Opinion
No. CV-07-5100814
April 11, 2008
MEMORANDUM OF DECISION RE MOTIONS TO STRIKE (#117 AND #125)
Presently before the court are the motion to strike filed by three of the defendants, the town of Voluntown (town), Gilbert Grimm and Ronald Millovitsch (#117), and the motion to strike filed by the remaining defendants, the board of education of the town of Voluntown (board), Paul Ricard, Mary Chinigo and Diana Ingraham (#125). The defendants collectively move to strike all seventy counts of the revised complaint filed by the plaintiffs on March 16, 2007. At oral argument on January 22, 2008, the plaintiffs conceded that, in light of the Supreme Court's opinion in Durrant v. Board of Education, 284 Conn. 91, 931 A.2d 859 (2007), which was released in October 2007, the motions to strike should be granted on all counts except those alleging nuisance. Accordingly, the remaining issue is whether the court should grant the motions to strike as to the plaintiffs' claims of public nuisance against the town in counts six though ten and against the board in counts thirty-six through forty.
In the public nuisance counts at issue, the plaintiffs set forth the following facts. The defendants maintained control of a sports field, known as Constitution Field, adjacent to Voluntown Elementary School. About forty feet from the field, there was a white ash tree measuring approximately fifty-one inches in diameter and sixty feet in height. The tree had "a history of failure" such that the defendants knew or should have known of its dangerous and defective condition. In addition, the defendants knew or should have known of the tree's history of failure and dangerous propensities because they previously had removed from the ground large branches that had fallen from the tree and because they had obtained an estimate for the tree's removal and had been advised by a tree professional that the tree was dangerous and should be removed immediately.
On or about October 11, 2005, at about 5:30 p.m., the plaintiff Nicole Picco, who was a student at the school, was participating in a school-sponsored soccer game on the field. At that time, the plaintiffs Monica Picco, Joseph Picco, Jr., and Dominic Picco, who are the mother, father and brother of Nicole Picco, respectively, were waiting near the ash tree for the game to end, when a portion of the tree separated from the main trunk, split down to ground level and fell on Monica Picco, who was seriously injured as a result.
While the town and the board have expressed the basis for their respective motions to strike in somewhat different terms, the essence of their motions are the same: the plaintiffs have failed to allege that the nuisance was created by any positive act by the defendants. The plaintiffs respond by arguing that their claims of nuisance are legally sufficient because they have alleged that the defendants created the nuisance intentionally, and that the positive act requirement applies only in cases where a nuisance has been created negligently.
Our Supreme Court has stated "that [l]iability can be imposed on [a] municipality only in the event that, if the condition constitutes 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). "Indeed . . . 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. This requirement is necessary "in order to overcome the governmental immunity of municipal defendants where it applies"; Elliott v. Waterbury, 245 Conn. 385, 421, 715 A.2d 27 (1998); and repeatedly has been reaffirmed by the appellate courts of this state. See, e.g., Smith v. Greenwich, 278 Conn. 428, 437, 899 A.2d 563 (2006); Elliott v. Waterbury, supra, 245 Conn. 421; Lukas v. New Haven, 184 Conn. 205, 209-10, 439 A.2d 949 (1981); Wright v. Brown, 167 Conn. 464, 470, 356 A.2d 176 (1975); Brennan v. West Haven, 151 Conn. 689, 692, 202 A.2d 134 (1964); Brown v. Branford, 12 Conn.App. 106, 111-12, 529 A.2d 743 (1987).
In the present case, the plaintiffs have not alleged any facts indicating that the defendants, by any positive act, created the alleged nuisance. On the contrary, they have alleged that the defendants are responsible for the plaintiffs' injuries because they failed to act to remove the dangerous condition of the tree, although they knew or should have known of the danger it presented. "[F]ailure 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." Lukas v. New Haven, supra, 184 Conn. 210. Consequently, the allegations of the nuisance counts presently before the court do not meet the positive act requirement.
The case of Keeney v. Old Saybrook, supra, 237 Conn. 164, does not require a different conclusion. In Keeney, the plaintiff sought declaratory and injunctive relief and the imposition of civil penalties against the defendant town for allegedly failing to comply with outstanding environmental orders requiring the town to remedy defective septic systems that had been found to be polluting groundwater and the Connecticut River. Id., 137-39. Although the plaintiff in that case did not bring any claims of common-law nuisance, the court looked to the commonlaw of nuisance in interpreting the various environmental statutes at issue, which incorporated common-law public nuisance principles. Id., 162. The Supreme Court held that "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." Id., 166. In so holding, however, the court specifically stated that it was doing so "[w]ithout deciding what the law of municipal liability may be in other contexts . . ." Id. In interpreting Keeney, two judges of the Superior Court have concluded that the legal principles of municipality-created public nuisance set forth therein are limited to the narrow environmental context of that case, or at least to cases implicating public policy concerns similar to those present in environmental cases. See, e.g., Albon v. Wolcott, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 02 0169241 (December 2, 2002, Hodgson, J.) (33 Conn. L. Rptr. 437, 438); Lemp v. East Granby, Superior Court, judicial district of Hartford, Docket No. CV 99 0589417 (September 20, 2000, Rubinow, J.) (28 Conn. L. Rptr. 324, 329-30); but see Lisinski v. New London, Superior Court, judicial district of New London, Docket No. CV 03 0564377 (November 1, 2005, Jones, J.) (40 Conn. L. Rptr. 227, 231-32).
Even if the principles set forth in Keeney are applicable to the present case, the plaintiffs' allegations fail to meet the standard set forth in that case. Specifically, Keeney states that "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 Keeney court adopted the intent standard set forth in 4 Restatement (Second), Torts, § 825 (1979), comment (c) of which the court quoted as follows: "It is the knowledge that 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 or 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." (Emphasis in original; internal quotation marks omitted.) Keeney v. Old Saybrook, supra, 237 Conn. 163-64.
Although § 825 of the Restatement appears under the topic "Private Nuisance: Elements of Liability," the Keeney court applied it in the public nuisance context. The Supreme Court has since reasserted the distinction between public nuisance and private nuisance in the case of Pestey v. Cushman, 259 Conn. 345, 788 A.2d 496 (2002). The court in Pestey acknowledged that Connecticut's "nuisance jurisprudence ha[d] become muddled and [was] in need of clarification." Id., 355. The court further observed that "[a]lthough there are some similarities between a public and a private nuisance, the two causes of action are distinct. Indeed, Professors Prosser and Keeton in their treatise on the law of torts have stated: 'The two have almost nothing in common, except that each causes inconvenience to someone, and it would have been fortunate if they had been called from the beginning by different names.'" Id., 357, quoting W. Prosser W. Keeton, Torts (5th Ed. 1984) § 86, p. 618. It is not clear what effect, if any, Pestey has on the continued viability of the principles set forth in Keeney, inasmuch as they are based on the law of private nuisance.
Here, the plaintiffs allege that the defendants failed to remedy the defective condition of the tree although they knew or should have known of its dangerous condition. They have not alleged that the defendants acted, or failed to act, for the purpose of causing an injury or knowing that an injury was substantially certain to result. Their allegation that the defendants failed to act although they knew or should have known of a dangerous condition amounts to nothing more than an allegation of negligence. See Doe v. Advisors Healthcare Group, Superior Court, complex litigation docket at Waterbury, Docket No. X01 CV 02 0170300 (January 27, 2004, Sheedy, J.) (observing that "knew or should have known" is "talismanic language of a negligence cause of action"); Estate of Smith v. West Hartford, Superior Court, complex litigation docket at Tolland, Docket No. X07 CV 02 0080891 (July 28, 2003, Sferrazza, J.) ("knew or should have known" is "traditional negligence language"). Furthermore, the allegation that a tree specialist had told the defendants that the tree was dangerous and that it should be removed immediately does nothing more than provide support for the allegation that the defendants knew of the dangerous condition of the tree; as the Keeney court specifically stated, the actor's realization of a serious risk of injury is not sufficient to meet the intentional invasion standard. Keeney v. Old Saybrook, supra, 237 Conn. 163-64. Unless the defendants knew that an injury was substantially certain to result from the dangerous condition of the tree, they would not be liable even under the principles set forth in Keeney.
The plaintiffs have failed to allege in their nuisance counts that the alleged nuisance was created by any positive act of the defendants. Moreover, the plaintiffs' allegations do not meet the intentional invasion standard set forth in Keeney v. Old Saybrook. For these reasons, and because the plaintiffs have conceded that their remaining counts are barred by governmental immunity, the court grants in full the defendants' motions to strike.