No. CV 06 5001303 S
October 3, 2006
MEMORANDUM OF DECISION RE MOTION TO STRIKE
This action sounds in negligence, a violation of the Connecticut General Statues § 41-110a (CUTPA) and nuisance. Plaintiff seeks damages arising from a slip and fall that occurred on May 14, 2004 in a multi-unit building owned by the defendant, 175 Realty LLC, which the plaintiff was a tenant of, located at 25 Sanford Place in Bridgeport, Connecticut. Plaintiff alleges that the fall was caused by an allegedly, worn, broken and deteriorated tread that existed on the stairway. The plaintiff's complaint alleged negligence, violation of General Statutes § 42-110a et seq. and nuisance. The defendant moved to strike the claims of violating Connecticut Statutes § 42-110a (CUTPA) and private nuisance on April 3, 2006. The purpose of a motion to strike is to evaluate the sufficiency of facts alleged to support a claim upon which relief can be granted. When deciding the motion "the court is limited to the facts alleged in the complaint." Faulkner v. United Technologies Corp., 240 Conn. 576, 580 (1997). The trial court must deny the motion to strike "[i]f facts provable in the complaint would support a cause of action . . ." Larobina v. McDonald, 876 A.2d 522, 527 (Conn., 2005).
In the Second Count, alleging the violation of General Statutes § 42-110a, the defendant argues that mailing a copy of the complaint to the Attorney General and the Commissioner of Consumer Protection is a requirement for the plaintiff to bringing this cause of action. General Statutes § 42-110g(c) provides in relevant part: "[u]pon commencement of any action brought under subsection (a) of this section, the plaintiff shall mail a copy of the complain to the Attorney General and the Commissioner of Consumer Protection . . ." The court in Cookes Equipment Co. v Stack, No. 29 55 39, 1990 WL 277364, at *4 (Oct. 12, 1990) suggested that "the Attorney General's office for whose benefit 42-110g(c) was written takes the position that failure to comply with the subsection . . . does not constitute a jurisdictional defect." Unlike other General Statutes that expressly provide that certain conditions must be adhered to in order to maintain a legal action pursuant to such statutes, General Statutes 42-110a has no provision that indicates that the mailing acts as a condition precedent to making a claim. The plaintiff's argument that her failure to allege such a mailing, in accordance with the statute, is not a jurisdictional defect in the instant case and does preclude the plaintiff from bringing this claim.
In addition to the supposed jurisdictional flaw, the defendant argues that the plaintiff failed to sufficiently allege that the defendant had actual or constructive knowledge of the stairway defect, as required for the CUTPA violation. "[L]iability of a landlord for damages resulting from a defective condition in an area over which the landlord exercises control generally depends upon proof that the landlord received either actual or constructive notice of the condition prior to the time of the plaintiff's injuries." Gore v. People's Savings Bank, 235 Conn. 360, 373 (1995). The Complaint, however, properly states that the defendant knew or in the exercise of reasonable care should have known of the hazardous condition created by the deteriorated treads. Because the plaintiff alleges facts that are sufficient to support a cause of action under General Statutes § 42-110a et seq., the motion to strike the Second Count cannot be granted.
The Third Count sounds in nuisance. The defendant argues that the claim is legally insufficient because the plaintiff has failed to sufficiently allege that the danger was continuous. The Complaint alleges Nuisance, but it does not distinguish between private versus public nuisance. "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word `nuisance.'" W. Prosser W. Keeton, (5th Ed. 1984) § 86, p. 616. Although there are some similarities between a public and a private nuisance, the two causes of action are distinct. Pestey v. Cushman, 259 Conn. 345, 352 (2002). Public nuisance is defined as "an unreasonable interference with a right common to the general public." Section 821B of the Restatement (Second) of Torts. 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. 4 Restatement (Second), supra, § 821D, cmt(c). By contrast, "[t]he essence of a private nuisance is an interference with the use and enjoyment of land." W. Prosser W. Keeton, Torts (5th Ed. 1984) § 87, p. 619.
The plaintiff alleges that the worn, broken and deteriorated treads of the common stairway existed for an unreasonable period of time . . . that had a tendency to create continuing danger . . . thereby creating a nuisance and that said condition invaded upon the plaintiff's use and enjoyment of the property. The complaint does not state that the defendant created an unreasonable interference upon the general public, which would warrant an interpretation of public nuisance. Even though the plaintiff's Claim is labeled ambiguously as Nuisance, it would be inconsistent to categorize this claim as anything but a private nuisance cause of action because of the nature of the incident, occurring in a private residence, which does not endanger the general public, where neither party is a municipal actor.
Connecticut has adopted the basic principles of § 822 of the Restatement (Second) of Torts that state in order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The defendant contends in his motion to strike that the Claim is insufficient because it fails to allege that the danger was a continuous one. However, as a private nuisance cause of action, the moving party is not required to show that the danger was a continuous one. "[F]or the purposes of a private nuisance claim . . . showing that the condition complained of had a natural tendency to create a continuing danger, is often irrelevant to a private nuisance claim. Pestey v. Cushman, 259 Conn. 345, 357 (2002). Therefore, the plaintiff has alleged facts sufficient to support a private nuisance cause of action.
A claim of private nuisance requires that a plaintiff prove three elements: (1) there was an invasion of the plaintiff's use and enjoyment of her property; (2) the defendant's conduct was the proximate cause of the invasion; and (3) the invasion was either intentional and unreasonable, or unintentional and the defendant's conduct was negligent or reckless. Pestey v. Cushman, 259 Conn. 345, 358 (2002). The Complaint properly alleges facts that are sufficient to support a cause of action under the private nuisance doctrine: plaintiff was a tenant in the premises owned by the defendant; plaintiff was caused to fall due to a broken and deteriorated stairway tread; and that the defective condition arose from the defendant's negligence. Accordingly, the plaintiff has alleged sufficient facts to support both causes of action the defendant moves to strike. The motion to strike is denied.