No. CV04-4001105 S
March 2, 2005
MEMORANDUM OF DECISION
The matter comes before the court by way of a Motion to Strike (#107) dated December 14, 2004, filed by the defendants, Mario Molliere and Sylvie Lefloch, challenging the sufficiency of the First and Second Counts of the Revised Complaint (#106) dated December 6, 2004. In brief, the plaintiff alleges that he was wounded by a rifle shot fired by an invited guest of the above-named defendants, who own and occupy the property located in proximity to that occupied by the plaintiff. The Revised Complaint contains six counts. Counts Four through Six apply only to the defendant, Arpad Szabo. The First Count alleges premises liability, and the Second Count alleges negligent supervision. The parties have filed memoranda of law and have asked the court to render a decision on the papers.
"It is fundamental that in 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.) Commissioner of Labor v. C.J.M. Services, Inc., 268 Conn. 283, 292, 842 A.2d 1124 (2004). "For the purpose of . . . [a] motion to strike . . . [the moving party] admits all facts well pleaded." (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 33 n. 4, 675 A.2d 852 (1996). "For the purpose of ruling upon a motion to strike, the facts alleged in a complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Murillo v. Seymour Ambulance Assn., Inc., 264 Conn. 474, 476, 822 A.2d 1202 (2003).
The gravamen of an action sounding in tort or negligence is the duty of a person to use care toward the person or property of another, the breach of which results in an injury to the person or property of another. In order for a party to recover on the basis of negligence, it is necessary to establish four elements: (1) there was a duty; (2) the defendant was, in fact, negligent (i.e., breached the duty); (3) there was an injury; and (4) that the negligence was the proximate cause of or a substantial factor in causing the injury to the plaintiff. Silano v. Cumberland Farms, Inc., 85 Conn.App. 450, 453 (2004) (premises liability case). Owners of real property do not have carte blanche to use their property in any manner that they see fit. Rather, "it is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. If the use is unreasonable the law will hold him responsible." Nailor v. Blakeslee Sons Inc., 117 Conn. 241, 245 (1933) (nuisance case).
Recently, in the case of Stokes v. Lyddy, 75 Conn.App. 252, 268-69 (2003), the Appellate Court had the opportunity to address the issue of premises liability. While the court declined to extend the Common Law liability to a landlord for the harm caused by an animal owned by his tenant to a person walking on a public sidewalk, it did set forth a two-pronged test that a trial court should apply in determining the "imperative" element in a negligence case — the duty to exercise reasonable care under all the facts and circumstances. The court must first consider the foreseeability that harm may result if care is not exercised, and then whether or not there are sufficient public policy concerns which warrant an extension of the duty under the circumstances. As to the former, it does not take a great intellectual leap to find that the discharge of a loaded firearm, in other than a controlled setting such as a shooting range, whether accidentally or on purpose, is reasonably likely to result in serious bodily injury, including death, to persons in the path of the bullet. As to the latter, public policy is determined, not by the courts, but rather by the legislature. For a court to do so, it would be, "exceeding [its] constitutional limitations by infringing on the prerogative of the legislature to set public policy though its statutory enactments." State v. Reynolds, 264 Conn. 1, 79 (2003). This court takes judicial notice of both the state and federal constitutions, as well as numerous statutes and ordinances regulating the possession and discharge of firearms, and finds that the issue implicates public policy. By way of example: Amendments to the Constitution of the United States, Article II; Article I § 15, Constitution of the State of Connecticut; General Statutes §§ 29-27 et. seq.; General Statutes §§ 27-35 and 27-36; and General Statutes §§ 53a-217a and 53a-217e.
In light of the foregoing, a review of the complaint shows that the plaintiff has pleaded sufficient facts to state a cause of action, and, therefore, the motion to strike the First and Second Counts should be denied.
The foregoing Motion to Strike (#107) is HEREBY DENIED.