PPA v. 12 (2012)

MEMORANDUM OF DECISION

This action comes before the court on the defendant's Motion to Strike Counts 6–11 as well as Counts 23 and 24 of the Amended Complaint.   The plaintiff does not oppose the motion insofar as Counts 6–11 are concerned and agrees that these may be stricken.   As to Counts 23 and 24, the motion is contested.

THE STANDARD OF REVIEW

“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).  “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).  “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).   The court “construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.”   Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 295 Conn. 240, 252.

DISCUSSION

Essential to disposition of the motion is the nature of the claims advanced in these counts.   The Counts appear identical in nature with the exception that 23 is directed towards the School District and 24 is directed towards the Board of Education.   The Complaint alleges that the plaintiff was playing in a high school soccer game on a soccer field maintained at a local high school and under the ownership and/or control of these defendants.   The field, it is alleged, had a fence and railing surrounding the boundary of the playing surface but less than ten feet from the edge of the playing surface.   Each count incorporates the allegation that the rules of the governing association, as adopted by these defendants, required a minimum of ten feet in distance between the playing surface and any surrounding obstruction.   The counts also allege that during the game, the plaintiff was pushed by an opposing player and fell into the fence, suffering significant injuries.   Each count alleges that the proximity of the fence to the field constituted a public nuisance for which the defendants are liable under Connecticut General Statutes § 52–557n.¹

The essential elements to establish a claim for nuisance are as follows:

This 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) Pestey v. Cushman, 259 Conn. 345, 355, 788 A.2d 496 (2002).   Citing Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 449 n.4, 736 A.2d 811 (1999).

Defendant's motion is predicated on the contention that the complaint fails to allege a public nuisance, there being no contention plaintiff can assert a claim for private nuisance.   The distinguishing features of a public nuisance have been described by the Connecticut Supreme Court in Ganim v. Smith & Wesson Corp., 258 Conn. 313, 369, 780 A.2d 98 (2001), citing Nolan v. New Britain, 69 Conn. 668, 678, 38 A. 703 (1897):

Nuisances are public where they violate public rights, and produce a common injury, and where they constitute an obstruction to public rights, that is, the rights enjoyed by citizens as part of the public ․ [I]f the annoyance is one that is common to the public generally, then it is a public nuisance ․ 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.

Defendants rely upon the case of Couture v. Board of Education, 6 Conn.App. 309, 314, 505 A.2d 432 (1986) which upheld the granting of a motion for directed verdict involving a claim for public nuisance against similar defendants also arising from an athletic contest.   In Couture, the plaintiff was injured during a football game (American style) when a player was forced out of bounds hitting the plaintiff and driving him into unprotected grandstands.   Of significance there was the fact that at the time of the collision, the plaintiff had been recruited to act as a sidelines official and was standing in an area not then accessible to the general public.   The specific language from Couture, and on which defendants rely, focuses on this;  “[T]he plaintiff's claim for recovery was based on his particular position in relation to the defendants.   At the time he was injured, the plaintiff was not exercising any right he held as a member of the general public.   In fact, he was in the area where he was injured only because of his special status as a game official.”  Id.

Here, the defendants correctly point out that at the time of the injury alleged, the plaintiff was on the soccer field as a player on a high school team, circumstances this court cannot infer were applicable to the public generally at the time of the injury.   Arguing that at the time of the injury, the plaintiff was not exercising a right of the general public, defendants say any claim for public nuisance must fail.

On the other hand, liberally construed, the allegations of these counts allege a condition which would also constitute a danger to the general public.   The Complaint alleges the field was open to the general public and, regardless of federation rules, was too close to the field of play.   In short, the condition alleged is one which could endanger any member of the public using the field for a vigorous game of soccer while the field was open to the public.   Many public facilities, particularly school grounds and athletic fields, are areas open to the public except when being used for a particular purpose such as school events.   Under defendant's reading of Couture, in hypothetical cases involving otherwise identical facts, circumstances and injuries, the plaintiff here would have a claim for public nuisance if he were playing with his friends in a pick up game when the field was open to the public, but no claim for the same injuries during a high school match.

The difficult question for the court then is whether Couture should be read as excluding claims for public nuisance, simply because at the moment of injury, the plaintiff was not acting as a member of the public.   While there is phrasing in the case which could lead to such a conclusion, this court declines to adopt that reading.  Couture 's holding was in the context of a directed verdict, where all evidence had been placed into the record and the circumstances of the nuisance claim were fully known.   These circumstances involved a player forced out of bounds who in turn drove a person standing on the sidelines as an official during a game into unpadded stands.   In that case, there was also some contention that team players not then in the game were allowed to crowd the sidelines hampering the plaintiff's ability to avoid the injury.   The court's decision in Couture could have reflected an assessment that such circumstances were unique to a game and could not exist when the field was open to the public.   In other words, a member of the public could never be injured in the same manner.   In the present case, this court cannot presently come to such a conclusion.

Second, Couture relied heavily on the decision in Higgins v. Connecticut Light & Power Co., 129 Conn. 606, 30 A.2d 388 (1943), which did not involve any differentiation of the rights the injured party was enjoying based on the time of the accident.   In Higgins, the plaintiffs had been injured while climbing thirty-foot trees and coming into contact with electrical lines.   The Couture court's reading of Higgins was that members of the general public would not be climbing thirty-foot trees and thus the claims did not rest on their rights as members of the general public.

“The essential element of the concept of nuisance is a continuing inherent or natural tendency to create danger and inflict injury.”  Carabetta v. Meriden, 145 Conn. 338, 339, 142 A.2d 727 (1958).   So long as that danger is continuous, legal protection should be afforded.   Where a party would suffer substantially the same exposure to substantially the same danger, the common law of nuisance should not deny protection to injured parties solely on the fortuitous capacity of their access at the moment of injury.

In this case, the plaintiff has alleged a condition which might constitute a danger to any member of the public enjoying the soccer field.   Liberally construed, this condition could constitute a nuisance to the public and the fact that the injury occurred while the plaintiff had access as a team member and not as a member of the general public should not, for that fact alone, shield the defendants.

CONCLUSION

Accordingly, the Motion to Strike is granted as to Counts 6 through 11 and denied as to Counts 23 and 24.

William J. Wenzel, Judge

FOOTNOTES

FN1. In relevant part, Connecticut General Statutes § 52–557n provides:(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:  ․ (c) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance ․.  FN1. In relevant part, Connecticut General Statutes § 52–557n provides:(a)(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by:  ․ (c) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance ․

Wenzel, William J., J.