Francisca Ortiz v. City of Hartford et al. (2009)

MEMORANDUM OF DECISION ON MOTION TO STRIKE COUNT TWO

Count two of the plaintiff's five-count “third amended substitute complaint” alleges that the City of Hartford maintained a public nuisance by permitting the existence of an exposed “gear box” with a loose lid in the tree belt abutting premises at 86 Park Street over which plaintiff tripped.   The city moves to strike this count as insufficient.

The plaintiff alleges that the city created and maintained a “dangerous condition” and a “public nuisance” that violated Hartford Municipal Ordinance § 31-33 ¹ and was the direct and proximate cause of the plaintiff's injuries.  (Complaint, count two, ¶ 6-8.)

On June 12, 2009, this court dismissed counts three, four and five of the third amended substitute complaint on the ground that the plaintiff did not file the required statutory notice with MDC under General Statutes § 13a-149 [48 Conn. L. Rptr. 30].   The only remaining counts in this action are counts one and two, which are solely directed against the city.

The city argues that count two should be stricken because it fails to allege that the city created the nuisance through an intentional act.

A plaintiff must prove four elements to succeed in a nuisance cause of 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 plaintiffs' injuries and damages.  Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002).   In this case, where absolute public nuisance is alleged, the plaintiff's burden includes two other elements of proof:  (1) that the condition or conduct complained of interfered with a right common to the general public and (2) that the alleged nuisance was absolute, that is, that the defendants' intentional conduct, rather than their negligence, caused the condition deemed to be a nuisance.  State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987).

Furthermore, “[l]iability can be imposed on the municipality only in the event that, if the condition constitute[s] a nuisance, it was created by some positive act of the municipality ․ [F]ailure to remedy a condition not of the municipality's own making is not the equivalent of the required positive act in imposing liability in nuisance upon a municipality.”  Keeney v. Old Saybrook, 237 Conn. 135, 164, 676 A.2d 795 (1996).

Thus, in order to satisfy the pleading requirements for a public nuisance action, the plaintiff must allege that the city's intentional conduct caused the condition deemed to be a nuisance.   Although the plaintiff alleges that the city “created” a dangerous condition, she does not sufficiently plead what intentional conduct caused this condition.   In this court's decision on June 12, 2009 it was assumed without challenge that the gear box had been placed and maintained by the Metropolitan District.   Plaintiff's allegations that the city was negligent by failing to maintain the gear box and fix its loose lid are insufficient to constitute a cause of action for public nuisance against a municipality.

Motion to strike second count granted.

Wagner, J., JTR

FOOTNOTES

FN1. Section 31-33 of the Hartford Municipal Ordinances provides:  “It shall be the duty of the Director of Public Works to repair all sidewalks, curbs and gutters located in streets and abutting property belonging to the city or under the control of any department or agency of the city, together with curbs and gutters abutting city streets, except driveways not owned by the city.”.  FN1. Section 31-33 of the Hartford Municipal Ordinances provides:  “It shall be the duty of the Director of Public Works to repair all sidewalks, curbs and gutters located in streets and abutting property belonging to the city or under the control of any department or agency of the city, together with curbs and gutters abutting city streets, except driveways not owned by the city.”

Wagner, Jerry, J.T.R.