Darlene McGowan v. Cape Cod Pilgrim Memorial Ass'n. of Provincetown (2011)

MEMORANDUM OF DECISION MOTION TO STRIKE (# 130)

A motion to strike challenges the legal sufficiency of the allegations of the complaint or any one or more counts thereof.  Practice Book § 10–39.   In ruling on a motion to strike, the court views the allegations of the complaint in a light most favorable to the pleader.  Blancato v. Feldspar, 203 Conn. 34, 36 (1987).

The plaintiff has filed an amended complaint, alleging negligence and public nuisance in this personal injury action.   The defendant moves to strike count two, arguing that the plaintiff has failed to sufficiently allege facts to support the nuisance count.

The following facts have been pled in the complaint.   While visiting the Cape Cod Pilgrim Memorial, the plaintiff was caused to slip and fall down stairs within the 100' granite tower that constitutes the memorial.   The plaintiff alleges that the defendant regularly solicits visitors to the memorial by means of mail and e-mail.   She makes the following allegations in support of her nuisance claim:

Paragraph 6. The defendant created and maintained an absolute nuisance by causing the steps in said monument to be painted with a non-textured high-gloss finish causing the surface of the steps to be slick.

Paragraph 7. The defendant created and maintained an absolute nuisance by installing poor and ineffective lighting which failed to reveal the hazardous condition of the stairs.

Paragraph 8. The stairs were for the use of visitors and patrons of the monument, the defendant created the condition, had actual notice of the condition and had a reasonable opportunity to make the condition safe.

A nuisance, whether public or private, describes an inherently dangerous condition that has a natural tendency to inflict injury upon persons or property.  Quinnet v. Newman, 213 Conn. 343, 348 (1990);  Kostyal v. Cass, 163 Conn. 92, 99 (1972).   To establish a nuisance, four elements must be proven:  (1) the condition complained of had a natural tendency to create a danger and inflict injury upon person or property;  (2) the danger created was a continuing one;  (3) the use of land was unreasonable or unlawful;  (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages.  State v. Tippets–Abbett–McCarthy–Stratton, 204 Conn. 177, 183 (1987).   Where absolute public nuisance is alleged, there are two additional 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, in that the defendant's intentional conduct caused the condition deemed to be a nuisance.  Id. (Citations omitted.)

The defendant raises four claims of legal insufficiency for the nuisance count.   The court will address them in seriatim.   First, the defendant argues that the facts pled do not sufficiently allege the first element, “natural tendency to create a danger and inflict injury.”   The court disagrees.   The complaint alleges that the defendant (1) painted the interior steps of a 100' granite tower with non-textured, high-gloss finish paint, that caused the steps to be slick, and (2) maintained lighting for the stairs that failed to reveal the hazardous condition of the stairs.   The court is persuaded that these facts sufficiently allege a natural tendency to create danger and inflict injury.

The defendant also argues that there are insufficient facts to establish the defendant's use of the premises as unlawful or unreasonable.   The same factual allegations support the plaintiff's allegation here;  namely, that a monument, 100' tall and made of stone, open for visitors, should have stairs and lighting that will permit safe ingress and egress.   The defendant's argument on the second and third elements of nuisance fails.

The defendant next argues that the plaintiff's complaint is insufficient as to the two additional elements of an absolute public nuisance action.   First, the defendant argues that the plaintiff failed to allege that the “defendant intended that the steps exist in a state constituting a nuisance.”   This element addresses whether the alleged nuisance was absolute.   The Appellate Court, in Green v. Ensign–Bickford Co., 25 Conn.App. 479, 490, cert. denied 220 Conn. 919 (1991), defined the element of intent as follows:  “[i]ntentional, in this context, means not that a wrong or the existence of a nuisance was intended, but that the creation of [it] intended to bring about the conditions which are in fact found to be a nuisance.”   The plaintiff has alleged that the defendant caused the steps to be painted in an improper paint type, used lighting that was insufficient to allow a visitor to discover the condition of the stairs, and that the defendant permitted these conditions to exist despite the opportunity to correct them.   The court finds that the element is sufficiently pled.

The defendant's final argument is that the plaintiff has failed to allege that the defective condition of the steps interfered with a right common to the general public.  “Public nuisance law is concerned 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 (2002).  “Generally, to prove the existence of a public right, a court looks to whether the alleged condition is one that is common to the public.  ‘The test is not the number of persons annoyed, but the possibility of annoyance to the public by the invasion of its rights.   A public nuisance is one that injures the citizens generally who may be so circumstanced as to come within its influence ․’ “ Kelsey v. Schoolground Three, Superior Court, judicial district of New Haven, CV–02–0460241, (March 18, 2005, Robaina, J.) (citations omitted).   When a public nuisance claim is brought on the basis of injuries occurring on private property, a different standard applies.   An individual who enters premises at the express or implied invitation of an owner does not come upon the premises in the exercise of any public right, but rather, is there by reason of a right extended to him by the owner, and the injured visitor to the premises cannot base his right to recover on the existence of a public nuisance.  Webel v. Yale University, 125 Conn. 515, 524–25 (1939).   See also Roy v. Mall at Bristol Care, Superior Court, judicial district of New Britain, CV–93–0531452 (January 19, 1999, Skolnick, J.) (“[i]t has been widely held that a plaintiff who alleges a claim for public nuisance as a result of a fall on privately owned property, although held open to the public, does not state a valid claim for relief”).

Here, the plaintiff alleges in her complaint that the defendant is a corporation organized and existing under the laws of Massachusetts and it operates the Pilgrim Monument where the plaintiff was allegedly injured.   The plaintiff also alleges that the defendant, through mail and e-mail, regularly solicits visitors to the monument and museum.   Nowhere, however, does the plaintiff allege facts that show that the condition of the monument's stairs interfered with a right common to the general public.   Sufficient facts must be alleged to show an interference with a right common to the general public, and must be reconcilable with the holding in Webel v. Yale University, supra.

For the foregoing reason, the motion to strike is granted.

Maureen M. Keegan, J.

Keegan, Maureen M., J.