).
B. Counts Two And Three Alleging Recklessness And Gross Negligence
The motion to strike counts two and three are granted because they allege identical facts and nonetheless conclude that count two constitutes recklessness and count three constitutes gross negligence. Although the plaintiff contends that her "gross negligence" count is intended as a claim of common-law negligence, the defendant responds that Connecticut has never recognized gross negligence as a separate basis of liability. See Decker v. Roberts, 125 Conn. 150, 157, 3 A.2d 855 (1939); see also Film v. Downing Perkins, Inc., 135 Conn. 524, 526, 66 A.2d 613 (1949); Matthiessen v. Vanech, 266 Conn. 822, 833 n. 10, 836 A.2d 394 (2003). Although there appears to be a few Superior Court decisions which have recognized a cause of action in gross negligence, see Lucas v. JSN, LLC, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 02 0187731 (August 9, 2005, Wilson, J.) (39 Conn. L. Rptr. 764, 766), the court need not reach this issue. Count three, as admitted by the plaintiff, is intended to be a negligence claim and should therefore be pled as a negligence cause of action.
The allegations in count two of the complaint are intended to constitute common-law recklessness and the allegations in count three are intended to constitute common-law negligence. "There is a wide difference between negligence and reckless disregard of the rights or safety of others . . . Simply using the word `reckless' or `recklessness' [in the complaint] is not enough. A specific allegation setting out the conduct that is claimed to be reckless or wanton must be made." Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958).
In the present case, the plaintiff alleges in both counts two and three that the defendant "knew or should have known the nature of her dog," and "knew or should have known that allowing her dog to roam freely . . . would result in injury." The second count of the plaintiff's complaint asserting recklessness incorporates the same factual allegations as are set forth in count three, intended to claim negligence. The only difference is that in count two the plaintiff alleges "that [the defendant] recklessly disregarded her dog's nature and allowed it to roam freely" causing injury to the plaintiff at the Essex Dog Park. These two counts therefore lack any distinguishable factual allegations which would separate the basis of recovery of one count from the other. The court further finds these factual allegations in count two, without further allegations of willful, wanton or reckless conduct, to be insufficient to constitute common-law recklessness. This lack of distinguishable factual allegations results in pleading a legal conclusion of recklessness without factual support. See Prudential Property Casualty Co. v. Connecticut Light Power Co., Superior Court, judicial district of New Haven at Meriden, Docket No. CV 96 0255016 (June 27, 1997, Gaffney, J.) (19 Conn. L. Rptr. 659).
C. Public Nuisance
Nuisance is not a monolithic cause of action. Historically, it was a "form of strict or absolute liability . . . [and] there has arisen a new concept of [n]uisance [a]rising out of [n]egligence . . ." D. Wright, J. Fitzgerald W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 128, p. 368. "Within the general framework of absolute nuisance and negligent nuisance there are two further classifications of nuisance: The public nuisance and the private nuisance." Id., § 130, p. 373. "A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land." (Citation omitted; internal quotation marks omitted.) Couture v. Board of Education, 6 Conn.App. 309, 314, 505 A.2d 432, 435 (1986). In contrast, "[t]o prove that a public nuisance exists, the plaintiff must prove, inter alia, 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 . . . 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." (Citations omitted; internal quotation marks omitted.) Boyne v. Glastonbury, 110 Conn.App. 591, 606-07, 955 A.2d 645, cert. denied, 289 Conn. 947, 959 A.2d 1011 (2008).
The defendant contends that there is no public nuisance where the plaintiff has failed to allege control over the property where the injury occurred, citing State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 527 A.2d 688, 692 (1987), in which absolute public nuisance was alleged against the firm which designed and supervised the construction of the Mianus River Bridge. In Tippetts, the Supreme Court upheld the trial court's ruling not to charge the jury under the theory of absolute public nuisance. In doing so, the court found that there was no basis in fact for the jury to find the defendant "exercise[d] sufficient control over the bridge, or the property to which it was affixed, to render them subject to nuisance liability." Id., 187.
In reciting the elements of nuisance in Tippetts, Justice Peters states that "to 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.) Id., 183. Justice Peters also noted that for absolute public nuisance to be proven, the plaintiff's burden includes proof "that the condition or conduct complained of interfered with a right common to the general public . . . [and, she further noted that to prove] that the alleged nuisance was absolute, [the plaintiff must adequately show] that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance." (Citations omitted.) Id. In the present case, the court is addressing a claim of public nuisance; not absolute public nuisance, as was the case in Tippetts.
In determining that the defendants did not "use" the property in Tippetts as required under element three of nuisance described above, the court commented that Connecticut "case law has established no bright-line test to determine when a defendant's connection to a particular parcel of property suffices to make it an unreasonable or unlawful `user' of that property. While the defendant in a nuisance action frequently is the owner of the property alleged to be the source of nuisance . . . property ownership is not a prerequisite to nuisance liability." (Citations omitted.) Id., 183-84. The court further commented that "[i]n lieu of a rule of general application, our cases frequently have applied a functional test to determine whether a defendant `uses' property in a manner sufficient to subject him to liability for nuisance. A critical factor in this test is whether the defendant exercises control over the property that is the source of nuisance . . . Similarly, when circumstances show that a defendant exercises de facto control over nuisance-causing property, the fact that title or possession of the property has been transferred to others does not absolve the defendant of liability for the nuisance." (Citations omitted.) Id., 184.
In the present case, the ownership or control of the land appears to be immaterial to the claim of public nuisance because the issue of ownership or control is critical to instances in which a plaintiff's injury is caused by a defect in the land itself, referred to in Tippetts as the "nuisance-causing property." In Tippetts, the plaintiff and not the defendant, owned and controlled the Mianus River Bridge. Therefore, any "use" or association the defendants had with the bridge, the so-called nuisance-causing property, had long passed. For this reason, the Supreme Court found that there was no basis for a claim of nuisance.
It appears that our case law does not necessarily require that a nuisance-related injury be caused by the land itself especially where a public nuisance is alleged. Instead, it is the use of land in the interference of a public right that distinguishes a public nuisance. Although decided on different grounds, for example, our Supreme Court has held that the premature release of roaming dog by a municipal dog warden was a sufficient allegation to withstand a demurrer for a count based on nuisance. Wright v. Brown, 167 Conn. 464, 356 A.2d 176 (1975). Therefore, in the instance of a roaming dog, it appears that the injury need not arise from the land itself or improvements thereon, which seem often the case in claims involving nuisance. In Wright, the court found "that the dog warden and the town allowed the dog to roam freely, which gave rise to a condition the natural tendency of which was to create danger." Id., 470.
Here it is alleged that the defendant is the owner or keeper of the dog, the instrument of the defendant's negligence and resulting injury to the plaintiff. It is alleged that it occurred in the use of the public dog park in Essex in a manner that was continuing and had a natural tendency to create danger and inflict injury. It is further alleged that the use of the land was unreasonable and a proximate cause of the plaintiffs' injuries while interfering with a right common to the general public. The court finds that the plaintiff has generally alleged the proper elements for a claim of public nuisance. However, the court specifically limits its finding to the sufficiency of the factual allegations concerning the defendant's use of the Essex dog park, which are sufficient to withstand a motion to strike count four of the complaint. As a functional matter, the defendant and her dog were using the land and the plaintiff need not allege control of the land to meet the "use" element required for a claim of public nuisance.
III. CONCLUSION CT Page 6111
Based upon the foregoing reasons, the motion to strike is granted as to counts two and three, and is denied as to count four.