Opinion
No. HHB CV09 5013138
January 7, 2010
MEMORANDUM OF DECISION ON MOTION TO STRIKE
The plaintiff Wilfredo Roman-Santiago has brought a two-count complaint for personal injuries arising out of a fall at the defendant's premises. The defendant Wakefern Food Corporation, doing business as PriceRite of New Britain, operates a retail grocery store. The plaintiff alleges that he slipped on a liquid substance in one of the aisles of the store. The first count alleges negligence under long-standing and well-understood principals of liability for maintaining a defective premises. For reasons known only to the plaintiff, he has also brought a second count sounding in nuisance.
The defendant has moved to strike the nuisance count, arguing unsurprisingly that a nuisance claim would ordinarily not be applicable in such a situation.
STANDARD FOR A MOTION TO STRIKE
In deciding a Motion to Strike, the court must read the allegations in the contested pleading in the light most favorable to the pleader. Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The purpose of a motion to strike is to contest the legal sufficiency of the allegations in the complaint and to challenge whether they state a claim upon which relief can be granted.
PRIVATE NUISANCE
The tort theory of nuisance is based on an unreasonable use of one's property to the injury of another. Under a theory of private nuisance, there can be no claim for personal injuries, only for injury to the property of another. See, e.g. W. Prosser W. Keeton, Torts (5th Ed. 1984) § 87, p. 619 ("The essence of a private nuisance is an interference with the use and enjoyment of land."); accord, Pesky v. Cushman, 259 Conn. 345, 360-61, 788 A.2d 496 (2002).
PUBLIC NUISANCE
In order to recover for personal injuries, the plaintiff must plead and prove that the defendant's conduct created a public nuisance. The elements of a public nuisance are: (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 condition or conduct complained of interferes with a right common to the general public. Keeney v. Old Saybrook, 237 Conn. 138, 162-63 (1996) ( reversed and remanded on other grounds); see Keeney v. Old Saybrook ( Keeney II) 239 Conn. 786, 686 A.2d 991 (1997).
The plaintiff must also show that the nuisance was a proximate cause of the personal injury. See State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987); Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978).
As to the last element, the test is not whether the nuisance in fact annoyed or injured a number of persons. Rather, the plaintiff must prove that the injury occurred while the plaintiff was exercising rights which are common to all members of the public, rights in which anyone in that circumstance was entitled to engage at the time. Id. Examples of the exercise of a public right are the use of the public water supply system id., or the use of a public right-of-way. Dyer v. Danbury, 85 Conn. 128, 81 A. 958 (1911).
The plaintiff alleges that he was a business invitee at the defendant's premises. This status is antithetical to the principal that the plaintiff was exercising a public right. A privately owned retail establishment is not a place in which members of the public are allowed to exercise their public rights. It is a private place to which members of the public may from time to time be invited, as the term "business invitee" implies.
CONCLUSION
The plaintiff cannot make out a cause of action for public nuisance by claiming he was caused to fall by the existence of a liquid spill in a private retail establishment. Accordingly the defendant's Motion to Strike the Second Count of the complaint is granted.