Patrick Jullarine v. LLC (2011)

MEMORANDUM OF DECISION RE MOTION TO STRIKE, (# 106)

FACTS

On June 27, 2011, the plaintiff, Patrick Jullarine, filed a six-count revised complaint for negligence and private nuisance against the defendants Briarcliff Realty, LLC (Briarcliff), Excel Paving, LLC (Excel) and Rico Adams (Adams) for injuries the plaintiff suffered.   In the revised complaint,¹ the plaintiff alleges the following facts.   The plaintiff was a resident of lot 103 at the Briarcliff Mobile Home Park (the park), which was owned and operated by Briarcliff and located at 91 Buddington Road in Groton, Connecticut.   Briarcliff controlled, managed and maintained the sidewalks at the park.   In December of 2009, Briarcliff undertook to repair the sidewalks and walkways at the park, including the sidewalk in front of and adjacent to lot 103.   Briarcliff hired and/or retained the services of Excel and Adams to make the necessary repairs, which included the application of sealant and other paving materials to the walkways.

On December 20, 2009, “as the [p]laintiff walked on the sidewalk between his residence on [l]ot 103 and the adjacent residence on [l]ot 105, he stepped on sealant on a crack in the pavement improperly applied by” Briarcliff and its agents, servants and/or employees.   This caused the plaintiff to fall to the ground and suffer personal injuries, including a left femur fracture.   The plaintiff alleges that his injuries were caused by the defendants' negligence and creation of a private nuisance, as the defendants retained the services of inexperienced contractors/employees to make the repairs, failed to properly supervise the contractors/ employees, failed to ensure that the sealant was applied safely, failed to inspect the repairs, contracted for/undertook repairs that did not meet industry standards, knew or should have known of the dangerous condition that caused the plaintiff's injuries, failed to warn residents of the condition and failed to exercise reasonable care in keeping the sidewalks and walkways safe.   In counts two, four and six of the revised complaint, the plaintiff alleges that the condition that caused his injuries was a continuing one that was created by the unreasonable actions of the defendants and interfered with the plaintiff's use and enjoyment of his property.

On July 12, 2011, Briarcliff filed a motion to strike count two of the plaintiff's revised complaint on the ground that money damages for personal injuries arising from a private nuisance are not available to the plaintiff.²  Briarcliff has submitted a memorandum of law in support of the motion.   On July 20, 2011, the plaintiff filed an objection to the motion to strike and a memorandum of law in opposition to the motion.   This matter was heard on the short calendar on September 12, 2011.

DISCUSSION

“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).  “The role of the trial court in ruling on a motion to strike is to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)  Coe v. Board of Education, 301 Conn. 112, 117, 19 A.3d 640 (2011).  “In ruling on a motion to strike, the court is limited to the facts alleged in the complaint.”  (Internal quotation marks omitted.)  Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).

“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 ․ Indeed, pleadings must be construed broadly and realistically, rather than narrowly and technically.”  (Internal quotation marks omitted.)   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 252–53, 990 A.2d 206 (2010).   A motion to strike “admits all facts well pleaded;  it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings.”  (Internal quotation marks omitted.)  Doe v. Yale University, 252 Conn. 641, 694, 748 A.2d 834 (2000).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).

In its memorandum of law in support of the motion to strike, Briarcliff argues that there can be no claim for personal injuries under a theory of private nuisance.   Briarcliff therefore argues that its motion to strike count two of the plaintiff's revised complaint should be granted, as the allegations contained in that count are legally insufficient to support a private nuisance cause of action.   The plaintiff counters that personal injury damages are recoverable under a theory of private nuisance and that, therefore, the motion to strike count two should be denied.

“A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land ․ The law of private nuisance springs from the general principle that [i]t 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 ․ The essence of a private nuisance is an interference with the use and enjoyment of land.”  (Citations omitted;  internal quotation marks omitted.)  Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).  “[The Supreme Court] has stated often that 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.”  (Internal quotation marks omitted.)  Id., 355.

“A private nuisance exists only where one is injured in relation to a right which he enjoys by reason of his ownership of an interest in land.   In the modern authorities it [private nuisance] includes all injuries to an owner or occupier in the enjoyment of the property of which he is in possession, without regard to the quality of the tenure.”  (Internal quotation marks omitted.)   Webel v. Yale University, 125 Conn. 515, 525, 7 A.2d 215 (1939).

The Superior Court decisions are divided regarding the precise issue of whether an individual can recover damages for personal injuries under a private nuisance theory, and there is no appellate authority on the issue.   In Ayala v. B & B Realty Co., 32 Conn.Sup. 58, 337 A.2d 330 (1974), the court denied a motion to strike a private nuisance claim of a child who fell through a window screen over which the defendant landlord had control.   The court stated that “[o]nce the invasion of the property interest is established ․ consequential damages to the possessor which result from it, such as injuries to his own health ․ may be recovered.”  Id., 63.   Similarly, in Gesswin v. Beckwith, 35 Conn.Sup. 89, 397 A.2d 121 (1978), the court denied a motion to strike a private nuisance claim of a child who fell from a tree house on the defendant's premises.   In that case, the court reasoned that the “possessory status [is conferred] upon members of the family of a possessor of a property interest” in holding that the minor plaintiff had a sufficient property interest to support a private nuisance claim.  Id., 91.³

In MacLeod v. Gottlieb, Superior Court, judicial district of Fairfield, Docket No. CV 97 0345566 (July 27, 1998, Lager, J.) [22 Conn. L. Rptr. 456], the court rejected the holdings in Ayala v. B & B Realty Co. and Gesswin v. Beckwith in granting a defendant's motion to strike.   In that case, a minor child and his parents brought suit against their landlord to recover for personal injuries sustained by the child due to exposure to lead paint.  Id. The court stated:  “Historically, the tort of nuisance functioned to prevent an owner or occupier of land from engaging in activities within the boundaries of his property that are harmful to the property interests of his neighbors.   Thus, the typical case of private nuisance involves interference with the plaintiff's interest in his land or his enjoyment of his land as a result of the defendant's unlawful or unreasonable use of his land.”  Id. Further, “[t]he historical roots of common law nuisance as a tort against land are often forgotten, particularly as litigants seek to expand claims of nuisance to encompass personal injury claims arising out of negligence.”  Id. Private nuisance, the court stated, is “a tort founded on injury to land ․ [S]ince the tort of negligence is not dependent on the nature of the plaintiff's interest in the premises and does not require any damage to land or its use or enjoyment, a logical conclusion to be drawn ․ is that the tort of negligence provides the remedy when the tenant's claim is for damages for personal injury sustained as a result of a defective condition within the landlord's control.”  Id.

Footnote three in MacLeod v. Gottlieb reveals the court's reasoning in rejecting Ayala v. B & B Realty Co. and Gesswin v. Beckwith, as the court stated that those cases “relied on another Superior Court decision, Jubb v. Maslanka, 22 Conn.Sup. 373, 376–77, 173 A.2d 604 (1961), for the proposition that a cause of action for nuisance could be maintained under these circumstances ․ However, the Jubb court's conclusion that a cause of action in nuisance is proper is seriously undermined by the case of Schiavone v. Falango, 149 Conn. 293, 296, 179 A.2d 622 (1962) ․ In Schiavone, where the child of tenant was injured on a common stairway, the Supreme Court stated that ‘there could be no recovery on the ground of nuisance.’   Neither the Ayala nor Gesswin trial courts cited Schiavone, although it was decided after Jubb.” The court's assertion that Jubb v. Maslanka was weakened by Schiavone v. Falango, however, is tenuous.   In Schiavone v. Falango, the Supreme Court held that a two-year-old child who fell from a stairway exclusively controlled by the defendant could not maintain a private nuisance action, “[s]ince no interest in land was involved ․” Schiavone v. Falango, supra, 296.   That case, therefore, turned on the nature of the plaintiff's property interest, not on the type of injury the plaintiff suffered.   It did not affect the validity of Jubb v. Maslanka, Ayala v. B & B Realty Co. or Gesswin v. Beckwith regarding the proposition that a plaintiff with a sufficient property interest alleging private nuisance can recover personal injury damages.

Additionally, the court in MacLeod v. Gottlieb stated that the general measure of damages in a private nuisance case are diminution of the value of the affected land, specific special damages incurred to restore the land and “non-economic damages reflecting the discomfort and annoyance resulting from the nuisance ․ The mere fact, however, that damages can be awarded for discomfort, even physical discomfort, and annoyance does not convert nuisance into a tort of causing discomfort to people, rather it remains part of a single tort of causing injury to land.”  (Citations omitted;  internal quotation marks omitted.)  MacLeod v. Gottlieb, supra, Superior Court, Docket No. CV 97 0345566.   Further, in the recent case Roman–Santiago v. Wakefern Food Corp., Superior Court, judicial district of New Britain, Docket No. CV 09 5013138 (January 7, 2010, Pittman, J.), the court stated that “[u]nder a theory of private nuisance, there can be no claim for personal injuries, only for injury to the property of another.”   The court cited the treatise on the law of torts by Prosser and Keeton for the proposition that “[t]he essence of a private nuisance is an interference with the use and enjoyment of land.”  Id.;  W. Prosser & W. Keeton, Torts (5th Ed.1984) § 87, p. 619.

However, in their treatise Prosser and Keeton go on to state:  “And without it, the fact of personal injury, or of interference with some purely personal right, is not enough for such a nuisance.”  (Emphasis added.)   W. Prosser & W. Keeton, supra, p. 619 n.1, citing Mandell v. Pivnick, 20 Conn.Sup. 99, 100, 125 A.2d 175 (1956).  “[M]any interferences with personal comfort ․ which at first glance would appear to be wrongs purely personal to the landholder, are treated as nuisances because they interfere with that right to the undisturbed enjoyment of the premises which is inseparable from ownership of the property.”   W. Prosser & W. Keeton, supra, p. 619.   Thus, alleging personal injury alone is not enough to state a legally sufficient private nuisance cause of action;  however, once there is an allegation of interference with the use and enjoyment of land, personal injuries flowing from that interference are recoverable.

The holdings of MacLeod v. Gottlieb and Roman–Santiago v. Wakefern Food Corp. rest on the premise that private nuisance actions can only arise from injury to land, not injury to a person.   This is accurate only with regard to the initial inquiry of whether a plaintiff has alleged a sufficient property interest that was harmed by the defendant's conduct.   See, e.g., Webel v. Yale University, supra, 125 Conn. 525.   Once it has been determined, however, that there has been an interference with the use and enjoyment of land, personal injuries and discomfort resulting from that interference are inseparable from the harm caused to the land.   Such damages are therefore recoverable under a private nuisance theory.   4 Restatement (Second), Torts § 821D, comment (a) (1979) (“It is obvious from the history of the action for private nuisance that the interests originally protected were interests in the use and enjoyment of land ․ These interests continue to be the interests that are protected by actions for private nuisance.   When there is an invasion of these interests, the plaintiff may recover not only for harm arising from acts that affect the land itself and the comfortable enjoyment of it, but also for harm to members of his family and to his chattels”).

In the present case, the plaintiff has alleged personal injuries arising from a continuing, unreasonable danger created by Briarcliff that interfered with the plaintiff's use and enjoyment of his property.   Because a plaintiff alleging private nuisance can base their damages claim on personal injuries, count two of the plaintiff's revised complaint is legally sufficient to state a cause of action for private nuisance.

CONCLUSION

For the foregoing reasons, Briarcliff's motion to strike count two of the revised complaint is hereby denied.

Martin, J.

FOOTNOTES

FN1. The plaintiff filed an amended complaint on September 15, 2011, to correct a scrivener's error, which has since become the operative complaint pursuant to Practice Book § 10–60(a)(3).   The substantive allegations summarized herein remain unchanged..  FN1. The plaintiff filed an amended complaint on September 15, 2011, to correct a scrivener's error, which has since become the operative complaint pursuant to Practice Book § 10–60(a)(3).   The substantive allegations summarized herein remain unchanged.

FN2. On August 26, 2011, Excel filed a motion to strike count four of the revised complaint on separate grounds.   That motion is not addressed in this memorandum..  FN2. On August 26, 2011, Excel filed a motion to strike count four of the revised complaint on separate grounds.   That motion is not addressed in this memorandum.

FN3. Additionally, in Avery v. Congregational Church of Green's Farms, Superior Court, judicial district of Fairfield, Docket No. CV 93 308857 (April 6, 1994, Fuller, J.) (9 C.S.C.R. 534) (11 Conn. L. Rptr. 354), the court denied a cemetery owner's motion to strike a private nuisance claim brought by a woman who was struck by a headstone while visiting the grave site of her late husband.   The court concluded that the private nuisance claim could go forward, as the plaintiff had alleged a sufficient property interest.  Id. (“[T]he conduct of the plaintiff in visiting her husband's grave site may be a sufficient interest in the land to support a claim for private nuisance”);  see also Munz v. Abramson, 18 Conn.Sup. 198, 199–200 (1953) (denying a defendant's motion to strike a plaintiff's private nuisance action for personal injuries)..  FN3. Additionally, in Avery v. Congregational Church of Green's Farms, Superior Court, judicial district of Fairfield, Docket No. CV 93 308857 (April 6, 1994, Fuller, J.) (9 C.S.C.R. 534) (11 Conn. L. Rptr. 354), the court denied a cemetery owner's motion to strike a private nuisance claim brought by a woman who was struck by a headstone while visiting the grave site of her late husband.   The court concluded that the private nuisance claim could go forward, as the plaintiff had alleged a sufficient property interest.  Id. (“[T]he conduct of the plaintiff in visiting her husband's grave site may be a sufficient interest in the land to support a claim for private nuisance”);  see also Munz v. Abramson, 18 Conn.Sup. 198, 199–200 (1953) (denying a defendant's motion to strike a plaintiff's private nuisance action for personal injuries).

Martin, Robert A., J.