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Bothwell v. Nemser

Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
Jan 5, 2011
2011 Ct. Sup. 2349 (Conn. Super. Ct. 2011)

Opinion

No. FST CV 09 6002997 S

January 5, 2011


MEMORANDUM OF DECISION RE MOTION TO STRIKE (131.00)


FACTS

On December 30, 2009, Michael Bothwell, Peter Bothwell and Veronica Garcia Fusco (the plaintiffs) commenced this action against Earl Nemser arising out of an alleged collision at the intersection of Lower Cross Road and Lake Avenue in Greenwich, Connecticut. In the original complaint, the plaintiffs allege that on July 26, 2009, Michael Bothwell and his younger brother Peter Bothwell were riding separate bicycles on Lower Cross Road, with Michael riding his bicycle in front of Peter, while Nemser was driving his car on Lake Avenue. According to the complaint, Nemser drove past a yield sign at the intersection and struck Michael, causing Michael to be thrown through the air into the windshield of Nemser's car and then onto the ground. The plaintiffs allege that as a result of this collision, Michael bled, lost consciousness and "exhibited open and obvious physical deformities," while Peter, who witnessed the entire incident, sustained serious emotional injuries and incurred expenses for psychiatric treatment. The plaintiffs further allege that the collision caused Michael to sustain various injuries and medical expenses as a result of Nemser's negligence and carelessness. The original complaint was directed solely at Nemser and contained a claim for negligence on behalf of Michael (count one), a claim of bystander emotional distress on behalf of Peter (count two) and a claim of loss of consortium by Fusco, Michael's wife (count three).

On April 9, 2010, Nemser filed his answer, special defenses and counterclaim for apportionment against Michael Bothwell. On April 21, 2010, the plaintiffs filed a reply denying all of the allegations in Nemser's special defenses. On May 20, 2010, Nemser filed an apportionment complaint against Alex Kimia, Caren Kalisch and Michael Bothwell. In counts one and two of the apportionment complaint, Nemser alleges that at the time of the collision, Kimia and Kalisch owned real property at 951 Lake Avenue, which is adjacent to a road that connects Lower Cross Road and Lake Avenue. At the time of the collision, according to the apportionment complaint, a large shrub existed on the side of this connecting road that is closest to 951 Lake Avenue, and this shrub obstructed Nemser's line of sight as he approached the intersection, causing him to be unaware that Michael was approaching from his left, as a result of which Nemser was not able to see Michael until the time of the collision. Nemser claims that a proximate cause of any damages incurred by the plaintiffs was the negligence of Kimia and Kalisch because they knew or should have known that the shrub was an obstruction to motorists but failed to remove or report the obstruction. In count three of the apportionment complaint, Nemser also requests that a share of liability be apportioned to Michael because of Michael's alleged negligence in operating his bicycle at the time of the collision.

Though Nemser's apportionment complaint is dated April 27, 2010, it was registered on the docket on May 20, 2010.

Thereafter, on June 3, 2010, the plaintiffs filed an amended complaint, adding Kimia and Kalisch (hereinafter "the property defendants") as defendants. In the amended complaint, the first three counts are identical to the three counts of the original complaint. In counts four through six, the plaintiffs allege that at the time of the collision, the property defendants owned real property at 951 Lake Avenue "adjacent" to the intersection of Lower Cross Road and Lake Avenue. Furthermore, "a shrub existed on said property adjacent to the intersection" and "[t]he defendant, Earl Nemser, indicated that said shrub obstructed his view of the plaintiff, Michael Bothwell, at or near said intersection." The plaintiffs further allege that the "collision was caused by the negligence and/or carelessness" of the property defendants "[i]n that they planted, maintained, controlled and/or allowed said shrub to exist in an obstructive manner" and "[i]n that they knew or should have known that said shrub created an obstruction and failed to remove or report said obstruction." Counts four through six are directed at the property defendants. Count four is on behalf of Michael for negligence, count five is on behalf of Peter for bystander emotional distress, and count six is on behalf of Fusco for loss of consortium.

On July 30, 2010, Caren Kalisch filed her answer to Nemser's apportionment complaint. On August 4, 2010, Michael Bothwell filed his answer to Nemser's April 9 counterclaim. On October 5, 2010, the property defendants moved to strike counts four, five and six of the amended complaint on the ground that the plaintiffs have failed to allege facts that would support a claim that they owed the plaintiffs a legal duty. The motion is accompanied by a memorandum of law. On October 13, 2010, Nemser filed an objection to the motion to strike. On November 10, 2010, Michael Bothwell filed a memorandum in opposition to the motion. This court took the matter on the papers on December 6, 2010.

DISCUSSION

"Whenever any party wishes to contest . . . the legal sufficiency of the allegations of any complaint, counterclaim or cross claim, or of any one or more counts thereof, 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." Practice Book § 10-39(a). "[I]n 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.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252-53, 990 A.2d 206 (2010). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997). The court must "construe the complaint in the manner most favorable to sustaining its legal sufficiency . . . [I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010).

The property defendants move to strike the three counts of the amended complaint that are directed against them, arguing that Connecticut law, as interpreted by the Connecticut Supreme Court, grants local tree wardens exclusive control over trees standing within the limits of highways and parts of trees that extend within those limits, even if the trees themselves stand on private property. The property defendants argue that they owed a duty neither to the plaintiffs nor to Nemser to the extent that the shrub allegedly located on their property obstructed road users' line of sight. Furthermore, the property defendants state in their memorandum of law that they "respectfully submit that the town tree warden had sole responsibility for the limbs that extended into the roadway."

In his objection, Nemser argues that the amended complaint did not allege that the shrub that allegedly obstructed his line of sight extended into or over the public roadway but merely alleged that the shrub was on the property defendants' property. Accordingly, Nemser argues that the property defendants, and not the tree warden, had a duty to maintain the parts of the shrub located on their own property. In their opposition papers, the plaintiffs argue that both they and Nemser "have properly alleged a common law duty to maintain premises so as not to endanger other individuals" and have not alleged that the shrubbery extended over a public roadway.

General Statutes § 23-59 provides in relevant part that "[t]he town . . . tree warden shall have the care and control of all trees and shrubs in whole or in part within the limits of any public road or grounds and within the limits of his town" and that "[s]uch care and control shall extend to such limbs, roots or parts of trees and shrubs as extend or overhang the limits of any such public road or grounds." Furthermore, General Statutes § 23-65(d) provides in relevant part that "[t]he removal, pruning or wilful injury of any shrub . . . without the consent of the tree warden . . . within the limits of any public way our grounds . . . shall be subject to . . . penalty . . ." Interpreting the direct predecessors of these two statutes, the Connecticut Supreme Court has ruled "that the legislative intent was to vest exclusive control in the tree warden of all trees standing within the limits of a highway or of any parts of trees extending within those limits, though the trees themselves stand on private grounds, except as other public authorities have jurisdiction." Muratori v. Stiles Reynolds Brick Co., 128 Conn. 674, 678, 25 A.2d 58 (1942).

The property defendants have directed the court's attention to two Superior Court decisions that they submit have similar facts to the present case. In Heck v. Amica Mutual Ins. Co., Superior Court, judicial district of Fairfield, Docket No. CV 05 4005017 (October 26, 2005, Hiller, J.) ( 40 Conn. L. Rptr. 188, 188-89), an apportionment plaintiff "allege[d] that the stop sign through which the . . . tortfeasor drove was obscured by the overgrowth of a tree on property owned by the apportionment defendant . . ." The court ruled that while the tree might stand on the apportionment defendant's property, the statutes cited in the paragraph above "[vest] the care and control of limbs or branches which extend over a public road with the municipal tree warden," thereby granting the apportionment defendant's motion to strike. Id., 189. Similarly, in Watson v. Alpert, Superior Court, judicial district of New Haven, Docket No. CV 99 0432749 (September 26, 2002, Robinson-Thomas, J.) ( 33 Conn. L. Rptr. 171, 171), a plaintiff alleged that a motorist drove through a stop sign obstructed by tree limbs. The complaint alleged that the defendant's property contained "a tree with branches and leaves that extended into public space" and that the defendant violated municipal law by "permitting the tree located on his premises to extend into the street and extend above and in front of the stop sign so as to interfere with the use of the public space." (Internal quotation marks omitted.) Id., 172 n. 2. The court, citing the statutes vesting control of overextending tree limbs to municipal tree wardens, found that the defendant owed no duty of care to the plaintiff with regards to the tree growing on his property and granted summary judgment to the defendant. Id., 172.

Thus, in both Heck and Watson, the complaints contained allegations that tree limbs extended over public roadways. In contrast, no such allegation appears in the amended complaint in this case. Rather, in paragraphs twenty-six and twenty-seven of count four, the plaintiffs allege that "a shrub existed on said property adjacent to the intersection" and that "[t]he defendant, Earl Nemser, indicated that said shrub obstructed his view of the plaintiff, Michael Bothwell, at or near said intersection." Furthermore, in paragraph twenty-eight, the plaintiffs allege that the property defendants were negligent because "they planted, maintained, controlled and/or allowed said shrub to exist in an obstructive manner" and because "they knew or should have known that said shrub created an obstruction and failed to remove or report said obstruction." Construed in a manner most favorable to sustaining legal sufficiency, these paragraphs allege that the shrub was located on the property defendants' property and was situated in a way that obstructed Lake Avenue motorists' view of traffic approaching the intersection from Lower Cross Road. There is no allegation that the shrub obstructed the yield sign that Nemser is alleged to have driven past or that any part of the shrub extended over a public roadway. Thus, facts alleged in the amended complaint support a cause of action against the property defendants.

The allegations in count four are incorporated into counts five and six, and therefore the factual foundations for each of the three causes of action against Kimia and Kalisch are identical.

CONCLUSION

For the reasons stated above, the court denies Alex Kimia's and Caren Kalisch's motion to strike counts four through six.


Summaries of

Bothwell v. Nemser

Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford
Jan 5, 2011
2011 Ct. Sup. 2349 (Conn. Super. Ct. 2011)
Case details for

Bothwell v. Nemser

Case Details

Full title:MICHAEL BOTHWELL ET AL. v. EARL NEMSER ET AL

Court:Connecticut Superior Court Judicial District of Stamford-Norwalk at Stamford

Date published: Jan 5, 2011

Citations

2011 Ct. Sup. 2349 (Conn. Super. Ct. 2011)
51 CLR 251