No. CV09 600 08 23S
December 7, 2009
MEMORANDUM OF DECISION RE MOTION TO STRIKE #106
By writ, summons and complaint, the plaintiff, Shirley Walker, commenced this action against the defendant, the city of Derby, by service of process on May 20, 2009. The plaintiff filed a four-count revised complaint on July 28, 2009, in which she alleges the following relevant facts. On May 16, 2007, the plaintiff was walking northbound on the Naugatuck River Greenway (Derby Greenway) in Derby, Connecticut. The plaintiff walked toward the shoulder of the trail and "was caused to lose her balance and fall due to the step off from the trail to the shoulder," causing her to sustain personal injuries, losses and damages. She further alleges, inter alia, that: the defendant caused, allowed, and/or permitted a gravel shoulder to be placed adjacent to the asphalt walkway, as opposed to a grass shoulder, which deviated from the design documents of the Derby Greenway trail project; the walkway and shoulder were designed and constructed and maintained in a defective, unsafe and dangerous manner; and the defendant failed to remedy, repair or inspect same.
Service was placed in the marshal's hands on May 14, 2009, and served on the City Clerk on May 20, 2009. General Statutes § 52-593a(a) provides in relevant part: "(a) [A] cause or right of action shall not be lost because of the passage of the time limited by law within which the action may be brought, if the process to be served is personally delivered to a state marshal authorized to serve the process and the process is served, as provided by law, within thirty days of the delivery."
Count one of the revised complaint is brought pursuant to the defective highway statute, General Statutes § 13a-149; count two sounds in negligence and alleges that the plaintiff was an invitee; count three is brought "pursuant to [General Statutes] § 52-557n(a)(1)(A);" and count four is brought "pursuant to § 52-557n(a)(1)(C)," which provides in relevant part that a city may be liable for creating a nuisance.
On August 31, 2009, the defendant moved to strike the fourth count of the amended complaint on the ground that the plaintiff has failed to state a cause of action for a public nuisance. The defendant submitted a memorandum of law. The plaintiff filed a memorandum in opposition on September 16, 2009. Argument was heard at short calendar on October 13, 2009.
"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). "[F]or the purpose of a motion to strike, the moving party admits all facts well pleaded." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n. 2, 650 A.2d 153 (1994). Accordingly, "[i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009).
The defendant argues that the plaintiff has failed to plead an element necessary to a claim of public nuisance because she "alleges she was subjected to an allegedly dangerous condition on the [Derby] Greenway, no different in kind than the harm posed to any other member of the general public." The defendant further argues that to plead a claim of public nuisance, the plaintiff must set forth all essential elements of a private nuisance plus two additional elements: that the plaintiff suffered harm of a kind different from that suffered by other members of the public while exercising a right common to the general public, and that the public right being exercised was the subject of the alleged interference. It maintains that nowhere in the amended complaint does the plaintiff allege a harm of a different type, which must be different in kind, not merely in degree, than that allegedly suffered by the public at large. Lastly, the defendant argues that the plaintiff has also failed to allege the element that the defendant's use of the land is unlawful.
The plaintiff argues in response that she has properly alleged the facts necessary to assert a public nuisance claim and that the defendant's argument that she "does not have standing to assert [this claim] because she was not injured in a way different than the general public [is] contrary to the precise elements of public nuisance." She maintains that the case law cited by the defendant addressed claims of public nuisance where the injury alleged was merely a hardship or strain on the general public, and noted that most of that case law was decided prior to 1955. By stating the injury must be "different," those cases called for a specific individual to allege an injury, not that a specific individual be injured in a way that was so "unique or peculiar" to her as it could not have happened to anyone else.
A city may be liable for creating a nuisance pursuant to General Statutes § 52-557n(a)(1)(C), which provides in relevant part: "[A] political subdivision of the state shall be liable for damages to person or property caused by . . . acts of the political subdivision which constitute the creation or participation in the creation of a nuisance . . ." "Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety." Pestey v. Cushman, 259 Conn. 345, 357, 788 A.2d 469 (2002). "[A] plaintiff must prove four elements to succeed in a [public] nuisance action: (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 the proximate cause of the plaintiff['s] injuries and damages." (Internal quotation marks omitted.) Id., 355. "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).
"A clear public right has been held essential to a claim of public nuisance." Laezzo v. Park Royal of Bridgeport Condominium Assn., Inc., Superior Court, judicial district of Fairfield, Docket No. CV 09 5023067 (July 14, 2009, Bellis, J.) (granting motion to strike when plaintiff failed to allege that condition of land interfered with right common to public). "The courts have recognized a distinction between premises which are open for the general public to enter such as a store, a restaurant or a bar, and a public thoroughfare such as a sidewalk or public place." (Internal quotation marks omitted). Londen v. Mount Southington Ltd. Partnership, Superior Court, judicial district of New Haven, Docket No. CV 09 5004717 (June 23, 2009, Fischer, J.). Compare Gambino v. 3850 Main Street, LLC, Superior Court, judicial district of Fairfield, Docket No. 065005142 (February 26, 2009, Bellis, J.) (granting motion to strike public nuisance count because plaintiff failed to allege interference with a public right when plaintiff alleged injury due to defective interior stair on defendant's premises) with Rivera v. Beacon Falls, Superior Court, judicial district of Waterbury, Docket No. CV 08 5009832 (December 30, 2008, Bruetti, J.) (denying motion to strike public nuisance count when ball field allegedly constructed without adequate protection for public and plaintiff alleged injury arising out of contact with foul ball while exercising public right).
"Under the Restatement [(Second) Torts § 821(c)(1) (1965)] to recover in an individual action for a public nuisance one must have suffered a harm of a kind or type different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference. As the Restatement indicates in comments (d) and (h) where a public nuisance causes personal injury to the plaintiff or pecuniary loss that is certainly a harm normally different in kind from that suffered by the general public." (Internal quotation marks omitted.) Skeleton v. Chemical Leaman Tank Lines Inc., Superior Court, judicial district of New Haven, Docket No. CV 94 0359236 (May 13, 1996, Corradino, J.) ( 17 Conn. L. Rptr. 56, 59).
The defendant maintains that if the plaintiff cannot establish that the harm claimed is of a different kind than that suffered by the general public, the plaintiff fails to state a cause of action in public nuisance, relying on several cases for this proposition. See, e.g., Truesdale v. Greenwich, 116 Conn. 426, 428-29, 165 A. 201 (1933) (neighbors to park used by town for, inter alia, playing of professional games sought injunction and alleged special injury in that, inter alia, preservation of natural beauty of park was of great value, but failed to prove marketability of their properties was lessened by defacement of park); Taylor v. Cooke, 113 Conn. 162, 163-64, 154 A. 349 (1931) (owners of businesses near public way along beach claimed loss of business income and sought injunction against defendants who had obstructed public way with gates and fences). The plaintiffs in those actions failed to prove that the harm claimed was an injury that they suffered particularly. Moreover, the defendant argues that an injury in common with the public that differs only in degree, not in kind, is insufficient to sustain a claim of public nuisance, citing B D Molded Products, Inc. v. Vitek Research Corp., Superior Court, judicial district of Ansonia-Milford, Docket No. CV 97 060362 (August 17, 1998, Corradino, J.) ( 23 Conn. L. Rptr. 90) (present owner of property alleged public nuisance arising out of defendant's depositing hazardous waste on property over period of seven years while defendant was lessee of prior owner). In B D, Judge Corradino found that the plaintiff did not have standing to bring the action to vindicate the public right because the harm was not suffered while the plaintiff was exercising a right common to the general public. Id., 92.
In the present case, the plaintiff alleges that at the time of her injury, she was exercising a public right by using the Derby Greenway, which is open to the public use. She has alleged the infringement of a public right, and claims, inter alia, that the Derby Greenway was designed and constructed and maintained in a defective, unsafe and dangerous manner. Where a public nuisance allegedly causes specific personal injury to a plaintiff, that is certainly a harm different in kind and degree from that suffered by the general public. Insofar as the defendant argues that the plaintiff's alleged injury is not different in kind or degree from that sustained in common by the public because anyone using the Derby Greenway can be caused to fall and suffer similar injury, the defendant mischaracterizes the elements that must be alleged to sustain a claim of public nuisance.
For the forgoing reasons, the defendant's motion to strike count four is denied.